-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, F4FQAZkgr11S1gWfCFIdVIccDIZCGQTcVcRAr8uMzGpLqAwybM2t3RUCKhhEZcaO T4/5WaXA+JQCgISpLbU8Og== 0000927016-97-002430.txt : 19970912 0000927016-97-002430.hdr.sgml : 19970912 ACCESSION NUMBER: 0000927016-97-002430 CONFORMED SUBMISSION TYPE: S-3 PUBLIC DOCUMENT COUNT: 9 FILED AS OF DATE: 19970904 SROS: AMEX FILER: COMPANY DATA: COMPANY CONFORMED NAME: THERMOTREX CORP CENTRAL INDEX KEY: 0000875316 STANDARD INDUSTRIAL CLASSIFICATION: X-RAY APPARATUS & TUBES & RELATED IRRADIATION APPARATUS [3844] IRS NUMBER: 521711436 STATE OF INCORPORATION: DE FISCAL YEAR END: 0930 FILING VALUES: FORM TYPE: S-3 SEC ACT: SEC FILE NUMBER: 333-34909 FILM NUMBER: 97675030 BUSINESS ADDRESS: STREET 1: 10455 PACIFIC CENTER COURT CITY: SAN DIEGO STATE: CA ZIP: 92121-4339 BUSINESS PHONE: 6176221000 MAIL ADDRESS: STREET 1: 81 WYMAN STREET CITY: WALTHAM STATE: MA ZIP: 02254 FORMER COMPANY: FORMER CONFORMED NAME: THERMO ELECTRON TECHNOLOGIES CORP/DE DATE OF NAME CHANGE: 19600201 FILER: COMPANY DATA: COMPANY CONFORMED NAME: THERMO ELECTRON CORP CENTRAL INDEX KEY: 0000097745 STANDARD INDUSTRIAL CLASSIFICATION: MEASURING & CONTROLLING DEVICES, NEC [3829] IRS NUMBER: 042209186 STATE OF INCORPORATION: DE FISCAL YEAR END: 1230 FILING VALUES: FORM TYPE: S-3 SEC ACT: SEC FILE NUMBER: 333-34909-01 FILM NUMBER: 97675031 BUSINESS ADDRESS: STREET 1: 81 WYMAN ST STREET 2: P O BOX 9046 CITY: WALTHAM STATE: MA ZIP: 02254 BUSINESS PHONE: 6176221000 S-3 1 FORM S-3 AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 4, 1997 REGISTRATION NO. 333- - ------------------------------------------------------------------------------- - ------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION WASHINGTON, DC 20549 --------------- FORM S-3 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 --------------- THERMOTREX CORPORATION THERMO ELECTRON CORPORATION (EXACT NAME OF REGISTRANT AS (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) SPECIFIED IN ITS CHARTER) DELAWARE DELAWARE (STATE OR OTHER JURISDICTION OF (STATE OR OTHER JURISDICTION OF INCORPORATION OR ORGANIZATION) INCORPORATION OR ORGANIZATION) 52-1711436 04-2209186 (I.R.S. EMPLOYER IDENTIFICATION (I.R.S. EMPLOYER IDENTIFICATION NUMBER) NUMBER) 10455 PACIFIC CENTER COURT 81 WYMAN STREET, P.O. BOX 9046 SAN DIEGO, CALIFORNIA 92121-4339 WALTHAM, MASSACHUSETTS 02254-9046 (619) 646-5300 (617) 622-1000 (ADDRESS, INCLUDING ZIP CODE, AND (ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING TELEPHONE NUMBER, INCLUDING AREA CODE, OF REGISTRANT'S PRINCIPAL AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES) EXECUTIVE OFFICES) --------------- SANDRA L. LAMBERT, SECRETARY, THERMOTREX CORPORATION AND THERMO ELECTRON CORPORATION 81 WYMAN STREET, P.O. BOX 9046 WALTHAM, MASSACHUSETTS 02254-9046 (617) 622-1000 (NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE FOR BOTH REGISTRANTS) --------------- COPIES TO: SETH H. HOOGASIAN, ESQ. EDWIN L. MILLER, JR., ESQ. GENERAL COUNSEL, TESTA, HURWITZ & THIBEAULT, LLP THERMOTREX CORPORATION HIGH STREET TOWER VICE PRESIDENT AND GENERAL COUNSEL, 125 HIGH STREET THERMO ELECTRON CORPORATION BOSTON, MASSACHUSETTS 02110 81 WYMAN STREET, P.O. BOX 9046 (617) 248-7000 WALTHAM, MASSACHUSETTS 02254-9046 (617) 622-1000 --------------- APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time to time after the effective date of this registration statement. If the only securities being registered on this form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. [_] If any of the securities being registered on this form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, check the following box. [X] If this form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act of 1933, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [_] If this form is a post-effective amendment filed pursuant to Rule 462(b) under the Securities Act of 1933, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [_] If delivery of the Prospectus is expected to be made pursuant to Rule 434, check the following box. [_] --------------- CALCULATION OF REGISTRATION FEE - ------------------------------------------------------------------------------- - ------------------------------------------------------------------------------- TITLE OF EACH CLASS OF PROPOSED MAXIMUM AMOUNT OF SECURITIES TO BE REGISTERED AGGREGATE OFFERING PRICE(1) REGISTRATION FEE - ------------------------------------------------------------------------------ Common Stock of ThermoTrex Corporation ($.01 par value)...................... (2) - ------------------------------------------------------------------------------ Debt Securities of ThermoTrex Corporation................. (2)(3) - ------------------------------------------------------------------------------ Guarantees by Thermo Electron Corporation of Debt Securities of ThermoTrex Corporation(4).............. (2)(4) - ------------------------------------------------------------------------------ Common Stock of Thermo Electron Corporation ($1 par value)(5)................... (2) - ------------------------------------------------------------------------------ Total........................ $250,000,000 $75,758
- ------------------------------------------------------------------------------- - ------------------------------------------------------------------------------- (1) Estimated solely for the purpose of determining the registration fee in accordance with Rule 457(o) under the Securities Act of 1933. (2) There are being registered hereunder such principal amount or number of securities as may from time to time be issued, but in no event will the aggregate initial offering price of the securities registered hereunder exceed $250,000,000. The securities registered shall be deemed to include such indeterminate number of shares of Common Stock of ThermoTrex Corporation and Common Stock of Thermo Electron Corporation and such indeterminate amounts of Debt Securities of ThermoTrex Corporation as may be issued upon conversion or exchange of any securities registered hereunder that provide for conversion or exchange into other securities. (3) Plus accrued interest, if any. (4) No separate registration fee is required for the Guarantees in accordance with Rule 457(n) under the Securities Act of 1933. No separate consideration will be given for any Guarantee. (5) These shares may, under certain conditions, be delivered to the holders of ThermoTrex Corporation convertible debt securities who elect to convert such securities. The shares of Thermo Electron Corporation Common Stock being registered hereunder, if issued prior to the termination of the Thermo Electron Corporation Shareholder Rights Plan, shall include Rights to purchase a Unit consisting of one ten-thousandth of a share of Series B Junior Participating Preferred Stock. Prior to the occurrence of certain events, the Rights will not be exercisable or evidenced separately from the Common Stock. --------------- THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A), MAY DETERMINE. - ------------------------------------------------------------------------------- - ------------------------------------------------------------------------------- ++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++ +INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A + +REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE + +SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY + +OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT + +BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR + +THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE + +SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE + +UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF + +ANY SUCH STATE. + ++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++ Subject to completion, dated September 4, 1997 $250,000,000 THERMOTREX CORPORATION (A SUBSIDIARY OF THERMO ELECTRON CORPORATION) COMMON STOCK AND DEBT SECURITIES THERMO ELECTRON CORPORATION GUARANTEES OF THE DEBT SECURITIES OF THERMOTREX CORPORATION ThermoTrex Corporation (the "Company") may offer and sell from time to time, together or separately, shares of its common stock, $.01 par value per share (the "Common Stock"), and its debt securities ("Debt Securities"), which may be either senior debt securities ("Senior Securities") or subordinated debt securities ("Subordinated Securities"), consisting of debentures, notes and/or other unsecured evidences of indebtedness. As of the date of this Prospectus, the Company is a 52%-owned subsidiary of Thermo Electron Corporation ("Thermo Electron"). Thermo Electron will unconditionally guarantee on a senior or subordinated basis, as the case may be, the payment of principal of, premium, if any, and interest on the Debt Securities (the "Guarantees"). The Common Stock and the Debt Securities in one or more series (collectively, together with the Guarantees, the "Securities") may be offered, separately or together, at prices and terms to be set forth in one or more supplements to this Prospectus (each a "Prospectus Supplement") up to an aggregate initial offering price of $250,000,000. Any Debt Securities sold hereunder will be denominated in U.S. dollars. Specific terms of the Securities for which this Prospectus is being delivered will be set forth in the applicable accompanying Prospectus Supplement including, where applicable, (i) in the case of Debt Securities, the specific designation, aggregate principal amount, denominations, maturity, premium, rate of interest (or method of calculation thereof) and time of payment thereof, terms for redemption at the option of the Company or the holder, terms for any sinking fund payments, subordination provisions, if any, terms, if any, providing for conversion of the Debt Securities into Common Stock (or, in certain instances, cash or common stock of Thermo Electron in lieu thereof), the form of the Debt Securities (which may be registered or bearer, or certificated or global), the initial public offering price and certain other terms of the offering and sale of the Debt Securities and the terms of the Guarantees in respect of which this Prospectus is being delivered; and (ii) in the case of Common Stock, the number of shares and initial public offering price of the Common Stock and certain terms of the offering and sale thereof. The Prospectus Supplement may also contain information, as applicable, about certain U.S. federal income tax considerations relating to, and any listing on a securities exchange of, the Securities for which the Prospectus Supplement is being delivered. The Common Stock is listed on the American Stock Exchange. Any Common Stock offered will be listed, subject to notice of issuance, on such exchange. The Securities may be sold by the Company and Thermo Electron directly or indirectly through agents, underwriters or dealers as designated from time to time, or through a combination of such methods. See "Plan of Distribution." The applicable accompanying Prospectus Supplement will set forth the names of any underwriters, dealers or agents involved in the sale of the Securities in respect of which this Prospectus is being delivered and any applicable fee, commission or discount arrangements with them. See "Plan of Distribution" for possible indemnification arrangements with underwriters, dealers and agents. This Prospectus may not be used to consummate sales of Securities unless accompanied or, to the extent permitted by applicable law, preceded by a Prospectus Supplement. THE SECURITIES OFFERED HEREBY INVOLVE A HIGH DEGREE OF RISK. SEE "RISK FACTORS" AT PAGE 5. THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE. The date of this Prospectus is , 1997. AVAILABLE INFORMATION Both the Company and Thermo Electron are subject to the informational requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance therewith file reports, proxy statements and other information with the Securities and Exchange Commission (the "Commission"). Such reports, proxy statements and other information can be inspected and copied at the public reference facilities maintained by the Commission at 450 Fifth Street, N.W., Washington, DC 20549; and at the Commission's regional offices at 500 West Madison Street, Chicago, Illinois 60661; and 7 World Trade Center, New York, New York 10048. Copies of such material can be obtained by mail from the Public Reference Section of the Commission at 450 Fifth Street, N.W., Washington, DC 20549, at prescribed rates. The Commission also maintains a Web site that contains reports, proxy and information statements and other information regarding registrants that file electronically with the Commission, including the Company and Thermo Electron; the address of such Web site is http://www.sec.gov. The Common Stock is listed on the American Stock Exchange, and such material that relates to the Company may also be inspected at the offices of the American Stock Exchange, 86 Trinity Place, New York, New York 10006. Thermo Electron's common stock is listed on the New York Stock Exchange, and such material that relates to Thermo Electron may also be inspected at the offices of the New York Stock Exchange, 20 Broad Street, New York, New York 10005. The Company and Thermo Electron have filed with the Commission a Registration Statement on Form S-3 (herein, together with all amendments and exhibits, referred to as the "Registration Statement") under the Securities Act of 1933, as amended (the "Securities Act"), of which this Prospectus constitutes a part. This Prospectus does not contain all of the information set forth in the Registration Statement, certain parts of which are omitted in accordance with the rules and regulations of the Commission. For further information, reference is made to the Registration Statement. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE THE COMPANY The following documents filed with the Commission by the Company (File No. 1-10791) are hereby incorporated by reference into this Prospectus: (a) Annual Report on Form 10-K for the fiscal year ended September 28, 1996, as amended; (b) Quarterly Report on Form 10-Q for the fiscal quarter ended December 28, 1996; (c) Quarterly Report on Form 10-Q for the fiscal quarter ended March 29, 1997; (d) Quarterly Report on Form 10-Q for the fiscal quarter ended June 28, 1997; and (e) The description of the Common Stock, which is contained in the Company's Registration Statement on Form 8-A filed under the Exchange Act, as such description may be amended from time to time. THERMO ELECTRON The following documents filed with the Commission by Thermo Electron (File No. 1-8002) are hereby incorporated by reference into this Prospectus: (a) Annual Report on Form 10-K for the fiscal year ended December 28, 1996, as amended; (b) Quarterly Report on Form 10-Q for the fiscal quarter ended March 29, 1997; (c) Quarterly Report on Form 10-Q for the fiscal quarter ended June 28, 1997; (d) Current Report on Form 8-K filed with the Commission on January 22, 1997 with respect to Thermo Instrument Systems Inc.'s acquisition of Life Sciences International PLC; 3 (e) The description of Thermo Electron's common stock which is contained in Thermo Electron's Registration Statement on Form 8-A filed under the Exchange Act, as such description may be amended from time to time; and (f) The description of Thermo Electron's Preferred Stock Purchase Rights which is contained in Thermo Electron's Registration Statement on Form 8-A filed under the Exchange Act, as such description may be amended from time to time. ---------------- All documents filed by the Company or Thermo Electron pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of this Prospectus and prior to the termination of the offering of the Securities shall be deemed to be incorporated by reference into this Prospectus and to be a part hereof from the respective dates of filing of such documents. Any statement contained herein or in a document all or any portion of which is incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Prospectus to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such earlier statement. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Prospectus. Thermo Electron will provide without charge to any person to whom this Prospectus is delivered, upon the written or oral request of such person, a copy of any or all of the foregoing documents incorporated herein by reference (other than certain exhibits to such documents). Requests for such copies should be directed to Sandra L. Lambert, Secretary, Thermo Electron Corporation, 81 Wyman Street, P.O. Box 9046, Waltham, Massachusetts 02254-9046 (telephone: (617) 622-1000). 4 RISK FACTORS In addition to the other information in this Prospectus and the applicable Prospectus Supplement, prospective purchasers of the Securities offered hereby should carefully consider the risk factors set forth in the Company's most recent Annual Report on Form 10-K. THE COMPANY The Company and its subsidiaries develop, manufacture and market products such as mammography and needle-biopsy systems, general purpose X-ray systems and personal care products, as well as laser-based hair removal services. The Company also conducts advanced technology research in communications, avionics, X-ray detection, signal processing, advanced-materials technology, and lasers. ThermoLase Corporation ("ThermoLase"), a majority-owned subsidiary of the Company, has developed a laser-based system for the removal of unwanted hair, which is being marketed in the United States through ThermoLase's Spa Thira salons and through licensing agreements with physicians, and in foreign countries through joint ventures and other licensing arrangements with companies or individuals. In addition, ThermoLase's wholly-owned CBI Laboratories, Inc. subsidiary manufactures and markets skin-care and other personal-care products. On August 12, 1997, ThermoLase sold an aggregate of $115 million principal amount of its 4 3/8% subordinated debentures due 2004. The ThermoLase debentures are convertible into shares of ThermoLase common stock at $17.385 per share. Trex Medical Corporation ("Trex Medical"), a majority-owned subsidiary of the Company, designs, manufactures and markets mammography equipment and minimally invasive stereotactic breast-biopsy systems used for the detection of breast cancer, as well as general radiography (X-ray) equipment. In addition, Trex Medical manufactures specialized X-ray equipment, including imaging systems used in the diagnosis and treatment of coronary artery disease and other vascular conditions, and radiographic fluoroscopy systems used to diagnose gastrointestinal disorders and other conditions. The Company was incorporated in December 1990 as a wholly-owned subsidiary of Thermo Electron. The Company completed an initial public offering of its Common Stock on July 24, 1991. Thermo Electron owned 9,914,990, or approximately 52%, of the total outstanding shares of the Company's Common Stock as of July 31, 1997. The Company's principal executive offices are located at 10455 Pacific Center Court, San Diego, California 92121-4339, and its telephone number is (619) 646-5300. THERMO ELECTRON Thermo Electron develops, manufactures and markets environmental monitoring and analysis instruments; biomedical products including heart-assist devices, respiratory care equipment, and mammography systems; paper-recycling and papermaking equipment; alternative-energy systems; industrial process equipment; and other specialized products. Thermo Electron also provides a range of services for the personal care, environmental, laboratory analysis, and metals-processing industries, and conducts advanced-technology research and development. Thermo Electron performs its business through its divisions and wholly owned subsidiaries, as well as majority-owned subsidiaries that are partially owned by the public or by private investors. Thermo Electron has developed leading market positions in many lines of business, including environmental monitoring and analysis instruments, mammography systems, biomass power plants, and paper-recycling equipment and papermaking accessories. Thermo Electron is currently seeking to establish leading market positions in the fields of left ventricular-assist systems, explosives-detection systems, thermal soil-remediation services and dedicated natural gas engines. Thermo Electron is developing new products in its Advanced Technologies segment, as well as other segments. 5 A key element in Thermo Electron's growth has been its ability to commercialize innovative products and services emanating from research and development activities conducted at Thermo Electron's various subsidiaries and divisions. Thermo Electron's strategy has been to identify business opportunities arising from social, economic and regulatory issues and seek a leading market share through the application of proprietary technology. As part of this strategy, Thermo Electron continues to focus on the acquisition of complementary businesses that can be integrated into existing core businesses to leverage Thermo Electron's access to new markets. Thermo Electron believes that maintaining an entrepreneurial atmosphere is essential to continuing its growth and development. In order to preserve this environment, Thermo Electron adopted the strategy of having certain subsidiaries sell a minority interest to outside investors. Thermo Electron believes that this strategy provides additional motivation and incentives for the management of the subsidiaries through the establishment of subsidiary- level stock option incentive programs, as well as capital to support the subsidiaries' growth. Thermo Electron's wholly owned and majority-owned subsidiaries are provided with centralized strategic planning, corporate development, administrative, financial and other services that would not be available to many independent companies of similar size. Thermo Electron, a Delaware corporation, was founded in 1956, completed its initial public offering in 1967, and was listed on the New York Stock Exchange in 1980. The principal executive office of Thermo Electron is located at 81 Wyman Street, Waltham, Massachusetts 02254-9046 (telephone: 617-622-1000). USE OF PROCEEDS Except as otherwise provided in the applicable Prospectus Supplement, the net proceeds from the sale of the Securities will be used by the Company for general corporate purposes, which may include repayment of outstanding indebtedness, capital expenditures, working capital requirements, research and development, repurchase of its Common Stock and other securities and the securities of any of its subsidiaries through open-market purchases or otherwise, and possible future acquisitions. The precise amount and timing of the application of such proceeds will depend upon the funding requirements of the Company, and the availability and cost of other funds. Allocation of the proceeds of particular Securities, or the principal reasons for the offering if no such allocation has been made, may be described in the applicable Prospectus Supplement. Pending these uses, the Company expects to invest the net proceeds primarily in investment grade interest or dividend bearing instruments, either directly by the Company or pursuant to a repurchase agreement with Thermo Electron. The Company's cash equivalents may be invested from time to time pursuant to a repurchase agreement with Thermo Electron. Under this agreement, the Company in effect lends excess cash to Thermo Electron, which Thermo Electron collateralizes with investments principally consisting of corporate notes, United States government agency securities, money market funds, commercial paper, and other marketable securities, in the amount of at least 103% of such obligation. The Company's funds subject to the repurchase agreement will be readily convertible into cash by the Company. The repurchase agreement currently earns a rate based on the 90-day Commercial Paper Composite Rate plus 25 basis points, set at the beginning of each quarter. 6 RATIOS OF EARNINGS TO FIXED CHARGES The following table sets forth the historical ratios of earnings to fixed charges of the Company and its subsidiaries, and of Thermo Electron and its subsidiaries, for the periods indicated. For purposes of computing the ratios of earnings to fixed charges, "earnings" represent income (loss) from continuing operations before taxes and cumulative effect of change in accounting principle, adjusted for minority interest in losses of consolidated subsidiaries and minority interest in consolidated subsidiaries with fixed charges, plus fixed charges, excluding capitalized interest. "Fixed charges" for continuing operations consist of interest on indebtedness and amortization of debt expense, capitalized interest and one-third of rental expense, which is deemed to be the interest component of such rental expense.
SIX MONTHS NINE MONTHS FISCAL YEAR (1) ENDED ENDED ---------------------------- JUNE 30, 1997 JUNE 30, 1997 1992 1993 1994 1995 1996 (THERMO ELECTRON) (THERMOTREX) ---- ---- ----- ------ ----- ----------------- ------------- THERMOTREX CORPORATION: Ratio of earnings to fixed charges.......... 2.58 3.57 30.00 119.41 37.04 N/A 3.42 THERMO ELECTRON CORPORATION: Ratio of earnings to fixed charges.......... 3.05 3.21 3.63 4.17 4.18 4.89 N/A
- -------- (1) Thermo Electron's fiscal years ended on January 2, 1993, January 1, 1994, December 31, 1994, December 30, 1995 and December 28, 1996. The Company's fiscal years ended on January 2, 1993, January 1, 1994, December 31, 1994, September 30, 1995 and September 28, 1996. In September 1995, the Company changed its fiscal year end from the Saturday nearest December 31 to the Saturday nearest September 30. DESCRIPTION OF DEBT SECURITIES OF THE COMPANY AND THE GUARANTEES The following description sets forth certain general terms and provisions of the Debt Securities of the Company to which any Prospectus Supplement may relate. The particular terms of the Debt Securities offered by any Prospectus Supplement and the extent, if any, to which such general provisions may not apply to the Debt Securities so offered will be described in the Prospectus Supplement relating to such Debt Securities. The Debt Securities constitute either senior Debt Securities (the "Senior Securities") or subordinated Debt Securities (the "Subordinated Securities"). The Debt Securities will be unconditionally guaranteed by Thermo Electron as to payment of principal, premium, if any, and interest and Additional Amounts (as hereinafter defined), if any, except that the Subordinated Securities will be guaranteed on a subordinated basis. See "Guarantees" and "Subordination of Subordinated Guarantees." The Senior Securities and related Guarantees are to be issued under an Indenture (the "Senior Indenture"), to be entered into among the Company, Thermo Electron, as Guarantor, and Bankers Trust Company, as trustee (the "Trustee"), the form of which Senior Indenture is incorporated by reference as an exhibit to the Registration Statement containing this Prospectus. The Subordinated Securities and related Guarantees will be issued under an Indenture (the "Subordinated Indenture"), to be entered into among the Company, Thermo Electron, as Guarantor, and Bankers Trust Company, as trustee (in such capacity, also the "Trustee"), the form of which Subordinated Indenture is also filed as an exhibit to the Registration Statement containing this Prospectus. The Senior Indenture and the Subordinated Indenture are sometimes collectively referred to herein as the "Indentures." The following summary of certain provisions of the Debt Securities and the Indentures does not purport to be complete and is subject to, and qualified in its entirety by reference to, all the provisions of the Indentures, including the definitions therein of certain terms. Wherever particular provisions or defined terms of the Indentures are referred to, such provisions or defined terms are incorporated herein by reference. Certain defined 7 terms in the Indentures are capitalized herein. Article or section references in parentheses are to the applicable Indenture. References in this section to the "Company" are solely to ThermoTrex Corporation and not to any of its subsidiaries, and references in this section to the Guarantor or to Thermo Electron are solely to Thermo Electron Corporation and not to any of its subsidiaries. Unless otherwise indicated, currency amounts in this Prospectus and any Prospectus Supplement are stated in United States dollars ("$," "U.S. Dollars" or "dollars"). GENERAL The Indentures do not limit the aggregate principal amount of Debt Securities that may be issued thereunder and provide that Debt Securities may be issued thereunder up to an aggregate principal amount that may be authorized from time to time by the Company. Debt Securities may be issued in one or more series thereunder. The Senior Securities will be unsecured obligations of the Company and will rank on a parity with all other unsecured and unsubordinated indebtedness of the Company. Unless otherwise indicated in the applicable Prospectus Supplement, the Subordinated Securities will be unsecured and subordinated in right of payment to all existing and future Senior Indebtedness of the Company, in the manner and to the extent described below under "Subordination of Subordinated Securities." The Company's and Thermo Electron's rights as stockholders and the rights of their respective creditors, including, in the case of Thermo Electron by virtue of the Guarantees, holders of the Debt Securities, to participate in the assets of any of the Company's or Thermo Electron's subsidiaries, as the case may be, upon a subsidiary's liquidation or recapitalization will be subject to the prior claims of such subsidiary's creditors. Reference is made to the Prospectus Supplement relating to the particular series of Debt Securities offered thereby for specific terms, including (where applicable): (1) the title or designation of such Debt Securities and the series in which such Debt Securities shall be included; (2) the aggregate principal amount of such Debt Securities and any limit on such aggregate principal amount; (3) the price or prices (expressed as a percentage of the principal amount thereof) at which such Debt Securities will be issued; (4) the date or dates on which the principal of and premium, if any, on such Debt Securities will be payable, or the method or methods, if any, by which such date or dates will be determined; (5) the rate or rates (which may be fixed or variable) at which such Debt Securities will bear interest, if any, or the method or methods, if any, by which such rate or rates are to be determined, the date or dates, if any, from which such interest will accrue or the method or methods, if any, by which such date or dates are to be determined, and whether and under what circumstances Additional Amounts on such Debt Securities will be payable, and the basis upon which interest will be calculated if other than that of a 360-day year of twelve 30-day months; (6) the dates on which such interest, if any, will be payable and the record dates therefor; (7) the place or places where the principal of, premium, if any, and any interest or any Additional Amounts with respect to such Debt Securities shall be payable, the place or places where such registered Debt Securities may be surrendered for registration of transfer and exchange, and the place or places where such Debt Securities may be surrendered for conversion or exchange, if other than The City of New York; (8) the period or periods within which, the price or prices at which and the other terms and conditions upon which such Debt Securities may be redeemed at the option of the Company; (9) the obligation, if any, of the Company to redeem, repay or purchase such Debt Securities 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 such Debt Securities shall be redeemed, repaid or purchased, in whole or in part, pursuant to such obligation; (10) whether any such Debt Securities are to be issuable in registered form ("Registered Securities") or bearer form ("Bearer Securities") or both and, if in bearer form, the terms and conditions relating thereto and any limitations on issuance of such Bearer Securities (including in exchange for registered Debt Securities of the same series); (11) the authorized denominations in which Debt Securities will be issuable, if other than denominations of $1,000 and any integral multiple thereof (in the case of Registered Securities) or $1,000 or $10,000 (in the case of Bearer Securities); (12) the terms, if any, on which such Debt Securities may be converted into other securities of the Company, and whether on such conversion the Company or the Guarantor may substitute cash or securities of the Company or the Guarantor in lieu of issuing Common Stock upon such conversion; (13) whether any such Debt Securities will be issued in temporary or permanent global form and, if so, the identity of the depository or depositories for such global Debt Security; 8 (14) the index, formulas or other method, if any, with reference to which the amount of any payment of principal of, premium, if any, or interest on or any Additional Amounts with respect to the Debt Securities will be determined; (15) the portion of the principal amount of such Debt Securities which will be payable upon declaration of acceleration of the Maturity thereof, if other than the stated principal amount thereof; (16) any addition to, or modification or deletion of, any covenant or Event of Default with respect to such Debt Securities; (17) the terms, if any, upon which Debt Securities may be exchangeable for other Securities; (18) in the case of an issue of Subordinated Securities, the subordination provisions, if different from those described under "Subordination of Subordinated Securities" and "Guarantees" below; (19) the applicability of any provisions described below under "Discharge, Defeasance and Covenant Defeasance;" (20) the date(s) that the Securities are to be dated; and (21) any other terms of such Debt Securities not inconsistent with the provisions of the Indentures. As used in this Prospectus and any Prospectus Supplement relating to the offering of any Debt Securities, references to the principal of and premium, if any, and interest, if any, on Debt Securities will be deemed to include mention of the payment of Additional Amounts, if any, required by the terms of Debt Securities in such context. (Section 301) Under the Indenture, the terms of the Debt Securities of any series may differ, and the Company, without the consent of the holders of the Debt Securities of any series, may reopen a previous series of Debt Securities and issue additional Debt Securities of such series. (Section 301) Debt Securities may be issued at a discount from their stated principal amount. United States Federal income tax considerations and other special considerations applicable to any such Original Issue Discount Securities will be described in the applicable Prospectus Supplement. Debt Securities may be issued that qualify as "Variable Rate Debt Securities" for tax purposes. United States Federal income tax considerations and other special considerations applicable to any such Variable Rate Debt Securities will be described in the applicable Prospectus Supplement. Debt Securities may also be issued that provide for the use of an index to determine the amount of payments of principal of, premium, if any, or interest on the series of which such Debt Securities are a part, but which do not qualify as Variable Rate Debt Securities. Special Federal income tax, accounting and other considerations applicable to such Indexed Securities will be described in the applicable Prospectus Supplement. SUBORDINATION OF SUBORDINATED SECURITIES The Subordinated Securities will be subordinated in right of payment to the prior payment in full of all existing and future Senior Indebtedness of the Company. Senior Indebtedness of the Company is defined for this purpose as the principal of, premium, if any, and interest and other amounts due on or with respect to the following, whether outstanding at the date of execution of the Subordinated Indenture or thereafter incurred or created: (a) indebtedness of the Company for money borrowed by the Company (including, without limitation, purchase money obligations and money borrowed from Thermo Electron or any of its affiliates), whether or not evidenced by debentures, bonds, notes or other corporate debt securities or similar instruments issued by the Company; (b) obligations to reimburse any bank or other person in respect of amounts paid under letters of credit; (c) leases of real property, equipment or other assets, which leases are capitalized in the Company's financial statements in accordance with generally accepted accounting principles; (d) commitment, standby and other fees due and payable to financial institutions with respect to credit facilities available to the Company; (e) obligations of the Company under interest rate and currency swaps, floors, caps or other similar arrangements intended to hedge interest rates or currency exposure; (f) obligations secured by any mortgage, pledge, lien or other encumbrance on property which is owned or held by the Company subject to such mortgage, pledge, lien or other encumbrance, whether or not the obligations secured thereby shall have been assumed by the Company; (g) obligations of the Company constituting guarantees of indebtedness of or joint obligations with another or others which would be included in the preceding clauses (a), (b), (c), (d), (e) or (f); and (h) modifications, renewals, extensions or refundings of any of the indebtedness, leases, fees or obligations referred to in the preceding clauses (a), (b), (c), (d), (e), (f) or (g) or debentures, notes or other evidences of indebtedness issued 9 in exchange therefor; provided that Senior Indebtedness shall not include any particular indebtedness, lease, fee or obligation, modification, renewal, extension, refunding or exchanged securities if, under the express provisions of the instrument creating or evidencing the same, or pursuant to which the same is outstanding, such indebtedness, lease, fee or obligation or such modification, renewal, extension or refunding thereof or exchanged securities are stated to be not superior in right of payment to the Subordinated Securities. (Article Seventeen of the Subordinated Indenture) The Subordinated Securities will rank pari passu with each other. The obligations represented by the Subordinated Securities may rank pari passu with certain other obligations of the Company, if so indicated in the applicable Prospectus Supplement. Upon (a) any insolvency or bankruptcy case or proceeding, or any receivership, liquidation, reorganization or other similar case or proceeding in connection therewith, relative to the Company or its creditors, as such, or to its assets, or (b) any liquidation, dissolution or other winding up of the Company, whether voluntary or involuntary and whether or not involving insolvency or bankruptcy, or (c) any assignment for the benefit or creditors or any other marshaling of assets and liabilities of the Company, all principal of, premium, if any, and interest due upon all Senior Indebtedness must be paid in full before the Holders of the Subordinated Securities or the Trustee are entitled to receive or retain any assets so distributed in respect of the Subordinated Securities. (Section 1702) Upon the maturity of any Senior Indebtedness by lapse of time, acceleration or otherwise, such Senior Indebtedness shall first be paid in full, or duly provided for in cash, before any payment is made by the Company, directly or indirectly, on the Subordinated Securities. Upon the happening of any event of default with respect to any Senior Indebtedness, as defined therein or in the instrument under which it is outstanding, permitting the holders to accelerate the maturity thereof, then, unless and until such event of default shall have been cured or waived or shall have ceased to exist, no payment shall be made by the Company, directly or indirectly, on account of the principal of, premium, if any or interest on the Subordinated Securities and any Coupons appertaining thereto. (Section 1703) By reason of this provision, in the event of insolvency, Holders of the Subordinated Securities may recover less, ratably, than other creditors of the Company, including holders of Senior Indebtedness. The provisions under "Structural Subordination" below (with the substitution of the terms "Company" and "Debt Securities" for "Thermo Electron" and "Guarantees," respectively) will be applicable in the case of the Debt Securities, unless the context requires otherwise. Subject to payment in full of all Senior Indebtedness of the Company, the rights of Holders of the Subordinated Securities will be subrogated to the rights of holders of Senior Indebtedness to receive payments or distributions of cash, property or securities of the Company applicable to Senior Indebtedness. (Section 1705) The Subordinated Indenture places no limitation on the amount of additional Senior Indebtedness or Senior Guarantor Indebtedness, or any other indebtedness, that may be incurred by the Company or Thermo Electron. The Company and Thermo Electron expect from time to time to incur additional indebtedness, including Senior Indebtedness. GUARANTEES Thermo Electron will unconditionally guarantee the due and punctual payment of principal of, premium, if any, and interest on and any Additional Amounts with respect to interest, if any, on the Debt Securities and the due and punctual payment of any sinking fund or analogous payments provided pursuant to the terms of such Debt Securities, when and as the same shall become due and payable, whether at stated maturity, by declaration of acceleration, call for redemption, repayment at the option of the holder or otherwise, whether or not in the case of Subordinated Securities such payment is prohibited by the subordination provisions therein, except that payments under the Subordinated Guarantees will be subordinated to Senior Indebtedness of Thermo Electron ("Senior Guarantor Indebtedness") to the extent described below. The Guarantees will remain in effect until the entire principal of, premium, if any, and interest on the Debt Securities shall have been paid in full or otherwise discharged in accordance with the provisions of the Indentures. (Section 1401) 10 SUBORDINATION OF THE SUBORDINATED GUARANTEES The obligations represented by the Subordinated Guarantees will be subordinated, to the extent set forth in the Subordinated Guarantees, in right of payment to the prior payment in full of all existing and future Senior Guarantor Indebtedness. Senior Guarantor Indebtedness is defined for this purpose as the principal of, premium, if any, and interest and other amounts due on or with respect to the following, whether outstanding at the date of execution of the Subordinated Indenture or thereafter incurred or created: (a) indebtedness of Thermo Electron for money borrowed by Thermo Electron (including, without limitation, purchase money obligations and money borrowed from any affiliate of Thermo Electron), whether or not evidenced by debentures, bonds, notes or other corporate debt securities or similar instruments issued by Thermo Electron (including the principal of, premium, if any, and interest on Thermo Electron's 5% Senior Convertible Debentures due 2001); (b) obligations to reimburse any bank or other person in respect of amounts paid under letters of credit; (c) leases of real property, equipment or other assets, which leases are capitalized in Thermo Electron's financial statements in accordance with generally accepted accounting principles; (d) commitment, standby and other fees due and payable to financial institutions with respect to credit facilities available to Thermo Electron; (e) obligations of Thermo Electron under interest rate or currency swaps, floors, caps or other similar arrangements, intended to hedge interest rates or currency exposure; (f) obligations secured by any mortgage, pledge, lien or encumbrance on property which is owned or held by Thermo Electron subject to such mortgage, pledge, lien or encumbrance, whether or not the obligations secured thereby shall have been assumed by Thermo Electron; (g) obligations of Thermo Electron constituting guarantees of indebtedness of or joint obligations with another or others which would be included in the preceding clauses (a), (b), (c), (d), (e) or (f); and (h) modifications, renewals, extensions or refundings of any of the indebtedness, leases, fees or obligations referred to in the preceding clauses (a), (b), (c), (d), (e), (f) or (g) or debentures, notes or other evidences of indebtedness issued in exchange therefor; provided that Senior Guarantor Indebtedness shall not include any particular indebtedness, lease, fee or obligation, modification, renewal, extension or refunding or exchanged securities if, under the express provisions of the instrument creating or evidencing the same, or pursuant to which the same is outstanding, such indebtedness, lease, fee or obligation or such modification, renewal, extension or refunding thereof or exchanged securities are stated to be not superior in right of payment to the Subordinated Guarantees. (Article Eighteen) The obligations represented by the Subordinated Guarantees will rank pari passu with certain other obligations of Thermo Electron, as set forth in the applicable Prospectus Supplement. Upon (a) any insolvency or bankruptcy case or proceeding, or any receivership, liquidation, reorganization or other similar case or proceeding in connection therewith, relative to Thermo Electron or its creditors, as such, or to its assets, or (b) any liquidation, dissolution or other winding up of Thermo Electron, whether voluntary or involuntary and whether or not involving insolvency or bankruptcy, or (c) any assignment for the benefit or creditors or any other marshaling of assets and liabilities of Thermo Electron, all amounts due in respect of all Senior Guarantor Indebtedness must be paid in full before the Holders of the Subordinated Guarantees or the Trustee are entitled to receive or retain any assets so distributed in respect of the Subordinated Guarantees. (Section 1802) Upon the maturity of any Senior Guarantor Indebtedness by lapse of time, acceleration or otherwise, such Senior Guarantor Indebtedness shall first be paid in full, or duly provided for in cash, before any payment is made by Thermo Electron, directly or indirectly, on the Debt Securities in respect of the Subordinated Guarantees. Upon the happening of any event of default with respect to any Senior Guarantor Indebtedness, as defined therein or in the instrument under which it is outstanding, permitting the holders to accelerate the maturity thereof, then, unless and until such event of default shall have been cured or waived or shall have ceased to exist, no payment shall be made by Thermo Electron, directly or indirectly, on the Subordinated Securities in respect of the Subordinated Guarantees. (Section 1802) By reason of this provision, in the event of insolvency, holders of the Subordinated Securities and the related Subordinated Guarantees may recover less, ratably, than other creditors of Thermo Electron, including holders of Senior Guarantor Indebtedness. Subject to payment in full of all Senior Guarantor Indebtedness, the rights of the holders of the Subordinated Securities under the related Subordinated Guarantees will be subrogated to the rights of holders of Senior Guarantor Indebtedness to receive payments or distributions of cash, property or securities of Thermo Electron applicable to Senior Guarantor Indebtedness. (Section 1805) 11 STRUCTURAL SUBORDINATION The following provisions relate to the Guarantees with respect to both the Senior Securities and the Subordinated Securities. The obligations represented by the Guarantees are obligations exclusively of Thermo Electron and not of its subsidiaries. Because the operations of Thermo Electron are, in large part, conducted through subsidiaries, the cash flow and the consequent ability to service debt of Thermo Electron, including the obligations represented by the Guarantees, are dependent, in part, upon the earnings of its subsidiaries and the distribution of those earnings to Thermo Electron or upon loans or other payments of funds by those subsidiaries to Thermo Electron. Pursuant to the Thermo Electron Corporate Charter, to which the Company and each of the other majority-owned subsidiaries of Thermo Electron is a party (the "Charter"), the combined financial resources of Thermo Electron and its subsidiaries allow Thermo Electron to provide banking, credit, and other financial services to its subsidiaries so that each member of the Thermo Electron group of companies may benefit from the financial strength of the entire organization. Toward that end, the Charter states that each member of the group may be required to provide certain credit support to the consolidated entity. Nonetheless, Thermo Electron's ability to access assets held by its majority-owned subsidiaries through dividends, loans, or other transactions is subject in each instance to a fiduciary duty owed to the minority stockholders of the relevant subsidiary. The subsidiaries are separate and distinct legal entities and, except as provided in the Charter, have no obligation, contingent or otherwise, to pay any amounts due pursuant to the Guarantees or to make any funds available therefor, whether by dividends, loans or other payments. In addition, the payment of dividends and the making of loans and advances to Thermo Electron by its subsidiaries may be subject to statutory restrictions, and dividends paid by a subsidiary that does not consolidate with Thermo Electron for tax purposes will be subject to taxation. The obligations represented by the Guarantees will be effectively subordinated to all indebtedness and other liabilities, including current liabilities and commitments under leases, if any, of Thermo Electron's subsidiaries. Any right of Thermo Electron to receive assets of any of its subsidiaries upon liquidation or reorganization of such subsidiary (and the consequent right of the holders of the Guarantees to participate in those assets) will be effectively subordinated to the claims of that subsidiary's creditors, except to the extent that Thermo Electron is itself recognized as a creditor of such subsidiary, in which case the claims of Thermo Electron would still be subject to any security interests in the assets of such subsidiary and subordinated to any indebtedness of such subsidiary senior to that held by Thermo Electron. In addition, any minority stockholder of such subsidiary would be entitled to participate in the assets of such subsidiary on the same terms as Thermo Electron. CONVERSION RIGHTS Unless otherwise indicated in an applicable Prospectus Supplement, the following provisions shall be applicable with respect to any Debt Security that is convertible into Common Stock (a "Convertible Debt Security"). The Holder of any Convertible Debt Security will have the right, at the Holder's option, to convert any portion of the principal amount of a Convertible Debt Security that is an integral multiple of $1,000 into shares of Common Stock at any time on or after (a) in the case of all Convertible Debt Securities other than a temporary global Bearer Security, its date of issuance and (b) in the case of Convertible Debt Securities represented by a temporary global Bearer Security, the receipt of definitive Convertible Debt Securities, and prior to the close of business on the maturity date, unless previously redeemed or repurchased, at the Conversion Price per share set forth in an applicable Prospectus Supplement (subject to adjustment as described below). The right to convert a Convertible Debt Security called for redemption or delivered for repayment will terminate at the close of business on the fifth trading day prior to the redemption date for such Convertible Debt Security or the second trading day preceding the repayment date, as the case may be, unless the Company defaults in making the payment due upon redemption or repayment, as the case may be. (Section 1201) The right of conversion attaching to any Convertible Debt Security may be exercised by the Holder by delivering the Convertible Debt Security at the specified office of a Conversion Agent (which in the case of a 12 Convertible Debt Security which is a Bearer Debt Security (a "Bearer Convertible Debt Security") will only be the office of any Conversion Agent outside the United States), accompanied by a duly signed and completed notice of conversion. The Conversion Date will be the date on which the Convertible Debt Security and the duly signed and completed notice of conversion are so delivered. As promptly as practicable on or after the Conversion Date, the Company will issue and deliver to the Trustee a certificate or certificates for the number of full shares of Common Stock issuable upon conversion, together with payment in lieu of any fraction of a share; such certificate will be sent by the Trustee to the appropriate Conversion Agent for delivery to the Holder. Accrued interest from the immediately preceding interest payment date until the Conversion Date will be paid within five business days after the Conversion Date. Each Bearer Convertible Debt Security delivered for conversion must be delivered with all Coupons maturing after the Conversion Date. Coupons maturing on or before the Conversion Date and not in default will be payable against surrender thereof, and Coupons so maturing but in default will continue to be payable as set forth in the Indenture, notwithstanding the exercise of the right of conversion by the Holder of the Convertible Debt Security to which the Coupons appertain, but Coupons maturing after the Conversion Date will not be paid. In the case of any Convertible Debt Security that is a Registered Debt Security which has been converted after any Regular Record Date but on or prior to the next Interest Payment Date (other than any such Registered Debt Security whose Maturity is prior to such Interest Payment Date), interest the Stated Maturity of which is on such Interest Payment Date shall be payable on such Interest Payment Date notwithstanding such conversion, and such interest shall be paid to the Holder of such Registered Convertible Debt Security on such Regular Record Date. No other payment or adjustment for interest, or for any dividends in respect of Common Stock, will be made upon conversion. Holders of Common Stock issued upon conversion will not be entitled to receive any dividends payable to holders of Common Stock as of any record time before the close of business on the Conversion Date. No fractional shares will be issued upon conversion, but in lieu thereof, an appropriate amount will be paid in cash by the Company based on the market price of the Common Stock at the close of business on the day of conversion. (Sections 307, 1202 and 1203) A Holder delivering a Convertible Debt Security for conversion will not be required to pay any stamp and similar taxes or duties in respect of the issue or delivery of Common Stock on conversion but will be required to pay any tax or duty which may be payable in respect of any transfer involved in the issue or delivery of the Common Stock in a name other than that of the Holder of the Convertible Debt Security. Certificates representing shares of Common Stock will not be issued or delivered unless all taxes and duties, if any, payable by the Holder have been paid. (Sections 1202 and 1208) The Conversion Price is subject to adjustment in certain events, including: (a) dividends (and other distributions) payable in Common Stock on shares of capital stock of the Company, (b) the issuance to all holders of Common Stock of rights, options or warrants entitling them to subscribe for or purchase Common Stock at less than the then current market price (determined as provided in the Indenture) of the Common Stock, (c) subdivisions, combinations and reclassifications of Common Stock and (d) distributions to all holders of Common Stock of evidences of indebtedness of the Company, shares of capital stock, cash or assets (including securities, but excluding those dividends, rights, options, warrants and distributions referred to above, dividends and distributions paid exclusively in cash out of the retained earnings of the Company and mergers and consolidations to which the last paragraph of this section applies). The Company reserves the right to make such reductions in the Conversion Price in addition to those required in the foregoing provisions as it considers to be advisable in order that any event treated for federal income tax purposes as a dividend of stock or stock rights will not be taxable to the recipients. No adjustment of the Conversion Price will be required to be made until the cumulative adjustments amount to 1.0% or more of the Conversion Price. (Section 1204) Notices of any adjustments to the Conversion Price pursuant to this paragraph will be given to all Holders in the manner required in the Indenture. (Section 1205) If so indicated in the applicable Prospectus Supplement with respect to a series of Convertible Debt Securities, in lieu of issuing shares of Common Stock upon conversion of such series of Convertible Debt Securities, the Company may elect, in its sole discretion, to (i) pay cash in respect of all or a portion of the shares of Common Stock otherwise issuable upon such conversion (the "Cash Settlement Option") and/or (ii) 13 deliver fully paid and non-assessable shares of Guarantor Common Stock, in respect of all or a portion of the shares of Common Stock otherwise issuable upon such conversion (the "Stock Settlement Option"). The amount of cash to be so delivered upon the exercise of the Cash Settlement Option shall be equal to the number of shares of Common Stock as to which cash is being paid in lieu of issuance of shares of Common Stock multiplied by the Market Price of a share of Common Stock. In the event the Stock Settlement Option is applicable, the method for determining the number of shares of Guarantor Common Stock to be delivered shall be described in the applicable Prospectus Supplement. With respect to the Cash Settlement Option, "Market Price" means the Weighted Average Price of the Common Stock on the last Trading Day preceding the applicable Conversion Date. The "Weighted Average Price" of the Common Stock on any Trading Day means the weighted average per share sale price for all reported sales of the Common Stock on such Trading Day (or, if the information necessary to calculate such weighted average per share sale price is not available, the average of the high and low sale prices or, if no sales prices are reported, the average of the bid and asked prices or, if more than one in either case, the average of the average bid and average asked prices), as reported in composite transactions on the American Stock Exchange, or if the Common Stock is not listed or admitted to trading on such exchange, as reported in the composite transactions for the principal national or regional United States securities exchange on which the Common Stock is listed or admitted to trading, or, if the Common Stock is not listed or admitted to trading on a United States national or regional securities exchange, as reported by the National Association of Securities Dealers Automated Quotation System or by the National Quotation Bureau Incorporated. In the absence of such quotations, the Company shall be entitled to determine the Weighted Average Price on the basis of such quotations or other data as it considers appropriate. A "Trading Day" means each day on which the securities exchange or quotation system which is used to determine the Weighted Average Price is open for trading or quotation and on which at least one trade of the Common Stock has occurred. If at any time the Company makes a distribution of property to its stockholders which would be taxable to the stockholders as a dividend for federal income tax purposes (e.g., distributions of evidences of indebtedness or assets of the Company, but generally not stock dividends on Common Stock or rights to subscribe for Common Stock) and, pursuant to the anti-dilution provisions of the Indenture, the number of shares into which Convertible Debt Securities are convertible is increased, such increase may be deemed for federal income tax purposes to be the payment of a taxable dividend to Holders of Convertible Debt Securities. In case of any consolidation or merger of the Company with or into another Person or any merger of another Person into the Company (other than a merger which does not result in any reclassification, conversion, exchange or cancellation of the Common Stock), or in case of any sale or transfer of all or substantially all of the assets of the Company, each Convertible Debt Security then outstanding will, without the consent of the Holder of any Convertible Debt Security or Coupon, become convertible only into the kind and amount of securities, cash and other property receivable upon such consolidation, merger, sale or transfer by a holder of the number of shares of Common Stock into which such Convertible Debt Security was convertible immediately prior thereto (assuming such holder of Common Stock failed to exercise any rights of election and that such Convertible Debt Security was then convertible). (Section 1211) REGISTRATION, TRANSFER, PAYMENT AND PAYING AGENTS The Indentures provide that the Company may issue Debt Securities in registered form only, in bearer form only, or in both registered and bearer form. Unless otherwise indicated in the applicable Prospectus Supplement, Registered Securities will be issued in denominations of $1,000 or any integral multiple thereof, without interest Coupons, and definitive Bearer Securities will be issued in denominations of $1,000 and $10,000, with interest Coupons attached. (Section 302) 14 Unless otherwise indicated in the applicable Prospectus Supplement, the principal, premium, if any, and interest on the Registered Securities will be payable, Registered Securities may be surrendered for registration of transfer or exchange and Registered Securities may be surrendered for conversion at an office or agency to be maintained by the Company in the Borough of Manhattan, The City of New York, provided that payments of interest with respect to any Registered Security may be made at the option of the Company by check mailed to the address of the person entitled thereto or by transfer to an account maintained by the payee with a bank located in the United States. No service charge shall be made for any registration of transfer or exchange of Debt Securities, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge and any other expenses that may be imposed in connection therewith, except in certain circumstances. (Sections 305, 307 and 1002) Unless otherwise indicated in the applicable Prospectus Supplement, payment of principal of, premium, if any, and interest on Bearer Securities will be made, and Bearer Securities may be presented for conversion, subject to any applicable laws and regulations, at such office or agency outside the United States as is specified in the applicable Prospectus Supplement and as the Company may designate from time to time. Unless otherwise indicated in the applicable Prospectus Supplement, payment of interest due on Bearer Securities on any Interest Payment Date will be made only against surrender of the Coupon relating to such Interest Payment Date. Unless otherwise indicated in the applicable Prospectus Supplement, no payment of principal, premium or interest or surrender for conversion with respect to any Bearer Security will be made at any office or agency in the United States or by check mailed to any address in the United States or by transfer to an account maintained with a bank located in the United States; provided, however, that payment with respect to Bearer Securities may be made and any Bearer Securities may be surrendered for conversion, if applicable, at the Corporate Trust Office of the applicable Trustee or at any office or agency designated by the Company in the Borough of Manhattan, The City of New York, if (but only if) payment of the full amount of such principal, premium or interest or the surrender of Bearer Securities for conversion at all offices outside of the United States maintained for such purpose by the Company is illegal or effectively precluded by exchange controls or similar restrictions. (Sections 307 and 1002) Unless otherwise indicated in the applicable Prospectus Supplement, Bearer Securities (provided that all unmatured related Coupons and matured related Coupons in default are attached) will be exchangeable for an equal aggregate principal amount of Registered Securities of the same series in denominations of $1,000 and integral multiples thereof without Coupons, and Registered Securities will be exchangeable for an equal aggregate principal amount of Registered Securities of different denominations, in each case without service charge (other than the cost of delivery) but upon payment of any taxes and other governmental charges, except in certain circumstances. Bearer Securities may be exchanged for Registered Securities of the same series by surrender of such Bearer Securities to be exchanged at any applicable Office or Agency for such series, with all unmatured Coupons and all matured Coupons in default thereto appertaining. If and so long as Registered Securities of a series are represented solely by a global Debt Security (see "Global Securities" below), a Bearer Security may be exchanged for a beneficial interest in such global Debt Security only by and through a DTC Participant (as defined in "Global Securities" below). In case a Bearer Security of any series is surrendered at any such Office or Agency for such series in exchange for a Registered Security of such series and like tenor after the close of business at such Office or Agency on (i) any Regular Record Date and before the opening of business at such Office or Agency on the relevant Interest Payment Date, or (ii) any Special Record Date and before the opening of business at such Office or Agency on the related date for payment of Defaulted Interest, such Bearer Security shall be surrendered without the Coupon relating to such Interest Payment Date or proposed date for payment of Defaulted Interest, as the case may be, and interest or Defaulted Interest, as the case may be, shall not be payable on such Interest Payment Date or proposed date for payment or Defaulted Interest, as the case may be, in respect of the Registered Security issued in exchange for such Bearer Security, but shall be payable only to the Holder of such Coupon when due in accordance with the provisions of the Indentures. Unless otherwise indicated in the applicable Prospectus Supplement, Registered Securities will not be exchangeable for Bearer Securities. Registered Securities shall be registered as provided in the Indenture. (Section 305) 15 Unless otherwise indicated in the applicable Prospectus Supplement, the Company shall not be required (i) to issue, register the transfer of or exchange any Debt Securities during a period beginning at the opening of business 15 days before the day of the selection for redemption of such Debt Securities and ending at the close of business on the day of such selection, or (ii) to register the transfer of or exchange any Registered Security so selected for redemption in whole or in part, except, in the case of any Debt Security to be redeemed in part, the portion thereof not to be redeemed, or (iii) to exchange any Bearer Security so selected for redemption except, to the extent provided with respect to such Bearer Security, that such Bearer Security may be exchanged for a Registered Security of like tenor and the same series, provided that such Registered Security shall be immediately surrendered for redemption with written instruction for payment consistent with the provisions of the Indenture or (iv) to issue, register the transfer of or exchange any Debt Security which, in accordance with its terms, has been surrendered for repayment at the option of the holder of such Debt Security, except the portion, if any, of such Security not to be so repaid. (Section 305) GLOBAL SECURITIES The Debt Securities may be issued in whole or in part in the form of one or more global securities, each of which will be deposited with, or on behalf of, a depository (a "Depository"). Global Debt Securities may be issued in either registered or bearer form and in either temporary or permanent form. The Company anticipates that Bearer Securities will be represented initially by a temporary global Debt Security in bearer form, without interest Coupons or conversion rights, which will be deposited on the applicable closing date on behalf of subscribers for the Bearer Securities represented thereby with a common depository in London for their respective accounts at Morgan Guaranty Trust Company of New York, Brussels Office, as operator of the Euroclear Clearance System ("Euroclear"), or CEDEL Bank, SA ("CEDEL"). Upon deposit of the temporary global Debt Security, Euroclear or CEDEL, as the case may be, will credit each subscriber with a principal amount of Bearer Securities equal to the principal amount thereof for which it has subscribed and paid. The temporary global Debt Security will be exchangeable for definitive Bearer Securities in denominations of $1,000 and $10,000 or other authorized denominations, each with related interest Coupons attached, or Registered Securities in denominations of $1,000 or an integral multiple thereof, if permitted by the rules and procedures then in effect of CEDEL, Euroclear and The Depository Trust Company ("DTC"), commencing on the exchange date specified in the applicable Prospectus Supplement (the "Exchange Date"), if permitted. Exchange for definitive Bearer Securities will be made only upon certification that the beneficial owners of such Bearer Securities are not United States persons (as defined below) or other persons who have purchased such Bearer Securities for resale to United States persons. No Bearer Debt Security so delivered in exchange will be mailed or otherwise delivered to any location in the United States. The temporary global Debt Security will be exchangeable for Registered Securities in denominations of $1,000 or an integral multiple thereof at any time without certification of non-U.S. status; provided that such exchange is permitted by the rules and procedures then in effect of CEDEL and Euroclear, and provided, further, that if and so long as Registered Securities of a series are represented solely by a global Debt Security, such exchange may be effected only by and through a DTC Participant (as defined below). A beneficial owner must exchange its share of the global Debt Security in bearer form for definitive Debt Securities, in either registered or bearer form, before interest payments can be collected or conversion rights exercised. (Section 304) Any additional or differing terms of the depository arrangements will be described in the Prospectus Supplement relating to a particular series of Debt Securities issued in the form of temporary global Debt Securities. In addition, the Company anticipates that any global Debt Security in registered form will be deposited with, or on behalf of DTC, and that such global Debt Security will be permanent and will be registered in the name of Cede & Co., DTC's nominee. The Company further anticipates that the following provisions will apply to the Depository arrangements with respect to any such global Debt Security in registered form. Any additional or differing terms of the Depository arrangements will be described in the Prospectus Supplement relating to a particular series of Debt Securities issued in the form of global Debt Securities. So long as DTC or its nominee is the registered owner of a global Debt Security, DTC or its nominee, as the case may be, will be considered the sole Holder of the Debt Securities represented by such global Debt 16 Security for all purposes under the applicable Indenture. Except as described below, owners of beneficial interests in a global Debt Security will not be entitled to have Debt Securities represented by such global Debt Security registered in their names, will not receive or be entitled to receive physical delivery of Debt Securities in definitive form and will not be considered the owners or Holders thereof under the applicable Indenture. The laws of some states require that certain purchasers of securities take physical delivery of such securities in definitive form; accordingly, such laws may limit the transferability of beneficial interests in a global Debt Security. Unless otherwise specified in the applicable Prospectus Supplement, each global Debt Security in registered form will be exchangeable for definitive Registered Securities of the same series only if (i) DTC notifies the Company that it is unwilling or unable to continue as Depository or DTC ceases to be a clearing agency registered under the Exchange Act (if so required by applicable law or regulation) and, in either case, a successor Depository is not appointed by the Company within 90 days after the Company receives such notice or becomes aware of such ineligibility, (ii) the Company in its sole discretion determines that the global Debt Securities shall be exchangeable for definitive Registered Securities and delivers a Company Order to the Trustee to such effect or (iii) there shall have occurred and be continuing an Event of Default under the Indenture with respect to the Debt Securities of any series. Upon any such exchange, owners of a beneficial interest in the global Debt Security or Securities in registered form will be entitled to physical delivery of individual Debt Securities in definitive form of like tenor, terms and rank, equal in principal amount to such beneficial interest, and to have such Debt Securities in definitive form registered in the names of the beneficial owners, which names shall be provided by DTC's relevant participants (as identified by DTC) to the Trustee. Unless otherwise described in the applicable Prospectus Supplement, Debt Securities so issued in definitive form will be issued in denominations of $1,000 or any integral multiple thereof, and will be issued in registered form only, without Coupons. (Section 305) The following is based on information furnished to the Company: DTC will act as securities Depository for the global Debt Securities in registered form. These Debt Securities will be issued as fully Registered Securities registered in the name of Cede & Co. (DTC's partnership nominee). One fully registered Debt Security certificate will be issued and deposited with DTC with respect to each series of Debt Securities, each in the aggregate principal amount of such series (except that if the aggregate principal amount of a series of Debt Securities exceeds $200 million (or such other amount as shall be permitted by DTC from time to time) one certificate will be issued with respect to each $200 million of principal amount and an additional certificate will be issued with respect to any remaining principal amount of such series). DTC is a limited-purpose trust company organized under the New York Banking Law, a "banking organization" within the meaning of the New York Banking Law, a member of the Federal Reserve System, a "clearing corporation" within the meaning of the New York Uniform Commercial Code, and a "clearing agency" registered pursuant to the provisions of Section 17A of the Exchange Act. DTC holds securities that its participants ("Participants") deposit with DTC. DTC also facilitates the settlement among Participants of securities transactions, such as transfers and pledges, in deposited securities through electronic computerized book-entry changes in Participants' accounts, thereby eliminating the need for physical movement of securities certificates. Direct Participants include securities brokers and dealers, banks, trust companies, clearing corporations and certain other organizations ("Direct Participants"). DTC is owned by a number of its Direct Participants and by the New York Stock Exchange, Inc., the American Stock Exchange, Inc. and the National Association of Securities Dealers, Inc. Access to the DTC system is also available to others, such as securities brokers and dealers, banks and trust companies that clear through or maintain a custodial relationship with a Direct Participant, either directly or indirectly ("Indirect Participants"). The rules applicable to DTC and its Participants are on file with the Commission. Purchases of Debt Securities under the DTC system must be made by or through Direct Participants, which will receive a credit for the Debt Securities on DTC's records. The ownership interest of each actual purchaser of each Debt Security ("Beneficial Owner") is in turn recorded on the Direct and Indirect Participants' records. A Beneficial Owner will not receive written confirmation from DTC of its purchase, but is expected to receive a 17 written confirmation providing details of the transaction, as well as periodic statements of its holdings, from the Direct or Indirect Participant through which such Beneficial Owner entered into the transaction. Transfers of ownership interests in Debt Securities are accomplished by entries made on the books of Direct and Indirect Participants acting on behalf of Beneficial Owners. Beneficial Owners will not receive certificates representing their ownership interests in Debt Securities, except in the event that use of the book-entry system for the Debt Securities is discontinued. To facilitate subsequent transfers, the Debt Securities deposited by Participants with DTC are registered in the name of DTC's partnership nominee, Cede & Co. The deposit of the Debt Securities with DTC and their registration in the name of Cede & Co. will effect no change in beneficial ownership. DTC has no knowledge of the actual Beneficial Owners of the Debt Securities; DTC records reflect only the identity of the Direct Participants to whose accounts such Debt Securities are credited, which may or may not be the Beneficial Owners. The Participants remain responsible for keeping account of their holdings on behalf of their customers. Delivery of notices and other communications by DTC to Direct Participants, by Direct Participants to Indirect Participants, and by Direct Participants and Indirect Participants to Beneficial Owners are governed by arrangements among them, subject to any statutory or regulatory requirements as may be in effect from time to time. Neither DTC nor Cede & Co. will consent or vote with respect to the Debt Securities. Under its usual procedures, DTC mails a proxy (an "Omnibus Proxy") to the issuer as soon as possible after the record date. The Omnibus Proxy assigns Cede & Co.'s consenting or voting rights to those Direct Participants to whose accounts the Debt Securities are credited on the record date (identified on a list attached to the Omnibus Proxy). Principal payments, premium payments, if any, and interest payments, if any, on the registered Debt Securities in global form will be made to Cede & Co. DTC's practice is to credit Direct Participants' accounts, upon DTC's receipt of funds and corresponding detail information from the issuer, on the payment date in accordance with their respective holdings as shown on DTC's records. Payments by Direct and Indirect Participants to Beneficial Owners will be governed by standing instructions and customary practices, as is the case with securities held for the accounts of customers in bearer form or registered in "street name", and are the responsibility of such Direct and Indirect Participants and not of DTC, the Trustee, the Company or Thermo Electron, subject to any statutory or regulatory requirements as may be in effect from time to time. Payment of principal (premium, if any) and interest, if any, to Cede & Co. is the responsibility of the Company or the Trustee, disbursement of such payments to Direct Participants is the responsibility of DTC, and disbursement of such payments to the Beneficial Owners is the responsibility of Direct and Indirect Participants. If applicable, redemption notices shall be sent to DTC. If less than all of the Debt Securities of a series represented by global Debt Securities in registered form are being redeemed, DTC's practice is to determine by lot the amount of the interest of each Direct Participant in such issue to be redeemed. To the extent that any Debt Securities provide for repayment or repurchase at the option of the Holders thereof, a Beneficial Owner shall give notice of any option to elect to have its interest in the global Debt Security repaid by the Company, through its Participant, to the Trustee, and shall effect delivery of such interest in a global Debt Security by causing the Direct Participant to transfer the Participant's interest in the global Debt Security or Securities representing such interest, on DTC's records, to such Trustee. The requirement for physical delivery of Debt Securities in connection with a demand for repayment will be deemed satisfied when the ownership rights in the global Debt Security or Securities representing such Debt Securities are transferred by Direct Participants on DTC's records and followed by a book-entry credit of the tendered Debt Securities to the Trustee's account. DTC may discontinue providing its services as Depository with respect to the Debt Securities at any time by giving reasonable notice to the Company or the Trustee. Under such circumstances, in the event that a successor Depository is not appointed, Debt Security certificates are required to be printed and delivered. 18 The Company may decide to discontinue use of the system of book-entry transfers through DTC (or a successor Depository). In that event, Debt Security certificates will be printed and delivered. The information in this section concerning DTC and DTC's book-entry system has been obtained from sources that the Company and Thermo Electron believe to be reliable, but the Company and Thermo Electron take no responsibility for the accuracy thereof. None of the Company, Thermo Electron, the Trustee or any applicable paying agent will have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial interests in a global Debt Security, or for maintaining, supervising or reviewing any records relating to such beneficial interest. LIMITATIONS ON ISSUANCE OF BEARER SECURITIES In compliance with United States tax laws and regulations, Bearer Securities may not be offered or sold prior to the Exchange Date specified in the applicable Prospectus Supplement, or at any time if part of a distributor's unsold allotment, to a person who is within the United States or to a United States person other than (i) certain financial institutions located outside the United States that agree in writing to comply with the requirements of Section 165(j)(3)(A), (B), or (C) of the United States Internal Revenue Code of 1986, as amended (the "Code") and the regulations thereunder, (ii) the United States offices of exempt distributors, or (iii) United States offices of international organizations or foreign central banks. United States tax laws and regulations also require that Bearer Securities not be mailed or otherwise delivered to any location in the United States. Any underwriters, agents and dealers participating in the offering of Debt Securities must covenant that they will not offer or sell during the applicable restricted period (as defined in the Code and the regulations thereunder) any Bearer Securities within the United States or to United States persons (other than the persons described above) or deliver in connection with the sale of Bearer Securities during the restricted period any Bearer Securities within the United States, and that they have in effect procedures reasonably designed to ensure that their employees and agents who are directly engaged in selling the Bearer Securities are aware of the restrictions described above. No definitive Bearer Security will be delivered in connection with its original issuance nor will interest be paid on any Bearer Security until receipt of written certification of non-U.S. status described above under "--Global Securities." As used herein, "United States person" means any citizen or resident of the United States, any corporation, partnership or other entity created or organized in or under the laws of the United States, any estate, the income of which is subject to United States federal income taxation regardless of its source, and any trust if a court within the United States is able to exercise primary supervision of the administration thereof and one or more fiduciaries have the authority to control all substantial decisions thereof, or any other person included within the definition of United States person under the Code and the regulations thereunder; and "United States" means the United States of America (including the states thereof and the District of Columbia), its territories, its possessions and other areas subject to its jurisdiction. Purchasers of Bearer Securities will be subject to certification procedures and may be affected by certain limitations under United States tax laws. (Section 101) Unless otherwise indicated in the applicable Prospectus Supplement, definitive Bearer Securities and interest Coupons will bear the following legend: "Any United States person who holds this obligation will be subject to limitations under the United States income tax laws, including the limitations provided in Sections 165(j) and 1287(a) of the United States Internal Revenue Code." The sections referred to in such legend provide that any United States person holding a Bearer Security or interest Coupon, with certain limited exceptions, will not be entitled to deduct any loss incurred with respect to such Bearer Security or interest Coupon and will not be entitled to any capital gain treatment with respect to any sale, redemption or other disposition of such Bearer Security or interest Coupon but will be taxed thereon at ordinary income rates instead. 19 REDEMPTION Redemption at the Option of the Company. The applicable Prospectus Supplement will specify whether or not the Debt Securities will be redeemable at the option of the Company and the terms upon which such Debt Securities may be so redeemed. Notice of intention to redeem redeemable Debt Securities will be given in accordance with "Notices" below. In the case of redemption of all Debt Securities of a series, notice will be given by the Trustee not more than 60 nor less than 20 days prior to the Redemption Date. Notices of redemption will specify, among other things, (i) the Redemption Date; (ii) the Redemption Price, and accrued interest, if any; (iii) in the case of a partial redemption, the identification and aggregate principal amount of Debt Securities to be redeemed and the aggregate principal amount of the Debt Securities which will be outstanding after such partial redemption; (iv) that, on the Redemption Date, the Redemption Price shall become due and payable upon each such Debt Security or portion thereof to be redeemed, and, if applicable, that interest thereon shall cease to accrue on and after said date; (v) if applicable, the Conversion Price, the date on which the right to convert the Debt Securities to be redeemed will terminate and the places where such Debt Securities, together with all unmatured Coupons and any matured Coupons in default appertaining thereto, may be surrendered for conversion; (vi) the place or places where such Securities, together (in the case of Bearer Securities) with all Coupons appertaining thereto, if any, maturing after the Redemption Date, are to be surrendered for payment of the Redemption Price and any accrued interest and Additional Amounts pertaining thereto; (vii) that the redemption is for a sinking fund, if such is the case; (viii) that, unless otherwise specified in such notice, Bearer Securities of any series, if any, surrendered for redemption must be accompanied by all Coupons maturing subsequent to the Redemption Date or the amount of any such missing Coupon or Coupons will be deducted from the Redemption Price, unless security or indemnity satisfactory to the Company, the Trustee and any Paying Agent is furnished; and (ix) if Bearer Securities of any series are to be redeemed and any Registered Securities of such series are not to be redeemed, and if such Bearer Securities may be exchanged for Registered Securities not subject to redemption on the Redemption Date, the last date, as determined by the Company, on which such exchanges may be made. All redemption notices are irrevocable, except in the case of certain redemptions for taxation reasons specified in the next succeeding subsection. (Section 1104). Redemption for Taxation Reasons If the Company has or will become obligated to pay Additional Amounts (as described below under "Payment of Additional Amounts to Non United States Persons") as a result of any change in, or amendment to, the laws (including any regulations or rulings promulgated thereunder) of the United States or any political subdivision or taxing authority thereof or therein affecting taxation, or any change in, or amendment to, the application or official interpretation of such laws, regulations or rulings (any such change or amendment being herein referred to as a "Tax Law Change"), and such obligations cannot be avoided by the Company taking reasonable measures available to it, the Debt Securities held by Persons who are not United States persons and to whom such Additional Amounts have or will become payable (the "Tax Affected Debt Securities") may be redeemed, at the option of the Company, in whole but not in part. Such redemption of Tax Affected Debt Securities shall be upon not less than 20 nor more than 60 days' prior notice as provided under "Notices" below, at a redemption price equal to 100% of the principal amount of the Tax Affected Debt Securities, plus accrued interest to the redemption date and any Additional Amounts then payable; provided, however, that (1) no such notice of redemption shall be given earlier than 90 days prior to the earliest date on which the Company would be obligated to pay any such Additional Amounts were a payment in respect of the Tax Affected Debt Securities then due and (2) at the time such notice of redemption is given, the obligation to pay such Additional Amounts remains in effect. Prior to the publication of any notice of redemption pursuant to this paragraph, the Company shall deliver to the Trustee (a) a certificate stating that the Company is entitled to effect such redemption and setting forth a statement of facts showing that the conditions precedent to the right of the Company so to redeem have occurred and (b) an opinion of counsel selected by the Company to the effect that the Company has or will become obligated to pay such Additional Amounts as a result of a Tax Law Change. The Company's right to redeem the Tax Affected Debt Securities shall continue as long as the Company is obligated to pay such 20 Additional Amounts, notwithstanding that the Company shall have theretofore made payments of Additional Amounts. (Section 1102) In addition, if the Company determines, based upon a written opinion of counsel selected by the Company, that, as a result of a Tax Law Change, any payment made outside the United States by the Company or any of its Paying Agents of the full amount of principal, premium, if any, or interest due with respect to any Bearer Debt Security or Coupon appertaining thereto would be subject to any certification, identification or other information reporting requirement of any kind, the effect of which is the disclosure to the Company, any Paying Agent or any governmental authority of the nationality, residence or identity of a beneficial owner of such Bearer Debt Security or Coupon who is not a United States person as defined below under "Payment of Additional Amounts to Non United States Persons" (other than such a requirement (a) which would not be applicable to a payment made by the Company or any one of its Paying Agents (i) directly to the beneficial owner or (ii) to any custodian, nominee or other agent of the beneficial owner, (b) which can be satisfied by the custodian, nominee or other agent certifying that the beneficial owner is not a United States person, provided that in each case referred to in clauses (a) (ii) and (b) payment by such custodian, nominee or other agent to such beneficial owner is not otherwise subject to any such requirement, or (c) which would not be applicable but for the fact that a Bearer Debt Security constitutes a "United States real property interest," as defined in Section 897(c)(1) of the Code, with respect to the beneficial owner of such Bearer Debt Security), the Company at its election will either (x) redeem the Bearer Securities, as a whole but not in part, at a redemption price equal to 100% of the principal amount thereof, plus accrued interest to the redemption date, or (y) if and so long as the conditions of the third paragraph under "Payment of Additional Amounts to Non United States Persons" are satisfied, pay the Additional Amounts specified in such paragraph. The Company will make such determination and election and notify the Trustee thereof in writing as soon as practicable, and the Trustee will promptly give notice of such determination (the "Determination Notice"), in each case stating the effective date of such certification, identification or information reporting requirement, whether the Company will redeem the Bearer Securities or will pay the Additional Amounts specified in the third paragraph under "Payment of Additional Amounts" and (if applicable) the last date by which the redemption of the Bearer Securities shall take place. If the Company elects to redeem the Bearer Securities, such redemption shall take place on a date not later than one year after publication of the Determination Notice, as the Company elects by notice in writing to the Trustee at least 75 days before that date, unless shorter notice is acceptable to the Trustee. Notwithstanding the foregoing, the Company shall not be required to so redeem the Bearer Securities if the Company, based upon a written opinion of counsel selected by the Company, subsequently determines, not less than 30 days prior to the Redemption Date, that subsequent payments would not be subject to any such requirement, in which case the Company will notify the Trustee in writing of its determination not to so redeem the Bearer Securities, and the Trustee will promptly give notice to the Holders of the Bearer Securities of that determination and any earlier redemption notice will thereupon be revoked and of no further effect. If the Company elects as provided in clause (y) above to pay Additional Amounts, the Company may, as long as the Company is obligated to pay such Additional Amounts, redeem all the Bearer Securities, at any time, as a whole but not in part, at a redemption price equal to 100% of the principal amount thereof plus accrued interest to the redemption date and any Additional Amounts then payable. (Section 1102) Repayment at Option of Holder Unless otherwise specified in an applicable Prospectus Supplement, each holder of a Convertible Debt Security shall have the right to cause the Company to repay such Convertible Debt Security (or portions thereof in integral multiples of $1,000) for a cash amount equal to 100% of the principal amount thereof plus accrued interest to the redemption date and any Additional Amounts then payable, if a Repayment Event (as defined below) occurs or has occurred. The "Repayment Date" for this purpose shall be the ninetieth (90th) day after the later of the Exchange Date or the date a Repayment Event has occurred. (Section 1502) Notice with respect to the occurrence of a Repayment Event will be given to all Holders of Convertible Debt Securities with repayment rights in accordance with "Notices" below and not later than 30 days after the later of the Exchange Date or the date of such Repayment Event. Notices of repayment will specify, among other things, (i) the 21 Repayment Date; (ii) the date by which the repurchase right must be exercised; (iii) the price at which the Convertible Debt Securities are to be repaid, including accrued interest and Additional Amounts, if any; (iv) if applicable, the Conversion Price then in effect, the date on which the right to convert the Securities to be repaid will terminate and the place or places where such Securities, together (in the case of Bearer Securities) with all unmatured Coupons and any matured Coupons in default appertaining thereto, may be surrendered for conversion; and (v) a description of the repayment right procedures that a Holder must follow and the place or places where such Securities, together (in the case of Bearer Securities) with all Coupons appertaining thereto, if any, maturing after the Repayment Date, are to be surrendered for payment (or the amount of any such missing Coupon or Coupons will be deducted from any amount due to such Holder) and any accrued interest and Additional Amounts, if any, pertaining thereto. (Section 1503) To be repaid, a Convertible Debt Security must be received by the Trustee with a duly executed written notice, substantially in the form provided on the reverse side of such Convertible Debt Security, at the place of payment not earlier than 60 days nor later than 30 days prior to the Repayment Date. Each Bearer Convertible Debt Security delivered for repayment must be delivered with all unmatured Coupons. Once notice is given by the Holder to the Paying Agent, it is irrevocable. However, holders of Convertible Debt Securities will retain the right to require such Convertible Debt Securities to be converted into Common Stock prior to the Repayment Date, so long as notice to that effect, including the Holder's nontransferable receipt for the Convertible Debt Securities from a Paying Agent, is delivered at least two business days on or prior to the Repayment Date to a Paying Agent. (Sections 1201, 1504 and 1505) A "Repayment Event" shall have occurred if the Common Stock (or other equity securities into which the Debt Securities are then convertible) is neither listed for trading on a United States national securities exchange, the Nasdaq National Market nor approved for trading on an established automated over-the- counter trading market in the United States. (Section 1502) Certain of the Company's and/or the Guarantor's existing and future agreements relating to their indebtedness could prohibit the repayment by the Company of the Convertible Debt Securities pursuant to the exercise by a Convertible Debt Security holder of the foregoing option, depending on the financial circumstances of the Company and/or the Guarantor at the time any such repayment may occur, because such repayment could cause a breach of certain financial ratio and/or other covenants contained in such agreements. Such a breach may constitute an event of default under such indebtedness and thereby restrict the Company's ability to repay the Convertible Debt Securities. See "Subordination of Debt Securities" and "Subordination of Guarantees" above. COVENANTS OF THE COMPANY The Indenture does not contain any financial covenants or similar restrictions respecting the Company or Thermo Electron, and in the absence of such provisions, holders of the Debt Securities will have no protection (other than their rights upon an event of default, as described under "Events of Default" below) from adverse changes in the Company's or Thermo Electron's financial condition. The Indenture also does not contain provisions which may afford the holders of any of the Debt Securities protection in the event of a highly leveraged transaction or similar transaction involving the Company or Thermo Electron. Any such provisions, if applicable to any Debt Securities, will be described in the Prospectus Supplement or Prospectus Supplements relating thereto. PAYMENT OF ADDITIONAL AMOUNTS TO NON UNITED STATES PERSONS Unless otherwise specified in an applicable Prospectus Supplement, the Company will pay to the holder of any Debt Security or any related Coupon who is not a United States person (as defined below) such additional amounts ("Additional Amounts") as may be necessary in order that every net payment of the principal of, premium, if any, and interest on such Debt Security, after withholding for or on account of any present or future tax, assessment or governmental charge imposed upon or as a result of such payment by the United States or any political subdivision or taxing authority thereof or therein, will not be less than the amount provided for in such 22 Debt Security or in such Coupon to be then due and payable; provided, however, that the foregoing obligations to pay Additional Amounts shall not apply to any one or more of the following: (a) any tax, assessment or other governmental charge which would not have been so imposed but for (i) the existence of any present or former connection between such Holder (or between a fiduciary, settlor, beneficiary, member, stockholder of or possessor of a power over such Holder, if such Holder is an estate, a trust, a partnership or a corporation) and the United States or any political subdivision or taxing authority thereof or therein, including, without limitation, such Holder (or such fiduciary, settlor, beneficiary, member, stockholder or possessor) being or having been a citizen or resident of the United States or treated as a resident thereof, or being or having been engaged in trade or business or present therein, or having had a permanent establishment therein, (ii) such Holder's present or former status as a personal holding company, a foreign personal holding company with respect to the United States, a controlled foreign corporation, a passive foreign investment company, or a foreign private foundation or foreign tax exempt entity for United States tax purposes, or a corporation which accumulates earnings to avoid United States Federal income tax, or (iii) such Holder's status as a bank extending credit pursuant to a loan agreement entered into in the ordinary course of business; (b) any tax, assessment or other governmental charge which would not have been so imposed but for the presentation by the Holder of such Debt Security or any related Coupon for payment on a date more than 15 days after the date on which such payment became due and payable or the date on which payment thereof is duly provided for, whichever occurs later; (c) any estate, inheritance, gift, sales, transfer, personal property or similar tax, assessment or governmental charge; (d) any tax, assessment or other governmental charge which would not have been imposed but for the failure to comply with any certification, identification or other reporting requirements concerning the nationality, residence, identity or connection with the United States of the Holder or beneficial owner of such Debt Security or any related Coupon, if compliance is required by statute or by regulation or ruling of the United States Treasury Department as a precondition to exemption from such tax, assessment or other governmental charge; (e) any tax, assessment or other governmental charge which is payable otherwise than by deduction or withholding from payments of principal of, premium, if any, or interest on such Debt Security; (f) any tax, assessment or other governmental charge imposed as a result of a Person's past or present actual or constructive ownership, including by virtue of the right to convert Debt Securities, of 10% or more of the total combined voting power of all classes of stock of the Company entitled to vote; (g) any tax, assessment or other governmental charge required to be withheld by any Paying Agent from any payment of the principal of, premium, if any, or interest on such Debt Security, if such payment can be made without such withholding by any other Paying Agent in Western Europe; (h) any tax, assessment, or other governmental charge imposed on the disposition of any Debt Security by a person holding at any time, actually or constructively, Debt Securities of the applicable series having a fair market value in excess of the greater of the fair market value of five percent of (i) the Company's Common Stock or (ii) the Debt Securities of such series; (i) any tax, assessment or other governmental charge imposed on a Holder that is a partnership or a fiduciary, but only to the extent that any beneficial owner or member of the partnership or beneficiary or settlor with respect to the fiduciary would not have been entitled to the payment of Additional Amounts had the beneficial owner, member, beneficiary or settlor directly received its beneficial or distributive stock of payments on such Debt Security; (j) any tax, assessment or other governmental charge which would not have been imposed but for the fact that such Debt Security constitutes a "United States real property interest," as defined in Section 897(c)(1) of the Internal Revenue Code, and the regulations thereunder, with respect to the beneficial owner of such Debt Security; or 23 (k) any combination of items (a), (b), (c), (d), (e), (f), (g), (h), (i) and (j). (Section 1004) As used herein, "United States" means the United States of America (including the states and the District of Columbia), its territories, its possessions and other areas subject to its jurisdiction and a "United States person" is a person that is, for United States federal income tax purposes, (a) a citizen or a resident of the United States, (b) a corporation, partnership or other entity created or organized in or under the laws of the United States or of any political subdivision thereof, (c) an estate the income of which is subject to United States federal income taxation regardless of source, (d) any trust if a court within the United States is able to exercise primary supervision of the administration thereof and one or more United States fiduciaries have the authority to control all substantial decisions thereof, or (e) any other person included within the definition of United States person under the Code and the regulations thereunder. (Sections 101 and 1004) Notwithstanding the foregoing, if and so long as a certification, identification or other information reporting requirement referred to in the second paragraph under "Redemption for Taxation Reasons" above would be fully satisfied by payment of a backup withholding tax or similar charge, the Company may elect, by so stating in the Determination Notice, to have the provisions of this paragraph apply in lieu of redeeming the Bearer Debt Security pursuant to such second paragraph. In such event, the Company will pay as Additional Amounts such amounts as may be necessary so that every net payment made, following the effective date of such requirements, outside the United States by the Company or any Paying Agent of principal of, and premium, if any, due in respect of any Bearer Debt Security, or interest represented by any Coupon, the beneficial owner of which is not a United States person (but without any requirement that the nationality, residence or identity of such beneficial owner be disclosed to the Company, any Paying Agent or any governmental authority), after deduction or withholding for or on account of such backup withholding tax or similar charge, other than a backup withholding tax or similar charge which is (a) the result of a certification, identification or information reporting requirement described in the first parenthetical clause of such second paragraph, (b) imposed as a result of the fact that the Company or any Paying Agent has actual knowledge that the beneficial owner of such Bearer Debt Security or Coupon is within the category of persons described in clause (a) of the first paragraph under this heading or (c) imposed as a result of presentation of such Bearer Debt Security or Coupon for payment more than 15 days after the date on which such payment becomes due and payable or on which payment thereof is duly provided for, whichever occurs later, will not be less than the amount provided for in such Bearer Debt Security or Coupon to be then due and payable. (Section 1004) EVENTS OF DEFAULT The following are Events of Default under the Indentures with respect to Debt Securities of any series: (a) failure to pay any interest on, or any Additional Amounts payable in respect of any interest on, any Debt Security of that series when due, continued for 10 days, and in the case of the Subordinated Securities, whether or not such payment is prohibited by the subordination provisions of the Subordinated Indenture; (b) failure to pay principal or any premium on any Debt Security of that series when due, upon maturity, redemption or otherwise, and in the case of the Subordinated Securities, whether or not such payment is prohibited by the subordination provisions of the Subordinated Indenture; (c) default in the deposit of any sinking fund payment or analogous payment, when due by the terms of the Debt Securities of that series, and in the case of the Subordinated Securities, whether or not such payment is prohibited by the subordination provisions of the Subordinated Indenture; (d) failure to perform any other covenant or breach of a warranty of the Company or Thermo Electron in the applicable Indenture (other than a covenant expressly included in such Indenture solely for the benefit of a series of Debt Securities other than that series) or any Debt Security of such series, continued for 60 days after written notice as provided in the applicable Indenture; (e) any acceleration of the maturity of any indebtedness of the Company for borrowed money in an aggregate principal amount exceeding $25,000,000, unless otherwise specified in the applicable Prospectus Supplement, or a failure to pay such indebtedness at its stated maturity, if such indebtedness is not discharged or such acceleration is not rescinded or annulled within 20 days after written notice as provided in the Indentures; (f) certain events of bankruptcy, insolvency or reorganization of the Company or Thermo Electron; and (g) any other Event of Default provided with respect to Debt Securities of 24 that series. (Section 501) No Event of Default with respect to any particular series of Debt Securities necessarily constitutes an Event of Default with respect to any other series of Debt Securities. The Indentures provide that the Trustee thereunder may withhold notice to the holders of the Debt Securities of any series of the occurrence of a default with respect to the Debt Securities of such series (except a default in payment of principal, premium, if any, interest, Additional Amounts, if any, or sinking fund payments, if any) if the Trustee considers it in the interest of the Holders to do so. (Section 602) If an Event of Default with respect to Debt Securities of any series at the time outstanding shall occur and be continuing, either the applicable Trustee or the Holders of at least 25% in principal amount of the Debt Securities of that series may declare the principal amount of all Debt Securities of that series (or if any Debt Securities of such series are Original Issue Discount Securities or Indexed Securities, such portion of the principal amount of such Debt Securities as may be specified by the terms thereof) to be due and payable immediately; provided that in the case of certain events of bankruptcy, insolvency or reorganization, such principal amount (or portion thereof), premium, if any, interest and Additional Amounts, if any, shall automatically become due and payable. However, at any time after a declaration of acceleration with respect to Debt Securities of any series has been made, but before a judgment or decree based on such acceleration has been obtained, the Holders of a majority in principal amount of the Debt Securities of that series may, under certain circumstances, rescind and annul such acceleration. (Section 502) For information as to waiver of default, see "Modifications, Waivers and Meetings." Reference is made to the Prospectus Supplement relating to each series of Debt Securities which are Original Issue Discount Securities or Indexed Securities for the particular provisions relating to acceleration of the Maturity of a portion of the principal amount of such Original Issue Discount Securities or Indexed Securities upon the occurrence of an Event of Default and the continuation thereof. The Indentures provide that, subject to the duty of the respective Trustees thereunder during default to act with the required standard of care, such Trustee will be under no obligation to exercise any of its rights or powers under the respective Indentures at the request or direction of any of the Holders of the Debt Securities unless they shall have offered to such Trustee reasonable indemnity. (Section 601) Subject to such provisions for indemnification of the Trustees, the Holders of a majority in principal amount of the Debt Securities of any series affected will have the right to direct the time, method and place of conducting any proceeding for any remedy available to the applicable Trustee, or exercising any trust or power conferred on such Trustee, with respect to the Debt Securities of such series. (Section 512) No Holder of a Debt Security of any series will have any right to institute any proceeding with respect to the applicable Indenture, or for the appointment of a receiver or a trustee, or for any other remedy thereunder, unless (i) such Holder has previously given to the applicable Trustee written notice of a continuing Event of Default with respect to the Debt Securities of that series, (ii) the Holders of at least 25% in aggregate principal amount of the Outstanding Debt Securities of that series have made written request, and such Holder or Holders have offered reasonable indemnity to such Trustee to institute such proceeding as trustee, and (iii) such Trustee for 60 days after receipt of such notice has failed to institute such proceeding, and has not received from the Holders of a majority in aggregate principal amount of the Outstanding Debt Securities of that series a direction inconsistent with such request, within 60 days after such notice, request and offer. (Section 507) However, such limitations do not apply to a suit instituted by a Holder of a Debt Security for the enforcement of payment of the principal of or any premium or interest or Additional Amounts on such Debt Security on or after the applicable due date specified in such Debt Security or the right to convert such Debt Security. (Section 508) Thermo Electron and the Company will each be required to furnish to the Trustees annually a statement as to whether there is a default in the performance or observance of certain covenants. (Section 1005) DISCHARGE, DEFEASANCE AND COVENANT DEFEASANCE Upon the direction of the Company, the Indenture shall cease to be of further effect with respect to any series of Debt Securities and any Coupons appertaining thereto issued thereunder specified by the Company (subject to the survival of certain provisions thereof, including the obligation to pay Additional Amounts to the 25 extent described below) when (i) either (A) all outstanding Debt Securities of such series and, in the case of Bearer Securities, all Coupons appertaining thereto, have been delivered to the Trustee for cancellation (subject to certain exceptions) or (B) all Debt Securities of such series have become due and payable or will become due and payable at their stated maturity within one year and such securities are not convertible or exchangeable for other securities or are to be called for redemption within one year and such securities are not convertible or exchangeable for other securities, and the Company or Thermo Electron have irrevocably deposited with the Trustee, in trust, funds in Dollars in an amount sufficient to pay the entire indebtedness on such Debt Securities in respect of principal (and premium, if any) and interest, if any (and, to the extent that (x) the Debt Securities of such series provide for the payment of Additional Amounts upon the occurrence of certain events of taxation, assessment or governmental charge with respect to payments on such Debt Securities and (y) the amount of any such Additional Amounts is at the time of deposit reasonably determinable by the Company, any such Additional Amounts) to the date of such deposit (if such Debt Securities have become due and payable) or to the Maturity thereof, as the case may be, (ii) the Company or Thermo Electron have paid all other sums payable under the Indenture with respect to the Debt Securities of such series, and (iii) certain other conditions are met. If the Debt Securities of any such series provide for the payment of Additional Amounts, the Company will remain obligated, following such deposit, to pay (and the Guarantee of Thermo Electron will continue to apply to such payment of) Additional Amounts on such Debt Securities to the extent that the amount thereof exceeds the amount deposited in respect of such Additional Amounts as aforesaid. (Section 401) If so provided in the applicable Prospectus Supplement, the Company may elect with respect to any series of Debt Securities either (a) to defease and be discharged from any and all obligations with respect to such Debt Securities (except for, among other things, the obligation to pay Additional Amounts, if any, upon the occurrence of certain events of taxation, assessment or governmental charge with respect to payments on such Debt Securities to the extent that the amount thereof exceeds the amount deposited in respect of such Additional Amounts as provided below, and the obligations to register the transfer or exchange of such Debt Securities, to replace temporary or mutilated, destroyed, lost or stolen Debt Securities, to maintain an office or agency in respect of such Debt Securities, to hold moneys for payment in trust, and, if applicable, to exchange or convert such Debt Securities into other securities in accordance with their terms) ("defeasance"), or (b) to omit to comply with its obligations with respect to certain restrictive covenants in Section 1005 (Statement as to Compliance), Section 102 (Compliance Certificates and Opinions), and, to the extent specified pursuant to Section 301, any other covenant applicable to such Debt Securities in the Indenture, and any omission to comply with such obligations shall not constitute a default or an Event of Default with respect to the Debt Securities of such series ("covenant defeasance"), in either case upon the irrevocable deposit with the Trustee (or other qualifying trustee), in trust for such purpose, of an amount, in U.S. dollars and/or Government Obligations (as defined in the Indenture) which through the scheduled payment of principal and interest in accordance with their terms will provide money in an amount sufficient to pay the principal of and any premium and any interest on (and, to the extent that (x) the Debt Securities of such series provide for the payment of Additional Amounts and (y) the amount of any such Additional Amounts is at the time of deposit reasonably determinable by the Company, any such Additional Amounts with respect to) such Debt Securities, and any mandatory sinking fund or analogous payments thereon, on the due dates therefor, whether upon maturity, redemption or otherwise. (Section 402) Such defeasance or covenant defeasance shall only be effective if, among other things, (i) it shall not result in a breach or violation of, or constitute a default under, the Indenture or any other material agreement to which the Company is a party or is bound, and (ii) the Company has delivered to the Trustee an opinion of counsel (as specified in the Indenture) to the effect that the holders of such Debt Securities and Coupons appertaining thereto will not recognize income, gain or loss for Federal income tax purposes as a result of such defeasance or covenant defeasance, as the case may be, and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such defeasance or covenant defeasance had not occurred. It shall also be a condition to the effectiveness of such defeasance (but not covenant defeasance) that no Event of Default or event which with notice or lapse of time or both would become an Event of Default with respect to Debt Securities and Coupons by appertaining thereto of such series shall have occurred and been 26 continuing on the date of, or during the period ending on the 91st day after the date of, such deposit into trust. (Section 402) In the event the Company effects covenant defeasance with respect to any Debt Securities and such Debt Securities are declared due and payable because of the occurrence of any Event of Default other than an Event of Default with respect to any other covenant as to which there has been covenant defeasance, the amount of monies and/or Government Obligations deposited with the Trustee to effect such covenant defeasance may not be sufficient to pay amounts due on such Debt Securities and Coupons appertaining thereto at the time of any acceleration resulting from such Event of Default. However, the Company and Thermo Electron would remain liable to make payment of such amounts due at the time of acceleration. The applicable Prospectus Supplement may further describe the provisions, if any, permitting or restricting such defeasance or covenant defeasance with respect to the Debt Securities of a particular series. MODIFICATION, WAIVERS AND MEETINGS The Indenture contains provisions permitting the Company, Thermo Electron and the Trustee thereunder, with the consent of the holders of a majority in principal amount of the outstanding Debt Securities of each series and affected by a modification or amendment, to modify or amend any of the provisions of the Indenture or of the Debt Securities of such series or the rights of the holders of the Debt Securities of such series under the Indenture, provided that no such modification or amendment shall, among other things, (i) change the Stated Maturity of the principal of, or premium, if any, or any installment of principal or interest on or Additional Amounts with respect to any Debt Securities or any sinking fund or analogous payment with respect thereof or reduce the principal amount thereof or any premium thereon, or the rate of interest thereon (or modify the calculation of such rate), or change the obligation of the Company to pay Additional Amounts, or reduce the amount of principal of any Debt Security that would be due and payable upon an acceleration of the maturity thereof, or adversely affect any right of repayment at the option of any Holder, or change the provisions of the Indentures relating to the Place of Payment for Bearer Debt Securities being located outside the United States, or the Currency in which the principal of, any premium or interest on, or any Additional Amounts with respect to any Debt Security or any sinking or analogous fund payment in respect thereof, is payable, or impair the Holder's right to institute suit to enforce the payment of any such Debt Securities, or make any change that adversely affects the right, if any, to convert or exchange such Debt Securities for other securities in accordance with their terms or in the case of the Subordinated Securities, modify the subordination provisions in a manner adverse to the Holders of the Subordinated Securities and the related Guarantees or change in any manner adverse to the Holders of Debt Securities the terms of the Guarantees with respect to the payment of the principal of, premium, if any, and interest on the Debt Securities or any sinking fund or analogous payments with respect thereof, or (ii) reduce the aforesaid percentage in principal amount of Debt Securities of any series, the consent of the Holders of which is required for any such modification or amendment or the consent of whose holders is required for any waiver (of compliance with certain provisions of the Indenture or certain defaults thereunder and their consequences) or reduce the requirements for a quorum or voting at a meeting of holders of such Debt Securities. (Section 902) The Indenture also contains provisions permitting the Company, Thermo Electron and the Trustee, without the consent of the holders of any Debt Securities issued thereunder, to modify or amend the Indenture in order to, among other things, (a) add to the Events of Default or the covenants of the Company or Thermo Electron for the benefit of the holders of all or any series of Debt Securities; (b) to add or change any provisions of the Indenture to facilitate the issuance of Bearer Securities; (c) to establish the form or terms of Debt Securities of any series and any related Coupons; (d) to cure any ambiguity or correct or supplement any provision therein which may be defective or inconsistent with other provisions therein, or to make any other provisions with respect to matters or questions arising under the Indenture which shall not adversely affect the interests of the Holders of any series of Debt Securities in any material respect; or (e) to amend or supplement any provision contained in the Indenture, provided that such amendment or supplement does not apply to any Outstanding Debt Securities issued prior to the date of such amendment or supplement and entitled to the benefits of such provision. (Section 901) 27 The holders of a majority in aggregate principal amount of the outstanding Debt Securities of any series may, on behalf of all holders of Debt Securities of that series, waive any past default under the Indenture with respect to Debt Securities of that series and its consequences, except a default in the payment of the principal of, or premium, if any, or interest on or any Additional Amounts with respect to, any Debt Securities or any Coupons appertaining thereto of such series or in respect of a covenant or provision which cannot be modified or amended without the consent of the holder of each outstanding Debt Securities of such series affected. (Section 513) The Indenture contains provisions for convening meetings of the Holders of Debt Securities of each series. (Section 1601) A meeting may be called at any time by the Trustee, and also, upon request, by the Company or the Holders of at least 10% in principal amount of the Outstanding Debt Securities of such series, in any such case upon notice given in accordance with the provisions of the Indenture. (Section 1602) Except for any consent which must be given by the Holder of outstanding Debt Security affected thereby, as described above, any resolution presented at a meeting or adjourned meeting duly reconvened at which a quorum (as described below) is present may be adopted by the affirmative vote of the Holders of a majority in principal amount of the Outstanding Debt Securities of that series; provided, however, that any resolution with respect to any request, demand, authorization, direction, notice, consent, waiver or other action which may be made, given or taken by the Holders of a specified percentage, which is less or more than a majority, in principal amount of the Outstanding Debt Securities of a series may be adopted at a meeting or adjourned meeting duly reconvened at which a quorum is present by the affirmative vote of the Holders of such specified percentage in principal amount of the Outstanding Debt Securities of that series. Any resolution passed or decision taken at any meeting of Holders of Debt Securities of any series duly held in accordance with the Indenture will be binding on all Holders of Debt Securities of that series and the related Coupons. The quorum at any meeting called to adopt a resolution, and at any reconvened meeting, will be persons holding or representing a majority in principal amount of the Outstanding Debt Securities of a series, subject to certain exceptions. (Section 1604) CONSOLIDATION, MERGER AND SALE OF ASSETS Each of the Company and Thermo Electron, without the consent of any Holders of Debt Securities, may consolidate or merge with or into, or transfer or lease its properties or assets substantially as an entirety to, any Person, and any other Person may consolidate or merge with and into, or transfer or lease properties or assets substantially as an entirety to, the Company or Thermo Electron provided that (i) the Person (if other than the Company or Thermo Electron) formed by any such consolidation or into which the Company or Thermo Electron is merged or which acquires or leases the properties or assets of the Company or Thermo Electron substantially as an entirety is a corporation, partnership or trust organized and validly existing under the laws of any United States jurisdiction or, subject to certain additional requirements, a corporation, limited liability company, partnership or trust organized under the laws of a jurisdiction other than the United States, that assumes the Company's or Thermo Electron's obligations on the Debt Securities or the Guarantees, as the case may be, and under the Indentures, (ii) immediately after giving effect to such transaction no Event of Default, and no event which, after notice or lapse of time or both, would become an Event of Default, shall have happened and be continuing, and (iii) certain other conditions are met. Upon compliance with these provisions by a successor corporation, the Company or Thermo Electron, as the case may be, would be relieved from its obligations under the Securities and the Guarantees, as the case may be, and under the Indenture. (Article Eight) NOTICES Notice to Holders of Registered Securities will be given by mail to the addresses of such Holders as they may appear in the Security Register. Notice to Holders of Bearer Securities, if any, will be given by publication in a leading daily newspaper in the English language of general circulation in New York City and, if such Debt Securities are then listed on any stock exchange outside the United States, in a daily newspaper of general circulation in the city that such stock exchange requires. (Section 106) 28 TITLE The Company, Thermo Electron, the Trustee and any agent of the Company, Thermo Electron or the Trustee may treat the Person in whose name a Debt Security is registered as the absolute owner thereof (whether or not such Debt Security may be overdue) for the purpose of making payment and for all other purposes. Title to Bearer Securities passes on delivery. (Section 308) GOVERNING LAW The Indentures, the Debt Securities and the Guarantees will be governed by, and construed in accordance with, the laws of the Commonwealth of Massachusetts applicable to agreements made or instruments entered into and, in each case, performed in said state, except that the rights, protections, obligations, indemnities and immunities of the Trustee under the Indentures shall be governed by, and construed in accordance with, the laws of the State of New York, without regard to the conflicts of laws principles of either state. (Section 113) CONCERNING THE TRUSTEE The Indentures contain certain limitations on the right of the Trustee, should it become a creditor of the Company or Thermo Electron, to obtain payment of claims in certain cases, or to realize for its own account on certain property received in respect of any such claim as security or otherwise. (Section 611) The Trustee will be permitted to engage in certain other transactions; however, if it acquires any conflicting interest and there is a default under the Debt Securities, it must eliminate such conflict or resign. (Section 613) The Trustee serves as a depositary of funds of, and performs other services for, Thermo Electron and its subsidiaries, and is trustee and fiscal agent under several other indentures and fiscal agency agreements pursuant to which debentures of various subsidiaries of Thermo Electron have been issued. PLAN OF DISTRIBUTION The Securities may be sold to or through underwriters or to dealers acting as principals for their own account, and also may be sold directly to other purchasers or through agents. The distribution of the Securities may be effected from time to time in one or more transactions at a fixed price or prices, which may be changed, or at market prices prevailing at the time of sale, at prices related to such prevailing market prices or at negotiated prices. In connection with the sale of Securities, underwriters or agents may receive compensation from the Company or Thermo Electron or from purchasers of Securities for whom they may act as agents in the form of discounts, concessions or commissions. Underwriters may sell Securities to or through dealers, and such dealers may receive compensation in the form of discounts, concessions or commissions from the underwriters and/or commissions from the purchasers for whom they may act as agents. Underwriters, dealers and agents that participate in the distribution of Securities may be deemed to be underwriters, and any discounts or commissions received by them from the Company or Thermo Electron and any profit on the resale of Securities by them may be deemed to be underwriting discounts and commissions, under the Securities Act. Any such underwriter or agent will be identified, and any such compensation received from the Company or Thermo Electron will be described, in the Prospectus Supplement. Under agreements which may be entered into by the Company and, in the case of Debt Securities, Thermo Electron, underwriters and agents who participate in the distribution of Securities may be entitled to indemnification by the Company and Thermo Electron against certain liabilities, including liabilities under the Securities Act. 29 Any Securities issued hereunder (other than Common Stock) will be new issues of securities with no established trading market. The Company and Thermo Electron may not apply for the listing of any Securities (other than the Common Stock) on any national securities exchange or on Nasdaq. No assurance can be given as to the liquidity of the trading market for any such Securities. Certain of the underwriters, dealers or agents and their associates may be customers of, engage in transactions with, and perform services for, the Company or Thermo Electron in the ordinary course of business. VALIDITY OF SECURITIES The validity of the Securities to which this Prospectus relates will be passed upon for the Company and, in the case of Debt Securities, Thermo Electron by Seth H. Hoogasian, Esq., General Counsel of the Company and Thermo Electron. Mr. Hoogasian is a full-time employee of Thermo Electron. The validity of the Securities offered hereby will be passed upon for any relevant Underwriters by Testa, Hurwitz & Thibeault, LLP, Boston, Massachusetts. EXPERTS The financial statements of the Company and Thermo Electron incorporated by reference in this Prospectus and the financial statement schedules incorporated by reference in the Registration Statement of which this Prospectus forms a part have been audited by Arthur Andersen LLP, independent public accountants, to the extent and for the periods as indicated in their reports with respect thereto, and are incorporated by reference herein in reliance upon the authority of said firm as experts in giving said reports. 30 PART II INFORMATION NOT REQUIRED IN PROSPECTUS ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION. The following table sets forth the various expenses in connection with the sale and distribution of the Securities being registered, other than the underwriting discounts and commissions. All amounts shown are estimates except for the registration fee of the Securities and Exchange Commission (the "SEC" or the "Commission"). SEC registration fee............................................ $ 75,758 Listing fees.................................................... 17,500 Legal fees and expenses......................................... 75,000 Accounting fees and expenses.................................... 25,000 Blue sky fees and expenses (including legal fees)............... 25,000 Printing and engraving expenses................................. 200,000 Rating agencies' fees........................................... 100,000 Miscellaneous................................................... 30,000 -------- Total....................................................... $548,258 ========
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS. The Delaware General Corporation Law and the corporate charter and by-laws of each of the Company and Thermo Electron limit the monetary liability of directors to each of the Company, Thermo Electron and their respective stockholders and provide for indemnification of their respective officers and directors for liabilities and expenses that they may incur in such capacities. In general, officers and directors are indemnified with respect to actions taken in good faith in a manner reasonably believed to be in, or not opposed to, the best interests of the Company and Thermo Electron, respectively, and with respect to any criminal action or proceeding, actions that the indemnitee had no reasonable cause to believe were unlawful. Reference is made to the Company's and Thermo Electron's corporate charters and by-laws filed as exhibits to this registration statement. Thermo Electron has an insurance policy that insures the directors and officers of Thermo Electron and its subsidiaries, including the Company, against certain liabilities that might be incurred in connection with the performance of their duties. The forms of underwriting agreements to be filed as exhibits to this registration statement require the underwriters under certain circumstances to indemnify the directors and officers of the registrants against certain liabilities, including liabilities under the Securities Act. The registrants also have indemnification agreements with their respective directors and officers that provide for the maximum indemnification allowed by law. ITEM 16. EXHIBITS. 1.1 Proposed form of Underwriting Agreement. 3.1 Restated Certificate of Incorporation, as amended, of the Company (filed as Exhibit 3(i) to the Company's Quarterly Report on Form 10-Q for the fiscal quarter ended July 2, 1994 and incorporated herein by reference). 3.2 By-laws of the Company, as amended and restated (filed as Exhibit 3.2 to the Company's Transition Report on Form 10-K for the transition period January 1, 1995 through September 30, 1995 and incorporated herein by reference).
II-1 3.3 Restated Certificate of Incorporation of Thermo Electron (filed as Exhibit 3(i) to Thermo Electron's Quarterly Report on Form 10-Q for the quarter ended June 29, 1996 and incorporated herein by reference). 3.4 By-Laws of Thermo Electron (filed as Exhibit 3.2 to Thermo Electron's Annual Report on Form 10-K for the fiscal year ended December 28, 1996 and incorporated herein by reference). 4.1 Form of Senior Indenture. 4.2 Form of Subordinated Indenture. 4.3* Form of Senior Debt Security. 4.4* Form of Subordinated Debt Security. 4.5 Specimen Certificate for Common Stock of the Company (filed as Exhibit 4 to the Company's Registration Statement on Form S-1 [Reg. No. 33-40972] and incorporated herein by reference). 4.6 Rights Agreement dated as of January 19, 1996, between Thermo Electron and The First National Bank of Boston, as Rights Agent (filed as Exhibit 1 to Thermo Electron's Registration Statement on Form 8-A, declared effective by the Commission on January 31, 1996 and incorporated herein by reference). 5.1 Opinion and consent of Seth H. Hoogasian, Esq. as to the validity of the Securities. 8.1* Opinion and consent of tax counsel as to certain tax matters. 12.1 Computation of ratio of earnings to fixed charges of the Company. 12.2 Computation of ratio of earnings to fixed charges of Thermo Electron. 23.1 Consent of Arthur Andersen LLP. 23.2 Consent of Seth H. Hoogasian, Esq. (included as part of Exhibit 5.1). 23.3 Consent of tax counsel (included as part of Exhibit 8.1). 23.4 Power of Attorney (see signature pages to this registration statement). 25.1 Form T-1 Statement of Eligibility and Qualification under the Trust Indenture Act of 1939, as amended, of Bankers Trust Company.
- -------- * To be filed, if applicable, by amendment or as an exhibit to a document to be incorporated by reference herein in connection with an offering of specific Securities. ITEM 17. UNDERTAKINGS. 1. The undersigned registrants hereby undertake: (a) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: (i) To include any Prospectus required by Section 10(a)(3) of the Securities Act; (ii) To reflect in the Prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of Prospectus filed with the Commission pursuant to Rule 424(b) under the Securities Act if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective registration statement. (iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; provided, however, that paragraphs (a)(i) and (a)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed by a registrant pursuant to Section 13 or 15(d) of the Exchange Act that are incorporated by reference in the registration statement. II-2 (b) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (c) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. 2. The undersigned registrants hereby undertake that, for purposes of determining any liability under the Securities Act, each filing of a registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange Act of (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. 3. Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrants pursuant to the provisions described under Item 15 above, or otherwise, the registrants have been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrants of expenses incurred or paid by a director, officer or controlling person of the registrants in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrants will, unless in the opinion of their counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by them is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. II-3 SIGNATURES THERMOTREX CORPORATION Pursuant to the requirements of the Securities Act, ThermoTrex Corporation certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in San Diego, California, on September 4, 1997. ThermoTrex Corporation By: /s/ Gary S. Weinstein ____________________________________ Gary S. Weinstein Chief Executive Officer THERMO ELECTRON CORPORATION Pursuant to the requirements of the Securities Act, Thermo Electron Corporation certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Waltham, Massachusetts, on September 4, 1997. Thermo Electron Corporation By: /s/ John N. Hatsopoulos ____________________________________ John N. Hatsopoulos President and Chief Financial Officer II-4 POWER OF ATTORNEY AND SIGNATURES We, the undersigned officers and directors of ThermoTrex Corporation and Thermo Electron Corporation, hereby severally constitute and appoint John N. Hatsopoulos, Seth H. Hoogasian, Sandra L. Lambert and Melissa F. Riordan, and each of them singly, our true and lawful attorneys, with full power to them and each of them singly, to sign for us in our names in the capacities indicated below, any and all amendments and exhibits to this registration statement, any related registration statements which may be filed under Rule 462(b) of the Securities Act of 1933, and any and all applications and other documents to be filed with the Securities and Exchange Commission pertaining to the registration of the securities covered hereby, and generally to do all things in our names and on our behalf in such capacities to enable ThermoTrex Corporation and Thermo Electron Corporation to comply with the provisions of the Securities Act of 1933 and all requirements of the Securities and Exchange Commission. THERMOTREX CORPORATION Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the dates indicated. SIGNATURE TITLE(S) DATE /s/ Gary S. Weinstein Chief Executive September 4, - ------------------------------------- Officer, Chairman 1997 GARY S. WEINSTEIN of the Board and Director (Principal Executive Officer) /s/ John N. Hatsopoulos Vice President, September 4, - ------------------------------------- Chief Financial 1997 JOHN N. HATSOPOULOS Officer and Director (Principal Financial Officer) /s/ Paul F. Kelleher Chief Accounting September 4, - ------------------------------------- Officer (Principal 1997 PAUL F. KELLEHER Accounting Officer) /s/ Morton Collins Director September 4, - ------------------------------------- 1997 MORTON COLLINS /s/ Peter O. Crisp Director September 4, - ------------------------------------- 1997 PETER O. CRISP /s/ Paul F. Ferrari Director September 4, - ------------------------------------- 1997 PAUL F. FERRARI /s/ Dr. George N. Hatsopoulos Director September 4, - ------------------------------------- 1997 DR. GEORGE N. HATSOPOULOS /s/ Robert C. Howard Director September 4, - ------------------------------------- 1997 ROBERT C. HOWARD /s/ Firooz Rufeh Director September 4, - ------------------------------------- 1997 FIROOZ RUFEH /s/ Nicholas T. Zervas Director September 4, - ------------------------------------- 1997 NICHOLAS T. ZERVAS II-5 THERMO ELECTRON CORPORATION Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the dates indicated. SIGNATURE TITLE(S) DATE /s/ George N. Hatsopoulos Chief Executive September 4, - ------------------------------------- Officer, Chairman 1997 GEORGE N. HATSOPOULOS of the Board and Director (Principal Executive Officer) /s/ John N. Hatsopoulos President and Chief September 4, - ------------------------------------- Financial Officer 1997 JOHN N. HATSOPOULOS (Principal Financial Officer) /s/ Paul F. Kelleher Senior Vice September 4, - ------------------------------------- President, Finance 1997 PAUL F. KELLEHER & Administration (Principal Accounting Officer) /s/ John M. Albertine Director September 4, - ------------------------------------- 1997 JOHN M. ALBERTINE /s/ Peter O. Crisp Director September 4, - ------------------------------------- 1997 PETER O. CRISP /s/ Elias P. Gyftopoulos Director September 4, - ------------------------------------- 1997 ELIAS P. GYFTOPOULOS /s/ Frank Jungers Director September 4, - ------------------------------------- 1997 FRANK JUNGERS /s/ Robert A. McCabe Director September 4, - ------------------------------------- 1997 ROBERT A. MCCABE /s/ Frank E. Morris Director September 4, - ------------------------------------- 1997 FRANK E. MORRIS - ------------------------------------- Director September , DONALD E. NOBLE 1997 /s/ Hutham S. Olayan Director September 4, - ------------------------------------- 1997 HUTHAM S. OLAYAN /s/ Roger D. Wellington Director September 4, - ------------------------------------- 1997 ROGER D. WELLINGTON II-6 EXHIBIT NO. EXHIBIT INDEX DESCRIPTION 1.1 Proposed form of Underwriting Agreement. 3.1 Restated Certificate of Incorporation, as amended, of the Company (filed as Exhibit 3(i) to the Company's Quarterly Report on Form 10- Q for the fiscal quarter ended July 2, 1994 and incorporated herein by reference). 3.2 By-laws of the Company, as amended and restated (filed as Exhibit 3.2 to the Company's Transition Report on Form 10-K for the transition period January 1, 1995 through September 30, 1995 and incorporated herein by reference). 3.3 Restated Certificate of Incorporation of Thermo Electron (filed as Exhibit 3(i) to Thermo Electron's Quarterly Report on Form 10-Q for the quarter ended June 29, 1996 and incorporated herein by reference). 3.4 By-Laws of Thermo Electron (filed as Exhibit 3.2 to Thermo Electron's Annual Report on Form 10-K for the fiscal year ended December 28, 1996 and incorporated herein by reference). 4.1 Form of Senior Indenture. 4.2 Form of Subordinated Indenture. 4.3* Form of Senior Debt Security. 4.4* Form of Subordinated Debt Security. 4.5 Specimen Certificate for Common Stock of the Company (filed as Exhibit 4 to the Company's Registration Statement on Form S-1 [Reg. No. 33-40972] and incorporated herein by reference). 4.6 Rights Agreement dated as of January 19, 1996, between Thermo Electron and The First National Bank of Boston, as Rights Agent (filed as Exhibit 1 to Thermo Electron's Registration Statement on Form 8-A, declared effective by the Commission on January 31, 1996 and incorporated herein by reference). 5.1 Opinion and consent of Seth H. Hoogasian, Esq. as to the validity of the Securities. 8.1* Opinion and consent of tax counsel as to certain tax matters. 12.1 Computation of ratio of earnings to fixed charges of the Company. 12.2 Computation of ratio of earnings to fixed charges of Thermo Electron. 23.1 Consent of Arthur Andersen LLP. 23.2 Consent of Seth H. Hoogasian, Esq. (included as part of Exhibit 5.1). 23.3 Consent of tax counsel (included as part of Exhibit 8.1). 23.4 Power of Attorney (see signature pages to this registration statement). 25.1 Form T-1 Statement of Eligibility and Qualification under the Trust Indenture Act of 1939, as amended, of Bankers Trust Company.
- -------- * To be filed, if applicable, by amendment or as an exhibit to a document to be incorporated by reference herein in connection with an offering of specific Securities. EX-1.1 2 UNDERWRITING AGREEMENT EXHIBIT 1.1 $250,000,000 THERMOTREX CORPORATION THERMO ELECTRON CORPORATION UNDERWRITING AGREEMENT ---------------------- _________, 1997 LEHMAN BROTHERS INC. Three World Financial Center New York, New York 10285 SALOMON BROTHERS INC Seven World Trade Center New York, New York 10048 Dear Sirs: ThermoTrex Corporation., a Delaware corporation (the "Company"), ------- proposes to issue and sell up to $250,000,000 of a combination of the Company's (i) debt securities, consisting of debentures, notes or other unsecured evidences of indebtedness which may be either senior debt securities (the "Senior Debt Securities") or subordinated debt securities (the "Subordinated Debt Securities"), and (ii) shares of common stock, $.01 value par value (the "Common Stock"), in one or more offerings on terms and conditions determined at ------------ the time of sale. Debt Securities that may be issued by the Company will be guaranteed (the "Guarantees"), on either a senior or subordinated basis, by ---------- Thermo Electron Corporation, a Delaware corporation and the corporate parent of the Company ("Thermo Electron"), and, in certain circumstances, common stock, --------------- $1.00 par value, of Thermo Electron (the "Thermo Electron Common Stock") may be ---------------------------- issued on conversion of Debt Securities in lieu of the issuance of Common Stock on conversion thereof. The Debt Securities, the Common Stock, the Guarantees and the Thermo Electron Common Stock are sometimes referred to herein as the "Offered Securities." The Senior Debt Securities will be issued pursuant to an ------------------ indenture dated as of _________, 1997 (the "Senior Indenture") among the ---------------- Company, Thermo Electron and Bankers Trust Company, as trustee (the "Trustee") ------- and the Subordinated Debt Securities will be issued pursuant to an indenture dated as of ______ ____, 1997 (the "Subordinated Indenture") among the Company, Thermo Electron and the Trustee (the Senior Indenture and Subordinated Indenture are sometimes hereinafter collectively referred to as the "Indentures" and individually as an "Indenture"). From time to time, the Company and Thermo Electron may enter into one or more terms agreements (each a "Terms Agreement") that provide for the sale of --------------- such designated Offered Securities to, and the purchase and offering thereof by, either or both of you, as applicable, and the underwriter or underwriters named therein (the "Underwriters" or "you", which terms shall ------------ --- -2- include the underwriter or underwriters named therein whether acting alone in the sale of Offered Securities or as members of an underwriting syndicate), and the provisions set forth herein (except for provisions which relate to securities other than Offered Securities designated in the applicable Terms Agreement) shall be incorporated by reference in any such Terms Agreement. The applicable Terms Agreement, including the provisions incorporated therein by reference, is herein referred to as "this Agreement." -------------- 1. Representations, Warranties and Agreements of the Company and ------------------------------------------------------------- Thermo Electron. The Company and Thermo Electron, jointly and severally, - --------------- represent and warrant as to the Company (and its Subsidiaries) as follows, Thermo Electron represents and warrants as to itself (and its Subsidiaries) as follows, and the Company and Thermo Electron, jointly and severally, agree with each Underwriter as follows: (a) A registration statement on Form S-3 (No. 333-32035), including a prospectus relating to the Offered Securities of the Company and Thermo Electron for the registration of such securities under the United States Securities Act of 1933, as amended (the "Securities Act"), has (i) been prepared by the Company -------------- and Thermo Electron in material conformity with the requirements of the Securities Act and the rules and regulations (the "Rules and Regulations") of --------------------- the United States Securities and Exchange Commission (the "Commission") ---------- thereunder, (ii) been filed with the Commission under the Securities Act and (iii) become effective under the Securities Act; and each Indenture has been qualified under the Trust Indenture Act of 1939, as amended (the "Trust ----- Indenture Act"). Copies of such registration statement and any amendments - ------------- thereto have been delivered by the Company and Thermo Electron to you. As used in this Agreement, "Effective Date" means the date and the time as of which such -------------- registration statement, or the most recent post-effective amendment thereto, if any, was declared effective by the Commission; "Registration Statement" means ---------------------- the registration statement in the form it became or becomes, as the case may be, effective (including, if the Company omitted information from the registration statement pursuant to Rule 430A(a) or files a term sheet pursuant to Rule 434 of the Rules and Regulations, the information deemed to be a part of the registration statement at the time it became effective pursuant to Rule 430A(b) or Rule 434(d) of the Rules and Regulations), including all documents incorporated by reference or deemed to be incorporated by reference therein and the exhibits thereto and, in the event of any amendment thereto or the filing of any abbreviated registration statement pursuant to Rule 462(b) of the Rules and Regulations relating thereto after the effective date of such registration statement, shall also mean (from and after the effectiveness of such amendment or the filing of such abbreviated registration statement) such registration statement as so amended, together with any such abbreviated registration statement; "Base Prospectus" means the prospectus included in the Registration --------------- Statement; "Preliminary Prospectus" means any preliminary form of Prospectus (as ---------------------- defined herein) specifically relating to designated Offered Securities in the form first filed with, or transmitted for filing to the Commission pursuant to Rule 424 of the Rules and Regulations; "Prospectus Supplement" means any --------------------- prospectus supplement specifically relating to designated Offered Securities in the form first filed with, or transmitted for filing to, the Commission pursuant to Rule 424 under the Securities Act; "Prospectus" means the Base Prospectus ---------- together with the Prospectus Supplement except that if such Base Prospectus is amended or supplemented on or prior to the date on which the Prospectus Supplement was first filed pursuant to Rule 424, -3- the term "Prospectus" shall refer to the Base Prospectus as so amended or supplemented and as supplemented by the Prospectus Supplement; "Base ---- Prospectus," "Prospectus," "Preliminary Prospectus" and "Prospectus Supplement" - ---------- ---------- ----------- ---------- ---------- ---------- shall include in each case the documents, if any, filed by the Company or Thermo Electron with the Commission pursuant to the United States Securities Exchange Act of 1934, as amended (the "Exchange Act"), and incorporated by reference ------------ therein; and "supplement" and "amendment", shall be deemed to refer to and ---------- --------- include any documents incorporated by reference pursuant to Item 12 of Form S-3 under the Securities Act that are filed subsequent to the date of the Base Prospectus by the Company or Thermo Electron with the Commission pursuant to the Exchange Act. Any reference to any amendment to the Registration Statement shall be deemed to include any annual report of the Company or Thermo Electron, as the case may be, filed with the Commission pursuant to Section 13(a) or 15(d) of the Exchange Act after the Effective Date that is incorporated by reference in the Registration Statement. Any reference herein to information "contained in," ------------ "contemplated by," "described in," "disclosed in," "included in" or "set forth - ---------------- ------------ ------------ ----------- --------- in" any of the foregoing documents, or words of similar effect, shall be deemed - -- to include the documents incorporated or deemed to be incorporated by reference therein. (b) The Registration Statement complies as to form in all material respects, and the Prospectus and any further amendments or supplements to the Registration Statement or the Prospectus will, when they become effective or are filed with the Commission, as the case may be, comply as to form in all material respects to the requirements of the Securities Act and the Rules and Regulations and do not and will not, as of the applicable Effective Date (as to the Registration Statement and any amendment thereto) and as of the applicable filing date and applicable Closing Date (as to the Prospectus and any amendment or supplement thereto) contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of the Prospectus, in light of the circumstances in which they were made), not misleading; provided, however, that no representation or warranty is made as to information contained in or omitted from the Registration Statement or the Prospectus in reliance upon and in conformity with written information furnished to the Company by or on behalf of any Underwriter specifically for use in the Registration Statement or the Prospectus. To the extent applicable, the copies of the Registration Statement and each other document referred to in subparagraph (a) above that have been or will be furnished to the Underwriters have been and will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to the Commission's Electronic Data Gathering, Analysis and Retrieval System ("EDGAR"), except to the extent permitted by Regulation S-T. ----- (c) If the Offered Securities are Debt Securities: Each Indenture conforms in all material respects to the requirements of the Trust Indenture Act and the applicable rules and regulations thereunder. (d) The documents incorporated or deemed to be incorporated by reference in the Prospectus, when they were filed with the Commission, conformed in all material respects with the requirements of the Securities Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder, and none of such documents contained an untrue -4- statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, not misleading; and any further documents so filed and incorporated or deemed to be incorporated by reference in the Prospectus, when such documents become effective or are filed with the Commission, as the case may be, will conform in all material respects to the requirements of the Securities Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. (e) The Company and Thermo Electron and each of their respective Subsidiaries have been duly incorporated and are validly existing as corporations in good standing under the laws of their respective jurisdictions of incorporation. The Company, Thermo Electron and each of their respective Subsidiaries are duly qualified to do business and are in good standing as foreign corporations in each jurisdiction in which their respective ownership or lease of property or the conduct of their respective businesses requires such qualification, except where the failure to be so qualified and in good standing would not have a material adverse effect on the consolidated financial condition, shareholders' equity, results of operations or business of such corporation (meaning herein the Company or Thermo Electron, as the case may be) and its Subsidiaries taken as a whole, and where so qualified have all corporate power and authority necessary to own, lease or operate their respective properties and to conduct the businesses in which they are engaged as described in the Prospectus. Except as described in the Prospectus, the Company, Thermo Electron and their respective Subsidiaries hold all material licenses, certificates and permits from governmental authorities necessary for the conduct of their respective businesses as described in the Prospectus. (f) The Company and Thermo Electron had an authorized and issued capitalization as set forth in the Prospectus (as of the date specified therein), and all of the issued and outstanding shares of capital stock of the Company and Thermo Electron have been duly and validly authorized and issued, are fully paid and non-assessable and conform in all material respects to the description thereof contained in the Prospectus; and all of the issued and outstanding shares of capital stock of each Subsidiary of the Company have been duly and validly authorized and issued and are fully paid and non-assessable and (except for directors' qualifying shares and as set forth in the Prospectus) are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims, except that certain of such shares are reserved for transfer pursuant to stock option and other benefit plans under which options to purchase common stock of such corporation owned by its corporate parent are granted to certain employees, directors or consultants of Thermo Electron, the Company and their Subsidiaries. (g) If the Offered Securities are Debt Securities: The Debt Securities have been duly and validly authorized by the Company and, when duly executed, issued and delivered by the Company, and authenticated by the Trustee pursuant to the provisions of the Senior Indenture or the Subordinated Indenture, as the case may be, against payment therefor as provided in this Agreement, will constitute valid and legally binding obligations of the Company entitled to the benefits of the Indenture and enforceable against the Company in accordance with their terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance and transfer, -5- reorganization, moratorium, or other similar laws now or hereafter in effect relating to creditors' rights generally ("applicable bankruptcy laws") and -------------------------- general equitable principles (whether considered in a proceeding in equity or at law); and the Debt Securities, when issued and delivered, will conform in all material respects to the description thereof contained in the Prospectus. The Guarantees have been duly and validly authorized by Thermo Electron and, when duly executed, issued and delivered by Thermo Electron, and, if required, authenticated by the Trustee pursuant to the provisions of the Indenture, against payment for the Debt Securities as provided in this Agreement, will constitute valid and legally binding obligations of Thermo Electron entitled to the benefits of such Indenture and enforceable against Thermo Electron in accordance with their terms, subject to the effects of applicable bankruptcy laws and general equitable principles (whether considered in a proceeding in equity or at law); and the Guarantees, when issued and delivered, will conform in all material respects to the description thereof contained in the Prospectus. (h) If the Offered Securities are Debt Securities: Each Indenture has been duly authorized by the Company and Thermo Electron, and when duly executed by the proper officers of the Company and Thermo Electron (assuming due execution and delivery by the Trustee) and delivered by the Company and Thermo Electron will constitute a valid and legally binding obligation of the Company and Thermo Electron enforceable against them in accordance with its terms, subject to the effects of applicable bankruptcy laws and general equitable principles (whether considered in a proceeding in equity or at law); and each Indenture conforms in all material respects to the description thereof contained in the Prospectus. (i) If the Offered Securities are shares of Common Stock: The unissued shares of Common Stock have been duly and validly authorized and, when issued and delivered against payment therefor as provided in this Agreement, such shares will be duly and validly issued, fully paid and non-assessable and will conform in all material respects to the description thereof contained in the Prospectus. (j) If the Offered Securities are convertible into shares of Common Stock: The shares of Common Stock reserved for issuance upon conversion of convertible Debt Securities have been validly authorized and reserved for such purpose; and, if and when any of such convertible Debt Securities are converted into shares of Common Stock in accordance with the conversion rights so provided, such shares of Common Stock will be validly issued, fully paid and non-assessable and delivered in accordance with the terms of the Company's corporate charter and by-laws; and when issued and delivered, such Common Stock will conform in all material respects to the description thereof contained in the Prospectus. (k) If Thermo Electron Common Stock may be delivered on conversion of convertible Debt Securities: If and when any Thermo Electron Common Stock is delivered upon conversion of any convertible Debt Securities in lieu of the Common Stock issuable upon conversion, such shares of Thermo Electron Common Stock will be validly issued, fully paid and non-assessable and delivered in accordance with the terms of Thermo Electron's corporate charter and by-laws; and when issued and delivered, such Thermo Electron Common Stock will conform in all material respects to the description thereof contained in the Prospectus. -6- (l) If the Offered Securities are shares of Common Stock: There are no preemptive or other rights to subscribe for or to purchase, nor any restrictions upon the voting or transfer of any shares of the Common Stock, including any Common Stock issuable upon conversion of any Offered Securities, in each case, pursuant to the Company's corporate charter or by-laws or any agreement or other instrument to which the Company is a party. (m) This Agreement has been duly authorized, executed and delivered by the Company and Thermo Electron. (n) The execution, delivery and performance of this Agreement by the Company and Thermo Electron, the execution, delivery and performance of each Indenture (if the Offered Securities are Debt Securities) by the Company and Thermo Electron, and the consummation of the transactions contemplated hereby and thereby, and the issuance and delivery of the Offered Securities will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under any indenture, lien, charge or encumbrance upon any property or mortgage, deed of trust, loan agreement, or other agreement or instrument to which the Company or Thermo Electron or any of their respective Subsidiaries is a party or by which it or any of them is bound or to which any of the property or assets of the Company or Thermo Electron or any of their respective Subsidiaries is subject, except in each case for such conflicts, breaches, violations or defaults which would not have a material adverse effect on the consolidated financial condition, shareholders' equity, results of operations or business of such corporation and its Subsidiaries taken as a whole, nor will such action result in any violation of the provisions of the charter or by-laws of any of such corporation or any of their respective Subsidiaries or any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Company or Thermo Electron or any of their respective Subsidiaries or any of their respective material properties or assets; and except for the registration of the Offered Securities under the Securities Act, the qualification of each Indenture under the Trust Indenture Act, and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act or applicable state or foreign securities laws or by the National Association of Securities Dealers, Inc. in connection with the purchase and distribution of the Offered Securities by the Underwriters, no consent, approval, authorization or order of, or filing, registration or qualification of or with, any such court or governmental agency or body is required for the execution, delivery and performance of this Agreement and the Indentures (if the Offered Securities are Debt Securities) by the Company or Thermo Electron and the consummation by the Company and Thermo Electron of the transactions contemplated hereby and thereby. (o) Except as described in the Registration Statement or the Prospectus, there are no agreements or understandings between the Company and any person granting such person the right to require the Company to file a registration statement under the Securities Act with respect to any securities of the Company owned or to be owned by such person or to require the Company to include such securities in the securities registered pursuant to the Registration Statement or in any securities being registered pursuant to any other registration statement filed by the Company under the Securities Act. -7- (p) Neither the Company nor any of its Subsidiaries, nor Thermo Electron nor any of its Subsidiaries has sustained, since the date of the latest financial statements included or incorporated by reference in the Prospectus, any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, which is material to the Company and its Subsidiaries taken as a whole, or to Thermo Electron and its Subsidiaries taken as a whole, as the case may be, otherwise than as set forth or contemplated in the Prospectus; except as contemplated by or disclosed in the Prospectus, since such date, neither the Company nor Thermo Electron has incurred any material liability or obligation, or entered into any transaction other than in the ordinary course of business, or declared or paid any dividend on its capital stock or issued or granted any securities; and except as contemplated by or disclosed in the Prospectus, since such date, there has not been any material change in the capital stock of the Company or any of its Subsidiaries or of Thermo Electron or any of its Subsidiaries or any material change in the consolidated long-term debt of the Company or of Thermo Electron, or any material adverse change, or any development involving a prospective material adverse change, in or affecting the business, management, financial condition, shareholders' equity or results of operations of the Company and its Subsidiaries taken as a whole, or of Thermo Electron and its Subsidiaries taken as a whole, otherwise than as set forth or contemplated in the Prospectus. (q) Arthur Andersen LLP, which has certified the financial statements of the Company and Thermo Electron included in the Registration Statement, and any other accounting firm which has certified any financial statements contained in the Registration Statement, and whose reports appear in the Prospectus or are incorporated by reference therein, are independent public accountants as required by the Securities Act and the Rules and Regulations. (r) The financial statements (including the related notes and supporting schedules) filed as part of the Registration Statement or included or incorporated by reference in the Prospectus present fairly in all material respects the financial condition and results of operations of the entities purported to be shown thereby at the dates and for the periods indicated; and have been prepared in conformity with United States generally accepted accounting principles or International Accounting Standards, as the case may be, applied on a consistent basis throughout the periods involved, except as otherwise expressly set forth therein. (s) Except as described in the Registration Statement or the Prospectus, there are no legal or governmental proceedings pending to which the Company or Thermo Electron or any of their respective Subsidiaries is a party or of which any material property or assets of the Company or Thermo Electron or any of their respective Subsidiaries is the subject which is required to be disclosed in the Registration Statement or the Prospectus which, if resolved adversely to such party, would have a material adverse effect on the consolidated financial condition, shareholders' equity, results of operations or business of such corporation and its Subsidiaries taken as a whole or the transactions contemplated by this Agreement; and to the Company's and Thermo Electron's knowledge, no such proceedings are threatened by governmental authorities or threatened by others. -8- (t) There are no contracts or other documents which are required to be described in the Prospectus or filed as exhibits to the Registration Statement by the Securities Act or by the Rules and Regulations which have not been described in the Prospectus or filed as exhibits to the Registration Statement or incorporated therein by reference under the Rules and Regulations. (u) Neither the Company, Thermo Electron nor any of their respective Subsidiaries is (i) in violation of its corporate charter or by-laws, or (ii) except as described in the Prospectus, in default in any material respect, and no event has occurred which, with notice or lapse of time or both, would constitute such a default, in the due performance or observance of any term, covenant or condition contained in any material indenture, mortgage, deed of trust, loan agreement or other agreement to which the Company or Thermo Electron or any of their respective Subsidiaries is a party or by which it or any of them is or may be bound or to which any of the properties or assets of the Company or Thermo Electron or any of their respective Subsidiaries is subject, except for such defaults which would not have a material adverse effect on the consolidated financial condition, shareholders' equity, results of operations or business of such corporation and its Subsidiaries taken as a whole; or (iii) except as described in the Prospectus, in violation in any material respect of any law, ordinance, governmental rule, regulation or court decree to which the Company or Thermo Electron or any of their respective Subsidiaries or its or any of their respective property or assets may be subject or has failed to obtain any material license, permit, certificate, franchise or other governmental authorization or permit necessary to the ownership of its or their property or to the conduct of its or their business, except for such violations or failures which would not reasonably be expected to have a material adverse effect on the consolidated financial condition, shareholders' equity, results of operations or business of such corporation and its Subsidiaries taken as a whole. (v) Except as described in the Prospectus, the Company and Thermo Electron and their respective Subsidiaries own, or have valid rights to use, all items of real and personal property which are material to the business of such corporation and its Subsidiaries taken as a whole, free and clear of all liens, encumbrances and claims which may materially interfere with the consolidated financial condition, shareholders' equity, results of operations or business of such corporation and its Subsidiaries taken as a whole. (w) Except as disclosed in the Prospectus, the Company and Thermo Electron and their respective Subsidiaries own or possess adequate licenses or other rights to use all intellectual property rights, including patents, trademarks, service marks, trade names, copyrights or know-how, necessary to conduct their respective businesses as described in the Prospectus, except where such failure, singularly or in the aggregate, would not have a material adverse effect on the consolidated financial condition, shareholders' equity, results of operations or business of such corporation and its Subsidiaries taken as a whole, and, except as disclosed in the Prospectus, none of the Company or Thermo Electron or their respective Subsidiaries has -9- received any written notice of infringement of or conflict with (or knows of any such infringement of or conflict with) rights or claims of others with respect to any patents, trademarks, service marks, trade names, copyrights or know-how, that if the subject of an unfavorable decision, ruling or finding, would result in a material adverse effect on the consolidated financial condition, shareholders' equity, results of operations or business of such corporation and its Subsidiaries taken as a whole, and, except as disclosed in the Prospectus, all products or processes referred to in the Prospectus and relating to the business of the Company or Thermo Electron or their respective Subsidiaries now conducted by it do not infringe upon or conflict with any right or patent, or with any discovery, invention, product or process which is the subject of any patent application known to the Company or Thermo Electron, in a manner which would materially and adversely affect the consolidated financial condition, shareholders' equity, results of operations or business of such corporation and its Subsidiaries taken as a whole. (x) Neither the Company, nor Thermo Electron, nor any of their respective Subsidiaries, is an "investment company" within the meaning of such term under the Investment Company Act of 1940 and the rules and regulations of the Commission thereunder. (y) Since the date which is three months prior to this Agreement, no debt rating assigned to Thermo Electron by any "nationally recognized statistical rating organization," as that term is defined by the Commission for purposes of Rule 436(g)(2) of the Rules and Regulations, has been lowered or, to Thermo Electron's knowledge, threatened to be lowered by any such rating organization nor, to Thermo Electron's knowledge, has it been placed under surveillance or review by any such rating organization. (z) Any certificate signed by any officer of the Company or Thermo Electron and delivered to the Underwriters or to counsel for the Underwriters pursuant to this Agreement shall be deemed a representation and warranty hereunder by the Company or Thermo Electron, as the case may be, to each Underwriter as to the matters covered thereby. 2. Purchase of the Offered Securities by the Underwriters. On the ------------------------------------------------------ basis of the representations and warranties contained in, and subject to the terms and conditions set forth herein, the Company agrees to sell to the Underwriters and each of the Underwriters, severally and not jointly, agrees to purchase from the Company, at the price and/or principal amount, as the case may be, set forth in the applicable Terms Agreement attached hereto as Schedule I ---------- and in the respective amounts and number of shares, as the case may be, of the designated Offered Securities set forth opposite the name of each such Underwriter in Exhibit A to such Terms Agreement. In addition, the Company may --------- specify in any Terms Agreement relating to any offering that the Company thereby grants to the Underwriters an option to purchase up to the number of shares or principal amount of additional Offered Securities (the "Option Securities," and ----------------- if so purchased shall also be "Offered Securities" herein) in the amount set ------------------ forth in such Terms Agreement. The option thereby granted is exercisable as provided in Section 4 hereof, shall expire at the close of business on the 30th day after the date of the applicable Terms Agreement (unless otherwise specified therein) and will be granted solely for the purpose of covering over-allotments which may be made in connection with the applicable offering. The Option Securities shall be purchased severally for the account of the Underwriters in proportion -10- to the number or amount of Offered Securities set opposite the name of such Underwriters in Exhibit A of the applicable Terms Agreement. The respective --------- purchase obligations of each Underwriter with respect to the Option Securities shall be adjusted by the managing Underwriter so that no Underwriter shall be obligated to purchase Option Securities in amounts other than in 100 share or $1,000 principal amount increments. 3. Offering of the Offered Securities by the Underwriters. (a) The ------------------------------------------------------ several Underwriters propose to offer the Offered Securities for sale upon the terms and conditions set forth in the Prospectus and any amendment or supplement thereto relating to the Offered Securities. (b) Each Underwriter severally agrees to comply with the following restrictions in the offering and sale of any Debt Securities: (i) except to the extent permitted under U.S. Treasury Regulation (S)1.163-5(c)(2)(i)(D) (the "D Rules"), (A) the Underwriters have not ------- offered or sold, and during the restricted period will not offer or sell, Debt Securities in bearer form to a person who is within the United States or its possessions or to a United States person, and (B) the Underwriters have not delivered, and will not deliver, within the United States or its possessions definitive Debt Securities in bearer form that are sold during the restricted period; (ii) The Underwriters and each of their affiliates that is acquiring from them Debt Securities in bearer form for the purposes of offering or selling such Debt Securities during the restricted period, presently have in effect, and throughout the restricted period will have in effect, procedures reasonably designed to ensure that such Underwriters and such affiliates and their respective employees or agents who are directly engaged in selling Debt Securities in bearer form are aware that such Debt Securities may not be offered or sold during the restricted period to a person who is within the United States or its possessions or to a United States person, except as permitted by the D Rules; (iii) Each Underwriter that is a United States person, if any, is acquiring, either as agent or on its own behalf, the Debt Securities in bearer form for purposes of resale in connection with their original issuance, and if it retains Debt Securities in bearer form for its own account, it will only do so in accordance with the requirements of U.S. Treasury Regulation (S)1.163-5(c)(2)(i)(D)(6); and (iv) With respect to each of the Underwriters' affiliates that acquires from such Underwriter Debt Securities in bearer form for the purpose of offering or selling such Debt Securities during the restricted period, such Underwriter agrees that it will obtain from such affiliate for the benefit of the Company the representations, warranties, covenants and agreements contained in clauses (i), (ii) and (iii). Terms used in this Section 3(b) have the meanings given to them by the U.S. Internal Revenue Code and regulations thereunder, including the D Rules. -11- (c) Each Underwriter severally represents and agrees that (i) it has not offered or sold and will not offer or sell in the United Kingdom any Offered Securities except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purpose of their businesses or otherwise in circumstances which have not resulted and will not result in an offer to the public in the United Kingdom within the meaning of the Public Offers of Securities Regulations 1995 (the "Regulations") or the Financial Services Act 1986, (ii) it has complied and will ----------- comply with all applicable provisions of the Financial Services Act 1986 and the Regulations with respect to anything done by it in relation to the Offered Securities in, from or otherwise involving the United Kingdom and (iii) it has only issued or passed on, and will only issue or pass on, in the United Kingdom any document received by it in connection with the issue of the Offered Securities if that person is of a kind described in Article 11(3) of the Financial Services Act 1986 (Investment Advertisements) (Exemptions) Order 1996 or is a person to whom the document may otherwise lawfully be issued or passed on. 4. Delivery of and Payment for the Offered Securities. Delivery of -------------------------------------------------- and payment for the Offered Securities shall be made at the headquarters office of the managing Underwriter, or at such other location as may be agreed upon by the Underwriters and the Company, at 10:00 a.m., Eastern time, on the third business day (or on the fourth business day, if permitted by the Rules and Regulations) following the date of this Agreement, or at such other time and date as shall be agreed upon (each such date and time of payment and delivery being herein called the "Closing Date") in the manner set forth in the ------------ applicable Terms Agreement. Time shall be of the essence, and delivery at the time and place specified pursuant to this Agreement is a further condition of the obligation of each Underwriter hereunder. Upon delivery, the Offered Securities shall be registered in such names and in such denominations as the Underwriters shall request in writing not less than two full business days prior to the Closing Date. For the purpose of expediting the checking and packaging of the certificates for the Common Stock, the Company shall make the certificates representing the Common Stock available for inspection by the Underwriters in New York, New York, not later than 2:00 p.m., Eastern time, on the business day prior to the Closing Date. The Debt Securities of a series may be issued in whole or in part in the form of one or more global securities that will be deposited with, or on behalf of, one or more depositories, or a nominee thereof, identified in the Prospectus relating to such series. In such a case, the manner of delivery of such global securities will be set forth in the applicable Terms Agreement, or if not so set forth, as described in the applicable Prospectus. At any time on or before the thirtieth day after the date of any Terms Agreement relating to Option Securities, if applicable, the option granted in Section 2 may be exercised by written notice being given to the Company by or on behalf of the Underwriters. Such notice shall set forth the aggregate number or amount of Option Securities as to which the option is being exercised, the names in which the Option Securities are to be registered if not in global form as set forth above, the denominations in which the shares of Option Securities are to be issued and the date and time, as determined by the Underwriters, when the Option Securities are to be delivered; provided, however, that this date and time shall not be earlier than the Closing Date nor earlier than the second business day after the date on which the option shall have been exercised nor later than the third business day after the date on which the option shall have been exercised. The date and time the Option Securities are delivered are sometimes referred to as the "Option Closing Date". Delivery of and payment ------------------- -12- for the Option Securities shall be made at the place specified in the first sentence of the first paragraph of this Section 4 (or at such other place as shall be determined by agreement between the Underwriters and the Company at 10:00 a.m., Eastern time, on the Option Closing Date). On the Option Closing Date, the Company shall deliver or cause to be delivered the certificates representing the Option Securities to the Underwriters for the account of each Underwriter against payment to or upon the order of the Company of the purchase price in the manner set forth in the applicable Terms Agreement. Time shall be of the essence, and delivery at the time and place specified pursuant to this Agreement is a further condition of the obligation of each Underwriter hereunder. Upon delivery, the Option Securities shall be registered in such names (if other than in global form) and in such denominations as the Underwriters shall request in the aforesaid notice. For the purpose of expediting the checking and packaging of certificates for the Option Securities that are Common Stock, the Company shall make the certificates representing such Common Stock available for inspection by the Underwriters in New York, New York, not later than 2:00 p.m., Eastern time, on the business day prior to the Option Closing Date. 5. Further Agreements of the Company and Thermo Electron. The ----------------------------------------------------- Company and Thermo Electron each agree: (a) To prepare the Prospectus in a form reasonably approved by the Underwriters and to file such Prospectus pursuant to Rule 424(b) under the Securities Act not later than the Commission's close of business on the second business day following the execution and delivery of this Agreement or, if applicable, such earlier time as may be required by Rule 430A(a)(3) under the Securities Act; after the date of the applicable Terms Agreement, to make no further amendment or supplement to the Registration Statement or to the Prospectus prior to the applicable Closing Date except as permitted herein; to advise the Underwriters, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed and to furnish the Underwriters with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed by the Company or Thermo Electron with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Offered Securities; to advise the Underwriters, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, of the suspension of the qualification of the Offered Securities for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, of any request by the Commission for the amending or supplementing of the Registration Statement or the Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal; (b) To furnish, promptly upon request by the representatives of the Underwriters named in any applicable Terms Agreement (the "Representatives" and --------------- if no Representatives are so named, then any references herein to the Representatives shall be deemed to refer to the Underwriters), to the Underwriters and to counsel for the Underwriters a copy of the Registration -13- Statement as originally filed with the Commission, and each amendment thereto filed with the Commission, including all consents and exhibits filed therewith; (c) To deliver promptly to the Underwriters such number of the following documents as the Representatives shall reasonably request: (i) conformed copies of the Registration Statement as originally filed with the Commission and each amendment thereto (in each case excluding exhibits other than this Agreement and the Indentures and such other exhibits as the Underwriters may reasonably request), (ii) each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus; and (iii) any document incorporated or deemed incorporated by reference in the Prospectus (excluding exhibits thereto); and, if the delivery of a prospectus is required at any time after the Effective Date in connection with the offering or sale of the Offered Securities and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus (or to file under the Exchange Act any document incorporated by reference in the Prospectus) in order to comply with the Securities Act or the Exchange Act, to notify the Underwriters and, upon the reasonable request of the Representatives, to file such document and to prepare and furnish without charge to each Underwriter as many copies as the Representatives may from time to time reasonably request of an amended or supplemented Prospectus which will correct such statement or omission or effect such compliance; (d) To file promptly with the Commission any amendment to the Registration Statement or the Prospectus or any supplement to the Prospectus that may, in the judgment of the Company, Thermo Electron and the Underwriters, be required by the Securities Act, or requested by the Commission; (e) Prior to filing with the Commission any amendment to the Registration Statement or supplement to the Prospectus, and promptly after filing with the Commission (or, if between the signing of any applicable Terms Agreement and the Closing Date thereunder, prior to filing with the Commission) any document incorporated or deemed incorporated by reference in the Prospectus or any Prospectus pursuant to Rule 424 of the Rules and Regulations, to furnish a copy thereof to the Underwriters and counsel for the Underwriters; (f) As soon as practicable after the date of this Agreement and every Terms Agreement relating to designated Offered Securities, to make generally available to its security holders an earnings statement of the Company and its Subsidiaries, and if the applicable Offered Securities include Guarantees or Thermo Electron Common Stock, an earnings statement of -14- Thermo Electron and its Subsidiaries (which, in each case, need not be audited) complying with Section 11(a) of the Securities Act and the Rules and Regulations (including, at the option of the Company or Thermo Electron, as the case may be, Rule 158); (g) For a period of five years following the applicable Closing Date, to furnish to the Underwriters, copies of all materials furnished by the Company or Thermo Electron to all of its shareholders and all public reports and all reports and financial statements furnished by the Company or Thermo Electron to the principal national securities exchange upon which the Common Stock (or Thermo Electron Common Stock) and any other Offered Securities may be listed pursuant to requirements of or agreements with such exchange or to the Commission pursuant to the Exchange Act or any rules or regulations of the Commission thereunder; (h) Promptly from time to time to take such action as the Underwriters may reasonably request to qualify the Offered Securities for offering and sale under the securities laws of such jurisdictions as the Underwriters may reasonably request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Offered Securities; provided, however, that in connection therewith the Company and Thermo Electron shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not so qualified; (i) For a period of 90 days after the date of the Prospectus relating to designated Common Stock, or Offered Securities convertible into Common Stock but only if specified in the applicable Terms Agreement (unless a different time period is set forth in the applicable Terms Agreement), the Company and Thermo Electron will not, directly or indirectly, offer for sale, sell or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or any security convertible or exchangeable for Common Stock (other than shares sold to Thermo Electron or its Subsidiaries or shares issuable pursuant to employee benefit plans, stock option plans or other compensation plans existing on the date thereof or pursuant to then currently outstanding options, warrants or rights and other than the issuance of shares of Common Stock as consideration for the acquisition of one or more businesses provided that such Common Stock may not be resold prior to the expiration of the 90-day period referenced above), or sell or grant options, rights or warrants with respect to any shares of Common Stock (other than the grant of options pursuant to option plans existing on the date thereof) otherwise than in accordance with this Agreement or as contemplated in the Prospectus without the prior written consent of the Representatives; (j) In the event designated Offered Securities are to be listed on a securities exchange, to apply for any listing of such designated Offered Securities on such securities exchange and to use its best efforts to complete and maintain that listing, subject only to official notice of issuance, prior to the relevant Closing Date, or if not so listed by such date, as soon as practical thereafter. In the case of Offered Securities that are Debt Securities to be listed on a foreign securities exchange, if the Company is not able to effect or maintain such listing, it will use its best efforts to obtain and maintain the quotation for, or listing of, such Debt Securities on -15- such other stock exchange or exchanges as the Company may, with the approval of the Representatives, determine; (k) To apply the net proceeds from the sale of the Offered Securities being sold by the Company as set forth in the Prospectus; and (l) If the Offered Securities include Debt Securities, not to offer or sell such Debt Securities in bearer form during the restricted period to a person who is within the United States or its possessions or to a United States person (each as defined in the U.S. Internal Revenue Code and regulations thereunder, including the D Rules). 6. Expenses. The Company agrees to pay: -------- (a) the costs incident to the authorization, issuance, sale and delivery of the Offered Securities and any taxes payable in that connection (other than taxes based on income); (b) the costs incident to the preparation, printing and filing under the Securities Act of the Registration Statement and any amendments and exhibits thereto; (c) the costs of distributing the Registration Statement as originally filed and each amendment thereto and any post-effective amendments thereof (including, in each case, exhibits), any Preliminary Prospectus, the Prospectus and any amendment or supplement to the Prospectus or any document incorporated or deemed incorporated by reference therein, all as provided in this Agreement; (d) the costs, if any, of printing this Agreement and any other related documents in connection with the offering, purchase, sale and delivery of the Offered Securities; (e) any applicable listing or other fees; (f) the filing fee of the National Association of Securities Dealers, Inc. and the fees and expenses of qualifying the Offered Securities under the securities laws of the several jurisdictions as provided in Section 5(h) and of preparing, printing and distributing a Blue Sky Memorandum and a Legal Investment Survey (including related fees and expenses of counsel to the Underwriters); (g) any fees charged by securities rating services for rating any Offered Securities; and (h) all other costs and expenses incident to the performance of the obligations of the Company and Thermo Electron under this Agreement; provided that, except as provided in this Section 6 and in Section 8 and Section 11, the Underwriters shall pay the costs and expenses of their counsel, any transfer taxes on the Offered Securities which they may sell, the expenses of advertising any offering of the Offered Securities made by the Underwriters and all other costs and expenses of the Underwriters and their counsel not enumerated in this Section 6. -16- 7. Conditions of Underwriters' Obligations. The obligations of the --------------------------------------- Underwriters to purchase and pay for any Offered Securities are subject to the accuracy, when made, and on each Closing Date, of the representations and warranties of the Company and Thermo Electron contained herein, to the performance by the Company and Thermo Electron of their respective obligations hereunder and under any Terms Agreement, and to each of the following additional terms and conditions: (a) At the applicable Closing Date, the Prospectus shall have been timely filed with the Commission in accordance with Section 5(a); no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; and any request of the Commission for inclusion of additional information in the Registration Statement or the Prospectus or otherwise shall have been complied with to the Representatives' reasonable satisfaction. (b) No Underwriter shall have discovered and disclosed to the Company on or prior to any Closing Date that the Registration Statement or the Prospectus or any amendment or supplement thereto contains an untrue statement of a fact that, in the opinion of counsel for the Underwriters, is material or omits to state a fact that, in the opinion of such counsel, is material and is required to be stated therein or is necessary to make the statements therein (in the case of the Prospectus, in light of the circumstances in which they were made), not misleading. (c) All corporate proceedings and other legal matters incident to the authorization, form, validity and enforceability of this Agreement, any Terms Agreement, the Indentures, the Offered Securities, the Registration Statement and the Prospectus, and all other legal matters relating to this Agreement and any Terms Agreement and the transactions contemplated hereby and thereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Company and Thermo Electron shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters. (d) Seth H. Hoogasian, Esq., General Counsel to the Company and Thermo Electron, shall have furnished to the Underwriters his opinion, in such capacities, addressed to the Underwriters and dated the Closing Date, in form and substance reasonably satisfactory to counsel for the Underwriters, to the effect that: (i) The Company and Thermo Electron and each of their respective Significant Subsidiaries have been duly incorporated and are validly existing as corporations in good standing under the laws of their respective jurisdictions of incorporation. The Company, Thermo Electron and each of their respective Significant Subsidiaries are duly qualified to do business and are in good standing as foreign corporations in each jurisdiction in which their respective ownership or lease of property or the conduct of their respective businesses requires such qualification except where the failure to be so qualified and in good standing would not have a material adverse effect on the consolidated financial condition, shareholders' equity, -17- results of operations or business of such corporation and its Subsidiaries taken as a whole, and where so qualified have all corporate power and authority necessary to own, lease or operate their respective properties and to conduct the businesses in which they are engaged as described in the Prospectus; (ii) The Company and Thermo Electron have an authorized and outstanding capitalization as set forth in the Prospectus (as of the date such information is given). All of the outstanding shares of capital stock of each of the Company, Thermo Electron and their respective Significant Subsidiaries are duly authorized and validly issued, and, to the best of such counsel's knowledge, fully paid and non-assessable; to the best of such counsel's knowledge, the Company and Thermo Electron own, directly or indirectly through Subsidiaries, the amount of the outstanding capital stock of their respective Significant Subsidiaries, as described in the Prospectus (as of the date such information is given), and to the best of such counsel's knowledge, such ownership is free and clear of any lien, claim or encumbrance or any other claim of any third party (except for certain obligations of the Company, Thermo Electron or their Subsidiaries, as the case may be, pursuant to their stock and employee benefit plans). To the best of such counsel's knowledge, except as referred to in the Prospectus, including options granted or to be granted pursuant to stock and employee benefit plans described therein, there are no outstanding warrants or options to purchase any shares of the capital stock of the Company from the Company and there are no outstanding warrants or options to purchase any shares of capital stock of Thermo Electron from Thermo Electron. There are no preemptive or other rights to subscribe for or to purchase, nor any restriction upon the voting or transfer of, any shares of the Common Stock, including any Common Stock issuable upon conversion of any Offered Securities, in each case pursuant to the Company's corporate charter or by-laws or any agreement or other instrument to which the Company is a party known to such counsel; (iii) To the best of such counsel's knowledge, there are no contracts or other documents which are required to be described in the Prospectus or filed as exhibits to the Registration Statement by the Securities Act or by the Rules and Regulations which have not been described in the Prospectus or filed as exhibits to the Registration Statement or incorporated therein by reference under the Rules and Regulations; (iv) The documents incorporated by reference in the Prospectus (other than the financial statements and related schedules therein, as to which such counsel need express no opinion), when they were filed with the Commission complied as to form in all material respects with the requirements of the Exchange Act and the rules and regulations of the Commission thereunder; (v) To the best of such counsel's knowledge and except as described in the Registration Statement or the Prospectus, there are no agreements or understandings between the Company and any person granting such person the right to require the Company to file a registration statement under the Securities Act with respect to any securities of the Company owned or to be owned by such person or to require the Company to include such securities in the securities registered pursuant to the Registration Statement or in any securities being registered pursuant to any other registration statement filed by the Company under the Securities Act; -18- (vi) To the best of such counsel's knowledge, and other than as set forth in the Registration Statement or the Prospectus, there are no legal or governmental proceedings pending to which the Company, Thermo Electron or any of their respective Subsidiaries is a party or of which any material property or assets of the Company, Thermo Electron or any of their respective Subsidiaries is the subject which, if determined adversely to the Company, Thermo Electron or any of their respective Subsidiaries, would have a material adverse effect on the consolidated financial condition, shareholders' equity, results of operations, business or prospects of the Company and its Subsidiaries taken as a whole or Thermo Electron and its Subsidiaries taken as a whole, as the case may be; and to the best of such counsel's knowledge, no such proceedings are threatened by governmental authorities or threatened by others; (vii) If the Offered Securities are Debt Securities: The Debt Securities have been duly and validly authorized by the Company and, when duly executed, issued and delivered by the Company, and authenticated by the Trustee pursuant to the provisions of each Indenture, against payment therefor as provided in this Agreement, will constitute valid and legally binding obligations of the Company entitled to the benefits of such Indenture and enforceable against the Company in accordance with their terms, except as the enforceability thereof may be limited by applicable bankruptcy laws and by general equitable principles (regardless of whether the issue of enforceability is considered in a proceeding in equity or at law), and the Debt Securities conform as to legal matters in all material respects to the description thereof contained in the Prospectus. The Guarantees have been duly and validly authorized by Thermo Electron and, when duly executed, issued and delivered by Thermo Electron, and, if required, authenticated by the Trustee pursuant to the provisions of the Indenture, against payment for the Debt Securities as provided in this Agreement, will constitute valid and legally binding obligations of Thermo Electron entitled to the benefits of the Indenture and enforceable against Thermo Electron in accordance with their terms, subject to the effects of applicable bankruptcy laws and to general equitable principles (whether considered in a proceeding in equity or at law); and the Guarantees conform as to legal matters in all material respects to the description thereof contained in the Prospectus. (viii) If the Offered Securities are Debt Securities: Each Indenture has been duly authorized, executed and delivered by the Company and Thermo Electron, and (assuming due execution and delivery by the Trustee) constitutes a valid and legally binding obligation of the Company and Thermo Electron enforceable against the Company and Thermo Electron in accordance with its terms, except as the enforceability thereof may be limited by applicable bankruptcy laws and by general equitable principles (regardless of whether the issue of enforceability is considered in a proceeding in equity or at law); and each Indenture conforms as to legal matters in all material respects to the description thereof contained in the Prospectus; (ix) If the Offered Securities are shares of Common Stock: The unissued shares of the Common Stock have been duly and validly authorized and, when issued and delivered against payment therefor as provided in this Agreement, such shares will be duly -19- and validly issued, fully paid and non-assessable; and the Common Stock conforms as to legal matters in all material respects to the description thereof contained in the Prospectus; (x) If the Offered Securities are convertible into shares of Common Stock: The Common Stock reserved for issuance upon conversion of convertible Debt Securities has been validly authorized and reserved for such purpose; and, if and when any of such convertible Debt Securities are converted into shares of Common Stock in accordance with the conversion rights so provided, such shares of Common Stock will be validly issued, fully paid and non-assessable and delivered in accordance with the terms of the Company's corporate charter and by-laws; (xi) If Thermo Electron Common Stock may be delivered on conversion of convertible Debt Securities: If and when any Thermo Electron Common Stock is delivered upon conversion of any convertible Debt Securities in lieu of the Common Stock issuable upon conversion, such shares of Thermo Electron Common Stock will be validly issued, fully paid and non-assessable and delivered in accordance with the terms of Thermo Electron's corporate charter and by-laws; (xii) This Agreement has been duly authorized, executed and delivered by the Company and Thermo Electron; (xiii) The issue and sale of the Offered Securities being delivered on the Closing Date by the Company and the compliance by the Company and Thermo Electron with all of the provisions of this Agreement and each Indenture, and the consummation of the transactions contemplated hereby and thereby, will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any material indenture, mortgage, deed of trust, loan agreement or other agreement known to such counsel to which the Company or Thermo Electron or any of their respective Subsidiaries is a party or by which the Company or Thermo Electron or any of such Subsidiaries is bound or to which any of the property or assets of the Company or Thermo Electron or any of their respective Subsidiaries is subject except for such conflicts, breaches, violations or defaults which would not have a material adverse effect on the consolidated financial condition, shareholders' equity, results of operations or business of such corporation and its Subsidiaries taken as a whole, nor will such actions result in any violation of the charter or by- laws of the Company or Thermo Electron or any provisions of any State or Federal statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company or Thermo Electron or any of their respective Subsidiaries or any of their respective material properties or assets (other than statutes, orders, rules and regulations pertaining to securities laws matters, which are addressed elsewhere in such opinion). (xiv) Except for the registration of the Offered Securities under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act, the Trust Indenture Act and applicable state securities laws or by the National Association of Securities Dealers, Inc., in connection with the purchase and distribution of the Offered Securities by the Underwriters, no consent, approval, authorization or -20- order of, or filing or registration with, any such court or governmental agency or body is required for the execution, delivery and performance of this Agreement or the Indentures by the Company and Thermo Electron and the consummation by the Company and Thermo Electron of the transactions contemplated hereby and thereby. (xv) The Registration Statement was declared effective under the Securities Act and each Indenture was qualified under the Trust Indenture Act as of the date specified in such opinion, the Prospectus was filed with the Commission pursuant to the subparagraph of Rule 424 specified in such opinion on the date specified therein and no stop order suspending the effectiveness of the Registration Statement has been issued and, to the best of such counsel's knowledge, no proceeding for that purpose is pending or threatened by the Commission; (xvi) The statements contained in the Prospectus under the captions relating to the Offered Securities insofar as they describe federal statutes, rules and regulations, or portions thereof, constitute accurate descriptions thereof in all material respects; and (xvii) The Registration Statement, as of the Effective Date, and the Prospectus, as of the date it was filed with the Commission and as of the Closing Date, and any further amendments or supplements thereto made by the Company or Thermo Electron prior to the applicable Closing Date (other than the financial statements and related schedules therein and all other financial and statistical data included therein or omitted therefrom and other than the Form T-1, as to which such counsel need express no opinion) complied as to form in all material respects with the requirements of the Securities Act and the Rules and Regulations; and each Indenture conforms in all material respects to the requirements of the Trust Indenture Act and the applicable rules and regulations thereunder. In rendering the foregoing opinions, such counsel may state that his opinion is limited to matters governed by the federal laws of the United States of America, the Delaware General Corporation Law and the laws of the Commonwealth of Massachusetts. In addition, such counsel shall also have furnished to the Underwriters a written statement, addressed to the Underwriters and dated the Closing Date, in form and substance satisfactory to the Underwriters, to the effect that such counsel has acted as counsel to the Company in connection with the preparation of the Registration Statement, and based on the foregoing, such counsel does not believe that (i) the Registration Statement (other than the financial statements and related schedules and all other financial and statistical data included or incorporated by reference therein or omitted therefrom, and other than the Form T-1, as to which such counsel shall express no opinion or belief), as of the Effective Date, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading, or that the Prospectus (other than the financial statements and related schedules and all other financial and statistical data included or incorporated by reference therein or omitted therefrom, and other than the Form T-1, as to which such counsel shall express no opinion or belief), as of its date and the applicable Closing Date, contains any untrue statement of a material fact or omits to state a material fact -21- required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading or (ii) any document incorporated by reference in the Prospectus (other than the financial statements and related schedules and all other financial and statistical data included or incorporated by reference therein or omitted therefrom, and other than the Form T-1, as to which such counsel shall express no opinion or belief) contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. The foregoing opinion and statement may be qualified by statements to the effect that such counsel does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement or the Prospectus except for the statements made in the Prospectus under the captions relating to the designated Offered Securities and insofar as such statements relate to the Offered Securities and concern legal matters. (e) If the applicable Prospectus Supplement refers to an opinion of tax counsel for the Company relating to tax matters concerning the Offered Securities, the Company shall have furnished to the Underwriters an opinion of such counsel, addressed to the Underwriters, dated the Closing Date, to the effect that the opinion of such counsel referred to in the Prospectus is confirmed. (f) At the Closing Date, counsel for the Underwriters shall have been furnished with such documents and opinions as they may reasonably require for the purpose of enabling them to pass upon the issuance and sale of the Offered Securities as contemplated herein and in each Terms Agreement and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein and therein contained; and the Underwriters shall have received from counsel for the Underwriters, such opinion or opinions, dated the Closing Date, with respect to the issuance and sale of the Offered Securities, the Registration Statement, the Prospectus and other related matters as the Underwriters may reasonably require. (g) At the time of execution of each Terms Agreement, the Underwriters shall have received from each of Arthur Andersen LLP, with respect to the Company and if the Offered Securities include Debt Securities, Thermo Electron, and any other accounting firm which has audited financial statements included in the Registration Statement, letters, in form and substance satisfactory to the Underwriters, addressed to the Underwriters and dated the date of such Terms Agreement (i) confirming that they are independent public accountants with respect to the Company, Thermo Electron or such other corporation, and their respective Subsidiaries, as the case may be, within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating as of the date thereof (or with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than five days prior to the date thereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by "accountants' comfort letters" to underwriters in connection with registered public offerings in accordance with Statement of Auditing Standards No. 72. -22- (h) With respect to the letters of the accounting firms referred to in the preceding paragraph and delivered to the Underwriters concurrently with the execution of each Terms Agreement (the "initial letters"), the Company shall --------------- have furnished to the Underwriters letters (the "bring-down letters") of such ------------------ accountants, addressed to the Underwriters and dated the Closing Date (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than five business days prior to the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letters and (iii) confirming in all material respects the conclusions and findings set forth in the initial letters. (i) At each Closing Date, there shall not have been, since the respective dates as of which information is given in the Registration Statement and the Prospectus as in effect at the time of execution of the applicable Terms Agreement, any material adverse change in the consolidated financial condition, stockholders' equity, results of operations or business of the Company and its Subsidiaries taken as a whole, or of Thermo Electron and its Subsidiaries taken as a whole, whether or not arising in the ordinary course of business. (j) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board, Chief Executive Officer, the President or a Vice President and the Treasurer or Secretary of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus, any supplements to the Prospectus and this Agreement and that, to the best of such person's knowledge: (i) the representations and warranties of the Company in this Agreement are true and correct on and as of the date of the certificate with the same effect as if made on the date of the certificate, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date; (ii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to such person's knowledge, threatened; and (iii) since the respective dates as of which information is given in the Registration Statement and the Prospectus as in effect at the time of execution of the applicable Terms Agreement, there has been no material adverse change in the consolidated financial condition, stockholders' equity, results of operations or business of the Company and its Subsidiaries taken as a whole, whether or not arising from -23- transactions in the ordinary course of business, except as set forth in or contemplated in such Prospectus. (k) Thermo Electron shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board, Chief Executive Officer, the President or a Vice President and the Treasurer or Secretary of Thermo Electron, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus, any supplements to the Prospectus and this Agreement and that, to the best of such person's knowledge: (i) the representations and warranties of Thermo Electron in this Agreement are true and correct on and as of the date of the certificate with the same effect as if made on the date of the certificate, and Thermo Electron has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date; (ii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to such person's knowledge, threatened; and (iii) since the respective dates as of which information is given in the Registration Statement and the Prospectus as in effect at the time of execution of the applicable Terms Agreement, there has been no material adverse change in the consolidated financial condition, stockholders' equity, results of operations or business of Thermo Electron and its Subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in such Prospectus. (l) (i) Neither the Company, Thermo Electron, nor any of their respective Subsidiaries shall have sustained since the respective dates as of which information is given in the Registration Statement and the Prospectus as in effect at the time of execution of the applicable Terms Agreement, any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, which is material to the Company and its Subsidiaries taken as a whole, or material to Thermo Electron and its Subsidiaries taken as a whole, as the case may be, otherwise than as set forth, contemplated or incorporated by reference in the Prospectus or in any of the documents incorporated by reference therein, or (ii) since the date of the most recent financial statements of the Company and Thermo Electron, as the case may be, contained in the Registration Statement and the Prospectus as in effect at the time of execution of the applicable Terms Agreement, there shall not have been any change in the capital stock or consolidated long-term debt of the Company or Thermo Electron, except as set forth in the letters described in paragraphs (g) or (h) of this Section 7, or any material adverse change in the general affairs, operations, business, prospects, key personnel, capitalization, financial condition, shareholders' equity or results of -24- operations of the Company and its Subsidiaries taken as a whole, or of Thermo Electron and its Subsidiaries taken as a whole, otherwise than as set forth in or contemplated by the Prospectus as in effect at the time of execution of the applicable Terms Agreement, the effect of which, in any such case described in clause (i) or (ii), is, in the judgment of the Representatives or a majority in interest of the Underwriters, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Offered Securities being delivered on such Closing Date on the terms and in the manner contemplated in the Prospectus. (m) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, (i) no downgrading shall have occurred in the rating accorded Thermo Electron's securities by any "nationally recognized statistical rating organization", as that term is defined by the Commission for purposes of Rule 436(g)(2) of the Rules and Regulations and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the Company's securities. (n) Subsequent to the execution and delivery of this Agreement there shall not have occurred any of the following: (i) trading in securities generally on the New York Stock Exchange, the American Stock Exchange, the NASDAQ National Market or in the over-the-counter market, or trading in any securities of the Company or Thermo Electron on any exchange or in the over-the-counter market, shall have been suspended or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) a general banking moratorium shall have been declared by federal or New York state authorities; (iii) the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving the United States or there shall have been a declaration of a national emergency or war by the United States; or (iv) there shall have occurred such a material adverse change in general economic or financial conditions (or such a material adverse change in international conditions the effect of which on the financial markets in the United States shall be such) as to make it, in the judgment of the Representatives or a majority in interest of the several Underwriters, impracticable or inadvisable to proceed with the public offering or delivery of the Offered Securities being delivered on such Closing Date on the terms and in the manner contemplated in the Prospectus. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in substance reasonably satisfactory to counsel for the Underwriters. The Company and Thermo Electron may rely on any waiver of such conditions given by the Underwriters or counsel to the Underwriters as if given by the Underwriters. -25- 8. Indemnification and Contribution. (a) The Company and Thermo Electron, -------------------------------- jointly and severally, shall indemnify and hold harmless each Underwriter, its officers and employees and each such person, if any, who controls any Underwriter, within the meaning of the Securities Act, from and against any and all loss, claim, damage or liability, joint or several, or any action in respect thereof (including, but not limited to any losses, claims, damages, liabilities or actions relating to purchases and sales of the Offered Securities), to which that Underwriter, officer, employee or controlling person may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, liability or action arises out of, or is based upon, (i) any untrue statement or alleged untrue statement made by the Company or Thermo Electron in Section 1 hereof ; or (ii) any untrue statement or alleged untrue statement of a material fact contained in any Preliminary Prospectus, the Registration Statement or the Prospectus or in any amendment or supplement thereto; or (iii) the omission or alleged omission to state in any Preliminary Prospectus, the Registration Statement or the Prospectus, or in any amendment or supplement thereto, any material fact required to be stated therein or necessary to make the statements therein (in the case of the Prospectus, in light of the circumstances in which they were made) not misleading; or (iv) any act or failure to act or any alleged act or failure to act by any Underwriter in connection with, or relating in any manner to, the Offered Securities or the offering contemplated hereby, and which is included as part of or referred to in any loss, claim, damage, liability or action arising out of or based upon matters covered by clause (ii) or (iii) above (provided that the Company and Thermo Electron shall not be liable under this clause (iv) to the extent that it is determined in a final judgment by a court of competent jurisdiction that such loss, claim, damage, liability or action resulted directly or indirectly from any such acts or failures to act undertaken or omitted to be taken by such Underwriter through its gross negligence or willful misconduct or breach of this Agreement); and shall reimburse each Underwriter and each such officer, employee or controlling person within 30 days after receiving written demand therefor for any legal or other expenses reasonably incurred by that Underwriter, officer, employee or controlling person in connection with investigating or defending or preparing to defend against any such loss, claim, damage, liability or action; provided, however, that the Company and Thermo Electron shall not be liable in any such case to the extent that any such loss, claim, damage, liability or action arises out of, or is based upon, any untrue statement or alleged untrue statement or omission or alleged omission in any Preliminary Prospectus, the Registration Statement or the Prospectus, or in any such amendment or supplement in reliance upon and in conformity with written information concerning such Underwriter furnished to the Company through any Underwriter by or on behalf of any Underwriter specifically for inclusion therein; and provided, further, that the Company and Thermo Electron shall not be liable to any Underwriter under the indemnity agreement in this subsection with respect to any Preliminary Prospectus to the extent that any such loss, claim, -26- damage, liability or any action in respect thereof of such Underwriter results from the fact that such Underwriter sold Offered Securities to a person as to whom it shall be established that there was not sent or given, at or prior to the written confirmation of such sale, a copy of the Prospectus or of the Prospectus as then amended or supplemented in any case where such delivery is required by the Securities Act if the Company has previously furnished copies thereof in sufficient quantity to such Underwriter and the loss, claim, damage or liability of such Underwriter results from an untrue statement or omission of a material fact contained in the Preliminary Prospectus which was (i) identified to such Underwriter at or prior to the earlier of the filing with the Commission or the furnishing to such Underwriter of the Prospectus and (ii) corrected in the Prospectus or in the Prospectus as then amended or supplemented. The foregoing indemnity agreement is in addition to any liability which the Company or Thermo Electron may otherwise have to any Underwriter or to any officer, employee or controlling person of that Underwriter. (b) Each Underwriter, severally and not jointly, shall indemnify and hold harmless the Company and Thermo Electron and their respective officers and employees, each of their respective directors, and each person, if any, who controls the Company or Thermo Electron within the meaning of the Securities Act, from and against any loss, claim, damage or liability, joint or several, or any action in respect thereof (including, but not limited to, any losses, claims, damages, liabilities or actions relating to the purchases and sales of Offered Securities), to which the Company or Thermo Electron or any such director, officer or controlling person may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, liability or action arises out of, or is based upon, (i) any untrue statement or alleged untrue statement of a material fact contained in any Preliminary Prospectus, the Registration Statement or the Prospectus or in any amendment or supplement thereto or (ii) the omission or alleged omission to state in any Preliminary Prospectus, the Registration Statement or the Prospectus, or in any amendment or supplement thereto, any material fact required to be stated therein or necessary to make the statements therein not misleading, but in each case only to the extent that the untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with written information concerning such Underwriter furnished to the Company through the Underwriters by or on behalf of that Underwriter specifically for inclusion therein, and shall reimburse, within 30 days after receiving written demand therefor, the Company, Thermo Electron and any such director, officer or controlling person for any legal or other expenses reasonably incurred by the Company, Thermo Electron or any such director, officer or controlling person in connection with investigating or defending or preparing to defend against any such loss, claim, damage, liability or action. The foregoing indemnity agreement is in addition to any liability which any Underwriter may otherwise have to the Company or Thermo Electron or any such director, officer, employee or controlling person. (c) Promptly after receipt by an indemnified party under this Section 8 of notice of any claim or the commencement of any action, the indemnified party shall, if a claim in respect -27- thereof is to be made against the indemnifying party under this Section 8, notify the indemnifying party in writing of the claim or the commencement of that action; provided, however, that the failure to notify the indemnifying party shall not relieve it from any liability which it may have under this Section 8 except to the extent it has been materially prejudiced by such failure and, provided further, that the failure to notify the indemnifying party shall not relieve it from any liability which it may have to an indemnified party otherwise than under this Section 8. If any such claim or action shall be brought against an indemnified party, and it shall notify the indemnifying party thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it wishes, jointly with any other similarly notified indemnifying party, to assume the defense thereof with counsel reasonably satisfactory to the indemnified party. After notice from the indemnifying party to the indemnified party of its election to assume the defense of such claim or action, the indemnifying party shall not be liable to the indemnified party under this Section 8 for any legal or other expenses subsequently incurred by the indemnified party in connection with the defense thereof other than reasonable costs of investigation; provided that the Representatives shall have the right to employ counsel to represent you and those other Underwriters who may be subject to liability arising out of any claim in respect of which indemnity may be sought by the Underwriters against the Company or Thermo Electron hereunder if, in your reasonable judgment, it is advisable for you and those Underwriters to be represented by separate counsel, and in that event the fees and expenses of such separate counsel shall be paid by the indemnifying party or parties, and provided, further, in no event, shall the indemnifying party or parties be responsible for the expenses of more than one separate counsel for all such indemnified parties. No indemnifying party shall (i) without the prior written consent of the indemnified parties (which consent shall not be unreasonably withheld), settle or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent includes an unconditional release of each indemnified party from all liability arising out of such claim, action, suit or proceeding, or (ii) be liable for any settlement of any such action effected without its written consent (which consent shall not be unreasonably withheld), but if settled with the consent of the indemnifying party or if there be a final judgment for the plaintiff in any such action, the indemnifying party agrees to indemnify and hold harmless any indemnified party from and against any loss or liability by reason of such settlement or judgment. (d) If the indemnification provided for in this Section 8 shall for any reason be unavailable to or insufficient to hold harmless an indemnified party under Section 8(a) or 8(b) in respect of any loss, claim, damage or liability, or any action in respect thereof, referred to therein, then each indemnifying party shall, in lieu of indemnifying such indemnified party, contribute to the amount paid or payable by such indemnified party as a result of such loss, claim, damage or liability, or action in respect thereof, -28- (i) in such proportion as shall be appropriate to reflect the relative benefits received by the Company and Thermo Electron on the one hand and the Underwriters on the other from the offering of the Offered Securities or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the fault of the Company and Thermo Electron on the one hand and the Underwriters on the other with respect to the statements or omissions which in such loss, claim, damage or liability, or action in respect thereof, as well as any other relevant equitable considerations. The relative benefits received by the Company and Thermo Electron on the one hand and the Underwriters on the other with respect to such offering shall be deemed to be in the same proportion as the total net proceeds from the offering of the Offered Securities purchased under this Agreement (before deducting expenses) received by the Company on the one hand, and the total underwriting discounts and commissions received by the Underwriters with respect to the Offered Securities purchased under this Agreement, on the other, bear to the total gross proceeds from the offering of the Offered Securities under this Agreement in each case as set forth in the table on the cover page of the Prospectus. The relative fault shall be determined by reference to whether the untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Company or Thermo Electron, on the one hand, or the Underwriters on the other, the intent of the parties and their relative knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company, Thermo Electron and the Underwriters agree that it would not be just and equitable if contributions pursuant to this Section were to be determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which does not take into account the equitable considerations referred to herein. The amount paid or payable by an indemnified party as a result of the loss, claim, damage or liability, or action in respect thereof, referred to above in this Section 8 shall be deemed to include, for purposes of this Section 8(d), any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 8(d), no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Offered Securities underwritten by it and distributed to the public was offered to the public exceeds the amount of any damages which such Underwriter has otherwise paid or become liable to pay by reason of any untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Underwriters' obligations to contribute as provided in this Section 8(d) are several in proportion to their respective underwriting obligations and not joint. The provisions of this Section 8(d) shall be applied separately to each offering of Offered Securities. (e) The Underwriters severally confirm that the following statements are correct and constitute information concerning such Underwriters furnished in writing to the Company by or on behalf of the Underwriters specifically for inclusion in the Registration Statement and the Prospectus: (i) the legend in the Prospectus concerning stabilization and over-allotment by the Underwriters, (ii) the statements with respect to the public offering of the Offered Securities by -29- the Underwriters set forth on the cover page of the Prospectus and (iii) the statements concerning concessions, allowances and reallowances set forth under the caption "Underwriting" in the Prospectus. 9. Defaulting Underwriters. If on the applicable Closing Date, any ----------------------- Underwriter defaults in the performance of its obligations under this Agreement, the remaining non-defaulting Underwriters shall be obligated to purchase (in addition to the amount of Offered Securities which such Underwriters are obligated to purchase pursuant to Section 2) the Offered Securities which the defaulting Underwriter agreed but failed to purchase on such Closing Date in the respective proportions to the amount of Offered Securities set opposite the names of each remaining non-defaulting Underwriter in Exhibit A to the --------- applicable Terms Agreement bears to the amount of the Offered Securities set opposite the names of all the remaining non-defaulting Underwriters in Exhibit A --------- to the applicable Terms Agreement; provided, however, that the remaining non- defaulting Underwriters shall not be obligated to purchase any of the Offered Securities on such Closing Date if the total number of Offered Securities which the defaulting Underwriter or Underwriters agreed but failed to purchase on such date exceeds 10% of the total amount of the Offered Securities to be purchased on such Closing Date. If the foregoing maximum percentage is exceeded, the remaining non-defaulting Underwriters, or those other underwriters satisfactory to the Underwriters who so agree, shall have the right, but shall not be obligated, to purchase, in such proportion as may be agreed upon among them, all the Offered Securities to be purchased on such Closing Date. If the non- defaulting Underwriters or the other underwriters satisfactory to the Underwriters do not elect to purchase the Offered Securities which the defaulting Underwriter or Underwriters agreed but failed to purchase, this Agreement shall. terminate without liability on the part of any non-defaulting Underwriter or the Company or Thermo Electron, except that the Company, Thermo Electron and the Underwriters will continue to be liable for the payment of expenses to the extent set forth in Sections 6 and 11 and continue to be liable under Section 8. As used in this Agreement, the term "Underwriter" includes, ----------- for all purposes of this Agreement unless the context requires otherwise, any party not listed in Exhibit A to any applicable Terms Agreement who, pursuant to --------- this Section 9, purchases Offered Securities which a defaulting Underwriter agreed but failed to purchase. Nothing contained herein shall relieve a defaulting Underwriter of any liability it may have to the Company for damages caused by its default. If other underwriters are obligated or agree to purchase the Offered Securities of a defaulting or withdrawing Underwriter, either the Underwriters or the Company may postpone the applicable Closing Date for up to seven full business days in order to effect any changes that in the reasonable opinion of counsel for the Company or counsel for the Underwriters may be necessary in the Registration Statement, the Prospectus or in any other document or arrangement necessary to consummate the transactions described herein. 10. Termination. Except as provided in the applicable Prospectus, the ----------- obligations of the Underwriters under this Agreement may be terminated by the Representatives or by Underwriters which have agreed to purchase in the aggregate 50% or more of the aggregate amount of Offered Securities by notice given to and received by the Company prior to delivery of and payment for the Offered Securities if, prior to that time, any of the events described in Sections 7(i), (l), (m) or (n) (but as to subsection (m) only, only if the offering is of Debt -30- Securities) shall have occurred or if the Underwriters shall decline to purchase the Offered Securities for any reason permitted under this Agreement. 11. Reimbursement of Underwriters' Expenses. If the Company shall fail to --------------------------------------- tender the Offered Securities for delivery to the Underwriters by reason of any failure, refusal or inability on the part of the Company or Thermo Electron to perform any agreement on its part to be performed, or because any other condition of the Underwriters' obligations hereunder required to be fulfilled by the Company or Thermo Electron is not fulfilled, the Company will reimburse the Underwriters for all reasonable out-of-pocket expenses (including fees and disbursements of counsel) incurred by the Underwriters in connection with this Agreement and the proposed purchase of the Offered Securities, and upon demand the Company shall pay the full amount thereof to the Underwriters. If this Agreement is terminated pursuant to Section 9 by reason of the default of one or more Underwriters, the Company shall not be obligated to reimburse any defaulting Underwriter for any of its expenses incurred in connection with this Agreement. 12. Notices, etc. All statements, requests, notices and agreements ------------ hereunder shall be in writing, and: (a) if to the Underwriters, shall be delivered or sent by mail, telex or facsimile transmission, if Lehman Brothers Inc. is one of the Underwriters, c/o Lehman Brothers Inc., Three World Financial Center, New York, New York 10285, Attention: Syndicate Department (Fax: 212-526-6588), with a copy, in the case of any notice pursuant to Section 8(c), to the Director of Litigation, Office of the General Counsel, Lehman Brothers Inc., World Financial Center, 10th Floor, New York, NY 10285, and if Salomon Brothers Inc is one of the Underwriters, c/o Salomon Brothers Inc, Seven World Trade Center, New York, New York, 10048, Attention: Legal Department (Fax: 212-783-1752); and (b) if to the Company or Thermo Electron, shall be delivered or sent by mail, telex or facsimile transmission to the address of the Company or Thermo Electron set forth in the Registration Statement, Attention: General Counsel (Fax: (617) 622-1283). Any such statements, requests, notices or agreements shall take effect at the time of receipt thereof. The Company and Thermo Electron shall be entitled to act and rely upon any request, consent, notice or agreement given or made on behalf of the Underwriters by the Representatives. 13. Persons Entitled to Benefit of Agreement. This Agreement shall inure ---------------------------------------- to the benefit of and be binding upon the Underwriters, the Company and Thermo Electron and their respective successors. This Agreement and the terms and provisions hereof are for the sole benefit of only those persons, except that (A) the representations, warranties, indemnities and agreements of the Company and Thermo Electron contained in this Agreement shall also be deemed to be for the benefit of the person or persons, if any, who control any Underwriter within the meaning of Section 15 of the Securities Act and (B) the indemnity agreement of the Underwriters contained in Section 8(b) of this Agreement shall be deemed to be for the benefit of the directors of the Company and Thermo Electron, officers of the Company and Thermo -31- Electron and any person controlling the Company or Thermo Electron within the meaning of Section 15 of the Securities Act. Nothing in this Agreement is intended or shall be construed to give any person, other than the persons referred to in this Section 13, any legal or equitable right, remedy or claim under or in respect of this Agreement or any provision contained herein. 14. Survival. The respective indemnities, representations, warranties and -------- agreements of the Company, Thermo Electron and the Underwriters contained in this Agreement or made by or on behalf of them, respectively, pursuant to this Agreement, shall survive the delivery of and payment for any Offered Securities and shall remain in full force and effect, regardless of any investigation made by or on behalf of any of them or any person controlling any of them. 15. Definition of the Terms "Business Day," "Significant Subsidiary" and ----------------------- --------------- ---------------------------- "Subsidiary." For purposes of this Agreement, (a) "business day" means any day - ----------- ------------ on which the New York Stock Exchange, Inc. is open for trading, (b) "Subsidiary" ---------- has the meaning set forth in Rule 405 of the Rules and Regulations and (c) "Significant Subsidiary" has the meaning set forth in Item 1-02(w) of the - ----------------------- Regulation S-X of the Rules and Regulations. 16. Performance by the Company. Thermo Electron agrees to cause the -------------------------- Company to perform each of the agreements and obligations of the Company contained in this Agreement. 17. Governing Law. This Agreement shall be governed by and construed in ------------- accordance with the laws of Massachusetts. 18. Counterparts. This Agreement may be executed in counterparts and, if ------------ executed in more than one counterpart, the executed counterparts shall each be deemed to be an original but all such counterparts shall together constitute one and the same instrument. 19. Headings. The headings herein are inserted for convenience of -------- reference only and are not intended to be part of, or to affect the meaning or interpretation of, this Agreement. [Remainder of page intentionally left blank] -32- If the foregoing correctly sets forth the agreement between the Company, Thermo Electron and the Underwriters, please indicate your acceptance in the space provided for that purpose below. Very truly yours, THERMOTREX CORPORATION By: _________________________ Name: Title: THERMO ELECTRON CORPORATION By: _________________________ Name: Title: Accepted: LEHMAN BROTHERS INC. By:_______________________ Name: Title: SALOMON BROTHERS INC By:_______________________ Name: Title: EX-4.1 3 FORM OF SENIOR INDENTURE EXHIBIT 4.1 THERMOTREX CORPORATION, ISSUER AND THERMO ELECTRON CORPORATION, GUARANTOR TO BANKERS TRUST COMPANY, TRUSTEE INDENTURE DATED AS OF ________, 1997 DEBT SECURITIES ________________________________________________________________________ Reconciliation and Tie between Trust Indenture Act of 1939 (the "Trust Indenture Act") and Indenture
Trust Indenture Act Section Indenture Section --------------------------- ----------------- Section 310(a)(1)............................................ 607 (a)(2)....................................................... 607 (b).......................................................... 608 Section 311.................................................. 612 Section 312(a)............................................... 701 (b).......................................................... 702 (c).......................................................... 702 Section 313(a)............................................... 703 (b)(2)....................................................... 703 (c).......................................................... 703 (d).......................................................... 703 Section 314(a)............................................... 704 (c)(1)....................................................... 102 (c)(2)....................................................... 102 (e).......................................................... 102 (f).......................................................... 102 Section 315(a)............................................... 601 (b).......................................................... 602 (c).......................................................... 601, 602 (d).......................................................... 601 (e).......................................................... 515 Section 316(a)............................................... 101 (a)(1)(A).................................................... 502, 512 (a)(1)(B).................................................... 513 (b).......................................................... 508 Section 317(a)(1)............................................ 503 (a)(2)....................................................... 504 (b).......................................................... 1003 Section 318(a)............................................... 108
Note: This reconciliation and tie shall not, for any purpose, be deemed to be part of the Indenture. Attention should also be directed to Section 318(c) of the Trust Indenture Act, which provides that the provisions of Sections 310 to and including 317 are a part of and govern every qualified indenture, whether or not physically contained herein. TABLE OF CONTENTS ARTICLE ONE: DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION......................................................................................... 2 Section 101. Definitions....................................................................................... 2 Section 102. Compliance Certificates and Opinions.............................................................. 13 Section 103. Form of Documents Delivered to Trustee............................................................ 14 Section 104. Acts of Holders................................................................................... 14 Section 105. Notices, Etc. to Trustee, Company and Guarantor................................................... 16 Section 106. Notice to Holders of Securities; Waiver........................................................... 17 Section 107. Language of Notices............................................................................... 18 Section 108. Conflict with Trust Indenture Act................................................................. 18 Section 109. Effect of Headings and Table of Contents.......................................................... 18 Section 110. Successors and Assigns............................................................................ 18 Section 111. Separability Clause............................................................................... 18 Section 112. Benefits of Indenture............................................................................. 18 Section 113. Governing Law..................................................................................... 19 Section 114. Legal Holidays.................................................................................... 19 Section 115. Taxes............................................................................................. 19 ARTICLE TWO: SECURITIES AND GUARANTEE FORMS...................................................................... 20 Section 201. Forms Generally................................................................................... 20 Section 202. Guarantee by Guarantor; Form of Guarantee......................................................... 20 Section 203. Form of Trustee's Certificate of Authentication................................................... 21 Section 204. Securities in Global Form......................................................................... 21 Section 205. Form of Conversion Notice......................................................................... 22 ARTICLE THREE: THE SECURITIES.................................................................................... 22 Section 301. Amount Unlimited; Issuable in Series.............................................................. 22 Section 302. Currency; Denominations........................................................................... 26 Section 303. Execution, Authentication, Delivery and Dating.................................................... 26 Section 304. Temporary Securities.............................................................................. 28 Section 305. Registration, Transfer and Exchange............................................................... 30 Section 306. Mutilated, Destroyed, Lost and Stolen Securities.................................................. 34 Section 307. Payment of Interest and Certain Additional Amounts; Rights to Interest and Certain Additional Amounts Preserved............................................................................ 36 Section 308. Persons Deemed Owners............................................................................. 38 Section 309. Cancellation...................................................................................... 39 Section 310. Computation of Interest........................................................................... 39 Section 311. CUSIP Numbers..................................................................................... 39 Section 312. Notification of Withholding....................................................................... 40 ARTICLE FOUR: SATISFACTION AND DISCHARGE OF INDENTURE............................................................ 40 Section 401. Satisfaction and Discharge........................................................................ 40 Section 402. Defeasance and Covenant Defeasance................................................................ 42
Section 403. Application of Trust Money........................................................................ 45 ARTICLE FIVE: REMEDIES........................................................................................... 46 Section 501. Events of Default................................................................................. 46 Section 502. Acceleration of Maturity; Rescission and Annulment................................................ 48 Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee................................... 49 Section 504. Trustee May File Proofs of Claim.................................................................. 50 Section 505. Trustee May Enforce Claims Without Possession of Securities or Coupons............................ 51 Section 506. Application of Money Collected.................................................................... 51 Section 507. Limitations on Suits.............................................................................. 51 Section 508. Unconditional Right of Holders to Receive Principal and Any Premium, Interest and Additional Amounts.......................................................................................... 52 Section 509. Restoration of Rights and Remedies................................................................ 52 Section 510. Rights and Remedies Cumulative.................................................................... 52 Section 511. Delay or Omission not Waiver...................................................................... 53 Section 512. Control by Holders of Securities.................................................................. 53 Section 513. Waiver of Past Defaults........................................................................... 53 Section 514. Waiver of Usury, Stay or Extension Laws........................................................... 54 Section 515. Undertaking for Costs............................................................................. 54 ARTICLE SIX: THE TRUSTEE.......................................................................................... 55 Section 601. Certain Rights of Trustee; Certain Duties and Responsibilities.................................... 55 Section 602. Notice of Defaults................................................................................ 56 Section 603. Not Responsible for Recitals or Issuance of Securities............................................ 57 Section 604. May Hold Securities; Act as Trustee Under Other Indenture......................................... 57 Section 605. Money Held in Trust............................................................................... 57 Section 606. Compensation and Reimbursement.................................................................... 58 Section 607. Corporate Trustee Required; Eligibility........................................................... 58 Section 608. Resignation and Removal; Appointment of Successor................................................. 59 Section 609. Acceptance of Appointment by Successor............................................................ 60 Section 610. Merger, Conversion, Consolidation or Succession to Business....................................... 61 Section 611. Preferential Collection of Claims Against Company................................................. 62 Section 612. Appointment of Authenticating Agent............................................................... 62 Section 613. Conflicting Interests............................................................................. 64 Section 614. Protection of Agents.............................................................................. 64 ARTICLE SEVEN: HOLDERS LISTS AND REPORTS BY TRUSTEE, COMPANY AND GUARANTOR........................................ 64 Section 701. Company and Guarantor to Furnish Trustee Names and Addresses of Holders........................... 64 Section 702. Preservation of Information; Communications to Holders............................................ 65 Section 703. Reports by Trustee................................................................................ 65 Section 704. Reports by Company and Guarantor.................................................................. 65 ARTICLE EIGHT: CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER...................................................... 66
ii Section 801. Company or Guarantor May Consolidate, Etc., Only on Certain Terms................................. 66 Section 802. Successor Corporation Substituted................................................................. 67 ARTICLE NINE: SUPPLEMENTAL INDENTURES............................................................................ 68 Section 901. Supplemental Indentures Without Consent of Holders................................................ 68 Section 902. Supplemental Indentures With Consent of Holders................................................... 69 Section 903. Execution of Supplemental Indentures.............................................................. 70 Section 904. Effect of Supplemental Indentures................................................................. 71 Section 905. Reference in Securities to Supplemental Indentures................................................ 71 Section 906. Conformity with Trust Indenture Act............................................................... 71 ARTICLE TEN: COVENANTS............................................................................................ 71 Section 1001. Payment of Principal, Any Premium, Interest and Additional Amounts............................... 71 Section 1002. Maintenance of Office or Agency.................................................................. 71 Section 1003. Money for Securities Payments to be Held in Trust................................................ 73 Section 1004. Additional Amounts............................................................................... 75 Section 1005. Statement as to Compliance....................................................................... 78 Section 1006. Corporate Existence.............................................................................. 78 ARTICLE ELEVEN: REDEMPTION OF SECURITIES......................................................................... 78 Section 1101. Applicability of Article......................................................................... 78 Section 1102. Election to Redeem; Notice to Trustee............................................................ 79 Section 1103. Selection by Trustee of Securities to be Redeemed................................................ 80 Section 1104. Notice of Redemption............................................................................. 81 Section 1105. Deposit of Redemption Price...................................................................... 82 Section 1106. Securities Payable on Redemption Date............................................................ 83 Section 1107. Securities Redeemed in Part...................................................................... 84 ARTICLE TWELVE: CONVERSION OF SECURITIES......................................................................... 84 Section 1201. Conversion Privilege and Conversion Price........................................................ 84 Section 1202. Exercise of Conversion Privilege................................................................. 86 Section 1203. Fractions of Shares.............................................................................. 87 Section 1204. Adjustment of Conversion Price................................................................... 88 Section 1205. Notice of Adjustments of Conversion Price........................................................ 90 Section 1206. Notice of Certain Corporate Action............................................................... 91 Section 1207. Company to Reserve Common Stock.................................................................. 91 Section 1208. Taxes on Conversions............................................................................. 92 Section 1209. Covenant as to Common Stock...................................................................... 92 Section 1210. Cancellation of Converted Securities............................................................. 92 Section 1211. Provision in Case of Consolidation, Merger or Sale of Assets..................................... 92 Section 1212. Compliance with Governmental Requirements........................................................ 93 ARTICLE THIRTEEN: SINKING FUNDS.................................................................................. 93 Section 1301. Applicability of Article......................................................................... 93 Section 1302. Satisfaction of Sinking Fund Payments With Securities............................................ 93
iii Section 1303. Redemption of Securities for Sinking Fund..................................................... 94 ARTICLE FOURTEEN: GUARANTEES................................................................................... 94 Section 1401. Guarantees.................................................................................... 94 Section 1402. Execution and Delivery of Guarantees.......................................................... 95 Section 1403. Guarantees Optional........................................................................... 96 ARTICLE FIFTEEN: REPAYMENT AT THE OPTION OF HOLDERS........................................................... 96 Section 1501. Applicability Of Article...................................................................... 96 Section 1502. Repayment Of Securities....................................................................... 96 Section 1503. Notice of Repayment........................................................................... 97 Section 1504. Exercise Of Option............................................................................ 98 Section 1505. When Securities Presented For Repayment Become Due And Payable................................ 98 Section 1506. Securities Repaid In Part..................................................................... 99 ARTICLE SIXTEEN: MEETINGS OF HOLDERS OF SECURITIES............................................................. 99 Section 1601. Purposes for Which Meetings May Be Called..................................................... 99 Section 1602. Call, Notice and Place of Meetings............................................................ 100 Section 1603. Persons Entitled to Vote at Meetings.......................................................... 100 Section 1604. Quorum; Action................................................................................ 100 Section 1605. Determination of Voting Rights; Conduct and Adjournment of Meetings........................... 101 Section 1606. Counting Votes and Recording Action of Meetings............................................... 102 ARTICLE SEVENTEEN: [INTENTIONALLY OMITTED]..................................................................... 103 ARTICLE EIGHTEEN: [INTENTIONALLY OMITTED]..................................................................... 103
Exhibits Exhibit A Form of Guarantee Exhibit B Form of Trustee's Certificate of Authentication Exhibit C Conversion Notice Exhibit D Form of Certificate of Beneficial Ownership for Bearer Securities to be Provided to the Euroclear Operator or to Cedel Bank, societe anonyme Exhibit E Form of Certificate to be Given by the Euroclear Operator and Cedel Bank, societe anonyme Exhibit F Option to Elect Repayment upon a Repayment Event iv INDENTURE, dated as of __________ __, 1997 (the "Indenture"), among --------- ThermoTrex Corporation, a corporation duly organized and existing under the laws of the State of Delaware (hereinafter called the "Company"), having its ------- principal executive office located at 470 Wildwood Street, Woburn, Massachusetts 01888; Thermo Electron Corporation, a corporation duly organized and existing under the laws of the State of Delaware (hereinafter called the "Guarantor"), --------- having its principal executive office located at 81 Wyman Street, Waltham, Massachusetts 02254-9046; and Bankers Trust Company, a banking corporation duly organized and existing under the laws of the State of New York (hereinafter called the "Trustee"), having its principal Corporate Trust Office located at ------- Four Albany Street, 4th Floor, New York, New York 10006. RECITALS: 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 (hereinafter 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 provisions as shall be fixed as provided in this Indenture. The Guarantor has duly authorized the execution and delivery of this Indenture to provide for the Guarantees (as herein defined) by it with respect to the Securities as set forth in this Indenture. The Guarantor desires to make the Guarantees provided for herein, and has determined that such Guarantees are necessary and convenient to the conduct of the business of the Company, which is a subsidiary of the Guarantor. All things necessary to make the Securities and any Coupons (as herein defined), when executed by the Company and authenticated and delivered hereunder, the valid obligations of the Company, and to make this Indenture a valid agreement of the Company in accordance with its terms have been done. All things necessary to make the Guarantees, when executed by the Guarantor and endorsed on the Securities authenticated and delivered hereunder, the valid obligations of the Guarantor, and to make this Indenture a valid agreement of the Guarantor in accordance with its terms have been done. This Indenture is subject to the provisions of the Trust Indenture Act of 1939, as amended, and the rules and regulations of the Securities and Exchange Commission promulgated thereunder that are required to be part of this Indenture and, to the extent applicable, shall be governed by such provisions. NOW, THEREFORE, THIS INDENTURE WITNESSETH: For and in consideration of the premises and the purchase of the Securities by the Holders (as herein defined) thereof, it is mutually covenanted and agreed, for the equal and proportionate benefit of all Holders of the Securities or of any series thereof and any Coupons (as herein defined), as follows: ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION" Section 101. Definitions. ----------- Except as otherwise expressly provided in or pursuant to this Indenture or unless the context otherwise requires, for all purposes of this Indenture: (1) the terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular; (2) all other terms used herein which are defined in the Trust Indenture Act, either directly or by reference therein, have the meanings assigned to them therein; (3) all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with generally accepted accounting principles in the United States of America and, except as otherwise herein expressly provided, the terms "generally accepted accounting principles" or ---------------------------------------- "GAAP" with respect to any computation required or permitted hereunder ---- shall mean such accounting principles as are generally accepted in the United States of America, consistently applied, at the date of such computation; (4) the words "Article" and "Section" refer to an Article and ------- ------- Section, respectively, of this Indenture; (5) the words "herein," "hereof," "hereto" 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; and (6) the word "or" is always used inclusively (for example, the -- phrase "A or B" means "A or B or both", not "either A or B but not both"). Certain terms used principally in certain Articles hereof are defined in those Articles. "Act," when used with respect to any Holders, has the meaning specified in --- Section 104. "Additional Amounts" has the meaning specified in Section 1004. ------------------ 2 "Affiliate" of any specified Person means any other Person directly or --------- indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, "control," when used with respect to any specified Person, means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms "controlling" and "controlled" have meanings correlative to the foregoing. "Authenticating Agent" means any Person authorized by the Trustee pursuant -------------------- to Section 612 to act on behalf of the Trustee to authenticate Securities of one or more series. "Authorized Newspaper" means a newspaper, in an official language of the -------------------- place of publication or in the English language, customarily published on each day that is a Business Day in the place of publication, whether or not published on days that are Legal Holidays in the place of publication, and of general circulation in each place in connection with which the term is used or in the financial community of each such place. Where successive publications are required to be made in Authorized Newspapers, the successive publications may be made in the same or in different newspapers in the same city meeting the foregoing requirements and in each case on any day that is a Business Day in the place of publication. "Bankruptcy Law" has the meaning specified in Section 501. -------------- "Bearer Security" means any Security established pursuant to Section 201 --------------- which is payable to bearer. "Board of Directors," when used with reference to the Company or the ------------------ Guarantor, means either the board of directors or any duly authorized committee of such board of directors of the Company or the Guarantor, as the case may be. "Board Resolution," when used with reference to the Company or the ---------------- Guarantor, means a copy of one or more resolutions, certified by the Corporate Secretary or an Assistant Corporate Secretary of the Company or the Guarantor, as the case may be, to have been duly adopted by its respective Board of Directors and to be in full force and effect on the date of such certification, and delivered to the Trustee. "Business Day," with respect to any Place of Payment, Place of Conversion ------------ or other location, means, unless otherwise specified with respect to any Securities pursuant to Section 301, any day other than a Saturday, Sunday or other day on which banking institutions in such Place of Payment, Place of Conversion or other location are authorized or obligated by law, regulation or executive order to close. "Cash Settlement Option" has the meaning specified in Section 1201. ---------------------- "CEDEL" has the meaning specified in Section 304(c). ----- "Closing Price Per Share" means, with respect to common stock, for any day, ----------------------- the reported last sales price regular way per share or, in case no such reported sale takes place on 3 such day, the average of the reported closing bid and asked prices regular way, as reported on the principal national or regional United States securities exchange on which such common stock is traded or, if such common stock is not listed or admitted to trading on a United States national or regional exchange, as reported on the Nasdaq National Market, or if such common stock is not listed or admitted to trading on the Nasdaq National Market, the average of the closing bid and asked prices in the over the counter market as furnished by any New York Stock Exchange member firm selected from time to time by the Company for that purpose. "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 Indenture 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. "Common Depository" means the Person specified as such pursuant to ----------------- Section 301. "Common Stock" means the Common Stock, par value $.01 per share, of the ------------ Company authorized at the date of this instrument as originally executed. Subject to the provisions of Section 1201 and 1211, shares issuable on conversion of Securities shall include only shares of Common Stock or shares of any class or classes of common stock resulting from any reclassification or reclassifications thereof; provided, however, that if at any time there shall be -------- ------- more than one such resulting class, the shares so issuable on conversion of Securities shall include shares of all such classes, and the shares of each such class then so issuable shall be substantially in the proportion that the total number of shares of such class resulting from all such reclassifications bears to the total number of shares of all such classes resulting from all such reclassifications. "common stock" includes any stock of any class of capital stock which has ------------ no preference in respect of dividends or of amounts payable in the event of any voluntary or involuntary liquidation, dissolution or winding up of the issuer thereof and which, by its terms, is not subject to redemption by the issuer thereof. "Company" means the Person named as the "Company" in the first paragraph of ------- ------- this Indenture until a successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter "Company" shall mean ------- such successor Person. "Company Request" and "Company Order" mean, respectively, a written --------------- ------------- request or order, as the case may be, signed in the name of the Company by any two Officers or by any Officer and either an Assistant Treasurer or an Assistant Corporate Secretary, of the Company and delivered to the Trustee. "Conversion Agent" means any Person authorized by the Company to convert ---------------- Securities in accordance with Article Twelve. "Conversion Date" means the date on which any Security, which is --------------- convertible by the terms and provisions of such Security established pursuant to Section 301, and the duly signed 4 and completed conversion notice shall have been delivered to any Place of Conversion in accordance with the provisions of Article Twelve. "Conversion Price" has the meaning specified in Section 1201. ---------------- "Corporate Secretary" or "Assistant Corporate Secretary" means the person ------------------- ----------------------------- elected by an entity's Board of Directors to hold the title of "Secretary" or "Clerk" or "Assistant Secretary" or "Assistant Clerk," as the case may be, as provided for by the applicable corporate law of an entity's jurisdiction of incorporation. "Corporate Trust Office" means the principal corporate trust office of the ---------------------- Trustee at which at any particular time its corporate trust business shall be administered, which office at the date of original execution of this Indenture is located at Four Albany Street, New York, New York 10006." "Corporation" and "corporation" includes corporations, associations, ----------- ----------- companies and business trusts. "Coupon" means any interest coupon appertaining to a Bearer Security. ------ "Currency," with respect to any payment, deposit or other transfer in -------- respect of the principal of or any premium or interest on or any Additional Amounts with respect to any Security, means Dollars, and, with respect to any other payment, deposit or transfer pursuant to or contemplated by the terms hereof or such Security, also means Dollars. "CUSIP Number" means the alphanumeric designation assigned to a Security by ------------ Standard & Poor's Ratings Services, CUSIP Service Bureau. "Custodian" has the meaning specified in Section 501. --------- "Default" means any event or condition the occurrence of which would, ------- with the lapse of time or the giving of notice, or both, constitute an Event of Default. "Defaulted Interest" has the meaning specified in Section 307. ------------------ "Definitive Security" means any Security that is a Bearer Security (other ------------------- than the temporary global Bearer Security) or a Registered Security. "Dollars" or "$" means a dollar or other equivalent unit of legal tender ------- - for payment of public or private debts in the United States. "EUROCLEAR" has the meaning specified in Section 304(c). --------- "Event of Default" has the meaning specified in Section 501. ---------------- "Exchange Act" means the Securities Exchange Act of 1934, as amended. ------------ 5 "Exchange Date" means the date specified as such pursuant to Section 301. ------------- "Exchange Act" means the Securities Exchange Act of 1934, as amended from ------------ time to time. "Foreign Entity" has the meaning specified in Section 801. -------------- "GAAP" means such accounting principles as are generally accepted in the ---- United States of America as of the date or time of any computation required hereunder. "Government Obligations" means securities which are (i) direct obligations ---------------------- of the United States or (ii) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States where the timely payment or payments thereunder are unconditionally guaranteed as a full faith and credit obligation by the United States, and which, in the case of (i) or (ii), are not callable or redeemable at the option of the issuer or issuers thereof, and shall also include a depository receipt issued by a bank or trust company as custodian with respect to any such Government Obligation or a specific payment of interest on or principal of or other amount with respect to any such 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 Government Obligation or the specific payment of interest on or principal of or other amount with respect to the Government Obligation evidenced by such depository receipt. "Guarantee" means any guarantee of the Guarantor endorsed on a Security --------- authenticated and delivered pursuant to this Indenture and shall include the guarantee attached to this Indenture as Exhibit A. --------- "Guarantor" means the Person named as "Guarantor" in the first paragraph of --------- --------- this Indenture until a successor corporation shall have become such pursuant to the applicable provisions of this Indenture, and thereafter "Guarantor" shall --------- include such successor corporation. "Guarantor Common Stock" means the common stock, par value $1.00 per ---------------------- share, of the Guarantor authorized at the date of this instrument as originally executed or shares of any class or classes of common stock resulting from any reclassification or reclassifications thereof; provided, however, that if at any -------- ------- time there shall be more than one such resulting class, the shares so issuable on conversion of Securities in accordance with Section 1201 shall include shares of all such classes, and the shares of each such class then so issuable shall be substantially in the proportion that the total number of shares of such class resulting from all such reclassifications bears to the total number of shares of all such classes resulting from all such reclassifications. "Guarantor Request" and "Guarantor Order" mean, respectively, a written ----------------- --------------- request or order, as the case may be, signed in the name of the Guarantor by any two Officers or by any 6 Officer and either an Assistant Treasurer or an Assistant Corporate Secretary, of the Guarantor and delivered to the Trustee. "Holder," in the case of any Registered Security, means the Person in whose ------ name such Security is registered in the Security Register and, in the case of any Bearer Security, means the bearer thereof and, in the case of any Coupon, means the bearer thereof. "Indenture" means this instrument 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, with respect to any Security, by the terms and provisions of such Security and any Coupon appertaining thereto established pursuant to Section 301 (as such terms and provisions may be amended pursuant to the applicable provisions hereof). "Independent Public Accountants" means accountants or a firm of accountants ------------------------------ that, with respect to the Company, the Guarantor and any other obligor under the Securities or the Coupons, are independent public accountants within the meaning of the Securities Act, and the rules and regulations promulgated by the Commission thereunder, who may be the independent public accountants regularly retained by the Company or the Guarantor or who may be other independent public accountants. Such accountants or firm shall be entitled to rely upon any Opinion of Counsel as to the interpretation of any legal matters relating to this Indenture or certificates required to be provided hereunder. "Indexed Security" means a Security the terms of which provide that the ---------------- principal amount thereof payable at Stated Maturity may be more or less than the principal face amount thereof at original issuance. "Interest" or "interest," with respect to any Original Issue Discount -------- -------- Security, which by its terms bears interest only after Maturity, means interest payable after Maturity and, when used with respect to a Security which provides for the payment of Additional Amounts pursuant to Section 1004, includes such Additional Amounts. "Interest Payment Date," with respect to any Security, means the Stated ---------------------- Maturity of an installment of interest on such Security. "Interest Record Date" means any Regular Record Date or Special Record -------------------- Date. "Internal Revenue Code" means the United States Internal Revenue Code of --------------------- 1986, as amended. "Investment Company Act" means the Investment Company Act of 1940 and any ---------------------- statute successor thereto, in each case as amended from time to time. "Legal Holidays" has the meaning specified in Section 114. -------------- "Market Price" has the following meaning unless otherwise defined in the ------------ Company's Board Resolutions or Officers' Certificate relating to a particular series of Securities: (A) in case the Company chooses the Cash Settlement Option with respect to the conversion of Securities, 7 means the Weighted Average Price of the Common Stock on the last Trading Day preceding the applicable Conversion Date; and (B) in case the Company chooses the Stock Settlement Option with respect to the conversion of Securities, means either (a) if the Conversion Date is (i) a date prior to the date on which the Company gives notice of redemption of all (but not less than all) of the Securities in accordance with the provisions of Section 1104 (the "Redemption Notice Date") or (ii) a date on or after the Redemption Notice Date and the Company has not specified in its redemption notice that the Company will exercise the Stock Settlement Option with respect to all or a portion of the shares of Common Stock deliverable upon conversion of the Securities, the Closing Price Per Share of the Common Stock or Guarantor Common Stock, as the case may be, on such Conversion Date, or if the date is not a Trading Day, on the last Trading Day preceding such date, as reported on the principal national or regional United States securities exchange on which such shares are traded or, if the Common Stock or Guarantor Common Stock, as the case may be, is not listed or admitted to trading on a United States national or regional securities exchange, as reported on the Nasdaq National Market, or (b) if the Conversion Date occurs on or after the Redemption Notice Date and the Company has specified in its redemption notice that the Company will exercise the Stock Settlement Option with respect to all or a portion of the shares of Common Stock deliverable upon conversion of the Securities, the Weighted Average Price of the Common Stock or the Guarantor Common Stock, as the case may be, over all of the Trading Days falling within the twenty-day period commencing on the Redemption Notice Date. "Maturity," with respect to any Security, means the date on which the -------- principal of such Security or an installment of principal becomes due and payable as provided in or pursuant to this Indenture, whether at the Stated Maturity or by declaration of acceleration, notice of redemption or repayment, notice of option to elect repayment or otherwise, and includes the Redemption Date. "Office" or "Agency", with respect to any Securities, means an office or ------ ------ agency of the Company maintained or designated as a Place of Payment for such Securities pursuant to Section 1002 or any other office or agency of the Company maintained or designated for such Securities pursuant to Section 1002 or, to the extent designated or required by Section 1002 in lieu of such office or agency, the Corporate Trust Office of the Trustee. "Officer" means the Chairman of the Board, the President, any Vice ------- President (whether or not designated by a number or word added before or after the title vice president), the Treasurer or the Corporate Secretary of the Company or the Guarantor, as the case requires. "Officers' Certificate" of the Company or the Guarantor, as the case may --------------------- be, means a certificate signed by two Officers or by any Officer and either an Assistant Treasurer or an Assistant Corporate Secretary of the Company or the Guarantor, as the case may be, that complies with the requirements of Section 314(e) of the Trust Indenture Act and is delivered to the Trustee. "Opinion of Counsel" means a written opinion of counsel, who (unless ------------------ otherwise provided herein) may be an employee of or counsel for the Company or the Guarantor, as the case may be, or other counsel that, if required by the Trust Indenture Act, complies with the requirements of Section 314(e) of the Trust Indenture Act. 8 "Original Issue Discount Security" means any Security issued pursuant to -------------------------------- this Indenture which provides for an amount less than the principal face amount thereof to be due and payable upon acceleration of the Maturity thereof pursuant to Section 502. "Outstanding," when used with respect to any Securities, means, as of the ----------- date of determination, all such Securities theretofore authenticated and delivered under this Indenture, except: (1) any such Security theretofore canceled by the Trustee or the Security Registrar or delivered to the Trustee or the Security Registrar for cancellation; (2) any such Security for whose payment at the Maturity thereof money in the necessary amount has been theretofore deposited pursuant hereto (other than pursuant to Section 402) with the Trustee or any Paying Agent (other than the Company or the Guarantor) in trust or set aside and segregated in trust by the Company or the Guarantor, as the case may be (if the Company or Guarantor shall act as its own Paying Agent), for the Holders of such Securities and any Coupons appertaining thereto, provided -------- that, if such Securities are to be redeemed, notice of such redemption has ---- been duly given pursuant to this Indenture or provision therefor satisfactory to the Trustee has been made; (3) any such Security with respect to which the Company has effected defeasance or covenant defeasance pursuant to Section 402, except to the extent provided in Section 402; and (4) any such Security which has 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, unless there shall have been presented to the Trustee proof satisfactory to it that such Security is held by a bona fide purchaser in whose hands such Security is a valid obligation of the Company, provided, however, that in determining whether the Holders of the requisite -------- ------- principal amount of Outstanding Securities have given any request, demand, authorization, direction, notice, consent or waiver hereunder or are present at a meeting of Holders of Securities for quorum purposes, (i) the principal amount of an Original Issue Discount Security that may be counted in making such determination and that shall be deemed to be Outstanding for such purposes shall be equal to the amount of the principal thereof that pursuant to the terms of such Original Issue Discount Security would be declared (or shall have been declared to be) due and payable upon a declaration of acceleration thereof pursuant to Section 502 at the time of such determination, and (ii) the principal amount of any Indexed Security that may be counted in making such determination and that shall be deemed outstanding for such purpose shall be equal to the principal face amount of such Indexed Security at original issuance, unless otherwise provided in or pursuant to this Indenture, and (iii) Securities beneficially owned by the Company, the Guarantor or any other obligor upon the Securities or any Affiliate of the Company shall be disregarded and deemed not to be Outstanding, except that, in determining whether the Trustee shall 9 be protected in making any such determination or relying upon any such request, demand, authorization, direction, notice, consent or waiver, only Securities which a Responsible Officer of the Trustee actually knows to be so owned shall be so disregarded. Securities so owned which shall have been pledged in good faith shall be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee (a) the pledgee's right so to act with respect to such Securities and (b) that the pledgee is not the Company, the Guarantor or any other obligor upon the Securities or any Coupons appertaining thereto or an Affiliate of the Company, the Guarantor or such other obligor. "Paying Agent" means any Person authorized by the Company or the Guarantor ------------ to pay the principal of, or any premium or interest on, or any Additional Amounts with respect to, any Security or any Coupon or take any other actions specifically provided in this Indenture on behalf of the Company or the Guarantor, as the case may be. "Person" means any individual, corporation, partnership, association, joint ------ venture, joint-stock company, limited liability company, trust, estate, unincorporated organization or government or any agency or political subdivision thereof. "Place of Conversion" means any city in which any Conversion Agent is ------------------- located. "Place of Payment," with respect to any Security, means the place or places ---------------- where the principal of, or any premium or interest on, or any Additional Amounts with respect to, such Security are payable as provided in or pursuant to this Indenture or such Security. "Predecessor Security" of any particular Security means every previous -------------------- Security evidencing all or a portion of the same indebtedness 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 lost, destroyed, mutilated or stolen Security or any Security to which a mutilated, destroyed, lost or stolen Coupon appertains shall be deemed to evidence the same indebtedness as the lost, destroyed, mutilated or stolen Security or the Security to which a mutilated, destroyed, lost or stolen Coupon appertains. "Redemption Date," with respect to any Security or portion thereof to be --------------- redeemed, means the date fixed for such redemption by or pursuant to this Indenture or such Security. "Redemption Price," with respect to any Security or portion thereof to be ---------------- redeemed, means the price at which it is to be redeemed as determined by or pursuant to this Indenture or such Security. "Registered Security" means any Security established pursuant to Section ------------------- 201 which is registered in the Security Register. "Regular Record Date" for the interest payable on any Registered Security ------------------- on any Interest Payment Date therefor means the date, if any, specified in or pursuant to this Indenture or such Security as the "Regular Record Date." 10 "Repayment Date" has the meaning specified in Section 1502. -------------- "Repayment Event" has the meaning specified in Section 1502. --------------- "Repayment Notice" has the meaning specified in Section 1503. ---------------- "Repayment Price" has the meaning specified in Section 1502. --------------- "Responsible Officer," shall mean when used with respect to the Trustee, ------------------- any officer within the Corporate Trust Office including any Vice President, Managing Director, Assistant Vice President, Secretary, Assistant Secretary, Treasurer or Assistant Treasurer or any other officer of the Trustee customarily performing functions similar to those performed by any of the above designated officers and also, with respect to a particular matter, any other officer to whom such matter is referred because of such officer's knowledge and familiarity with the particular subject. "Security" or "Securities" means any note or notes, bond or bonds, -------- ---------- debenture or debentures, or any other evidences of indebtedness, as the case may be, authenticated and delivered under this Indenture; provided, however, that, -------- ------- if at any time there is more than one Person acting as Trustee under this Indenture, "Securities," with respect to any such Person, shall mean Securities ---------- authenticated and delivered under this Indenture, exclusive, however, of Securities of any series as to which such Person is not Trustee. "Securities Act" means the Securities Act of 1933, as amended. --------------- "Security Register" and "Security Registrar" have the respective meanings ----------------- ------------------ specified in Section 305. "Special Record Date" for the payment of any Defaulted Interest on any ------------------- Registered Security means a date fixed by the Trustee pursuant to Section 307. "Stated Maturity," with respect to any Security or any installment of --------------- principal thereof or interest thereon or any Additional Amounts with respect thereto, means the date established by or pursuant to this Indenture or such Security or Coupon as the fixed date on which the principal of such Security or such installment of principal or interest is, or such Additional Amounts are, due and payable. "Stock Settlement Option" has the meaning specified in Section 1201. ----------------------- "Subsidiary" means a corporation or other entity, a majority of the ---------- outstanding voting securities or other ownership interests having ordinary voting power to elect a majority of the corporate directors or other Persons performing similar functions of which is owned, directly or indirectly, by the Company, the Guarantor or by one or more other Subsidiaries, or by the Company, the Guarantor and one or more other Subsidiaries. "Tax" has the meaning specified in Section 1004. ----- 11 "Tax Affected Security" means any Security held by a non-United States --------------------- person to whom Additional Amounts have or will become payable. "Tax Law Change" means any change in, or amendment to, the laws (including -------------- any regulations or rulings promulgated thereunder) of the United States or any political subdivision or taxing authority thereof or therein affecting taxation, or any change in, or amendment to, the application or official interpretation of such laws, regulations or rulings. "Trading Days" means (i) if the common stock is quoted on the Nasdaq ------------ National Market or any similar system of automated dissemination of quotations of securities prices, days on which trades may be effected through such system, (ii) if the common stock is listed or admitted for trading on any national securities exchange, days on which such national securities exchange is open for business or (iii) if the common stock is not quoted on the Nasdaq National Market or similar system or listed or admitted to trading on any national securities exchange, days on which the common stock is traded regular way in the over-the-counter market and for which a closing bid and a closing asked price for the common stock are available. "Trust Indenture Act" means the Trust Indenture Act of 1939, as amended, ------------------- and any reference herein to the Trust Indenture Act or a particular provision thereof shall mean such Act or provision, as the case may be, as amended or replaced from time to time or as supplemented from time to time by rules or regulations adopted by the Commission under or in furtherance of the purposes of such Act or provision, as the case may be. "Trustee" means the Person named as the "Trustee" in the first paragraph of ------- ------- this instrument until a successor Trustee shall have become such with respect to one or more series of Securities pursuant to the applicable provisions of this Indenture, and thereafter "Trustee" shall mean or include each Person who is ------- then a Trustee hereunder; provided, however, that if at any time there is more -------- ------- than one such Person, "Trustee" as used with respect to the Securities of any ------- series shall mean the Trustee with respect to Securities of such series. "United States," except as otherwise provided in or pursuant to this ------------- Indenture or any Security, means the United States of America (including the states thereof and the District of Columbia), its territories and possessions and other areas subject to its jurisdiction. "United States person" is a person that is, for United States Federal -------------------- income tax purposes, (a) a citizen or resident of the United States, (b) a corporation, partnership or other entity created or organized in or under the laws of the United States or any political subdivision thereof, (c) an estate, the income of which is subject to United States Federal income taxation regardless of source, (d) any trust if a court within the United States is able to exercise primary supervision of the administration thereof and one or more United States fiduciaries have the authority to control all substantial decisions thereof, or (e) any other person included within the definition of United States person under the Internal Revenue Code and the regulations thereunder. 12 "U.S. Depository" or "Depository" means, with respect to any Security --------------- ---------- issuable or issued in the form of one or more global Securities, the Person designated as U.S. Depository or Depository by the Company in or pursuant to this Indenture, which Person must be, to the extent required by applicable law or regulation, a clearing agency registered under the Exchange Act, and, if so provided with respect to any Security, any successor to such Person. If at any time there is more than one such Person, "U.S. Depository" or "Depository" shall --------------- ---------- mean, with respect to any Securities, the qualifying entity which has been appointed with respect to such Securities. "Vice President," when used with respect to the Company, the Guarantor or -------------- the Trustee, means any vice president, whether or not designated by a number or a word or words added before or after the title "Vice President." -------------- "Weighted Average Price" of a share of Common Stock or Guarantor Common ---------------------- Stock during any period, unless otherwise defined in the Company's Board Resolutions or Officers' Certificate relating to a particular series of Securities means the weighted average per share sale price for all reported sales of shares of Common Stock or Guarantor Common Stock, as the case may be, on the Trading Days included within such period (or, if the information necessary to calculate such weighted average per share sale price is not available, the average of the high and low sale prices or, if only one sale is reported, such sale price) as reported in the composite transactions on the principal national or regional United States securities exchange on which the Common Stock or Guarantor Common Stock, as the case may be, is listed or admitted to trading, or if the Common Stock or Guarantor Common Stock, as the case may be, is not listed or admitted to trading on a United States national or regional securities exchange, as reported on the Nasdaq National Market, or if the Common Stock or Guarantor Common Stock, as the case may be, is not listed or admitted to trading on the Nasdaq National Market, as reported in the over the counter market as furnished by any New York Stock Exchange member firm selected from time to time by the Company for that purpose. Section 102. Compliance Certificates and Opinions. ------------------------------------ Except as otherwise expressly provided in this Indenture, upon any application or request by the Company or the Guarantor to the Trustee to take any action under any provision of this Indenture, the Company or the Guarantor, as the case may be, shall furnish to the Trustee an Officers' Certificate stating that all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with and an Opinion of Counsel stating that, in the opinion of such counsel, all such conditions precedent, if any, have been complied with, except that in the case of any such application or request as to which the furnishing of such document is specifically required by any provision of this Indenture relating to such particular application or request, no additional certificate or opinion need be furnished. Every certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture shall include: (1) a statement that each individual signing such certificate or opinion has read such condition or covenant and the definitions herein relating thereto; 13 (2) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based; (3) a statement that, in the opinion of each such individual, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such condition or covenant has been satisfied or complied with; and (4) a statement as to whether, in the opinion of each such individual, such condition or covenant has been satisfied or 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 or the Guarantor may be based, insofar as it relates to legal matters, upon an Opinion of Counsel, unless such officer knows, or in the exercise of reasonable care should know, that the opinion with respect to the matters upon which his certificate or opinion is based are erroneous. Any such 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 or the Guarantor stating that the information with respect to such factual matters is in the possession of the Company or the Guarantor 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 or any Security, they may, but need not, be consolidated and form one instrument. Section 104. Acts of Holders. --------------- (1) Any request, demand, authorization, direction, notice, consent, waiver or other action provided by or pursuant to 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. If, but only if, Securities of a series are issuable as Bearer Securities, any request, demand, authorization, direction, notice, consent, waiver or other action provided in or pursuant to this Indenture to be given or taken by Holders of Securities of such series may, alternatively, be embodied in and evidenced by the record of Holders of Securities of such series voting in favor thereof, either in person or by proxies duly appointed in writing, at any meeting of Holders of Securities of such series duly called and held in 14 accordance with the provisions of Article Sixteen, or a combination of such instruments and any such record. Except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments or record or both are delivered to the Trustee and, where it is hereby expressly required, to the Company or the Guarantor, as the case may be. Such instrument or instruments and any such record (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the "Act" of the Holders signing such instrument or instruments or so --- voting at any such meeting. Proof of execution of any such instrument or of a writing appointing any such agent, or of the holding by any Person of a Security, shall be sufficient for any purpose of this Indenture and (subject to Section 315 of the Trust Indenture Act) conclusive in favor of the Trustee, the Company and the Guarantor and any agent of the Trustee, the Company, or the Guarantor, if made in the manner provided in this Section. The record of any meeting of Holders of Securities shall be proved in the manner provided in Section 1606. Without limiting the generality of this Section 104, unless otherwise provided in or pursuant to this Indenture, a Holder, including a Depository that is a Holder of a global Security, may make, give or take, by a proxy, or proxies, duly appointed in writing, any request, demand, authorization, direction, notice, consent, waiver or other Act provided in or pursuant to this Indenture or the Securities to be made, given or taken by Holders, and a Depository that is a Holder of a global Security may provide its proxy or proxies to the beneficial owners of interests in any such global Security through such Depository's standing instructions and customary practices. (2) The fact and date of the execution by any Person of any such instrument or writing may be proved in any reasonable manner which the Trustee deems sufficient and in accordance with such reasonable rules as the Trustee may determine; and the Trustee may in any instance require further proof with respect to any of the matters referred to in this Section 104. (3) The ownership, principal amount and serial numbers of Registered Securities held by any Person, and the date of the commencement and the date of the termination of holding the same, shall be proved by the Security Register. (4) The ownership, principal amount and serial numbers of Bearer Securities held by any Person, and the date of the commencement and the date of the termination of holding the same, may be proved by the production of such Bearer Securities or by a certificate executed, as depository, by any trust company, bank or other depository reasonably acceptable to the Company and the Guarantor, wherever situated, if such certificate shall be deemed by the Company, the Guarantor and the Trustee to be satisfactory, showing that at the date therein mentioned such Person had on deposit with such depository, or exhibited to it, the Bearer Securities therein described; or such facts may be proved by the certificate or affidavit of the Person holding such Bearer Securities, if such certificate or affidavit is deemed by the Company, the Guarantor and the Trustee to be satisfactory. The Trustee, the Company and the Guarantor may assume that such ownership of any Bearer Security continues until (i) another certificate or affidavit bearing a later date issued in respect of the same Bearer Security is produced, or (ii) such 15 Bearer Security is produced to the Trustee by some other Person, or (iii) such Bearer Security is surrendered in exchange for a Registered Security, or (iv) such Bearer Security is no longer Outstanding. The ownership, principal amount and serial numbers of Bearer Securities held by the Person so executing such instrument or writing and the date of the commencement and the date of the termination of holding the same may also be proved in any other manner which the Company, the Guarantor and the Trustee deem sufficient. (5) If the Company shall solicit from the Holders of any Registered Securities any request, demand, authorization, direction, notice, consent, waiver or other Act, the Company may at its option (but is not obligated to), by a Company Board Resolution, fix in advance a record date for the determination of Holders of Registered Securities entitled to give such request, demand, authorization, direction, notice, consent, waiver or other Act. If such a record date is fixed, such request, demand, authorization, direction, notice, consent, waiver or other Act may be given before or after such record date, but only the Holders of Registered Securities of record at the close of business on such record date shall be deemed to be Holders for the purpose of determining whether Holders of the requisite proportion of Outstanding Securities have authorized or agreed or consented to such request, demand, authorization, direction, notice, consent, waiver or other Act, and for that purpose the Outstanding Securities shall be computed as of such record date; provided that no such authorization, agreement or consent by the Holders of Registered Securities shall be deemed effective unless it shall become effective pursuant to the provisions of this Indenture not later than six months after the record date. (6) Any request, demand, authorization, direction, notice, consent, waiver or other Act by the Holder of any Security shall bind every future Holder of the same Security and any Coupon appertaining thereto and the Holder of every Security or Coupon issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done or suffered to be done by the Trustee, any Security Registrar, any Paying Agent, the Company or the Guarantor in reliance thereon, whether or not notation of such Act is made upon such Security. (7) 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 by 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, Company and Guarantor. ----------------------------------------------- Any request, demand, authorization, direction, notice, consent, waiver or other Act of Holders or other document provided or permitted by this Indenture to be made upon, given or furnished to, or filed with, 16 (1) the Trustee by any Holder, the Company or the Guarantor shall be sufficient for every purpose hereunder if made, given, furnished or filed in writing to or with the Trustee at its Corporate Trust Office, or (2) the Company or the Guarantor by the Trustee or 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 or the Guarantor addressed to the attention of its Treasurer 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 or the Guarantor. Section 106. Notice to Holders of Securities; Waiver. --------------------------------------- Except as otherwise expressly provided in or pursuant to this Indenture, where this Indenture provides for notice to Holders of Securities of any event, (1) such notice shall be sufficiently given to Holders of Registered Securities if in writing and mailed, first-class postage prepaid, to each Holder of a Registered Security affected by such event, at his address as it appears in the Security Register, not later than the latest date, and not earlier than the earliest date, prescribed for the giving of such notice; and (2) such notice shall be sufficiently given to Holders of Bearer Securities, if any, if published in an Authorized Newspaper in The City of New York and, if such Securities are then listed on any stock exchange outside the United States, in an Authorized Newspaper in such city as the Company shall advise the Trustee that such stock exchange so requires, on a Business Day at least once, such publication to be not earlier than the earliest date and not later than the latest date prescribed for the giving of such notice; provided that any additional notice to Holders of ------------- Securities of any event may be provided at any time upon the request of the Company and shall provided in the manner set forth above. In any case where notice to Holders of Registered Securities is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder of a Registered Security shall affect the sufficiency of such notice with respect to other Holders of Registered Securities or the sufficiency of any notice to Holders of Bearer Securities given as provided herein. Any notice which is mailed in the manner herein provided shall be conclusively presumed to have been duly given or provided. In the 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. In case by reason of the suspension of publication of any Authorized Newspaper or Authorized Newspapers or by reason of any other cause it shall be impracticable to publish any notice to Holders of Bearer Securities as provided above, then such notification to Holders of Bearer Securities as shall be given with the approval of the Trustee shall constitute sufficient 17 notice to such Holders for every purpose hereunder. Neither failure to give notice by publication to Holders of Bearer Securities as provided above, nor any defect in any notice so published, shall affect the sufficiency of any notice mailed to Holders of Registered Securities as provided above. 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 of Securities shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver. Section 107. Language of Notices. ------------------- Any request, demand, authorization, direction, notice, consent, election or waiver required or permitted under this Indenture shall be in the English language, except that, if the Company so elects, any published notice may be in an official language of the country of publication. Section 108. Conflict with Trust Indenture Act. --------------------------------- If any provision hereof limits, qualifies or conflicts with any duties under any required provision of the Trust Indenture Act imposed hereon by Section 318(c) thereof, such required provision shall control. Section 109. Effect of Headings and Table of Contents. ---------------------------------------- The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof. Section 110. Successors and Assigns. ---------------------- All covenants and agreements in this Indenture by the Company or the Guarantor shall bind its successors and assigns, whether so expressed or not. Section 111. Separability Clause. ------------------- In case any provision in this Indenture, any Security or any Coupon or Guarantee shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. Section 112. Benefits of Indenture. --------------------- Nothing in this Indenture, any Security, any Coupon, or in the Guarantees shall give to any Person, other than the parties hereto, any Security Registrar, any Paying Agent or Conversion Agent and their successors hereunder and the Holders of Securities, Coupons or Guarantees, any benefit or any legal or equitable right, remedy or claim under this Indenture. 18 Section 113. Governing Law. ------------- This Indenture, the Securities, any Coupons and the Guarantees shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts applicable to agreements made or instruments entered into and, in each case, performed in said state, except that the rights, protections, obligations, indemnities and immunities of the Trustee under this Indenture shall be governed by the laws of the State of New York, without regard to the principles of conflicts of laws of either state. Section 114. Legal Holidays. -------------- Unless otherwise specified in or pursuant to this Indenture or any Securities, in any case where any Interest Payment Date, Conversion Date, Redemption Date, Repayment Date, Stated Maturity or Maturity of any Security shall not be a Business Day at any Place of Payment or any Place of Conversion, as the case may be, then (notwithstanding any other provision of this Indenture, any Security, Coupon or Guarantee other than a provision in any Security, Coupon or Guarantee that specifically states that such provision shall apply in lieu of this Section) payment of interest or principal (and premium or Additional Amounts, if any) or delivery for conversion of such Security need not be made at such Place of Payment or Place of Conversion on such date, but such payment may be made on the next succeeding Business Day at such Place of Payment or Place of Conversion with the same force and effect as if made on the Interest Payment Date, Conversion Date, Redemption Date, Repayment Date or at the Stated Maturity or Maturity or by such last day for conversion, and no interest shall accrue on the amount payable on such date or at such time for the period from and after such Interest Payment Date, Redemption Date, Repayment Date, Conversion Date, Stated Maturity or Maturity or last day for conversion, as the case may be, to the next succeeding Business Day. Section 115. Taxes. ----- The Company will pay all stamp taxes and other similar duties, if any, that may be imposed by the United States or the United Kingdom, or any state or political subdivision thereof or taxing authority therein, with respect to the execution or delivery of this Indenture, or the issuance of the Securities, Coupons or the Guarantees, or the exchange from time to time of the temporary or permanent Securities in global form for Registered Securities or Bearer Securities, or with respect to the issue or delivery of shares of Common Stock on conversion of Securities; provided, however, that the Company shall not be -------- ------- required to pay any tax or duty which may be payable in respect of the registration of transfer or exchange of Securities and any transfer involved in the issue or delivery of shares of Common Stock in a name other than that of the Holder of the Security or Securities to be converted in accordance with the provisions of Article Twelve, and no such issue or delivery shall be made unless and until the person requesting such issue has paid to the Company the amount of any such tax or duty or has established to the satisfaction of the Company that such tax or duty has been paid; and provided further, that the Company shall not -------- ------- be required to pay any tax or duty that may be payable in respect of any accrued interest paid in connection with the conversion of the Securities. 19 ARTICLE TWO SECURITIES AND GUARANTEE FORMS Section 201. Forms Generally. --------------- Each Registered Security, Bearer Security, Coupon and temporary or permanent global Security issued pursuant to this Indenture shall be in the form established by or pursuant to a Company Board Resolution or in one or more indentures supplemental hereto, shall have such appropriate insertions, omissions, substitutions and other variations as are required or permitted by or pursuant to this Indenture or any indenture supplemental hereto, and the Guarantees, if any, shall be in substantially the form attached to this Indenture as Exhibit A or in such other form as shall be established pursuant to --------- a Guarantor 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 Security, Coupon or Guarantee as evidenced by their execution of such Security, Coupon or Guarantee. If the form of Registered Security, Bearer Security, Coupon, temporary or permanent global Security or Guarantee is established by action taken pursuant to a Board Resolution of the Company and the Guarantor, a copy of an appropriate record of such action shall be certified by the Secretary or an Assistant Secretary of the Company and the Guarantor, respectively, 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 Registered Security, Bearer Security, Coupon, temporary or permanent global Security or Guarantee. Definitive Securities, definitive Coupons and the Guarantees shall be printed, lithographed or engraved on steel engraved borders or may be produced in any other manner, all as determined by the officers of the Company executing such Securities, Coupons or Guarantees, as evidenced by their execution of such Securities, Coupons or Guarantees. Unless otherwise specified pursuant to Section 301 and except for temporary global Bearer Securities (as contemplated by Section 304 hereof), Bearer Securities shall have Coupons attached. Section 202. Guarantee by Guarantor; Form of Guarantee. ----------------------------------------- The Guarantor by its execution of this Indenture hereby agrees with each Holder of a Security authenticated and delivered by the Trustee, and with the Trustee on behalf of each such Holder, to be unconditionally bound by the terms and provisions of the Guarantee substantially in the form attached to this Indenture as Exhibit A and authorizes the Chairman of the Board, President or a --------- Vice President or the Treasurer of the Guarantor to execute, manually or by facsimile signature in the name and on behalf of the Guarantor, and to confirm such Guarantee to the Holder of each such Security by its execution and delivery of each such Security, with such Guarantee endorsed thereon, authenticated and delivered by the Trustee. When delivered 20 pursuant to the provisions of Section 303 hereof, the Guarantee so set forth on the Security shall bind the Guarantor notwithstanding the fact that such Guarantee does not bear the signature of the Guarantor. Each Guarantee shall be dated the date of the Security upon which it is endorsed. Reference is made to Articles Fourteen and Eighteen for further provisions with respect to the Guarantees. Section 203. Form of Trustee's Certificate of Authentication. ----------------------------------------------- Subject to Section 612, the Trustee's certificate of authentication shall be in substantially the form attached to this Indenture as Exhibit B. ---------- Section 204. Securities in Global Form. ------------------------- Unless otherwise provided in a Company Order, the Securities initially shall be issued in global form. Securities issued in temporary or permanent global form may provide that it or any number of such Securities shall represent the aggregate principal amount of all Outstanding Securities of such series (or such lesser amount as is permitted by the terms thereof) from time to time endorsed thereon and may also provide that the aggregate amount of Outstanding Securities represented thereby may from time to time be increased or reduced to reflect exchanges. Any endorsement of any global Security to reflect the amount, or any increase or decrease in the amount, or changes in the rights of Holders, of Outstanding Securities represented thereby shall be made in such manner and by such Person or Persons as shall be specified therein or in the Company Order or Guarantor Order to be delivered pursuant to Section 303 or 304 with respect thereto. Subject to the provisions of Section 303 and, if applicable, Section 304, the Trustee shall deliver and redeliver any Security in permanent global form in the manner and upon instructions given by the Person or Persons specified therein or in the applicable Company Order or Guarantor Order. If a Company Order pursuant to Section 303 or 304 has been, or simultaneously is, delivered, any instructions by the Company with respect to a Security in global form shall be in writing but need not be accompanied by or contained in a Company Officers' Certificate and need not be accompanied by an Opinion of Counsel. Notwithstanding the provisions of Section 307, unless otherwise specified in or pursuant to this Indenture or any Securities, payment of principal of, any premium and (except for temporary global Bearer Securities (as contemplated by Section 304 hereof)) interest on, and any Additional Amounts in respect of, any temporary or permanent global Security shall be made to the Person or Persons specified therein. Notwithstanding the provisions of Section 308 and except as provided in the preceding paragraph, the Company, the Trustee and any agent of the Company and the Trustee shall treat as the Holder of such principal amount of Outstanding Securities represented by a global Security (i) in the case of a global Security in registered form, the Holder of such global Security in registered form, or (ii) in the case of a global Security in bearer form, the Person or Persons specified pursuant to Section 301. 21 Section 205. Form of Conversion Notice. ------------------------- At the time of conversion of a Security in accordance with Article Twelve, the Holder of such Security shall deliver to the Trustee, the Conversion Agent, the Company and the Guarantor a notice of conversion in substantially the form attached to this Indenture as Exhibit C. --------- ARTICLE THREE THE SECURITIES Section 301. Amount Unlimited; Issuable in Series. ------------------------------------ The aggregate principal amount of Securities which may be authenticated and delivered and outstanding under this Indenture is unlimited. The Securities may be issued in one or more series. With respect to any Securities to be authenticated and delivered hereunder, there shall be established in or pursuant to one or more Company Board Resolutions and Guarantor Board Resolutions, or pursuant to authority granted by one or more Company Board Resolutions and Guarantor Board Resolutions and, subject to Section 303, set forth or determined in the manner provided in a Company and Guarantor Officers' Certificate, or established in one or more indentures supplemental hereto prior to the issuance of any Securities of a series any or all of the following; provided that if any of the following are -------- ---- already provided for in this Indenture, then such provisions shall be applicable to each series established hereunder unless otherwise provided pursuant to the Company and Guarantor Board Resolutions establishing such series and set forth in the applicable Company and Guarantor Officers' Certificate or unless otherwise provided in any Indenture or Indentures supplemental hereto pertaining to such series of Securities: (1) the title or designation of such Securities and the series in which such Securities shall be included; (2) any limit upon the aggregate principal amount of the Securities of such title or designation or the Securities of such series which may be authenticated and delivered under this Indenture (except for Securities authenticated and delivered upon registration or transfer of, or in exchange for, or in lieu of, other Securities of such series pursuant to Section 304, 305, 306, 905 or 1107, upon repayment in part of any Security of such series pursuant to Article Fifteen, or upon surrender in part of any Security for conversion or exchange into other securities pursuant to its terms, or pursuant to the terms of such Securities); (3) if such Securities are to be issuable as Registered Securities, as Bearer Securities or alternatively as Bearer Securities and Registered Securities, and whether the Bearer Securities are to be issuable with Coupons, without Coupons or both, and any restrictions applicable to the offer, sale or delivery of the Bearer Securities and the terms, 22 if any, upon which Bearer Securities may be exchanged for Registered Securities and vice versa; (4) if any of such Securities are to be issuable in global form, when any of such Securities are to be issuable in global form and (i) whether such Securities are to be issued in temporary or permanent global form or both, (ii) whether beneficial owners of interests in any such global Security may exchange such interests for Securities of the same series and of like tenor and of any authorized form and denomination, and the circumstances under which any such exchanges may occur, if other than in the manner specified in Section 305, (iii) the name of the Depository or the U.S. Depository, as the case may be, with respect to any global Security, (iv) the name of the Common Depository, if applicable, and (v) the Exchange Date, if applicable; (5) if any of such Securities are to be issuable as Bearer Securities or in global form, the date as of which any such Bearer Security or global Security shall be dated (if other than the date of original issuance of the first of such Securities to be issued); (6) if any of such Securities are to be issuable as Bearer Securities, whether interest in respect of any portion of a temporary Bearer Security in global form payable in respect of an Interest Payment Date therefor prior to the Exchange Date, shall be paid to any clearing organization with respect to the portion of such temporary Bearer Security held for its account and, in such event, the terms and conditions (including any certification requirements) upon which any such interest payment received by a clearing organization will be credited to the Persons entitled to interest payable on such Interest Payment Date, if other than as provided in Section 304; (7) the date or dates, or the method or methods, if any, by which such date or dates shall be determined, on which the principal of such Securities is payable; (8) the rate or rates at which such Securities shall bear interest, if any, or the method or methods, if any, by which such rate or rates are to be determined, the date or dates, if any, from which such interest shall accrue or the method or methods, if any, by which such date or dates are to be determined, the Interest Payment Dates, if any, on which such interest shall be payable and the Regular Record Date, if any, for the interest payable on Registered Securities on any Interest Payment Date, whether and under what circumstances Additional Amounts on such Securities or any of them shall be payable, the notice, if any, to Holders regarding the determination of interest on a floating rate Security and the manner of giving such notice, and the basis upon which interest shall be calculated if other than that of a 360-day year of twelve 30-day months; (9) if in addition to or other than the Borough of Manhattan, The City of New York (or, in the case of Bearer Securities, except as otherwise provided herein, London, England), the place or places where the principal of, any premium and interest on or any Additional Amounts with respect to such Securities shall be payable, any of such Securities may be surrendered for registration of transfer or exchange, any of such Registered Securities may be surrendered for conversion, any of such Bearer Securities 23 may be surrendered for conversion in the circumstances described herein and notices or demands to or upon the Company or the Guarantor in respect of such Securities and this Indenture may be served, the extent to which, or the manner in which, any interest payment or Additional Amounts on a global Security on an Interest Payment Date will be paid and the manner in which any principal of or premium, if any, on any global Security will be paid; (10) whether any of such Securities are to be redeemable at the option of the Company and, if so, the date or dates on which, the period or periods within which, the price or prices at which and the other terms and conditions upon which such Securities may be redeemed, in whole or in part, at the option of the Company and, if other than by a Company Board Resolution, the manner in which any election by the Company to redeem the Securities shall be evidenced; (11) if the Company is obligated to redeem or purchase any of such Securities pursuant to any sinking fund or analogous provision or at the option of any Holder thereof and, if so, the date or dates on which, the period or periods within which, the price or prices at which and the other terms and conditions upon which such Securities shall be redeemed or purchased, in whole or in part, pursuant to such obligation, and any provisions for the remarketing of such Securities so redeemed or purchased; (12) the denominations in which any of such Securities that are Registered Securities shall be issuable if other than denominations of $1,000 and any integral multiple thereof, and the denominations in which any of such Securities that are Bearer Securities shall be issuable if other than the denominations of $1,000 and $10,000; (13) if other than the principal amount thereof, the portion of the principal amount of any of such Securities that shall be payable upon declaration of acceleration of the Maturity thereof pursuant to Section 502 or the method by which such portion is to be determined; (14) if the amount of payments of principal of, any premium or interest on or any Additional Amounts with respect to such Securities may be determined with reference to an index, indices, formula or other method or methods (which index, indices, formula or method or methods may be based, without limitation, on one or more currencies, commodities, equity indices or other indices), and, if so, the terms and conditions upon which and the manner in which such amounts shall be determined and paid or payable; (15) any deletions from, modifications of or additions to the Events of Default or covenants of the Company with respect to any of such Securities, whether or not such Events of Default or covenants are consistent with the Events of Default or covenants set forth herein; (16) if either or both of Section 402(2) relating to defeasance or Section 402(3) relating to covenant defeasance shall be applicable to the Securities of such series, or any covenants in addition to those specified in Section 402(3) relating to the Securities of 24 such series which shall be subject to covenant defeasance, and any deletions from, or modifications or additions to, the provisions of Article Four in respect of the Securities of such series; (17) the terms, if any, on which such Securities may be converted into or exchanged for other securities of the Company, and whether on such conversion the Company may substitute cash or securities of the Company or the Guarantor in lieu of issuing Common Stock upon such conversion and the terms of such substitution; (18) if any of such Securities are to be issuable in global form and are to be issuable in definitive form (whether upon original issue or upon exchange of a temporary Security) only upon receipt of certain certificates or other documents or satisfaction of other conditions, then the form and terms of such certificates, documents or conditions; (19) if there is more than one Trustee, the identity of the Trustee and, if not the Trustee, the identity of each Security Registrar, and the identity of each Paying Agent, Conversion Agent or Authenticating Agent with respect to such Securities; (20) [INTENTIONALLY OMITTED] (21) any other terms of such Securities and any deletions from or modifications or additions to this Indenture in respect of such Securities (which terms shall not be inconsistent with the provisions of this Indenture, except as permitted by Section 901). All Securities (and Guarantees endorsed thereon) of any one series and all Coupons, if any, appertaining to Bearer Securities of such series shall be substantially identical except as to denomination and Maturity and except as may otherwise be provided by the Company in or pursuant to the Company Board Resolution and set forth in the Company Officers' Certificate or in any indenture or indentures supplemental hereto pertaining to such series of Securities. The terms of the Securities of any series (as set forth in the applicable Board Resolution or Company Order) may provide, without limitation, that the Securities shall be authenticated and delivered by the Trustee on original issue from time to time upon telephonic or written order of persons designated in the Company Officers' Certificate or supplemental indenture (telephonic instructions to be promptly confirmed in writing by such person) and that such persons are authorized to determine, consistent with such Company Officers' Certificate or any applicable supplemental indenture, such terms and conditions of the Securities of such series as are specified in such Company Officers' Certificate or supplemental indenture. All Securities of any one series need not be issued at the same time and, unless otherwise so provided by the Company, a series may be reopened for issuances of additional Securities of such series. If any of the terms of the Securities of any series shall be established and approved by action taken by or pursuant Board Resolutions of the Company and the Guarantor, respectively, copies of appropriate records of such actions shall be certified by the Secretary or an Assistant Secretary of the Company and the Guarantor, respectively, and delivered to the Trustee at or prior to the delivery of the Officers' Certificates setting forth the terms of such series. 25 Section 302. Currency; Denominations. ----------------------- The principal of, any premium and interest on and any Additional Amounts with respect to the Securities shall be payable in Dollars. Unless otherwise provided in or pursuant to this Indenture, Registered Securities shall be issuable in registered form without Coupons in denominations of $1,000 and any integral multiple thereof, and Bearer Securities shall be issuable in denominations of $1,000 and $10,000 (or any other authorized denominations) with Coupons attached. Section 303. Execution, Authentication, Delivery and Dating. ---------------------------------------------- Securities shall be executed on behalf of the Company by any Officer under its corporate seal reproduced thereon and attested by its Corporate Secretary (provided that the Corporate Secretary shall not attest his or her own signature as an Officer) or one of its Assistant Corporate Secretaries. Coupons shall be executed on behalf of the Company by any Officer. The signature of any of these officers on the Securities or any Coupons appertaining thereto may be manual or facsimile. Securities, Coupons appertaining thereto and Guarantees bearing the manual or facsimile signatures of individuals who were at any time the proper Officers of the Company or the Guarantor shall bind the Company and the Guarantor, respectively, notwithstanding that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Securities, Coupons or Guarantees or did not hold such offices at the date of such Securities, Coupons or Guarantees. At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Securities, together with any Coupons appertaining thereto, executed by the Company, having endorsed thereon Guarantees of the Guarantor, to the Trustee for authentication and, provided that the Company and Guarantor Board Resolutions, Company and Guarantor Officers' Certificate (if the terms of such Securities are provided therein pursuant to authority granted by Company and Guarantor Board Resolution) or supplemental indenture or indentures with respect to such Securities referred to in Section 301 and a Company Order for the authentication and delivery of such Securities and a Guarantor Order approving the delivery of the Guarantees endorsed thereon have been delivered to the Trustee, the Trustee in accordance with the Company and Guarantor Orders and subject to the provisions hereof and of such Securities shall authenticate and deliver such Securities having such Guarantees; provided, however, that, in connection with its original issuance, -------- ------- no Bearer Security shall be mailed or otherwise delivered to any location in the United States; and provided, further, that a Bearer Security (other than a -------- ------- temporary global Bearer Security) may be delivered outside the United States in connection with its original issuance only if the certifications described in Section 304 are provided in accordance with the provisions of Section 304. If any Security shall be represented by a permanent global Security, then, for purposes of this Section and Section 304, the notation of a beneficial owner's interest therein upon original issuance of such Security or upon exchange of a portion of a temporary global Security shall be deemed to be delivery in connection with the original issuance of such beneficial owner's interest in such permanent global Security. Except as permitted by Section 306 , the Trustee for the Securities of a series 26 shall not authenticate and deliver any Bearer Security (or related Guarantee) unless all appurtenant Coupons for interest then matured other than matured coupons in default have been detached and canceled. If all the Securities of any one series are not to be issued at one time and if a Board Resolution relating to such Securities (or Officers' Certificate provided pursuant to authority granted by Board Resolution) shall so permit, such Company Order may set forth procedures acceptable to the Trustee for the issuance of such Securities, including, without limitation, procedures with respect to interest rate, Stated Maturity, date of issuance and date from which interest, if any, shall accrue. In authenticating such Securities, and accepting the additional responsibilities under this Indenture in relation to such Securities and any Coupons appertaining thereto, the Trustee shall be entitled to receive, and (subject to Sections 315(a) through 315(d) of the Trust Indenture Act) shall be fully protected in relying upon: (1) an Opinion of Counsel to the effect that: (a) the form or forms and terms of such Securities and Coupons, if any, and Guarantees have been established or approved by or pursuant to Board Resolutions of the Company and the Guarantor in conformity with Sections 201 and 301 of this Indenture; (b) all conditions precedent to the authentication and delivery of such Securities and Coupons, if any, appertaining thereto, and of such Guarantees have been complied with and that such Securities, Coupons and Guarantees, when completed by appropriate insertions, executed under the Company's corporate seal and attested by duly authorized officers of the Company (in the case of the Securities or Coupons) or when completed by appropriate insertions, executed under the Guarantor's corporate seal and attested by duly authorized officers of the Guarantor (in the case of the Guarantees), delivered by duly authorized officers of the Company or the Guarantor, as the case may be, to the Trustee for authentication pursuant to this Indenture, and authenticated and delivered by the Trustee and issued by the Company and the Guarantor in the manner and subject to any conditions specified in such Opinion of Counsel, will constitute legally valid and binding obligations of the Company and of the Guarantor, respectively, enforceable in accordance with their terms, subject, in the case of the Securities to bankruptcy, insolvency, reorganization, moratorium, arrangement, fraudulent conveyance, fraudulent transfer or other similar laws of general applicability to the Company and relating to or affecting creditors' rights and to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law), and subject, in the case of the Guarantees, to bankruptcy, insolvency, reorganization, moratorium, arrangement, fraudulent conveyance, fraudulent transfer or other similar laws of general applicability to the Guarantor and relating to or affecting creditors' rights and to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law); and (c) this Indenture has been qualified under the Trust Indenture Act; and 27 (2) a Company Officers' Certificate and Guarantor Officer's Certificate, each stating that, to the best knowledge of the Persons executing such certificate, no Default or Event of Default with respect to any of the Securities shall have occurred and be continuing. If all of the Securities of any series are not to be issued at one time, unless requested by the Trustee, it shall not be necessary to deliver an Opinion of Counsel at the time of issuance of each Security, but such opinion, with such modifications as counsel shall deem appropriate, shall be delivered at or before the time of issuance of the first Security of such series. After any such first delivery, any separate request by the Company that the Trustee authenticate additional Securities of such series for original issue will be deemed to be a certification by the Company that all conditions precedent provided for in this Indenture relating to authentication and delivery of such Securities continue to have been complied with. The Trustee shall not be required to authenticate or to cause an Authenticating Agent to authenticate any 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 or if the Trustee, being advised by counsel, determines that such action may not lawfully be taken. Each Registered Security shall be dated the date of its authentication. Each Bearer Security and any temporary global Security shall be dated as of the date specified in or pursuant to this Indenture. No Security or Guarantee endorsed thereon or Coupon appertaining to such 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 in Section 203 or 612 executed by or on behalf of the Trustee or by the Authenticating Agent by the manual signature of one of its authorized officers. Such certificate upon any Security shall be conclusive evidence, and the only evidence, that such Security has been duly authenticated and delivered hereunder. Section 304. Temporary Securities. -------------------- (a) Pending the preparation of Definitive Securities, the Company may execute and deliver to the Trustee and, upon Company Order and a Guarantor Order for authentication and delivery, the Trustee shall authenticate and deliver, in the manner provided in Section 303, temporary Securities in lieu thereof 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, in registered form or, if authorized in or pursuant to this Indenture, in bearer form with one or more Coupons or without Coupons, and having endorsed thereon Guarantees of the Guarantor substantially of the tenor of the definitive Guarantees, with such appropriate insertions, omissions, substitutions and other variations as the officers executing such Securities or Guarantees may determine, as conclusively evidenced by their execution of such Securities or Guarantees. Such temporary Securities may be in global form. 28 (b) Except in the case of temporary global Bearer Securities, which shall be exchanged in accordance with the provisions of clause (c) of this Section 304, if temporary Securities are issued, the Company shall cause Definitive Securities to be prepared without unreasonable delay. After the preparation of Definitive Securities of the same series and containing terms and provisions that are identical to those of any temporary Securities, such temporary Securities shall be exchangeable for such Definitive Securities with Guarantees of the Guarantor endorsed thereon upon surrender of such temporary Securities at an Office or Agency for such Securities, without charge to any Holder thereof. Upon surrender for cancellation of any one or more temporary Securities (accompanied by any unmatured Coupons appertaining thereto), the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a like principal amount of Definitive Securities of authorized denominations of the same series and containing identical terms and provisions which have endorsed thereon the Guarantees of the Guarantor; provided, however, -------- ------- that no definitive Bearer Security, except as provided in or pursuant to this Indenture, shall be delivered in exchange for a temporary Registered Security; and provided, further, that a definitive Bearer Security shall be delivered in -------- ------- exchange for a temporary Bearer Security only in compliance with the conditions set forth in or pursuant to this Indenture. Unless otherwise provided in or pursuant to this Indenture with respect to a temporary global Bearer Security, 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. (c) All or a portion of the Securities constituting Bearer Securities may be initially issued as temporary global Bearer Securities without Coupons or conversion rights, having endorsed thereon the Guarantees. Such temporary global Bearer Securities shall be deposited on the applicable closing date on behalf of the subscribers for the Securities represented thereby with the Common Depository, for credit to their respective accounts (or to such other accounts as they may direct) at MORGAN GUARANTY TRUST COMPANY OF NEW YORK, Brussels Office, as operator of the EUROCLEAR CLEARANCE SYSTEM ("EUROCLEAR"), or CEDEL BANK, SOCIETE ANONYME ("CEDEL"). On or before the Exchange Date, the Company shall deliver to the Paying Agent in London at its principal London office or to its designated agent outside the United States, definitive Bearer Securities with Guarantees of the Guarantor endorsed thereon. On or after the applicable Exchange Date, the temporary global Bearer Securities may be surrendered by the Common Depository to the Trustee or its agent, as the Company's agent for such purpose, to be exchanged, in whole or from time to time in part, for definitive Bearer Securities without charge to Holders, and the Trustee or the Paying Agent in London or other Paying Agent outside the United States shall authenticate and deliver (at an office or agency outside the United States), in exchange for the temporary global Bearer Securities or the portions thereof to be exchanged, an equal aggregate principal amount of definitive Bearer Securities, as shall be specified by the Holders thereof; provided, however, that upon such presentation -------- ------- by the Common Depository, the temporary global Bearer Securities are accompanied by a certificate dated the Exchange Date or a subsequent date and signed by EUROCLEAR as to the portion of the temporary global Bearer Securities held for its account then to be exchanged and a certificate dated the Exchange Date or a subsequent date and signed by CEDEL as to the portion of the temporary global Bearer 29 Securities held for its account then to be exchanged, each substantially in the form of Exhibit E hereto to the effect that it has received a certificate or --------- certificates substantially in the form of Exhibit D hereto dated no earlier than --------- 15 days prior to the Exchange Date and signed by the person appearing in its records as the owner of the temporary global Bearer Securities or portions thereof being exchanged. The Company hereby appoints the principal office of the Paying Agent in London, England, or its designated agent, as its agent outside the United States where definitive Bearer Securities may be delivered in exchange for the temporary global Bearer Securities or portions thereof. Each beneficial owner of any portion of the temporary global Bearer Securities shall be entitled to take delivery of definitive Bearer Securities only at such office. Temporary global Bearer Securities will be exchangeable for Registered Securities in denominations of $1,000 or an integral multiple thereof at any time without the certification requirements set forth in the preceding paragraph; provided that such exchange is permitted by the rules and procedures -------- ---- then in effect of CEDEL and EUROCLEAR, and provided, further, that if and so --------- ------- long as Registered Securities of a series are represented solely by a permanent global Registered Security, the temporary global Bearer Security will only be exchangeable for an interest in the permanent global Registered Security as set forth in Section 305 herein. Notwithstanding any other provision hereof or of the Securities, no Bearer Security initially represented by the temporary global Bearer Securities will be mailed to or otherwise delivered in connection with its original issuance to any location within the United States. The Trustee agrees that it will cause the Paying Agent in London (if required) to retain each certificate provided by EUROCLEAR or CEDEL for a period of four calendar years following the year in which the certificate is received and not to destroy or otherwise dispose of any such certificate without first offering to deliver it to the Company. Upon any such exchange of a portion of the temporary global Bearer Security for definitive Bearer Securities, or for Registered Securities (if permitted by the rules and procedures then in effect of CEDEL and EUROCLEAR), the temporary global Bearer Security shall be deemed to reflect the reduction of the principal amount evidenced thereby. Until so exchanged in full, the temporary global Bearer Security shall in all respects be entitled to the same benefits under, and subject to the same terms and conditions of, this Indenture as definitive Bearer Securities authenticated and delivered hereunder, except that none of EUROCLEAR, CEDEL or the beneficial owners of the temporary global Bearer Security shall be entitled to receive payment of interest or other payments thereon or to convert the temporary global Bearer Security, if applicable, or any portion thereof, as set forth in Article Twelve, except as otherwise permitted pursuant to this Indenture or the Securities. Section 305. Registration, Transfer and Exchange. ----------------------------------- With respect to the Registered Securities of each series, if any, the Company shall cause to be kept a register (each such register being herein sometimes referred to as the "Security Register") at an Office or Agency for ----------------- such series in which, subject to such reasonable regulations as it may prescribe, the Company shall provide for the registration of the Registered Securities of 30 such series and of transfers of the Registered Securities of such series. Such Office or Agency shall be the "Security Registrar" for that series ------------------ of Securities. Unless otherwise specified in or pursuant to this Indenture or the Securities, the Trustee shall be the initial Security Registrar for each series of Securities. The Company shall have the right to remove and replace from time to time the Security Registrar for any series of Securities; provided -------- that no such removal or replacement shall be effective until a successor - ---- Security Registrar with respect to such series of Securities shall have been appointed by the Company and shall have accepted such appointment. In the event that the Trustee shall not be or shall cease to be Security Registrar with respect to a series of Securities, it shall have the right to examine the Security Register for such series at all reasonable times. There shall be only one Security Register for each series of Securities. Upon surrender for registration of transfer of any Registered Security of any series at any Office or Agency for such 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 Registered Securities of the same series denominated as authorized in or pursuant to this Indenture, of a like aggregate principal amount bearing a number not contemporaneously outstanding and containing identical terms and provisions, having endorsed thereon the Guarantee duly executed by the Guarantor. At the option of the Holder, Registered Securities of any series may be exchanged for other Registered Securities of the same series containing identical terms and provisions, in any authorized denominations, and of a like aggregate principal amount, upon surrender of the Securities to be exchanged at any applicable Office or Agency for such series. Whenever any Registered Securities are so surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and deliver, the Registered Securities which the Holder making the exchange is entitled to receive, having endorsed thereon Guarantees of the Guarantor which the Holder is entitled to receive. Registered Securities of any series may not be exchanged for Bearer Securities. At the option of the Holder, definitive Bearer Securities of such series may be exchanged at any time (except as otherwise provided in this Indenture) for Registered Securities or Bearer Securities of such series containing identical terms, denominated as authorized in or pursuant to this Indenture and in the same aggregate principal amount, upon surrender of the Bearer Securities to be exchanged at any applicable Office or Agency for such series located outside the United States, with any and all unmatured Coupons and any and all matured Coupons in default thereto appertaining; provided that if and so long as -------- ---- Registered Securities of a series are represented solely by a permanent global Registered Security, such definitive Bearer Securities will only be exchangeable for an interest in the permanent global Registered Security as set forth in this Section 305. If the Holder of a Bearer Security is unable to produce any such unmatured Coupon or Coupons or matured Coupon or Coupons in default, such exchange may be effected if the Bearer Securities are accompanied by payment in funds acceptable to the Company, the Guarantor and the Trustee in an amount equal to the face amount of such missing Coupon or Coupons, or the surrender of such missing Coupon or Coupons may be waived by the Company, the Guarantor and the Trustee if there is furnished to them such security or indemnity as they may require to save each of them and any Paying Agent harmless. If thereafter the Holder of such Bearer Security shall surrender to any Paying Agent any such missing Coupon in respect of 31 which such a payment shall have been made, such Holder shall be entitled to receive the amount of such payment; provided, however, that, except as otherwise -------- ------- provided in Section 1002, interest by Coupons shall be payable only upon presentation and surrender of those Coupons at an applicable Office or Agency for such series located outside the United States. Notwithstanding the foregoing, in case a Bearer Security of any series is surrendered at any such Office or Agency for such series in exchange for a Registered Security of such series and like tenor after the close of business at such Office or Agency on (i) any Regular Record Date and before the opening of business at such Office or Agency on the relevant Interest Payment Date, or (ii) any Special Record Date and before the opening of business at such Office or Agency on the related date for payment of Defaulted Interest, such Bearer Security shall be surrendered without the Coupon relating to such Interest Payment Date or proposed date for payment of Defaulted Interest, as the case may be (or, if such Coupon is so surrendered with such Bearer Security, such Coupon shall be returned to the Person so surrendering the Bearer Security), and interest or Defaulted Interest, as the case may be, shall not be payable on such Interest Payment Date or proposed date for payment or Defaulted Interest, as the case may be, in respect of the Registered Security issued in exchange for such Bearer Security, but shall be payable only to the Holder of such Coupon when due in accordance with the provisions of this Indenture. Whenever any Securities are surrendered for exchange as contemplated by the immediately preceding two paragraphs, the Company shall execute, and the Trustee shall authenticate and deliver, the Securities (with all Coupons, in the case of the issuance of Bearer Securities), having endorsed thereon Guarantees of the Guarantor, which the Holder making the exchange is entitled to receive. If the Holder of definitive Bearer Securities or definitive Registered Securities requests in writing that such Securities be exchanged for an interest in the applicable permanent global Registered Security, such Bearer Securities or Registered Securities (as the case may be) will be exchangeable into an equal aggregate principal amount of beneficial interest in the permanent global Registered Security; provided that in the case of definitive Bearer Securities, -------- ---- such Bearer Securities are only exchanged in the manner set forth in this Section 305 with respect to the exchange of definitive Bearer Securities for Registered Securities and in the case of Registered Securities, such exchange is made in accordance with the rules and procedures then in effect of the Depository. Upon any exchange as provided in the immediately preceding sentence, the Trustee shall cancel such Bearer Securities or Registered Securities (as the case may be) and cause, or direct any custodian for the permanent global Registered Security to cause, in accordance with the standing instructions and procedures existing between the Depository and any such custodian, the aggregate principal amount of Securities represented by the permanent global Registered Security to be increased accordingly. If no permanent global Registered Securities are then outstanding, the Company shall issue and the Trustee shall authenticate a new permanent global Registered Security in the appropriate principal amount, having endorsed thereon a Guarantee duly executed by the Guarantor. Notwithstanding the foregoing, except as otherwise provided in or pursuant to this Indenture, any permanent global Registered Security shall be exchangeable for Definitive Securities only if (i) the Depository is at any time unwilling, unable or ineligible to continue as Depository or ceases to be a clearing agency registered under the Exchange Act (if so required by 32 applicable law or regulation) and a successor depository is not appointed by the Company within 90 days of the date the Company is so informed in writing, (ii) the Company executes and delivers to the Trustee a Company Order to the effect that such permanent global Registered Security shall be so exchangeable or (iii) an Event of Default has occurred and is continuing with respect to the Securities. If the beneficial owners of interests in a permanent global Registered Security are entitled to exchange such interests for Definitive Securities as the result of an event described in clause (i), (ii) or (iii) of the preceding sentence, then without unnecessary delay but in any event not later than the earliest date on which such interests may be so exchanged, the Company shall deliver to the Trustee Definitive Securities in such form and denominations as are required by or pursuant to this Indenture, and of the same series, containing identical terms and in aggregate principal amount equal to the principal amount of such permanent global Registered Security, executed by the Company. On or after the earliest date on which such interests may be so exchanged, such permanent global Registered Security shall be surrendered from time to time by the U.S. Depository or such other Depository as shall be specified in the Company Order with respect thereto, and in accordance with instructions given to the Trustee and the U.S. Depository or such other Depository, as the case may be (which instructions shall be in writing but need not be contained in or accompanied by an Officers' Certificate or be accompanied by an Opinion of Counsel), as shall be specified in the Company Order with respect thereto to the Trustee, as the Company's agent for such purpose, to be exchanged, in whole or in part, for Definitive Securities as described above without charge. The Trustee shall authenticate and make available for delivery, in exchange for each portion of such surrendered permanent global Registered Security, a like aggregate principal amount of Definitive Securities of the same series of authorized denominations and of like tenor as the portion of such permanent global Registered Security to be exchanged, which shall be in the form of Registered Securities; provided, however, that no such exchanges may occur -------- ------- during a period beginning at the opening of business 15 days before any selection of Securities of the same series to be redeemed and ending at the close of business on the day of such selection. Promptly following any such exchange in part, a permanent global Registered Security for the portions not exchanged shall be returned by the Trustee to such Depository or the U.S. Depository, as the case may be, or such other Depository or U.S. Depository referred to above in accordance with the instructions of the Company referred to above. If a Registered Security is issued in exchange for any portion of a permanent global Registered Security after the close of business at the applicable Office or Agency for such Security where such exchange occurs on or after (i) any Regular Record Date for such Security and before the opening of business at such Office or Agency on the next Interest Payment Date, or (ii) any Special Record Date for such Security and before the opening of business at such Office or Agency on the related proposed date for payment of Defaulted Interest, as the case may be, interest shall not be payable on such Interest Payment Date or proposed date for payment of Defaulted Interest, as the case may be, in respect of such Registered Security, but shall be payable on such Interest Payment Date or proposed date for payment of Defaulted Interest, as the case may be, only to the Person to whom interest in respect of such portion of such permanent global Registered Security shall be payable in accordance with the provisions of this Indenture. All Securities issued upon any registration of transfer or exchange of Securities, and all Guarantees endorsed thereon, shall be the valid obligations of the Company or the Guarantor, as the case may be, evidencing the same debt and entitling the Holders thereof to the same benefits 33 under this Indenture as the Securities and all the Guarantees endorsed thereon surrendered upon such registration of transfer or exchange. Every Registered Security presented or surrendered for registration of transfer or for exchange or redemption shall (if so required by the Company or the Security Registrar for such Security) be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar for such Security duly executed by the Holder thereof or his attorney duly authorized in writing. No service charge shall be made for any registration of transfer or exchange, or redemption of Securities, but the Company may require payment of a sum sufficient to cover any stamp or similar tax or other governmental charge and any other expenses (including fees and expenses of the Trustee) that may be imposed in connection with any registration of transfer or exchange of Securities, other than exchanges pursuant to Section 304, 1107 or 1202, or upon repayment in part of any Registered Security pursuant to Article Fifteen, in each case not involving any transfer. Except as otherwise provided in or pursuant to this Indenture, the Company shall not be required (i) to issue, register the transfer of or exchange any Securities during a period beginning at the opening of business 15 days before the day of the selection for redemption of Securities of like tenor and the same series under Section 1103 and ending at the close of business on the day of such selection, or (ii) to register the transfer of or exchange any Registered 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, or (iii) to exchange any Bearer Security so selected for redemption except, to the extent provided with respect to such Bearer Security, that such Bearer Security may be exchanged for a Registered Security of like tenor and the same series, provided that such Registered Security shall be immediately surrendered for redemption with written instruction for payment consistent with the provisions of this Indenture or (iv) to issue, register the transfer of or exchange any Security which, in accordance with its terms, has been surrendered for repayment at the option of the Holder, except the portion, if any, of such Security not to be so repaid. Section 306. Mutilated, Destroyed, Lost and Stolen Securities. ------------------------------------------------ If any mutilated Security or a Security with a mutilated Coupon appertaining to it is surrendered to the Trustee, subject to the provisions of this Section 306, the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a new Security of the same series containing identical terms and of like principal amount, having endorsed thereon the Guarantee of the Guarantor, and bearing a number not contemporaneously outstanding, with Coupons appertaining thereto corresponding to the Coupons, if any, appertaining to the surrendered Security; provided, however, that any -------- ------- Bearer Security or any Coupon shall be delivered only outside the United States and, if the Securities of such series are listed on the London Stock Exchange or the Luxembourg Stock Exchange or any other stock exchange located outside the United States and such stock exchange shall so require, such delivery shall occur at the Office or Agency located in London, Luxembourg or any other required city located outside the United States, as the case may be, so long as Securities of such series are listed on 34 such exchange; and provided, further, that all Bearer Securities shall be -------- ------- delivered and received in person. If there be delivered to the Company, the Guarantor and the Trustee (i) evidence to their satisfaction of the destruction, loss or theft of any Security or Coupon, and (ii) such security or indemnity as may be required by them to save each of them and any agent of either of them harmless, then, in the absence of notice to the Company, the Guarantor or the Trustee that such Security or Coupon has been acquired by a bona fide purchaser, the Company shall execute and, upon the Company's request the Trustee shall authenticate and deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or stolen Security or in exchange for the Security to which a destroyed, lost or stolen Coupon appertains with all appurtenant Coupons not destroyed, lost or stolen, a new Security of the same series containing identical terms and of like principal amount, having endorsed thereon the Guarantee of the Guarantor, and bearing a number not contemporaneously outstanding, with Coupons corresponding to the Coupons, if any, appertaining to such destroyed, lost or stolen Security or to the Security to which such destroyed, lost or stolen Coupon appertains; provided, however, that any Bearer Security or any Coupon shall be delivered - -------- ------- only outside the United States and, if the Securities of such series are listed on the London Stock Exchange or the Luxembourg Stock Exchange or any other stock exchange located outside the United States and such stock exchange shall so require, such delivery shall occur at the Office or Agency located in London, Luxembourg or any other required city located outside the United States, as the case may be, so long as Securities of such series are listed on such exchange; and provided, further, that all Bearer Securities shall be delivered and -------- ------- received in person. Notwithstanding the foregoing provisions of this Section 306, in case any mutilated, destroyed, lost or stolen Security or Coupon has become or will become due and payable within seven (7) days, the Company in its discretion, but subject to any conversion rights, may, instead of issuing a new Security, pay such Security or Coupon; provided, however, that payment of principal of, any -------- ------- premium or interest on or any Additional Amounts with respect to any Bearer Securities shall, except as otherwise provided in Section 1002, be payable only at the applicable Office or Agency for such Securities located outside the United States and, unless otherwise provided in or pursuant to this Indenture, any interest on Bearer Securities and any Additional Amounts with respect to such interest shall be payable only upon presentation and surrender of the Coupons appertaining thereto. Upon the issuance of any new Security under this Section, the Company may require the payment of a sum sufficient to cover any stamp or similar 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 with any Coupons appertaining thereto, and the Guarantee of the Guarantor endorsed thereon, issued pursuant to this Section 306 in lieu of any mutilated, destroyed, lost or stolen Security, or in exchange for a Security to which a mutilated, destroyed, lost or stolen Coupon appertains shall constitute a separate obligation of the Company and the Guarantor, respectively, whether or not the mutilated, destroyed, lost or stolen Security and Coupons appertaining thereto or the mutilated, destroyed, lost or stolen Coupon shall be at any 35 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 such series and any Coupons, and related Guarantees, duly issued hereunder. The provisions of this Section, as amended or supplemented pursuant to this Indenture with respect to particular Securities or generally, shall be 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 or Coupons. Section 307. Payment of Interest and Certain Additional Amounts; Rights to ------------------------------------------------------------- Interest and Certain Additional Amounts Preserved. - ------------------------------------------------- (a) Unless otherwise provided in or pursuant to this Indenture, any interest on and any Additional Amounts with respect to any Registered Security which shall be payable, and are punctually paid or duly provided for, on any Interest Payment Date shall be paid to the Person in whose name such Security (or one or more Predecessor Securities) is registered as of the close of business on the Regular Record Date for such interest. Unless otherwise provided as contemplated by Section 301 with respect to the Securities of any series, payment of interest may be made (i) by check mailed or delivered, in the case of Registered Securities, to the address of the Person entitled thereto as such address shall appear in the Security Register or, in the case of Bearer Securities, upon presentation and surrender of the appropriate Coupon appertaining thereto, or (ii) at the option of the Company with the consent of any Paying Agent, (1) in the case of a Bearer Security, upon presentation and surrender of the applicable Coupon at an applicable Office or Agency for such series outside the United States, except as otherwise provided in Section 1002, by transfer to an account maintained by the payee with a bank located outside the United States, or (2) in the case of a Registered Security, by transfer to an account maintained by the payee with a bank located inside the United States. Unless otherwise provided as contemplated by Section 301, every permanent global Security will provide that interest, if any, payable on any Interest Payment Date will be paid to DTC, EUROCLEAR and/or CEDEL, as the case may be, with respect to that portion of such permanent global Security held for its account by Cede & Co. or the Common Depository, as the case may be, for the purpose of permitting such party to credit the interest received by it in respect of such permanent global Security to the accounts of the beneficial owners thereof. Unless otherwise provided in or pursuant to this Indenture, in case a Bearer Security is surrendered in exchange for a Registered Security after the close of business at the applicable Office or Agency for such Security on any Regular Record Date therefor and before the opening of business at such Office or Agency on the next succeeding Interest Payment Date therefor, such Bearer Security shall be surrendered without the Coupon relating to such Interest Payment Date and interest shall not be payable on such Interest Payment Date in respect of the Registered Security issued in exchange for such Bearer Security, but shall be payable only to the Holder of such Coupon when due in accordance with the provisions of this Indenture. 36 Unless otherwise provided in or pursuant to this Indenture, any interest on and any Additional Amounts with respect to any Bearer Security shall, except as otherwise provided in Section 1002, be payable only at an Office or Agency for such Securities located outside the United States. Interest on any temporary global Bearer Security shall be payable only after the issuance of a Definitive Security for which it is exchangeable as provided in Section 304, except as otherwise provided pursuant to this Indenture or the Securities. (b) Unless otherwise provided in or pursuant to this Indenture, any interest on and any Additional Amounts with respect to any Registered Security which shall be payable, but shall not be punctually paid or duly provided for, on any Interest Payment Date for such Registered Security (herein called "Defaulted Interest") shall forthwith cease to be payable to the Holder thereof ------------------ 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 Person in whose name such Registered Security (or a Predecessor Security thereof) shall be 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 such Registered Security 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 on or prior to the date of the proposed payment, such money when so deposited to be held in trust for the benefit of the Person 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 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 the Holder of such Registered Security (or a Predecessor Security thereof) at his address as it appears in the Security Register not less than 10 days prior to such Special Record Date. The Trustee may, in its discretion, in the name and at the expense of the Company cause a similar notice to be published at least once in an Authorized Newspaper of general circulation in the Borough of Manhattan, The City of New York, but such publication shall not be a condition precedent to the establishment of such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor having been mailed as aforesaid, such Defaulted Interest shall be paid to the Person in whose name such Registered Security (or a Predecessor Security thereof) shall be registered at the close of business on such Special Record Date and shall no longer be payable pursuant to the following clause (2). In case a Bearer Security is surrendered at the applicable Office or Agency for such Security in exchange for a Registered Security after the close of business at such Office or Agency on any Special Record Date and before the opening of business at such Office or Agency on the related proposed date for 37 payment of Defaulted Interest, such Bearer Security shall be surrendered without the Coupon relating to such Defaulted Interest and Defaulted Interest shall not be payable on such proposed date of payment in respect of the Registered Security issued in exchange for such Bearer Security, but shall be payable only to the Holder of such Coupon when due in accordance with the provisions of this Indenture. (2) The Company may make payment of any Defaulted Interest in any other lawful manner not inconsistent with the requirements of any securities exchange on which such Security may be listed, and upon such notice as may be required by such exchange, if, after notice given by the Company to the Trustee of the proposed payment pursuant to this clause, such manner of payment shall be deemed practicable by the Trustee. (c) In the case of any Registered Security which is converted into Common Stock pursuant to Article Twelve after any Regular Record Date and on or prior to the next succeeding Interest Payment Date (other than any Registered Security whose Maturity is prior to such Interest Payment Date), interest whose Stated Maturity is on such Interest Payment Date shall be payable on such Interest Payment Date notwithstanding such conversion, and such interest (whether or not punctually paid or duly provided for) shall be paid to the Person in whose name such Registered Security (or one or more Predecessor Securities) is registered at the close of business on such Regular Record Date. Except as otherwise expressly provided in the immediately preceding sentence, in the case of any Security which is converted pursuant to Article Twelve, accrued interest from the immediately preceding Interest Payment Date until the Conversion Date shall be payable to the converting Holder within five Business Days after the Conversion Date. Upon presentment for conversion of any Securities pursuant to Article Twelve, the Paying Agent shall promptly notify the Company of the amount of any accrued interest due and owing thereon and the Company shall pay to the Paying Agent an amount sufficient to pay the accrued interest due on such Securities and Additional Amounts, if any, thereon, and the Paying Agent shall apply the amounts so paid to it to the payment of such accrued interest and Additional Amounts, if any, thereon in accordance with the terms of the Securities. (d) Subject to the foregoing provisions of this Section 307 and Section 305, each Security delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of any other Security shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Security. Section 308. Persons Deemed Owners. --------------------- Title to any Bearer Security or Coupon shall pass by delivery. The Company, the Guarantor, the Trustee, the Paying Agent and any other agent of the Company, the Guarantor, the Trustee or the Paying Agent may treat the bearer of any Bearer Security or the temporary global Bearer Security and the bearer of any Coupon as the absolute owner of such Security or Coupon, as the case may be, for the purpose of receiving payment thereof or on account thereof and for all other purposes whatsoever, whether or not such Security or Coupon be overdue, and neither the Company, the Guarantor, the Trustee, the Paying Agent nor any other agent of the Company, the Guarantor, the Trustee or the Paying Agent shall be affected by notice to the contrary. 38 Prior to due presentment of a Registered Security for registration of transfer, the Company, the Guarantor, the Trustee and any agent of the Company, the Guarantor or the Trustee shall treat the Person in whose name such Registered Security is registered in the Security Register as the absolute owner of such Registered Security for the purpose of receiving payment of principal of, any premium and (subject to Sections 305 and 307) interest on and any Additional Amounts with respect to such Registered Security and for all other purposes whatsoever, whether or not any payment with respect to such Registered Security shall be overdue, and neither the Company, the Guarantor, the Trustee or any agent of the Company, the Guarantor or the Trustee shall be affected by notice to the contrary. No holder of any beneficial interest in any global Security held on its behalf by a Depository shall have any rights under this Indenture with respect to such global Security, and such Depository may be treated by the Company, the Guarantor, the Trustee, and any agent of the Company, the Guarantor or the Trustee as the owner of such global Security for all purposes whatsoever. None of the Company, the Guarantor, the Trustee, any Paying Agent, any Conversion 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 global Security or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests. Section 309. Cancellation. ------------ All Securities and Coupons surrendered for payment, redemption, registration of transfer, exchange or conversion or for credit against any sinking fund payment shall, if surrendered to any Person other than the Trustee, be delivered to the Trustee, and any such Securities and Coupons, as well as Securities and Coupons surrendered directly to the Trustee for any such purpose, shall be canceled promptly by the Trustee. The Company or the Guarantor may at any time deliver to the Trustee for cancellation any Securities or Coupons previously authenticated and delivered hereunder which the Company or the Guarantor may have acquired in any manner whatsoever, and all Securities or Coupons so delivered shall be canceled promptly by the Trustee. No Securities or Coupons shall be authenticated in lieu of or in exchange for any Securities or Coupons canceled as provided in this Section 309, except as expressly permitted by or pursuant to this Indenture. All canceled Securities and Coupons held by the Trustee shall be destroyed by the Trustee, unless by a Company Order the Company directs their return to it. Section 310. Computation of Interest. ----------------------- Except as otherwise provided in or pursuant to this Indenture or in the Securities of any series, interest on the Securities shall be computed on the basis of a 360-day year of twelve 30-day months. Section 311. CUSIP Numbers. ------------- The Company in issuing Registered Securities may use "CUSIP" numbers (if then generally in use) in addition to serial numbers, and in issuing Bearer Securities may use "ISIN" 39 numbers (if then generally in use); if so, the Trustee shall use such "CUSIP" and "ISIN" numbers in addition to serial numbers in notices of redemption and repayment as a convenience to Holders; provided that any such notice may state -------- ---- that no representation is made as to the correctness of such CUSIP and ISIN numbers either as printed on the Securities or as contained in any notice of a redemption or repayment and that reliance may be placed only on the serial or other identification numbers printed on the Securities, and any such redemption or repayment shall not be affected by any defect in or omission of such CUSIP or ISIN numbers. Section 312. Notification of Withholding. --------------------------- The Company shall notify the Trustee in writing of the necessity, if any, to withhold any amounts from payments to Holders (and the amount of any such withholding). ARTICLE FOUR SATISFACTION AND DISCHARGE OF INDENTURE Section 401. Satisfaction and Discharge. -------------------------- Upon the direction of the Company by a Company Order, this Indenture shall cease to be of further effect with respect to any series of Securities specified in such Company Order and any Coupons appertaining thereto (except as to any surviving rights of conversion, or registration of transfer or exchange or replacement of Securities herein expressly provided for and any right to receive Additional Amounts and the Company's obligations to the Trustee pursuant to Section 606), and the Trustee, on receipt of a Company Order, at the expense of the Company, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture as to such series, when (1) either (A) all Securities of such series theretofore authenticated and delivered and all Coupons appertaining thereto (other than (i) Coupons appertaining to Bearer Securities of such series surrendered in exchange for Registered Securities of such series and maturing after such exchange whose surrender is not required or has been waived as provided in Section 305, (ii) Securities and Coupons of such series which have been destroyed, lost or stolen and which have been replaced or paid as provided in Section 306, (iii) Coupons appertaining to Securities of such series called for redemption and maturing after the relevant Redemption Date whose surrender has been waived as provided in Section 1106, and (iv) Securities and Coupons of such series for whose payment money has theretofore been deposited in trust or segregated and held in trust by the Company or the Guarantor and thereafter repaid to the Company or the Guarantor or discharged from such trust, as provided in Section 1003) have been delivered to the Trustee for cancellation; or (B) all Securities of such series and any Coupons appertaining thereto not theretofore delivered to the Trustee or the Paying Agent for cancellation (other than Securities or Coupons referred to in clauses (i) through (iii) of clause (A) above) 40 (i) have become due and payable, or (ii) will have become due and payable at their Stated Maturity within one year and such Securities are not convertible into or exchangeable for other securities, or (iii) if redeemable at the option of the Company, such Securities are not convertible into or exchangeable for other securities and 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 or the Guarantor, in the case of (i), (ii), or (iii) above, has irrevocably deposited or caused to be deposited with the Trustee as trust funds (immediately available to the Holders in the case of clause (i) above) in trust for such purpose, money in the Currency in which such Securities are payable in an amount sufficient to pay and discharge the entire indebtedness on such Securities and any Coupons appertaining thereto not theretofore delivered to the Trustee for cancellation, including the principal of, any premium and interest on, and, to the extent that the Securities of such series provide for the payment of Additional Amounts thereon and the amount of any such Additional Amounts is at the time of deposit reasonably determinable by the Company (in the exercise by the Company of its sole and absolute discretion), any Additional Amounts with respect to such Securities and any Coupons appertaining thereto, to the date of such deposit (in the case of Securities which have become due and payable) or to the Maturity thereof, as the case may be; (2) the Company or the Guarantor, as the case may be, has paid or caused to be paid all other sums payable hereunder by the Company or the Guarantor with respect to the Outstanding Securities of such series and any Coupons appertaining thereto; 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 as to such series 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 Securities of such series as to which it is Trustee and if the other conditions thereto are met. Notwithstanding the satisfaction and discharge of this Indenture with respect to any series of Securities, the obligations of the Company and the Guarantor to the Trustee under Section 606, the obligations of the Company and the Guarantor to any Authenticating Agent under Section 612, and, if money shall have been deposited with the Trustee pursuant to clause (1)(B) of this Section, the obligations of the Company, the Guarantor and the Trustee with respect to the Securities of such series under Sections 305, 306, 403, 1002 and 1003, and with respect to the payment of Additional Amounts, if any, with respect to such Securities as contemplated by Section 1004 (but only to the extent that the Additional Amounts payable with 41 respect to such Securities exceed the amount deposited in respect of such Additional Amounts pursuant to Section 401(B)(iii)), shall survive. Section 402. Defeasance and Covenant Defeasance. ---------------------------------- (1) Unless, pursuant to Section 301, provision is made for either or both of (i) defeasance of the Securities of or within a series under clause (2) of this Section 402 or (ii) covenant defeasance of the Securities of or within a series under clause (3) of this Section 402, such provisions, together with the other provisions of this Section 402, shall not be applicable to such Securities and any Coupons appertaining thereto. (2) Upon the Company's exercise of the above option applicable to this Section 402(2) with respect to any Securities of or within a series, the Company and the Guarantor shall be deemed to have been discharged from their respective obligations with respect to such Outstanding Securities and any Coupons appertaining thereto, and with respect to the corresponding Guarantees on the date the conditions set forth in clause (4) of this Section 402 are satisfied (hereinafter, "defeasance"). For this purpose, such defeasance means that the ---------- Company and the Guarantor shall be deemed to have paid and discharged the entire indebtedness represented by such Outstanding Securities and Guarantees and any Coupons appertaining thereto, which shall thereafter be deemed to be "Outstanding" only for the purposes of clause (5) of this Section 402 and the other Sections of this Indenture referred to in clauses (i) and (ii) below, and to have satisfied all of its other obligations under such Securities and any Coupons appertaining thereto and under such corresponding Guarantees and this Indenture insofar as such Securities and any Coupons appertaining thereto and such Guarantees are concerned (and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging the same), except for the following which shall survive until otherwise terminated or discharged hereunder: (i) the rights of Holders of such Outstanding Securities and Guarantees and any Coupons appertaining thereto to receive, solely from the trust fund described in clause (4) of this Section 402 and as more fully set forth in such Section, payments in respect of the principal of (and premium, if any) and interest, if any, on, and Additional Amounts, if any, with respect to, such Securities and Guarantees and any Coupons appertaining thereto when such payments are due, (ii) the obligations of the Company and the Trustee with respect to such Securities under Sections 304, 305, 306, 403, 1002 and 1003, with respect to the payment of Additional Amounts, if any, on such Securities as contemplated by Section 1004 (but only to the extent that the Additional Amounts payable with respect to such Securities exceed the amount deposited in respect of such Additional Amounts pursuant to Section 402(4)(a) below), and any obligation of the Guarantor relating to a surviving obligation of the Company, (iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder, (iv) any rights of conversion or exchange of such Securities and (v) this Section 402. The Company may exercise its option under this Section 402(2) notwithstanding the prior exercise of its option under clause (3) of this Section 402 with respect to such Securities and any Coupons appertaining thereto. (3) Upon the Company's exercise of the above option applicable to this Section 402(3) with respect to any Securities of or within a series, the Company and the Guarantor, as the case may be, shall be released from its obligations under Sections 1005 and Section 102 and, to the extent specified pursuant to Section 301, any other covenant applicable to 42 such Securities, with respect to such Outstanding Securities and any Coupons appertaining thereto on and after the date the conditions set forth in clause (4) of this Section 402 are satisfied (hereinafter, "covenant defeasance"), and ------------------- such Securities and any Coupons appertaining thereto shall thereafter be deemed to be not "Outstanding" for the purposes of any direction, waiver, consent or declaration or Act of Holders (and the consequences of any thereof) in connection with any such covenant, but shall continue to be deemed "Outstanding" for all other purposes hereunder. For this purpose, such covenant defeasance means that, with respect to such Outstanding Securities and any Coupons appertaining thereto, the Company and the Guarantor may omit to comply with, and shall have no liability in respect of, any term, condition or limitation set forth in any such Section or such other covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such Section or such other covenant or by reason of reference in any such Section or such other covenant to any other provision herein or in any other document and such omission to comply shall not constitute a default or an Event of Default under Section 501(4) or otherwise, as the case may be, but, except as specified above, the remainder of this Indenture and such Securities and Coupons appertaining thereto, and the Guarantees endorsed thereon, shall be unaffected thereby. (4) The following shall be the conditions to application of clause (2) or (3) of this Section 402 to any Outstanding Securities of or within a series and any Coupons appertaining thereto, or to any Guarantees endorsed thereon: (a) The Company shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 607 who shall agree to comply with the provisions of this Section 402 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 such Securities and any Coupons appertaining thereto, (i) an amount in Dollars, or (ii) Government Obligations applicable to such Securities and Coupons appertaining thereto (determined on the basis of the Currency in which such Securities and Coupons appertaining thereto are then specified as payable at Stated Maturity) which 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 of principal of (and premium, if any) and interest, if any, on such Securities and any Coupons appertaining thereto, money in an amount, or (iii) a combination thereof, in any case, in an amount, sufficient, without consideration of any reinvestment of such principal and interest, 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 other qualifying trustee) to pay and discharge, (y) the principal of (and premium, if any) and interest, if any, on, and, to the extent that such Securities provide for the payment of Additional Amounts thereon and the amount of any such Additional Amounts is at the time of deposit reasonably determinable by the Company, any Additional Amounts with respect to, such Outstanding Securities and any Coupons appertaining thereto on the Stated Maturity of such principal or installment of principal or interest and (z) any mandatory sinking fund payments or analogous payments applicable to such Outstanding Securities and any Coupons appertaining thereto on the day on which such payments are due and payable in accordance with the terms of this Indenture and of such Securities and any Coupons appertaining thereto. 43 (b) Such defeasance or covenant defeasance shall not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or the Guarantor is a party or by which it is bound. (c) No Default or Event of Default with respect to such Securities and any Coupons appertaining thereto shall have occurred and be continuing on the date of such deposit and, with respect to defeasance only, at any time during the period ending on the 91st day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until the expiration of such period). (d) In the case of an election under clause (2) of this Section 402, the Company shall have delivered to the Trustee an Opinion of Counsel stating that (i) the Company has received from the Internal Revenue Service a letter ruling, or there has been published by the Internal Revenue Service a revenue ruling, or (ii) since the date of execution of this Indenture, there has been a change in the applicable Federal income tax law, in either case to the effect that, and based thereon such opinion shall confirm that, the Holders of such Outstanding Securities and any Coupons appertaining thereto will not recognize income, gain or loss for Federal income tax purposes as a result of such defeasance and will be subject to Federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such defeasance had not occurred. (e) In the case of an election under clause (3) of this Section 402, the Company and the Guarantor shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of such Outstanding Securities and any Coupons appertaining thereto will not recognize income, gain or loss for Federal income tax purposes as a result of such covenant defeasance and will be subject to Federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such covenant defeasance had not occurred. (f) The Company and the Guarantor shall have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that all conditions precedent to the defeasance or covenant defeasance under clause (2) or (3) of this Section 402 (as the case may be) have been complied with. (g) Each of the Company and the Guarantor shall have delivered to the Trustee an Officers' Certificate to the effect that neither such Securities nor any other Securities of the same series, if then listed on any securities exchange, will be delisted as a result of such deposit. (h) 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). (i) 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 unless such trust shall be registered under such Act or exempt from registration thereunder. 44 (j) Notwithstanding any other provisions of this Section 402(4), such defeasance or covenant defeasance shall be effected in compliance with any additional or substitute terms, conditions or limitations which may be imposed on the Company or the Guarantor in connection therewith pursuant to Section 301. (5) Subject to the provisions of the last paragraph of Section 1003, all money and Government Obligations (or other property as may be provided pursuant to Section 301) (including the proceeds thereof) deposited with the Trustee (or other qualifying trustee-- collectively for purposes of this Section 402(5) and Section 403, the "Trustee") pursuant to clause (4) of Section 402 in respect of ------- any Outstanding Securities of any series and any Coupons appertaining thereto shall be held in trust and applied by the Trustee, in accordance with the provisions of such Securities and any Coupons appertaining thereto 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 Holders of such Securities and any Coupons appertaining thereto of all sums due and to become due thereon in respect of principal (and premium, if any) and interest and Additional Amounts, if any, but such money need not be segregated from other funds except to the extent required by law. The Company and the Guarantor shall pay and indemnify the Trustee and its officers, directors, employees and agents against any tax, fee or other charge, imposed on or assessed against the Government Obligations deposited pursuant to this Section 402 or the principal or interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of such Outstanding Securities and any Coupons appertaining thereto. Anything in this Section 402 to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon Company Request any money or Government Obligations (or other property and any proceeds therefrom) held by it as provided in clause (4) of this Section 402 which, 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 which would then be required to be deposited to effect a defeasance or covenant defeasance, as applicable, in accordance with this Section 402. Section 403. Application of Trust Money. -------------------------- Subject to the provisions of the last paragraph of Section 1003, all money and Government Obligations deposited with the Trustee pursuant to Section 401 or 402 shall be held in trust and applied by it, in accordance with the provisions of the Securities, the Coupons appertaining thereto, the Guarantees and this Indenture, as applicable, to the payment, either directly or through any Paying Agent (including the Company or the Guarantor acting as its own Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of the principal, premium, interest and Additional Amounts for whose payment such money has or Government Obligations have been deposited with or received by the Trustee; but such money and Government Obligations need not be segregated from other funds except to the extent required by law. 45 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 specifically deleted or modified in or pursuant to the supplemental indenture, Company and Guarantor Board Resolutions or Company and Guarantor Officers' Certificate establishing the terms of such series pursuant to this Indenture: (1) default in the payment of any interest on, or any Additional Amounts payable in respect of any interest on, any Security of such series when such interest or such Additional Amounts, as the case may be, become due and payable, and continuance of such default for a period of 10 days; or (2) default in the payment of the principal of or premium, if any, on, or any Additional Amounts payable in respect of the principal of or premium, if any, on any Security of such series when due upon Maturity (whether upon redemption or otherwise); or (3) default in the payment of any sinking fund payment, or analogous payment, when and as due by the terms of a Security of such series; or (4) default in the performance, or breach, of any covenant or warranty of the Company or the Guarantor in this Indenture or any Security of such series (other than a covenant or warranty for which the consequences of breach or nonperformance are addressed elsewhere in this Section 501 or in the Securities or in a covenant or warranty which has expressly been included in this Indenture or a Security of that series, whether or not by means of a supplemental Indenture, solely for the benefit of Securities of a series other than such series), and continuance of such default or breach for a period of 60 days after there has been given, by registered or certified mail, to the Company and the Guarantor by the Trustee or to the Company, the Guarantor and the Trustee by the Holders of at least 25% in principal amount of the Outstanding Securities of such 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) the Company or the Guarantor pursuant to or under or within the meaning of any Bankruptcy Law: (a) commences a voluntary case or proceeding; 46 (b) consents to the entry of an order for relief against it in an involuntary case or proceeding or the commencement of any case against it; (c) consents to the appointment of a Custodian of it or for any substantial part of its property; (d) makes a general assignment for the benefit of its creditors; (e) files a petition in bankruptcy or answer or consent seeking reorganization or relief; or (f) consents to the filing of such petition or the appointment of or taking possession by a Custodian; or (6) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that: (a) is for relief against the Company or the Guarantor in an involuntary case or proceeding, or adjudicates the Company or the Guarantor insolvent or bankrupt; (b) appoints a Custodian of the Company or the Guarantor or for any substantial part of their respective property; or (c) orders the winding up or liquidation of the Company or the Guarantor; and the order or decree remains unstayed and in effect for 20 consecutive days; or (7) a default by the Company (including a default with respect to Securities of any series other than that series) under any indenture, including this Indenture, or instrument evidencing, or under which the Company has at the date of this Indenture or shall hereafter have, any indebtedness for money borrowed with a principal amount then outstanding in excess of $25,000,000 or such other amount as may be specified in the Company's Board Resolutions or Officers' Certificate establishing the series (or the equivalent in any other currency) shall happen and be continuing and such indebtedness shall have been accelerated so that the same shall be or become due and payable prior to the date on which the same would otherwise have become due and payable, or a default in payment of such indebtedness at its stated maturity shall have occurred, and such indebtedness shall not have been discharged or such acceleration shall not be rescinded or annulled within 20 days after written notice thereof shall have been given, by registered or certified mail, to the Company and the Guarantor by the Trustee, or to the Company, the Guarantor and the Trustee by the Holders of at least 25% in aggregate principal amount of the Outstanding Securities of that series; provided, however, that if such default under such indenture or -------- ------- instrument shall be remedied or cured by the Company or waived by the holders of such indebtedness, then the Event of Default hereunder by reason thereof shall be deemed likewise to have been thereupon remedied, cured or waived without further action upon the part of either the Trustee or any of the Holders; provided, further, however, that subject to the provisions of Section 601, the - -------- ------- Trustee will not be considered to have knowledge of any default 47 by the Company under this Section 501 unless the Trustee shall have received written or actual notice of such default; or (8) any other Event of Default provided in or pursuant to this Indenture with respect to Securities of such series. "Bankruptcy Law" means Title 11, United States Code, or any similar Federal -------------- or state law for the relief of debtors. "Custodian" means any receiver, --------- trustee, assignee, liquidator, sequestrator, custodian or similar official under any Bankruptcy Law. 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 throughout the period permitted under this Indenture or any supplemental indenture to cure such default, then the Trustee or the Holders of not less than 25% in principal amount of the Outstanding Securities of such series may declare the principal (or, if any Securities are Original Issue Discount Securities or Indexed Securities, such portion of the principal as may be specified in the terms thereof) of all the Securities of such series, or such lesser amount as may be provided for in the Securities of such series, to be due and payable immediately, by a notice in writing to the Company and the Guarantor (and to the Trustee if given by the Holders), and upon any such declaration such principal or such lesser amount shall become immediately due and payable. Notwithstanding any other provision of Section 502, if an Event of Default specified in Section 501(5) or 501(6) occurs, all principal of, any premium and interest on, and any Additional Amounts on the Securities then Outstanding shall be immediately due and payable without any declaration or other act on the part of the Trustee or the Holders. At any time after Securities of any series have been accelerated and before a judgment or decree for payment of the money due has been obtained by the Trustee as hereinafter in this Article Five provided, the Holders of not less than a majority in principal amount of the Outstanding Securities of such series, by written notice to the Company, the Guarantor and the Trustee, may rescind and annul such declaration and its consequences if: (1) the Company or the Guarantor has paid or deposited with the Trustee a sum of money sufficient to pay (a) all overdue installments of any interest on any Securities of such series and any Coupons appertaining thereto and any Additional Amounts with respect thereto, (b) the principal of and any premium on any Securities of such series which have become due otherwise than by such declaration of acceleration and any Additional Amounts with respect thereto and, to the extent the payment of such interest is lawful, interest thereon at the rate or rates borne by or provided for in such Securities, 48 (c) to the extent that payment of such interest is lawful, interest upon overdue installments of any interest and any Additional Amounts with respect thereto at the rate or rates borne by or provided for 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 all other amounts due the Trustee under Section 606; and (2) all Events of Default with respect to Securities of such series, other than the non-payment of the principal of, any premium and interest on, and any Additional Amounts with respect to Securities of such series which shall have become due solely by such declaration of acceleration, shall have been cured or waived as provided in Section 513. No such rescission shall affect any subsequent default or impair any right consequent thereon. Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee. --------------------------------------------------------------- The Company covenants that if (1) default is made in the payment of any installment of interest on or any Additional Amounts with respect to any Security or any Coupon appertaining thereto when such interest or Additional Amounts shall have become due and payable and such default continues for a period of 10 days, or (2) default is made in the payment of the principal of or any premium on any Security at its Maturity, the Company shall, upon demand of the Trustee, pay to the Trustee, for the benefit of the Holders of such Securities and any Coupons appertaining thereto, the whole amount of money then due and payable with respect to such Securities and any Coupons appertaining thereto, with interest upon the overdue principal, any premium and, to the extent that payment of such interest shall be legally enforceable, upon any overdue installments of interest and Additional Amounts at the rate or rates borne by or provided for in such Securities, and, in addition thereto, such further amount of money as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel and all other amounts due to the Trustee under Section 606. If the Company fails to pay the money it is required to pay the Trustee pursuant to the preceding paragraph, forthwith upon the demand of the Trustee, the Trustee, in its own name and as trustee of an express trust, may institute a judicial proceeding for the collection of the money so due and unpaid, and may prosecute such proceeding to judgment or final decree, and may enforce the same against the Company, the Guarantor or any other obligor upon such Securities and any Coupons appertaining thereto and collect the monies adjudged or decreed to be payable in the manner provided by law out of the property of the Company, the Guarantor or any other obligor upon such Securities and any Coupons appertaining thereto, wherever situated. 49 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 and any Coupons appertaining thereto 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 such Securities or in aid of the exercise of any power granted herein or therein, or to enforce any other proper remedy. Section 504. Trustee May File Proofs of Claim. -------------------------------- In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative to the Company, the Guarantor or any other obligor upon the Securities or the property of the Company, the Guarantor, or such other obligor or their creditors, the Trustee (irrespective of whether the principal of the Securities shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand on the Company or the Guarantor for the payment of any overdue principal, premium, interest or Additional Amounts) 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, including: (1) to file and prove a claim for the whole amount, or such lesser amount as may be provided for in the Securities of such series, of the principal and any premium, interest and Additional Amounts owing and unpaid in respect of the Securities and any Coupons appertaining thereto and to file such other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents or counsel) and of the Holders of Securities or any Coupons allowed in such judicial proceeding, and (2) to collect and receive any monies 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 of Securities or any Coupons to make such payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Holders of Securities or any Coupons, to pay to the Trustee any amount due to it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel and any other amounts due the Trustee under Section 606. Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder of a Security or any Coupon any plan of reorganization, arrangement, adjustment or composition affecting the Securities or Coupons or the rights of any Holder thereof, or to authorize the Trustee to vote in respect of the claim of any Holder of a Security or any Coupon in any such proceeding; provided, however, that the -------- ------- Trustee 50 may, on behalf of the Holders of Securities or any Coupons, vote for the election of a trustee in bankruptcy or similar official and be a member of a creditors or other similar committee. Section 505. Trustee May Enforce Claims Without Possession of Securities or -------------------------------------------------------------- Coupons. - ------- All rights of action and claims under this Indenture or any of the Securities or Coupons may be prosecuted and enforced by the Trustee without the possession of any of the Securities or Coupons 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 or judgment, after provision for the payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, shall be for the ratable benefit of each and every Holder of a Security or Coupon in respect of which such judgment has been recovered. Section 506. Application of Money Collected. ------------------------------ Subject to Article Thirteen, any money collected by the Trustee pursuant to this Article Five 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, interest or Additional Amounts, upon presentation of the Securities or Coupons, or both, as the case may be, and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid: FIRST: To the payment of all amounts due the Trustee and any predecessor Trustee under Section 606; SECOND: To the payment of the amounts then due and unpaid upon the Securities and any Coupons for principal and any premium, interest and Additional Amounts 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 aggregate amounts due and payable on such Securities and Coupons for principal and any premium, interest and Additional Amounts, respectively; THIRD: The balance, if any, to the Person or Persons entitled thereto. Section 507. Limitations on Suits. -------------------- No Holder of any Security of any series or any Coupons appertaining thereto shall have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture, the Guarantees, the Securities of any series or any Coupons appertaining thereto, 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 such series; (2) the Holders of not less than 25% in principal amount of the Outstanding Securities of such series shall have made written request to the Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder; 51 (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 its 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 such 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 or any Security to affect, disturb or prejudice the rights of any other such Holders or Holders of Securities of any other series, or to obtain or to seek to obtain priority or preference over any other Holders or to enforce any right under this Indenture, except in the manner herein provided and for the equal and ratable benefit of all such Holders. Section 508. Unconditional Right of Holders to Receive Principal and Any ----------------------------------------------------------- Premium, Interest and Additional Amounts. - ---------------------------------------- Notwithstanding any other provision in this Indenture, the Holder of any Security or Coupon shall have the right, which is absolute and unconditional, to receive payment of the principal of, any premium and (subject to Section 307) interest on, and any Additional Amounts with respect to such Security or such Coupon, as the case may be, on the respective Stated Maturity or Maturities therefor specified in such Security or Coupon (or, in the case of redemption, on the Redemption Date or, in the case of repayment at the option of such Holder if provided in or pursuant to this Indenture, on the Repayment Date) and to convert such Security in accordance with Article Twelve (if conversion is permitted by the terms of such Security), and to institute suit for the enforcement of any such payment and right to convert, and such rights shall not be impaired without the consent of such Holder. Section 509. Restoration of Rights and Remedies. ---------------------------------- If the Trustee or any Holder of a Security or a Coupon has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case the Company, the Guarantor, the Trustee and each such Holder shall, subject to any determination in such proceeding, be restored severally and respectively to their former positions hereunder, and thereafter all rights and remedies of the Trustee and each such Holder 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 or Coupons in the last paragraph of Section 306, no right or 52 remedy herein conferred upon or reserved to the Trustee or to each and every Holder of a Security or a Coupon is intended to be exclusive of any other right or remedy, and every right and remedy, to the extent permitted by law, shall 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, to the extent permitted by law, 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 Security or Coupon 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 Five or by law to the Trustee or to any Holder of a Security or a Coupon may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or (subject to the limitations contained in this Indenture) by such Holder, as the case may be. Section 512. Control by Holders of Securities. -------------------------------- 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 and any Coupons appertaining thereto, provided that -------- ---- (1) such direction shall not be in conflict with any rule of law or with this Indenture or with the Securities of such series, (2) the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction, and (3) such Holders have offered the Trustee an indemnity reasonably satisfactory to it against any loss, cost, liability or expense that might been incurred by the Trustee in following such direction. Section 513. Waiver of Past Defaults. ----------------------- The Holders of not less than a majority in principal amount of the Outstanding Securities of any series on behalf of the Holders of all the Securities of such series and any Coupons appertaining thereto may waive any past default hereunder with respect to such series and its consequences, except a default (1) in the payment of the principal of, any premium or interest on, or any Additional Amounts with respect to, any Security of such series or any Coupons appertaining thereto, or 53 (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 such waiver shall extend to any subsequent or other default or impair any right consequent thereon. Section 514. Waiver of Usury, Stay or Extension Laws. --------------------------------------- Each of the Company and the Guarantor covenants that (to the extent that it may lawfully do so) it will not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any usury, stay or extension law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of this Indenture; and each of the Company and the Guarantor expressly waives (to the extent that it may lawfully do so) 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. Section 515. Undertaking for Costs. --------------------- All parties to this Indenture agree, and each Holder of any Security by his acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action taken or omitted by it as Trustee, the filing by any party litigant in such suit of any undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys' fees, against any party litigant in such suit having due regard to the merits and good faith of the claims or defenses made by such party litigant; but the provisions of this Section 515 shall not apply to any suit instituted by the Trustee, to any suit instituted by any Holder, or group of Holders, holding in the aggregate more than 10% in principal amount of Outstanding Securities of any series, or to any suit instituted by any Holder for the enforcement of the payment of the principal of (or premium, if any) or interest, if any, on or Additional Amounts, if any, with respect to any Security on or after the respective Stated Maturities expressed in such Security (or, in the case of redemption, on or after the Redemption Date, and, in the case of repayment, on or after the date for repayment) or for the enforcement of the right to convert any Security in accordance with Article Twelve. 54 ARTICLE SIX THE TRUSTEE Section 601. Certain Rights of Trustee; Certain Duties and Responsibilities. --------------------------------------------------------------- Subject to Sections 315(a) through 315(d) of the Trust Indenture Act: (1) the Trustee may conclusively rely and shall be fully protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, coupon, other evidence of indebtedness or other paper or document reasonably 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 or the Guarantor mentioned herein shall be sufficiently evidenced by a Company Request or a Company Order or Guarantor Request or Guarantor Order, as the case may be (in each case, other than delivery of any Security, together with any Coupons appertaining thereto, to the Trustee for authentication and delivery pursuant to Section 303 which shall be sufficiently evidenced as provided therein) and any resolution of the Board of Directors of the Company or the Guarantor, as the case may be, shall be sufficiently evidenced by a Board Resolution of the Company or the Guarantor, as the case may be; (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 shall 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 of its selection and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon; (5) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by or pursuant to this Indenture at the request or direction of any of the Holders of Securities of any series or any Coupons appertaining thereto 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, coupon, 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, during business hours 55 and upon reasonable notice, the books, records and premises of the Company and the Guarantor, personally or by agent or attorney; (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; (8) the Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and (9) No provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that this paragraph (9) shall not be construed to limit the effect of paragraph (8) of this Section; (a) the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts; and (b) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Holders of a majority in principal amount of the Securities relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture. The duties and responsibilities of the Trustee shall be as provided by the Trust Indenture Act. Notwithstanding the foregoing, no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or indemnity reasonably satisfactory to it 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 601. Section 602. Notice of Defaults. ------------------ Within 90 days after the occurrence of any Default (actually known to a Responsible Officer of the Trustee) hereunder with respect to the Securities of any series, the Trustee shall transmit by mail to all Holders of Securities of such series entitled to receive reports pursuant to Section 703(3), notice of such Default hereunder known to the Trustee, unless such Default shall have been cured or waived; provided, however, that, except in the case of a default in the -------- ------- payment of the principal of (or premium, if any), or interest, if any, on, or Additional Amounts or any sinking fund or purchase fund installment with respect to, any Security of such series, the Trustee shall be protected in withholding such notice if and so long as the board of directors, the 56 executive committee or a trust committee of directors and/or Responsible Officers of the Trustee in good faith determine that the withholding of such notice is in the best interest of the Holders of Securities and Coupons of such series, and provided, further, 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 60 days after the occurrence thereof. Section 603. Not Responsible for Recitals or Issuance of Securities. ------------------------------------------------------ The recitals contained herein and in the Securities, except the Trustee's certificate of authentication, and in any Coupons shall be taken as the statements of the Company or the Guarantor, as the case may be, and neither the Trustee nor any Authenticating Agent assumes any responsibility for their correctness. The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Securities or Coupons appertaining thereto or the Guarantees or the Common Stock issuable upon the conversion of Securities in accordance with the provisions of Article Twelve, except that the Trustee represents that it is duly authorized to execute and deliver this Indenture, authenticate the Securities and perform its obligations hereunder and that the statements made by it in a Statement of Eligibility and Qualification on Form T-1 supplied to the Company are true and accurate, subject to the qualifications set forth therein. Neither the Trustee nor any Authenticating Agent shall be accountable for the use or application by the Company of the Securities or the proceeds thereof. Section 604. May Hold Securities; Act as Trustee Under Other Indenture. --------------------------------------------------------- The Trustee, any Authenticating Agent, any Paying Agent, any Security Registrar or any other Person that may be an agent of the Trustee, the Company, or the Guarantor, in its individual or any other capacity, may become the owner or pledgee of Securities or Coupons and, subject to Sections 310(b) and 311 of the Trust Indenture Act, may otherwise deal with the Company and the Guarantor with the same rights it would have if it were not Trustee, Authenticating Agent, Paying Agent, Security Registrar or such other agent. The Trustee may become and act as trustee under other indentures under which other securities, or certificates of interest or participation in other securities, of the Company are outstanding in the same manner as if it were not Trustee hereunder. Section 605. Money Held in Trust. ------------------- Except as provided in Section 403 and Section 1003, money held by the Trustee in trust hereunder need not be segregated from other funds except to the extent required by law and shall be held uninvested. The Trustee shall be under no liability for interest on any money received by it hereunder except as otherwise agreed in writing with the Company or the Guarantor, as the case may be. 57 Section 606. Compensation and Reimbursement. ------------------------------ Each of the Company and the Guarantor agrees: (1) to pay to the Trustee from time to time reasonable compensation as shall be agreed in writing between the Company on the one hand and the Trustee on the other for all services rendered by the Trustee 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 any such expense, disbursement or advance as may be attributable to the Trustee's negligence or bad faith; and (3) to indemnify the Trustee and its officers, directors, employees and agents for, and to hold them harmless against, any loss, liability or expense incurred without negligence or bad faith on their part, arising out of or in connection with the acceptance or administration of the trust or trusts hereunder, including the costs and expenses of defending themselves against any claim or liability in connection with the exercise or performance of any of their powers or duties hereunder, except to the extent that any such loss, liability or expense was due to the Trustee's negligence or bad faith. The indemnification provided for herein shall survive the termination of this Indenture or the earlier resignation or removal of the Trustee. As security for the performance of the obligations of the Company under this Section 606, the Trustee shall have a lien prior to the Securities of any series upon all property and funds held or collected by the Trustee as such, except funds held in trust for the payment of principal of, and premium or interest on or any Additional Amounts with respect to Securities or any Coupons appertaining thereto. Any compensation or expense incurred by the Trustee after a default specified by Section 501 is intended to constitute an expense of administration under any then applicable bankruptcy or insolvency law. "Trustee" for purposes ------- of this Section 606 shall include any predecessor Trustee but the negligence or bad faith of any Trustee shall not affect the rights of any other Trustee under this Section 606. Section 607. Corporate Trustee Required; Eligibility. --------------------------------------- There shall at all times be a Trustee hereunder that is a Corporation, organized and doing business under the laws of the United States, eligible under Section 310(a)(1) of the Trust Indenture Act to act as trustee under an indenture qualified under the Trust Indenture Act and that has a combined capital and surplus (computed in accordance with Section 310(a)(2) of the Trust Indenture Act) of at least $50,000,000 subject to supervision or examination by Federal or state authority. 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. 58 Section 608. Resignation and Removal; Appointment of Successor. ------------------------------------------------- (1) 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 pursuant to Section 609. (2) 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 609 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. (3) 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 and the Guarantor. (4) If at any time: (a) the Trustee shall fail to comply with the obligations imposed upon it under Section 310(b) of the Trust Indenture Act with respect to Securities of any series after written request therefor by the Company, the Guarantor or any Holder of a Security of such series who has been a bona fide Holder of a Security of such series for at least six months, or (b) the Trustee shall cease to be eligible under Section 607 and shall fail to resign after written request therefor by the Company, the Guarantor or any such Holder, or (c) the Trustee shall become incapable of acting or shall be adjudged to be 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 or pursuant to a Board Resolution, may remove the Trustee with respect to all Securities or the Securities of such series, or (ii) subject to Section 315(e) of the Trust Indenture Act, any Holder of a Security 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 removal of the Trustee with respect to all Securities of such series and the appointment of a successor Trustee or Trustees. (5) 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 or pursuant to a Board Resolution, shall promptly appoint a successor Trustee or Trustees with respect to the Securities of that or those series (it being 59 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 609. If, within one year after such resignation, removal or incapability, or the occurrence of such vacancy, a successor Trustee with respect to the Securities of any series shall be appointed by Act of the Holders of a majority in principal amount of the Outstanding Securities of such series delivered to the Company and the retiring Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance of such appointment in accordance with the applicable requirements of Section 609, 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 of Securities and accepted appointment in the manner required by Section 609, any Holder of a Security 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. (6) The Company shall give notice of each resignation and each removal of the Trustee with respect to the Securities of any series and each appointment of a successor Trustee with respect to the Securities of any series by mailing written notice of event by first-class mail, postage prepaid, to the Holders of Registered Securities, if any, of such series as their names and addresses appear in the Security Register and, if Securities of such series are issued as Bearer Securities, by publishing notice of such event once in an Authorized Newspaper in each Place of Payment located outside the United States. 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. (7) The retiring Trustee shall not be liable for any of the acts or omissions of any successor Trustee appointed hereunder. (8) No appointment of a successor Trustee shall be effective until all fees, charges and expenses of the retiring Trustee not subject to any good faith dispute, have been paid. Section 609. Acceptance of Appointment by Successor. -------------------------------------- (1) Upon the appointment hereunder of any successor Trustee with respect to all Securities, such successor Trustee so appointed shall execute, acknowledge and deliver to the Company, the Guarantor and 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 hereunder of the retiring Trustee; but, on the request of the Company, the Guarantor or such successor Trustee, such retiring Trustee, upon payment of its charges, shall execute and deliver an instrument transferring to such successor Trustee all the rights, powers and trusts of the retiring Trustee and, subject to Section 1003, shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder, subject nevertheless to its claim, if any, provided for in Section 606. 60 (2) Upon the appointment hereunder of any successor Trustee with respect to the Securities of one or more series, the Company, the Guarantor, the retiring Trustee and such successor Trustee shall execute and deliver an indenture supplemental hereto wherein each successor Trustee shall accept such appointment and which (a) shall contain such provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, such 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, (b) 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 (c) shall add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it being understood that nothing herein or in such supplemental indenture shall constitute such Trustees co-trustees of the same trust, 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 that no Trustee shall be responsible for any notice given to, or received by, or any act or failure to act on the part of any other Trustee hereunder, 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, such retiring Trustee shall have no further responsibility for the exercise of rights and powers or for the performance of the duties and obligations vested in the Trustee under this Indenture with respect to the Securities of that or those series to which the appointment of such successor Trustee relates other than as hereinafter expressly set forth, 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 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, the Guarantor or such successor Trustee, such retiring Trustee, upon payment of its charges with respect to the Securities of that or those series to which the appointment of such successor relates and subject to Section 1003 shall duly assign, transfer and deliver to such successor Trustee, to the extent contemplated by such supplemental indenture, the property and money held by retiring Trustee hereunder with respect to the securities of that or those series to which the appointment of such successor Trustee relates, subject to its claim, if any, provided for in Section 606. (3) Upon request of any Person appointed hereunder as a successor Trustee, the Company or the Guarantor shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor Trustee all such rights, powers and trusts referred to in paragraph (1) or (2) of this Section, as the case may be. (4) No Person shall accept its appointment hereunder as a successor Trustee unless at the time of such acceptance such successor Person shall be qualified and eligible under this Article Six. Section 610. 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 61 to which the Trustee shall be a party, or any Corporation succeeding to all or all of the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder, provided such Corporation shall be otherwise qualified and eligible under this Article Six, without the execution or filing of any paper or any further act on the part of any of the parties hereto. In case any Securities shall have been authenticated but not delivered by the Trustee then in office, any successor by merger, conversion or consolidation to such authenticating Trustee may adopt such authentication and deliver the Securities so authenticated with the same effect as if such successor Trustee had itself authenticated such Securities. Section 611. Preferential Collection of Claims Against Company. ------------------------------------------------- If and when the Trustee shall be or become a creditor of the Company, the Guarantor 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, the Guarantor or any such other obligor. Section 612. Appointment of Authenticating Agent. ----------------------------------- The Trustee may appoint one or more Authenticating Agents acceptable to the Company with respect to one or more series of Securities which shall be authorized to act on behalf of the Trustee to authenticate Securities of that or those series issued upon original issue, exchange, registration of transfer, partial redemption or partial repayment, 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. Except an original issuance or in replacement of lost, stolen or destroyed securities, 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, except as provided in or pursuant to this Indenture, shall at all times be a corporation that would be permitted by the Trust Indenture Act to act as trustee under an indenture qualified under the Trust Indenture Act, is authorized under applicable law and by its charter to act as an Authenticating Agent and has a combined capital and surplus (computed in accordance with Section 310(a)(2) of the Trust Indenture Act) of at least $50,000,000. If at any time an Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, it shall resign immediately in the manner and with the effect specified in this Section. Any corporation into which an Authenticating Agent may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which such Authenticating Agent shall be a party, or any corporation succeeding to all or substantially all of the corporate agency or corporate trust business of an Authenticating Agent, shall be the successor of such Authenticating Agent hereunder, provided such corporation shall be otherwise eligible under this Section, without the execution or filing of any paper or any further act on the part of the Trustee or the Authenticating Agent. 62 An Authenticating Agent may resign at any time by giving written notice thereof to the Trustee, the Company and the Guarantor. The Trustee may at any time terminate the agency of an Authenticating Agent by giving written notice thereof to such Authenticating Agent, the Company and the Guarantor. 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 (i) mail written notice of such appointment by first-class mail, postage prepaid, to all Holders of Registered Securities, if any, of the series with respect to which such Authenticating Agent shall serve, as their names and addresses appear in the Security Register, and (ii) if Securities of the series are issued as Bearer Securities, publish notice of such appointment at least once in an Authorized Newspaper in the place where such successor Authenticating Agent has its principal office if such office is located outside the United States. Any successor Authenticating Agent, upon acceptance of its appointment hereunder, shall become vested with all the rights, powers and duties of its predecessor hereunder, with like effect as if originally named as an Authenticating Agent. No successor Authenticating Agent shall be appointed unless eligible under the provisions of this Section. The Company agrees to pay each Authenticating Agent from time to time reasonable compensation for its services under this Section. If the Trustee makes such payments, it shall be entitled to be reimbursed for such payments, subject to the provisions of Section 606. The provisions of Sections 308, 603 and 604 shall be applicable to each Authenticating Agent. If an Authenticating Agent is appointed with respect to one or more series of Securities pursuant to this Section, the Securities of such series may have endorsed thereon, in addition to or in lieu of the Trustee's certificate of authentication, an alternate certificate of authentication in substantially the following form: This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture. Dated:___________________ [NAME OF TRUSTEE], As Trustee By: [NAME OF AUTHENTICATION AGENT] As Authenticating Agent By:_______________________ Authorized Officer 63 If all of the Securities of any series may not be originally issued at one time, and if the Trustee does not have an office capable of authenticating Securities upon original issuance located in a Place of Payment where the Company wishes to have Securities of such series authenticated upon original issuance, the Trustee, if so requested in writing (which writing need not be accompanied by or contained in an Officers' Certificate by the Company), shall appoint in accordance with this Section 612 an Authenticating Agent having an office in a Place of Payment designated by the Company with respect to such series of Securities. Section 613. Conflicting Interests. --------------------- If the Trustee has or shall acquire any 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. To the extent permitted by such Act, the Trustee shall not be deemed to have a conflicting interest by virtue of being a trustee under this Indenture with respect to Securities of more than one series or a trustee under prior indentures between the Company and the Trustee that have not been satisfied and discharged and that may be excluded by the proviso to Section 310(b)(1) of the Trust Indenture Act. Section 614. Protection of Agents. -------------------- Any Authenticating Agent, Conversion Agent, Paying Agent or Securities Registrar hereunder shall be entitled to all of the rights, immunities, indemnities and protections afforded to the Trustee hereunder. ARTICLE SEVEN HOLDERS LISTS AND REPORTS BY TRUSTEE, COMPANY AND GUARANTOR Section 701. Company and Guarantor to Furnish Trustee Names and Addresses of --------------------------------------------------------------- Holders. - ------- In accordance with Section 312(a) of the Trust Indenture Act, with respect to each series of the Securities, the Company and the Guarantor shall furnish or cause to be furnished to the Trustee: (1) semi-annually, not later than 15 days after the Regular Record Date or upon such other dates as are set forth in or pursuant to the Board Resolution or indenture supplemental hereto authorizing such series, a list for each series of Securities, in such form as the Trustee may reasonably require, of the names and addresses of Holders of Registered Securities as of the applicable date, and (2) at such other times as the Trustee may request in writing, within 30 days after the receipt by the Company or the Guarantor of any such request, a list of similar form and content as of a date not more than 15 days prior to the time such list is furnished, excluding from any such list names and addresses received by the Trustee in its capacity as Security Registrar. 64 Section 702. Preservation of Information; Communications to Holders. ------------------------------------------------------ The Trustee shall preserve, in as current a form as is reasonably practicable, the names and addresses of Holders contained in the most recent list furnished to the Trustee as provided in Section 701 and the names and addresses of Holders received by the Trustee in its capacity as Security Registrar. The Trustee may destroy any list furnished to it as provided in Section 701 upon receipt of a new list so furnished. The rights of the Holders to communicate with other Holders with respect to their rights under this Indenture or under the Securities, and the corresponding rights and privileges of the Trustee, shall be as provided by the Trust Indenture Act. Every Holder of Securities or Coupons, by receiving and holding the same, agrees with the Company, the Guarantor and the Trustee that neither the Company, the Guarantor nor the Trustee, nor any agent of any of them, shall be held accountable by reason of the disclosure of any such information as to the names and addresses of the Holders of Securities in accordance with Section 312(c) of the Trust Indenture Act, regardless of the source from which such information was derived, and that the Trustee shall not be held accountable by reason of mailing any material pursuant to a request made under Section 312(b) of the Trust Indenture Act. Section 703. Reports by Trustee. ------------------ (1) Within 60 days after July 15 of each year commencing with the first July 15, 1998 following the first issuance of Securities pursuant to Section 301, if required by Section 313(a) of the Trust Indenture Act, the Trustee shall transmit, pursuant to Section 313(c) of the Trust Indenture Act, a brief report dated as of such July 15 with respect to any of the events specified in said Section 313(a) which may have occurred since the later of the immediately preceding July 15 and the date of this Indenture. (2) The Trustee shall transmit to Holders the 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 specified therein. (3) Reports pursuant to this Section shall be transmitted in the manner and to the Persons required by Sections 313(c) and 313(d) of the Trust Indenture Act. Section 704. Reports by Company and Guarantor. -------------------------------- The Company and the Guarantor, pursuant to Section 314(a) of the Trust Indenture Act, shall: (1) file with the Trustee, within 15 days after the Company and the Guarantor are required to file the same with the Commission, copies of the annual reports and of the information, documents and other reports (or copies of such portions of any of the foregoing as the Commission may from time to time by rules and regulations prescribe) 65 which the Company and the Guarantor may be required to file with the Commission pursuant to Section 13 or Section 15(d) of the Exchange Act; or, if the Company or the Guarantor is not required to file information, documents or reports pursuant to either of said Sections, then they shall file with the Trustee and the Commission, in accordance with rules and regulations prescribed from time to time by the Commission, such of the supplementary and periodic information, documents and reports which may be required pursuant to Section 13 of the Exchange Act in respect of a security listed and registered on a national securities exchange as may be prescribed from time to time in such rules and regulations; (2) file with the Trustee and the Commission, in accordance with rules and regulations prescribed from time to time by the Commission, such additional information, documents and reports with respect to compliance by the Company and the Guarantor with the conditions and covenants of this Indenture as may be required from time to time by such rules and regulations; and (3) transmit within 30 days after the filing thereof with the Trustee, in the manner and to the extent provided in Section 313(c) of the Trust Indenture Act, such summaries of any information, documents and reports required to be filed by the Company and the Guarantor pursuant to paragraphs (1) and (2) of this Section as may be required by rules and regulations prescribed from time to time by the Commission. ARTICLE EIGHT CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER Section 801. Company or Guarantor May Consolidate, Etc., Only on Certain Terms. ----------------------------------------------------------------- Neither the Company nor the Guarantor shall consolidate with or merge into any other Person or convey, transfer or lease all or substantially all of its properties and assets to any Person, and neither the Company nor the Guarantor shall permit any Person to consolidate with or merge into the Company or the Guarantor, as the case may be, or convey, transfer or lease all or substantially all of its properties and assets to the Company or the Guarantor, as the case may be, unless either: (a) in case the Company or the Guarantor, as the case may be, shall consolidate with or merge into another Person or convey, transfer or lease all or substantially all of its properties and assets to any Person, the Person formed by such consolidation or into which the Company or the Guarantor, as the case may be, is merged or the Person which acquires by conveyance or transfer, or which leases, all or substantially all of the properties and assets of the Company or the Guarantor, as the case may be, shall be (i) a corporation, limited liability company, partnership or trust organized and validly existing under the laws of the United States or (ii) a corporation, limited liability company, partnership or trust organized and validly existing under the laws of a jurisdiction other than the United States (a "Foreign Entity") that shall expressly assume, by an indenture -------------- 66 supplemental hereto executed and delivered to the Trustee, in form reasonably satisfactory to the Trustee, in the case of the Company, the due and punctual payment of the principal of (and premium, if any) and interest and Additional Amounts on all the Securities and Coupons and the performance and observance of every covenant of this Indenture on the part of the Company to be performed or observed and shall have provided for conversion rights in accordance with Article Twelve, and, in the case of the Guarantor, the due and punctual performance of the Guarantees and the performance and observance of every covenant of this Indenture on the part of the Guarantor to be performed or observed. In the event that such Person is a Foreign Entity, it shall expressly agree to make payments under the Securities and Coupons free of any deduction or withholding for any and all then existing or future withholding taxes, levies, imposts and charges whatsoever imposed by or for the account of the jurisdiction where such Foreign Entity is generally subject to taxation (or any political subdivision or taxing authority thereof or therein) in a manner equivalent to that set forth herein, subject to the exceptions contained elsewhere herein; (b) immediately after giving effect to such transaction and treating any indebtedness which becomes an obligation of the Company or one of its Subsidiaries or of the Guarantor or one of its Subsidiaries as a result of such transaction as having been incurred by the Company, the Guarantor or such Subsidiary at the time of such transaction, no Event of Default, and no event which, after notice or lapse of time or both, would become an Event of Default, shall have happened and be continuing; and (c) the Company or the Guarantor, as the case may be, 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 Corporation Substituted. --------------------------------- Upon any consolidation by the Company or the Guarantor, as the case may be, with or merger by the Company or the Guarantor, as the case may be, into any other Person or any conveyance, transfer or lease of all or substantially all of the properties and assets of the Company or the Guarantor, as the case may be, in accordance with Section 801, the successor Person formed by such consolidation or into which the Company or the Guarantor, as the case may be, 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 or the Guarantor, as the case may be, under this Indenture with the same effect as if such successor Person had been named as the Company or the Guarantor, as the case may be, 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. 67 ARTICLE NINE SUPPLEMENTAL INDENTURES Section 901. Supplemental Indentures Without Consent of Holders. -------------------------------------------------- Without the consent of any Holders of Securities or Coupons, the Company, when authorized by or pursuant to a Board Resolution, the Guarantor, when authorized by a Board Resolution, and the Trustee, at any time and from time to time, may enter into one or more indentures supplemental hereto, in form satisfactory to the Trustee, for any of the following purposes: (1) to evidence the succession of another Person to the Company or the Guarantor, as the case may be, and the assumption by any such successor of the covenants of the Company or the Guarantor, as the case may be, contained herein and in the Securities or the Guarantees; or (2) to add to the covenants of the Company or the Guarantor for the benefit of the Holders of all or any series of Securities (as shall be specified in such supplemental indenture or indentures and if such covenants are to be for the benefit of less than all series of Securities, stating that such covenants are being included solely for the benefit of such series) or to surrender any right or power herein conferred upon the Company or the Guarantor; or (3) to add to or change any of the provisions of this Indenture to provide that Bearer Securities may be registrable as to principal, to change or eliminate any restrictions on the payment of principal of, any premium or interest on or any Additional Amounts with respect to Securities, to permit Bearer Securities to be issued in exchange for Registered Securities, to permit Bearer Securities to be exchanged for Bearer Securities of additional authorized denominations or to permit or facilitate the issuance of Securities in uncertificated form, provided any such action shall not adversely affect the interests of the Holders of Securities of any series or any Coupons appertaining thereto in any material respect; or (4) to establish the form or terms of Securities of any series and any Coupons appertaining thereto as permitted by Sections 201 and 301 or of the related Guarantees as permitted by Section 202; or (5) 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 609; or (6) to cure any ambiguity or to correct or supplement any provision herein which may be defective or inconsistent with any other provision herein, or to make any other provisions with respect to matters or questions arising under this Indenture which shall not adversely affect the interests of the Holders of Securities of any series then Outstanding or any Coupons appertaining thereto in any material respect; or 68 (7) to add any additional Events of Default with respect to all or any series of Securities (as shall be specified in such supplemental indenture and if such additional Events of Default are to be for the benefit of less than all series of Securities, stating that such additional Event of Default are expressly being included solely for the benefit of such series); or (8) to supplement any of the provisions of this Indenture to such extent as shall be necessary to permit or facilitate the defeasance and discharge of any series of Securities pursuant to Article Four, provided that any such action shall not adversely affect the interests of any Holder of a Security of such series and any Coupons appertaining thereto or any other Security or Coupon in any material respect; or (9) to secure the Securities and Guarantees; or (10) to amend or supplement any provision contained herein or in any supplemental indenture (which amendment or supplement may apply to one or more series of Securities or to one or more Securities within any series as specified in such supplemental indenture or indentures), provided that such amendment or supplement does not apply to any Outstanding Security issued prior to the date of such supplemental indenture and entitled to the benefits of such provision or modify the rights of the Holder of any such Security with respect to such provision. 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, the Guarantor and the Trustee, the Company, when authorized by or pursuant to a Board Resolution, the Guarantor, when authorized by or pursuant to 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 the Securities of such series 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, without the consent of the Holder of each Outstanding Security affected thereby, shall (1) change the Stated Maturity of the principal of, or any premium or installment of principal or interest on or any Additional Amounts with respect to, any Security, or any sinking fund or analogous payment in respect thereof, or reduce the principal amount thereof or the rate (or modify the calculation of such rate) of interest thereon or any Additional Amounts with respect thereto, or any premium payable upon the redemption thereof or otherwise, or change the obligation of the Company to pay Additional Amounts pursuant to Section 1004, or reduce the amount of the principal of any Security that would be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 502 or the amount thereof provable in bankruptcy pursuant to Section 504, adversely affect the right of repayment at the option of any Holder as contemplated by Article Fifteen, or change the provisions of Article Ten 69 relating to Place of Payment for Bearer Securities being located outside the United States, or the Currency in which the principal of, any premium or interest on, or any Additional Amounts with respect to any Security or any sinking or analogous fund payment in respect thereof, is payable, or impair the right to institute suit for the enforcement of any such payment on or after the Stated Maturity thereof (or, in the case of redemption, on or after the Redemption Date or, in the case of repayment at the option of the Holder, on or after the Repayment Date) or, except as permitted by Article Twelve, adversely affect in any material respect the right to convert or exchange any Security, 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 reduce the requirements of Section 1604 for quorum or voting, or (3) modify any of the provisions of this Section, Section 513 or Section 1001, 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; or (4) change in any manner adverse in any material respect to the interests of the Holders of any Outstanding Securities the terms and conditions of the obligations of the Guarantor in respect of the due and punctual payment of the principal thereof and any premium or interest thereon or any sinking or analogous fund payments provided in respect thereof. A supplemental indenture which changes or eliminates any covenant or other provision of this Indenture which shall have been included expressly and 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 of Securities under this Section to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such Act shall approve the substance thereof. Section 903. Execution of Supplemental Indentures. ------------------------------------ As a condition to executing, or accepting the additional trusts created by, any supplemental indenture permitted by this Article Nine or the modifications thereby of the trust created by this Indenture, the Trustee shall be entitled to receive, and (subject to Section 315 of the Trust Indenture Act) 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 and an Officers' Certificate stating that all conditions precedent to the execution of supplemental indenture have been fulfilled. The Trustee may, but shall not be obligated to, enter into any such 70 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 a Security theretofore or thereafter authenticated and delivered hereunder and of any Coupon appertaining thereto shall be bound thereby. Section 905. 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 and the Guarantor shall so determine, new Securities of any series so modified as to conform, in the opinion of the Trustee, the Company and the Guarantor, to any such supplemental indenture may be prepared and executed by the Company, the Guarantees of the Guarantor may be endorsed thereon and such securities authenticated and delivered by the Trustee in exchange for Outstanding Securities of such series. Section 906. 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. ARTICLE TEN COVENANTS Section 1001. Payment of Principal, Any Premium, Interest and Additional ---------------------------------------------------------- Amounts. - ------- The Company covenants and agrees for the benefit of each series of Securities that it will duly and punctually pay the principal of, any premium and interest on and any Additional Amounts with respect to the Securities of each series in accordance with the terms thereof, any Coupons appertaining thereto and this Indenture. Any interest due on any Bearer Security on or before the Maturity thereof, and any Additional Amounts payable with respect to such interest, shall be payable only upon presentation and surrender of the Coupons appertaining thereto for such interest as they severally mature. Section 1002. Maintenance of Office or Agency. ------------------------------- The Company and the Guarantor shall maintain in each Place of Payment for any series of Securities, an Office or Agency where Securities of such series, and Guarantees with respect thereto (but not Bearer Securities, except as otherwise provided below, unless such Place of 71 Payment is located outside the United States) may be presented or surrendered for payment, where Securities of such series may be surrendered for registration of transfer or exchange, where Registered Securities may be surrendered for conversion, where Bearer Securities may be surrendered for conversion in the circumstances described below (and not otherwise) and where notices and demands to or upon the Company and the Guarantor in respect of the Securities of such series relating thereto and this Indenture may be served. If Securities of a series are issuable as Bearer Securities, the Company shall maintain, subject to any laws or regulations applicable thereto, an Office or Agency in a Place of Payment and Place of Conversion for such series which is located outside the United States where Securities of such series and any Coupons appertaining thereto, and Guarantees with respect thereto, may be presented and surrendered for payment or conversion; provided, however, that if the Securities of such -------- ------- series are listed on the London Stock Exchange or the Luxembourg Stock Exchange or any other stock exchange located outside the United States and such stock exchange shall so require, the Company shall maintain a Paying Agent and a Conversion Agent in London, Luxembourg or any other required city located outside the United States, as the case may be, so long as the Securities of such series are listed on such exchange. The Company and the Guarantor 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 or the Guarantor 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, except that Bearer Securities of such series and any Coupons appertaining thereto, and Guarantees with respect thereto, may be presented and surrendered for payment or conversion at the place specified for that purpose with respect to such Securities as provided in or pursuant to this Indenture, and the Company and the Guarantor hereby appoint the Trustee as their agent to receive all such presentations, surrenders, notices and demands. Except as otherwise provided in or pursuant to this Indenture, no payment of principal, premium, interest or Additional Amounts with respect to Bearer Securities (including payments by reason of the conversion thereof) shall be made at any Office or Agency in the United States or by check mailed to any address in the United States or by transfer to an account maintained with a bank located in the United States; provided, however, that if amounts owing with -------- ------- respect to any Bearer Securities shall be payable in Dollars, payment of principal of, any premium or interest on and any Additional Amounts with respect to any such Security, or Guarantees with respect thereto, may be made, and any Bearer Securities may be surrendered for conversion, at the Corporate Trust Office of the Trustee or any Office or Agency designated by the Company in the Borough of Manhattan, The City of New York, if (but only if) payment of the full amount of such principal, premium, interest or Additional Amounts, or surrender of Bearer Securities for conversion, at all offices outside the United States maintained for such purpose by the Company in accordance with this Indenture is illegal or effectively precluded by exchange controls or other similar restrictions on the full payment or receipt of such amounts in Dollars as determined by the Company, or on surrender of any Bearer Securities for conversion. The Company and the Guarantor may also from time to time designate one or more other Offices or Agencies where the Securities of one or more series, and Guarantees endorsed thereon, 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 72 relieve the Company or the Guarantor of its obligation to maintain an Office or Agency in each Place of Payment and Place of Conversion for Securities of any series for such purposes. The Company and the Guarantor shall 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. Unless otherwise provided in or pursuant to this Indenture, the Company and the Guarantor hereby designate as the Place of Payment and the Place of Conversion for each series of Securities (other than those issued as Bearer Securities) and the Guarantees endorsed thereon, the Borough of Manhattan, The City of New York, and initially appoint the Corporate Trust Office of the Trustee as the Company's and the Guarantor's Office or Agency in the Borough of Manhattan, The City of New York for such purpose. The Company and the Guarantor may subsequently appoint a different Office or Agency in the Borough of Manhattan, The City of New York for the Securities of any series, and the Guarantees endorsed thereon. Unless otherwise provided in or pursuant to this Indenture, the Company and the Guarantor hereby designate as the Place of Payment and the Place of Conversion for Bearer Securities and the Guarantees endorsed thereon, to be London, England, and initially appoint the office of the Trustee in London as the Office or Agency for such purpose and initially appoint the office of the Trustee in London as its Paying Agent in London. 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, presentations and surrenders may be made and notices and demands may be served on the Corporate Trust Office of the Trustee, except that Bearer Securities and Coupons may be presented and surrendered for payment and conversion to the Paying Agent in London at its office in the City of London, England or other Paying Agent or Conversion Agent outside the United States, and the Company hereby appoints the Paying Agent in London as its agent to receive such respective presentations, surrenders, notices and demands. Section 1003. Money for Securities Payments to be Held in Trust. ------------------------------------------------- If the Company or the Guarantor, as the case may be, shall at any time act as its own Paying Agent with respect to any series of Securities, it shall, on or before each due date of the principal of, any premium or interest on or Additional Amounts with respect to any of the Securities of such series, segregate and hold in trust for the benefit of the Persons entitled thereto a sum in Dollars sufficient to pay the principal or any premium, interest or Additional Amounts so becoming due until such sums shall be paid to such Persons or otherwise disposed of as herein provided, and shall promptly notify the Trustee of its action or failure so to act. Whenever the Company or the Guarantor, as the case may be, shall have one or more Paying Agents for any series of Securities, it shall, on or prior to each due date of the principal of, any premium or interest on or any Additional Amounts with respect to any Securities of such series, deposit with any Paying Agent a sum in Dollars sufficient to pay the principal or any premium, interest or Additional Amounts so becoming due, such sum to be held in trust for the benefit of the Persons entitled thereto, and (unless such Paying Agent is the Trustee) the Company or the Guarantor, as the case may be, will promptly notify the Trustee of its action or failure so to act. 73 The Company or the Guarantor, as the case may be, shall cause each Paying Agent for any series of Securities other than the Trustee to execute and deliver to the Trustee an instrument in which such Paying Agent shall agree with the Trustee, subject to the provisions of this Section, that such Paying Agent shall: (1) hold all sums held by it for the payment of the principal of, any premium or interest on or any Additional Amounts with respect to Securities of such series in trust for the benefit of the Persons entitled thereto until such sums shall be paid to such Persons or otherwise disposed of as provided in or pursuant to this Indenture; (2) give the Trustee notice of any default by the Company or the Guarantor (or any other obligor upon the Securities of such series) in the making of any payment of the principal of, any premium or interest on or any Additional Amounts with respect to the Securities of such series; (3) at any time during the continuance of any such default, upon the written request of the Trustee, forthwith pay to the Trustee all sums so held in trust by such Paying Agent; and (4) indemnify the Trustee for any loss, cost, liability, or expense caused by any error, act or omission of the Paying Agent. The Company or the Guarantor, as the case may be, 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 of the Company or the Guarantor direct any Paying Agent to pay, to the Trustee all sums held in trust by the Company, the Guarantor or such Paying Agent, such sums to be held by the Trustee upon the same terms as those upon which such sums were held by the Company, the Guarantor 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 sums. Except as otherwise provided herein or pursuant hereto, any money deposited with the Trustee or any Paying Agent, or then held by the Company or the Guarantor, as the case may be, in trust for the payment of the principal of, any premium or interest on or any Additional Amounts with respect to any Security of any series or any Coupon appertaining thereto and remaining unclaimed for two years after such principal or any such premium or interest or any such Additional Amounts shall have become due and payable shall be paid to the Company or the Guarantor, as the case may be, on Company Request, or (if then held by the Company or the Guarantor) shall be discharged from such trust; and the Holder of such Security or any Coupon appertaining thereto, or Guarantees endorsed thereon, shall thereafter, as an unsecured general creditor, look only to the Company or the Guarantor (pursuant to the Guarantee) 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 or the Guarantor as trustee thereof, shall thereupon cease; provided, however, that the Trustee or such Paying Agent, -------- ------- before being required to make any such repayment, may at the expense of the Company cause to be published once, in an Authorized Newspaper in each Place of Payment for such series or to be mailed to Holders of Registered Securities of such series, or both, notice that such money remains unclaimed and that, 74 after a date specified therein, which shall not be less than 30 days from the date of such publication or mailing, any unclaimed balance of such money then remaining will be repaid to the Company or the Guarantor, as the case may be. Section 1004. Additional Amounts. ------------------ All payments of principal of, premium, if any, and interest on Securities of any series to a Holder thereof who is not a United States person, and all payments on the Guarantees to a Holder thereof who is not a United States person shall be made without set-off, counterclaim, fees, liabilities or similar deductions (including payments on redemption, repayment and the exercise of either the Cash Settlement Option or the Stock Settlement Option), and free and clear of, and without deduction or withholding for, taxes, levies, imposts, duties, assessments, charges or fees of whatsoever nature now or hereafter imposed, levied, collected, deducted, withheld or assessed by or on behalf of the Government of the United States, or any state or other political subdivision or taxing authority thereof or therein ("Taxes"). If the Company, the ----- Guarantor, or any agent of either is required by law or regulation to make any deduction or withholding for or on account of Taxes, the Company or Guarantor, as the case may be, shall pay such additional amounts ("Additional Amounts") as ------------------ shall be necessary in order that the net amounts received by the Holders of the Securities of any series who are not United States persons after such deduction or withholding shall equal the amount that would have been receivable thereunder in the absence of such deduction or withholding, except that no such Additional Amounts shall be payable on account of: (a) any Tax which would not have been so imposed but for (i) the existence of any present or former connection between such Holder (or between a fiduciary, settlor, beneficiary, member, shareholder of or possessor of a power over such Holder, if such Holder is an estate, a trust, a partnership or a corporation) and the United States or any political subdivision or taxing authority thereof or therein, including, without limitation, such Holder (or such fiduciary, settlor, beneficiary, member, shareholder or possessor) being or having been a citizen or resident of the United States or treated as a resident thereof, or being or having been engaged in trade or business or present therein, or having had a permanent establishment therein, (ii) such Holder's present or former status as a personal holding company, a foreign personal holding company with respect to the United States, a controlled foreign corporation, a passive foreign investment company, or a foreign private foundation or foreign tax exempt entity for United States tax purposes, or a corporation which accumulates earnings to avoid United States Federal income tax, or (iii) such holder's status as a bank extending credit pursuant to a loan agreement entered into in the ordinary course of business; (b) any Tax which would not have been so imposed but for the presentation by the Holder of such Security or any Coupon appertaining thereto for payment on a date more than 15 days after the date on which such payment became due and payable or the date on which payment thereof is duly provided for, whichever occurs later; (c) any estate, inheritance, gift, sales, transfer, personal property or similar Tax; 75 (d) any Tax which would not have been imposed but for the failure to comply with any certification, identification or other reporting requirements concerning the nationality, residence, identity or connection with the United States of the Holder or beneficial owner of such Security or any Coupon appertaining thereto, if compliance is required by statute or by regulation or ruling of the United States Treasury Department as a precondition to exemption from such Tax; (e) any Tax which is payable otherwise than by deduction or withholding from payments of principal of, premium, if any, or interest on such Security; (f) any Tax imposed as a result of a Person's past or present actual or constructive ownership, including by virtue of the right to convert Securities, of 10% or more of the total combined voting power of all classes of stock of the Company entitled to vote; (g) any Tax required to be withheld by any Paying Agent from any payment of the principal of, premium, if any, or interest on such Security, if such payment can be made without such withholding by any other Paying Agent in Western Europe; (h) any Tax imposed on the disposition of any Security by a person holding at any time, actually or constructively, Securities of the applicable series having a fair market value in excess of the greater of the fair market value of five percent of (i) the Company's Common Stock or (ii) the Securities of such series; (i) any Tax imposed on a Holder that is a partnership or a fiduciary, but only to the extent that any beneficial owner or member of the partnership or beneficiary or settlor with respect to the fiduciary would not have been entitled to the payment of Additional Amounts had the beneficial owner, member, beneficiary or settlor directly received its beneficial or distributive share of payments on such Security; (j) any Tax which would not have been imposed but for the fact that such Security constitutes a "United States real property interest," as defined in Section 897(c)(1) of the Internal Revenue Code and the regulations thereunder, with respect to the beneficial owner of such Security; or (k) any combination of items (a), (b), (c), (d), (e), (f), (g), (h), (i) and (j). Notwithstanding the foregoing, if and so long as a certification, identification or other information reporting requirement referred to in the third paragraph of Section 1102 of this Indenture would be fully satisfied by payment of a backup withholding tax or similar charge, the Company may elect, by so stating in the Determination Notice (as hereinafter defined), to have the provisions of this paragraph apply in lieu of redeeming the Security pursuant to such Section 1102. In such event, the Company will pay as Additional Amounts such amounts as may be necessary so that every net payment made, following the effective date of such requirements, outside the United States by the Company or any Paying Agent of principal and premium, if any, due in respect of a Security, or interest represented by any Coupon, the beneficial owner of which is not a United States person (but without any requirement that the nationality, residence 76 or identity of such beneficial owner be disclosed to the Company, any Paying Agent or any governmental authority), after deduction or withholding for or on account of such backup withholding tax or similar charge, other than a backup withholding tax or similar charge which is (a) the result of a certification, identification or information reporting requirement described in the first parenthetical clause of such third paragraph of Section 1102, (b) imposed as a result of the fact that the Company or any Paying Agent has actual knowledge that the beneficial owner of the Security or such Coupon is within the category of Persons described in clause (a) of the preceding paragraph or (c) imposed as a result of presentation of the Security or such Coupon for payment more than 15 days after the date on which such payment becomes due and payable or on which payment thereof is duly provided for, whichever occurs later, will not be less than the amount provided for in the Security or such Coupon to be then due and payable. Except as specifically provided in this Indenture, the Company shall not be required to make any payment with respect to any Taxes. If the Company, the Guarantor or any successor to either of them under this Indenture shall be incorporated under the laws of a jurisdiction other than the United States, the Company or its successor will pay, and the Guarantor or its successor will jointly and severally guarantee the payment of, and the Company or the Guarantor shall provide notice to the Trustee of the payment of, such additional amounts ("Other Additional Amounts") as may be necessary in order ------------------------ that every net payment on each Security, after withholding for or on account of any present or future tax, assessment or other governmental charge imposed upon or as a result of such payment by such other jurisdiction (or any political subdivision or taxing authority thereof or therein), will be not less than the amount provided for in such Security to be then due and payable; provided, -------- however, that (i) the Other Additional Amounts payable to a Holder of a - ------- Security will be reduced to the extent that such withholding reduces any tax liability to which such Holder of the Security was and is subject both prior to and after such incorporation in another jurisdiction and (ii) the exceptions listed in the second preceding paragraph shall apply, substituting for the United States the relevant jurisdiction that imposes the tax giving rise to the payment of Other Additional Amounts. Whenever in this Indenture there is mentioned, in any context, the payment of the principal of or any premium or interest on, or in respect of, any Security of any series or any Coupon or the net proceeds received on the sale or exchange of any Security of any series, such mention shall be deemed to include mention of the payment of Additional Amounts provided by the terms of this Indenture or by the terms of such series established hereby or pursuant hereto to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to such terms, and express mention of the payment of Additional Amounts (if applicable) in any provision hereof shall not be construed as excluding Additional Amounts in those provisions hereof where such express mention is not made. Except as otherwise provided in or pursuant to this Indenture or the Securities of any series, if the Securities of a series provide for the payment of Additional Amounts, at least 10 days prior to the first Interest Payment Date with respect to such series of Securities (or if the Securities of such series shall not bear interest prior to Maturity, the first day on which a payment of principal is made), and at least 10 days prior to each date of payment of principal or interest if 77 there has been any change with respect to the matters set forth in the below- mentioned Officers' Certificate, the Company shall furnish to the Trustee and the principal Paying Agent or Paying Agents, if other than the Trustee, an Officers' Certificate instructing the Trustee and such Paying Agent or Paying Agents whether such payment of principal of and premium, if any, or interest, if any, on the Securities of such series shall be made to Holders of Securities of such series or the Coupons appertaining thereto who are not United States persons without withholding for or on account of any Tax described in the Securities of such series. If any such withholding shall be required, then such Officers' Certificate shall specify by country the amount, if any, required to be withheld on such payments to such Holders of Securities or Coupons, and the Company agrees to pay to the Trustee or such Paying Agent the Additional Amounts required hereby or by the terms of such Securities. The Company covenants to indemnify the Trustee and any Paying Agent and other officers, directors, employees and agents for, and to hold them harmless against, any loss, liability or expense reasonably incurred without negligence or bad faith on their part arising out of or in connection with actions taken or omitted by any of them in reliance on any Officers' Certificate furnished pursuant to this Section. Section 1005. Statement as to Compliance. -------------------------- Each of the Company and the Guarantor will deliver to the Trustee, within 120 days after the end of each fiscal year of the Company and the Guarantor, as the case may be, an Officers' Certificate, stating as to each signer, that (1) a review of the activities of the Company or the Guarantor, as the case may be, during such year and of performance under this Indenture has been made under his or her supervision; and (2) to the best of his or her knowledge, based on such review, (a) the Company or the Guarantor, as the case may be, has fulfilled all its obligations under this Indenture throughout such year, or, if there has been a material default in the fulfillment of any such obligation, specifying each such default known to him or her and the nature and status thereof, and (b) no event has occurred and is continuing which is, or after notice or lapse of time or both would become, an Event of Default, or, if such an event has occurred and is continuing, specifying each such event known to him or her and the nature and status thereof. Section 1006. Corporate Existence. ------------------- Subject to Article Eight, the Company and the Guarantor will do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence. ARTICLE ELEVEN REDEMPTION OF SECURITIES Section 1101. Applicability of Article. ------------------------ 78 Redemption of Securities of any series at the option of the Company as permitted or required in or pursuant to this Indenture or by the terms of such Securities shall be made in accordance with the terms of this Indenture or such Securities and (except as otherwise provided herein or pursuant hereto) this Article Eleven. Section 1102. Election to Redeem; Notice to Trustee. ------------------------------------- The election of the Company to redeem any Securities shall be evidenced by or pursuant to a Board Resolution. In case of any redemption at the election of the Company of the Securities of any series, the Company shall, at least 75 days 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. In addition, notwithstanding the above, if as a result of a Tax Law Change, the Company has or will become obligated to pay to the Holder of any Security or Coupon Additional Amounts, and such obligation cannot be avoided by the Company taking reasonable measures available to it, then the Company may, at its option, redeem the Tax Affected Securities as a whole, but not in part, upon not less than 20 nor more than 60 days' notice to the Holders prior to the Redemption Date therefor, at a Redemption Price equal to 100% of the principal amount plus interest accrued to the Redemption Date, and any Additional Amounts then payable; provided that (i) no such notice of redemption shall be given -------- ---- earlier than 90 days prior to the earliest date on which the Company would be obligated to pay any such Additional Amounts were a payment in respect of the Tax Affected Securities then due and (ii) at the time such notice of redemption is given, such obligation to pay such Additional Amounts remains in effect. Prior to the publication of any notice of redemption pursuant to this paragraph, the Company shall deliver to the Trustee (a) an Officers' Certificate stating that the Company is entitled to effect such redemption and setting forth a statement of facts showing that the conditions precedent to the right of the Company so to redeem have occurred and (b) an Opinion of Counsel selected by the Company to the effect that the Company has or will become obligated to pay such Additional Amounts as a result of such Tax Law Change. The Company's right to redeem the Tax Affected Securities shall continue as long as the Company is obligated to pay such Additional Amounts, notwithstanding that the Company shall have made payments of Additional Amounts specified in Section 1004. In addition, if the Company determines, based upon an Opinion of Counsel, that, as a result of a Tax Law Change, any payment made outside the United States by the Company or any of its Paying Agents of the full amount of principal, premium, if any, or interest due with respect to any Bearer Security or Coupon appertaining thereto would be subject to any certification, identification or other information reporting requirement of any kind, the effect of which requirement is the disclosure to the Company, any Paying Agent or any governmental authority of the nationality, residence or identity of a beneficial owner of such Bearer Security or Coupon who is not a United States person (other than such a requirement (a) which would not be applicable to a payment made by the Company or any one of its Paying Agents (i) directly to the beneficial owner or (ii) to any custodian, nominee or other agent of the beneficial owner, (b) which can be satisfied by the custodian, nominee or other agent certifying that such beneficial 79 owner is not a United States person, provided that, in each case referred to in -------- ---- clauses (a) (ii) and (b), payment by such custodian, nominee or agent to such beneficial owner is not otherwise subject to any such requirement, or (c) which would not be applicable but for the fact that such Bearer Security constitutes a "United States real property interest," as defined in Section 897(c)(1) of the Internal Revenue Code, with respect to the beneficial owner of such Bearer Security), the Company at its election will either (x) redeem the Bearer Securities, as a whole but not in part, upon not less than 20 nor more than 60 days' notice prior to the Redemption Date, at a Redemption Price equal to 100% of the principal amount thereof plus interest accrued to the Redemption Date and any Additional Amounts, or (y) if and so long as the certification, identification or other information reporting requirement referred to above would be fully satisfied by payment of a backup withholding tax or similar charge, pay the bearer the Additional Amounts specified in Section 1004. The Company will make such determination and election and notify the Trustee and the Paying Agent in London, England thereof in writing as soon as practicable, and the Trustee will promptly give notice of such determination in the manner provided in Section 106 (the "Determination Notice"), in each case stating the -------------------- effective date of such certification, identification or information reporting requirement, whether the Company will redeem the Bearer Securities or will pay the Additional Amounts specified in the second paragraph of Section 1004 and (if applicable) the last date by which the redemption of the Bearer Securities must take place. If the Company elects to redeem the Bearer Securities pursuant to clause (x) above, such redemption shall take place on a date, not later than one year after the publication of the Determination Notice, as the Company elects by notice in writing to the Trustee and the Paying Agent in London at least 75 days before the Redemption Date, unless shorter notice is acceptable to the Trustee. Notwithstanding the foregoing, the Company will not so redeem the Bearer Securities if the Company, based upon an Opinion of Counsel which counsel shall be reasonably acceptable to the Trustee, subsequently determines, not less than 20 days prior to the Redemption Date, that subsequent payments would not be subject to any such requirement, in which case the Company will notify the Trustee in writing of its determination not to so redeem the Securities, and the Trustee will promptly give notice to the Holders of the Bearer Securities of that determination and any earlier redemption notice will thereupon be revoked and of no further effect. If the Company elects as provided in clause (y) above to pay Additional Amounts, the Company may, as long as the Company is obligated to pay such Additional Amounts, subsequently redeem the Bearer Securities, at any time, as a whole but not in part, upon not less than 20 nor more than 60 days' notice prior to the Redemption Date, at a Redemption Price equal to 100% of the principal amount thereof plus interest accrued to the Redemption Date, and any Additional Amounts. Section 1103. Selection by Trustee of Securities to be Redeemed. ------------------------------------------------- If any Securities of any series are to be redeemed in part, the particular Securities to be redeemed shall be selected not more than 60 days prior to the Redemption Date by the Trustee from the Outstanding Securities of such series not previously called for redemption, by such method as the Trustee shall deem fair and appropriate, under circumstances intended not to discriminate between Registered and Bearer Securities to be redeemed, and which may provide for the selection for redemption of portions of the principal amount of Registered Securities of such series; provided, however, that no such partial redemption -------- ------- shall reduce the portion of the principal amount of a Registered Security of such series not redeemed to less than the minimum 80 denomination for a Security of such series established herein or pursuant hereto. The Trustee shall have no liability in connection with any selection of securities to redemption made in good faith and without negligence. If any Registered Security selected for partial redemption, which is convertible by the terms of such Security established pursuant to Section 301, is converted in part before termination of the conversion right with respect to the portion of the Security so selected, the converted portion of such Security shall be deemed (so far as may be) to be the portion selected for redemption. Securities which have been converted during a selection of Securities to be redeemed may be treated by the Trustee as Outstanding for the purpose of such selection. The Trustee shall promptly notify the Company and the Security Registrar (if other than itself) 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 of such Securities which has been or is to be redeemed. Section 1104. Notice of Redemption. -------------------- Notice of redemption shall be given by the Trustee in the manner provided in Section 106, not less than 20 nor more than 60 days prior to the Redemption Date, unless a different period is specified in the Securities to be redeemed. All such redemption notices (except, in the case of a redemption specified in the penultimate paragraph of Section 1102) shall be irrevocable. Failure to give notice by mailing in the manner herein provided to the Holder of any Registered Securities designated for redemption as a whole or in part, or any defect in the notice to any such Holder, shall not affect the validity of the proceedings for the redemption of any other Securities or portion thereof. Any notice that is mailed to the Holder of any Registered 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 identify the Securities to be redeemed and shall state: (1) the Redemption Date, (2) the Redemption Price, and accrued interest, if any, (3) if less than all Outstanding Securities of any series are to be redeemed, the identification (and, in the case of partial redemption, the principal amount) of the particular Security or Securities to be redeemed, 81 (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 shall become due and payable up each such Security or portion thereof to be redeemed, and, if applicable, that interest thereon shall cease to accrue on and after said date, (6) if applicable, the Conversion Price, the date on which the right to convert the Securities to be redeemed will terminate and the places where such Securities, together with all unmatured Coupons and any matured Coupons in default appertaining thereto, may be surrendered for conversion, (7) the place or places where such Securities, together (in the case of Bearer Securities) with all Coupons appertaining thereto, if any, maturing after the Redemption Date, are to be surrendered for payment of the Redemption Price and any accrued interest and Additional Amounts pertaining thereto, (8) that the redemption is for a sinking fund, if such is the case, (9) that, unless otherwise specified in such notice, Bearer Securities of any series, if any, surrendered for redemption must be accompanied by all Coupons maturing subsequent to the date fixed for redemption or the amount of any such missing Coupon or Coupons will be deducted from the Redemption Price, unless security or indemnity satisfactory to the Company, the Trustee and any Paying Agent is furnished, (10) if Bearer Securities of any series are to be redeemed and any Registered Securities of such series are not to be redeemed, and if such Bearer Securities may be exchanged for Registered Securities not subject to redemption on the Redemption Date pursuant to Section 305 or otherwise, the last date, as determined by the Company, on which such exchanges may be made, and (11) the CUSIP number, ISIN number or the EUROCLEAR or the CEDEL reference numbers of such Securities, if any (or any other numbers used by a Depository to identify such Securities). 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. Section 1105. Deposit of Redemption Price. --------------------------- On or prior to 10:00 a.m., Eastern Time, on any Redemption Date, the Company shall deposit, in immediately available funds, with respect to the Securities of any series called for redemption pursuant to Section 1104, with the Trustee or with a Paying Agent (or, if the 82 Company is acting as its own Paying Agent, segregate and hold in trust as provided in Section 1003) an amount of money in Dollars sufficient to pay the Redemption Price of, and (except if the Redemption Date shall be an Interest Payment Date, unless otherwise specified pursuant to Section 301 for or in the Securities of such series) any accrued interest on and Additional Amounts with respect thereto, all such Securities or portions thereof which are to be redeemed on that date. If any Security called for redemption, which is convertible by the terms of such Security established pursuant to Section 301, is converted, any money deposited with the Trustee or with a Paying Agent or so segregated and held in trust for the redemption of such Security shall (subject to any right of the Holder of such Security or any predecessor Security to receive interest as provided in Section 307) be paid to the Company on Company Request or, if then held by the Company, shall be discharged from such trust. 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 and the Coupons for such interest appertaining to any Bearer Securities so to be redeemed, except to the extent provided below, shall be void. Upon surrender of any such Security for redemption in accordance with said notice, together with all Coupons, if any, appertaining thereto maturing after the Redemption Date, such Security shall be paid by the Company at the Redemption Price, together with any accrued interest and Additional Amounts to the Redemption Date; provided, however, that, except -------- ------- as otherwise provided in or pursuant to this Indenture or the Bearer Securities of such series, installments of interest on Bearer Securities whose Stated Maturity is on or prior to the Redemption Date shall be payable only upon presentation and surrender of Coupons for such interest (at an Office or Agency located outside the United States except as otherwise provided in Section 1002), and provided, further, that, except as otherwise specified in or pursuant to -------- ------- this Indenture or the Registered Securities of such series, installments of interest on Registered Securities whose Stated Maturity is on or prior to the Redemption Date shall be payable to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the Regular Record Dates therefor according to their terms and the provisions of Section 307. If any Bearer Security surrendered for redemption shall not be accompanied by all appurtenant Coupons maturing after the Redemption Date, such Security may be paid after deducting from the Redemption Price an amount equal to the face amount of all such missing Coupons, or the surrender of such missing Coupon or Coupons may be waived by the Company and the Trustee if there be furnished to them such security or indemnity as they may require to save each of them and any Paying Agent harmless. If thereafter the Holder of such Security shall surrender to the Trustee or any Paying Agent any such missing Coupon in respect of which a deduction shall have been made from the Redemption Price, such Holder shall be entitled to receive the amount so deducted; provided, however, that any -------- ------- interest or Additional Amounts represented by Coupons shall be payable only upon presentation and surrender of those Coupons 83 at an Office or Agency for such Security located outside of the United States except as otherwise provided in Section 1002. If any Security called for redemption shall not be so paid upon surrender thereof for redemption, the principal and any premium, until paid, shall bear interest from the Redemption Date at the rate prescribed therefor in the Security and each Security shall remain convertible (if applicable) until the principal of such Security (or portion thereof, as the case may be) shall have been paid or duly provided for. Section 1107. Securities Redeemed in Part. --------------------------- Any Registered Security which is to be redeemed only in part shall be surrendered at any applicable Office or Agency for such Security (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, the Guarantees of the Guarantor shall be endorsed on and the Trustee shall authenticate and deliver to the Holder of such Security without service charge, a new Registered Security or Securities of the same series, containing identical terms and provisions, 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. If a Security in global form is so surrendered, the Company shall execute, and the Trustee shall authenticate and deliver to the U.S. Depository or other Depository for such Security in global form as shall be specified in the Company Order with respect thereto to the Trustee, without service charge, a new Security in global form in a denomination equal to and in exchange for the unredeemed portion of the principal of the Security in global form so surrendered. ARTICLE TWELVE CONVERSION OF SECURITIES Section 1201. Conversion Privilege and Conversion Price. ----------------------------------------- Conversion of Securities of any series at the option of the Holder thereof as permitted by the terms of such Securities shall be made in accordance with the terms of such Securities and (except as otherwise provided herein or pursuant hereto) this Article Twelve. Each reference in this Article Twelve to "a Security" or "the Securities" refers to the Securities of the particular series that are convertible into shares of Common Stock. At the option of the Holder any Security other than the temporary global Bearer Security may be converted into fully paid and nonassessable shares (calculated as to each conversion to the nearest 1/100th of a share) of Common Stock of the Company at the Conversion Price (as defined below) in effect at the time of conversion. The period for conversion shall be set forth in the terms of the Securities. In case a Security or portion thereof is called for redemption or is delivered for repayment, such conversion right in respect of the Security or portion so called or delivered shall expire at the close of business on the fifth Business Day preceding the Redemption Date or the second Business Day preceding a repayment on the Securities Repayment Date (as set forth in Article 84 Fifteen), as the case may be, unless the Company defaults in making the payment due upon redemption or repayment, as the case may be. The price at which shares of Common Stock shall be delivered upon conversion (herein called the "Conversion Price") shall be as set forth in the ---------------- terms of the Securities. The Conversion Price shall be adjusted in certain instances as provided in this Article Twelve. As permitted by the terms of such Securities, the Company may provide for either or both of the options set forth in clauses (i) and (ii) of this paragraph to apply to any series of Securities, in which case such provisions shall be applicable to such Securities (except as otherwise provided herein or pursuant hereto). In lieu of issuing shares of Common Stock upon conversion of the Securities, the Company may elect, in its sole discretion to (i) pay cash in respect of all or a portion of the shares of Common Stock otherwise issuable upon such conversion (the "Cash Settlement Option") and/or (ii) to deliver fully ---------------------- paid and non-assessable shares of Guarantor Common Stock, in respect of all or a portion of the shares of Common Stock otherwise issuable upon such conversion (the "Stock Settlement Option"). The amount of cash to be so delivered upon the ----------------------- exercise of the Cash Settlement Option shall be equal to the number of shares of Common Stock as to which cash is being paid in lieu of issuance of shares of Common Stock multiplied by the Market Price of a share of Common Stock. ---------- In the event the Company exercises the Stock Settlement Option, the number of shares of Guarantor Common Stock to be so delivered shall be equal to the quotient obtained by dividing (a) the product of (i) the number of shares of Common Stock (as to which the Stock Settlement Option is being exercised) into which the Security is being converted multiplied by (ii) the Market Price of a ------------- share of Common Stock by (b) the Market Price of a share of Guarantor Common -- Stock. Upon exercise of either the Cash Settlement Option or the Stock Settlement Option, the Company shall inform each Conversion Agent and Paying Agent of the Market Price of the Common Stock and, if applicable, the Guarantor Common Stock. Upon presentment for conversion of any Securities pursuant to this Section 1201, the applicable Conversion Agent shall that day notify the Company of such presentment. Within two Business Days after the Conversion Date, the Company shall deliver to the Paying Agent written notice of whether such Security shall be converted into shares of Common Stock, cash, Guarantor Common Stock or a combination of shares of Common Stock, cash and Guarantor Common Stock (specifying the amounts of each). The Company shall deliver to such Holder no later than the fifth Business Day following the Conversion Date, through the Paying Agent, in respect of the portion of the converted security to be settled in cash, and as promptly as practicable on or following the Conversion Date in respect of the portion of the converted Security as to which shares of Common Stock and/or Guarantor Common Stock are to be issued, the amount of cash and certificates representing the number of shares of Common Stock and/or Guarantor Common Stock to be delivered, and cash in lieu of any fractional shares. No payment or adjustment shall be made upon any conversion on account of any dividends on the Common Stock issued upon conversion. 85 In the event that payment by the Company of cash in lieu of issuing shares of Common Stock upon conversion of a Security shall require any withholding for or on account of any present or future Tax imposed upon or as a result of such cash payment by the United States or any political subdivision or taxing authority thereof or therein, then the Company will be required to pay Additional Amounts with respect thereto in the same manner and to the same extent as is provided for in Section 1004. In the event that payment by the Company of cash in lieu of issuing shares of Common stock upon conversion of a Security shall require any certification, identification or information reporting requirement of United States law or regulation with regard to the nationality, residence or identity of a beneficial owner of a Bearer Security who is not a United States person (other than a requirement (a) which would not be applicable to a payment made (i) directly to the beneficial owner or (ii) to a custodian, nominee or other agent of the beneficial owner, or (b) which could be satisfied by the Holder, custodian, nominee or other agent certifying that the beneficial owner is not a United States person, provided, however, in each case referred to in clauses (a) (ii) -------- ------- and (b) payment by such custodian, nominee or agent to the beneficial owner is not otherwise subject to any requirement referred to in this sentence), the Company may not elect to make the cash payment unless such certification, identification or information reporting requirement would be fully satisfied by payment of United States withholding, backup withholding or similar taxes and the Company pays such Additional Amounts as are necessary in order that, following the effective date of such requirement, every net payment made outside the United States by the Company or a related Paying Agent of the cash payment on a Bearer Security to a Holder who is not a United States person (without regard to a certification, identification or information reporting requirement as to the nationality, residence or identity of such Holder), after deduction for United States withholding, backup withholding or similar taxes (other than withholding, backup withholding or similar taxes which would not be applicable in the circumstances referred to in the parenthetical clauses above), will not be less than the amount to be then due and payable thereon. Section 1202. Exercise of Conversion Privilege. -------------------------------- In order to exercise the conversion privilege, the Holder of any Definitive Security to be converted shall surrender such Security, duly endorsed or assigned to the Company or in blank (in the case of any Registered Security), at any applicable Place of Conversion, accompanied by a duly signed and completed conversion notice substantially in the form attached hereto as Exhibit C stating --------- that the Holder elects to convert such Security or, if less than the entire principal amount thereof is to be converted, the portion thereof to be converted. Each Bearer Security surrendered for conversion must be surrendered together with all Coupons appertaining thereto that mature after the Conversion Date. If any Bearer Security surrendered for conversion shall not be accompanied by all such appurtenant Coupons, the surrender of any or all of such missing Coupons may be waived by the Company, the Guarantor and the Trustee, if there be furnished to them such security or indemnity as they may require to save each of them and any Paying Agent harmless. Matured Coupons not in default (including Coupons maturing on the Conversion Date) will be payable against surrender thereof, and matured Coupons previously surrendered and in default will continue to be payable, notwithstanding the exercise of the right of conversion by the Holder of the Security to which the Coupon appertains. Accrued interest 86 from the immediately preceding Interest Payment Date until the Conversion Date (and Additional Amounts, if any, thereon) will be paid, through the Paying Agent, in the same manner as regular payments of interest and as provided in Section 307, within five Business Days after the Conversion Date.. The Company's delivery to the Holder of the fixed number of shares of Common Stock (or cash or Guarantor Common Stock in lieu thereof, as provided in this Indenture) into which a Definitive Security is convertible will be deemed to satisfy the Company's obligation to pay the principal amount of the Security. Definitive Securities shall be deemed to have been converted immediately prior to the close of business on the day of surrender of such Securities for conversion (accompanied by a duly signed and completed conversion notice as contemplated above) in accordance with the foregoing provisions, and at such time the rights of the Holders of such Securities as Holders shall cease, and the Person or Persons entitled to receive the Common Stock deliverable upon conversion shall be treated for all purposes as the record holder or holders of such Common Stock at such time; provided, however, that if the Company exercises -------- ------- the Cash Settlement Option or the Stock Settlement Option, then the Person or Persons who were to receive the Common Stock upon conversion shall not be deemed to have ever been a record holder of the Common Stock as to which the Cash Settlement Option or the Stock Settlement Option has been exercised and provided, further, that in the event the Company exercises the Stock Settlement - -------- ------- Option, the Person or Persons who elected to convert shall be treated as the record holder of Guarantor Common Stock deliverable to such Person or Persons on the date the Company exercises the Stock Settlement Option. Subject to Section 1201, as promptly as practicable on or after the Conversion Date, the Company shall issue and deliver to the Trustee, for delivery to the Holder, a certificate or certificates for the number of full shares of Common Stock issuable upon conversion, together with payment in lieu of any fraction of a share, as provided in Section 1203. In the case of any Security which is converted in part only, upon such conversion the Company shall execute and the Trustee shall authenticate and deliver to the Holder thereof, at the expense of the Company, a new Security or Securities of authorized denominations in an aggregate principal amount equal to the unconverted portion of the principal amount of such Security. A Security may be converted in part, but only if the principal amount of such Security to be converted is any integral multiple of U.S. $1,000 and the principal amount of such security to remain Outstanding after such conversion is equal to U.S. $1,000 or any integral multiple of $1,000 in excess thereof. Section 1203. Fractions of Shares. ------------------- No fractional shares of Common Stock shall be issued upon conversion of any Definitive Security. If more than one Definitive Security shall be surrendered for conversion at one time by the same Holder, the number of full shares which shall be issuable upon conversion thereof shall be computed on the basis of the aggregate principal amount of the Definitive Securities (or specified portions thereof) so surrendered. Instead of any fractional share of Common Stock which would otherwise be issuable upon conversion of any Definitive Security or Securities (or specified portions thereof), the Company shall calculate and pay a cash adjustment in respect of such fraction (calculated to the nearest 1/100th of a share) in an amount equal to the same fraction of the current Closing Price Per Share (calculated in accordance with Section 1204 (6) 87 below) at the close of business on the Conversion Date. Such cash payments shall, in the case of a conversion of Bearer Securities, be made to an address outside of the United States. Section 1204. Adjustment of Conversion Price. ------------------------------ The Conversion Price shall be subject to adjustment from time to time as follows: (1) In case the Company shall pay or make a dividend or other distribution on any class of capital stock of the Company in shares of Common Stock, the Conversion Price in effect at the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares of Common Stock constituting such dividend or other distribution, such reduction to become effective at the opening of business on the day following the date fixed for such determination. For the purposes of this paragraph (1), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company. (2) In case at any time the Company shall issue rights, options or warrants to all holders of its Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the then current market price per share (determined as provided in paragraph (6) of this Section) of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options or warrants, the Conversion Price in effect at the opening of business on the day following the date fixed for such determination shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock which the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market price and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock so offered for subscription or purchase, such reduction to become effective at the opening of business on the day following the date fixed for such determination; provided, -------- however, that if an adjustment to the Conversion Price is made and any or all of - ------- such rights, options and warrants are not exercised, then a corresponding reversing adjustment of the Conversion Price shall be made, on an equitable basis, to take account of such event. For the purposes of this paragraph (2), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company will not issue any rights or warrants in respect of shares of Common Stock held in the treasury of the Company. 88 (3) In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the Conversion Price in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately reduced, and, conversely, in case outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, the Conversion Price in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately increased, such reduction or increase, as the case may be, to become effective at the opening of business on the day following the day upon which such subdivision or combination becomes effective. (4) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock, cash or assets (including securities, but excluding any (i) rights, options or warrants referred to in paragraph (2) of this Section, (ii) any dividend or distribution paid exclusively in cash out of the retained earnings of the Company, (iii) any dividend or distribution referred to in paragraph (1) of this Section and (iv) shares issued upon any merger or consolidation to which Section 1211 applies), the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the close of business on the date fixed for the determination of stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (6) of this Section) of the Common Stock on the date fixed for such determination less the then fair market value (as determined by the Board of Directors of the Company, whose determination shall be conclusive and described in a Company Board Resolution filed with the Trustee) of the portion of the assets, shares or evidences of indebtedness so distributed applicable to one share of Common Stock and the denominator shall be such current market price per share of the Common Stock, such adjustment to become effective at the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such distribution. (5) The reclassification of Common Stock into securities including other than Common Stock (other than any reclassification upon a consolidation or merger to which Section 1211 applies) shall be deemed to involve (a) a distribution of such securities other than Common Stock to all holders of Common Stock (and the effective date of such reclassification shall be deemed to be "the date fixed for the determination of stockholders entitled to receive such distribution" and "the date fixed for such determination" within the meaning of paragraph (4) of this Section), and (b) a subdivision or combination, as the case may be, of the number of shares of Common Stock outstanding immediately prior to such reclassification into the number of shares of Common Stock outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be "the day upon which such subdivision becomes effective" or "the day upon which such combination becomes effective", as the case may be, and "the day upon which such subdivision or combination becomes effective," within the meaning of paragraph (3) of this Section). (6) For the purpose of any computation under paragraphs (2) and (4) of this Section 1204, the current market price per share of Common Stock on any date shall be calculated by the Company and be deemed to be the average of the daily Closing Prices Per 89 Share for the five consecutive Trading Days selected by the Company commencing not more than 10 Trading Days before, and ending not later than, the earlier of the day in question and the day before the "ex date" with respect to the issuance or distribution requiring such computation. For purposes of this paragraph, the term "ex date," when used with respect to any issuance or distribution, means the first date on which the Common Stock trades regular way in the applicable securities market or on the applicable securities exchange without the right to receive such issuance or distribution. (7) No adjustment in the Conversion Price shall be required unless such adjustment (plus any adjustments not previously made by reason of this paragraph (7)) would require an increase or decrease of at least one percent in such Conversion Price; provided, however, that any adjustments which by reason -------- ------- of this paragraph (7) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Article shall be made to the nearest cent or to the nearest one-thousandth of a share, as the case may be. (8) The Company may make such reductions in the Conversion Price, for the remaining term of any series of Securities or any shorter term, in addition to those required by paragraphs (1), (2), (3) and (4) of this Section 1204, as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes. Section 1205. Notice of Adjustments of Conversion Price. ----------------------------------------- Whenever the Conversion Price is adjusted as herein provided: (1) the Company shall compute the adjusted Conversion Price in accordance with Section 1204 and shall prepare a certificate signed by the Treasurer of the Company setting forth the adjusted Conversion Price and showing in reasonable detail the facts upon which such adjustment is based, and such certificate shall promptly be filed with the Trustee and with each Conversion Agent; and (2) a notice stating that the Conversion Price has been adjusted and setting forth the adjusted Conversion Price shall forthwith be required, and as soon as practicable after it is required, such notice shall be provided by the Company to all Holders in accordance with Section 106. Neither the Trustee nor any Conversion Agent shall be under any duty or responsibility with respect to any such certificate or the information and calculations contained therein, except to exhibit the same to any Holder of Securities desiring inspection thereof at its office during normal business hours. 90 Section 1206. Notice of Certain Corporate Action. ---------------------------------- In case: (a) the Company shall declare a dividend (or any other distribution) on its Common Stock payable otherwise than exclusively in cash out of the retained earnings of the Company; or (b) the Company shall authorize the granting to the holders of its Common Stock of rights, options or warrants to subscribe for or purchase any shares of capital stock of any class or of any other rights (other than rights, options or warrants to subscribe for or purchase any shares of capital stock of any class or of any other rights of a corporation, a majority of each class of common stock of which is owned, directly or indirectly, by the Company or the Guarantor); or (c) of any reclassification of the Common Stock of the Company (other than a subdivision or combination of its outstanding shares of Common Stock), or of any consolidation or merger to which the Company is a party and for which approval of the stockholders of the Company is required pursuant to applicable corporate law, or of the sale or transfer of all or substantially all of the assets of the Company(; or (d) of the voluntary or involuntary dissolution, liquidation or winding up of the Company; then the Company shall cause to be filed at each office or agency maintained for the purpose of conversion of Securities pursuant to Section 1002, and shall cause to be provided to all Holders in accordance with Section 106, at least 20 days (or 10 days in any case specified in clause (a) or (b) above) prior to the applicable record, expiration or effective date hereinafter specified, a notice stating (y) the date on which a record is to be taken for the purpose of such dividend, distribution, rights, options or warrants, or, if a record is not to be taken, the date as of which the holders of Common Stock of record to be entitled to such dividend, distribution, rights, options or warrants are to be determined, or (z) the date on which such reclassification, consolidation, merger, share exchange, conveyance, transfer, sale, lease, dissolution, liquidation or winding up is expected to become effective, and the date as of which it is expected that holders of Common Stock of record shall be entitled to exchange their shares of Common Stock for securities, cash or other property deliverable upon such reclassification, consolidation, merger, share exchange, conveyance, transfer, sale, lease, dissolution, liquidation or winding up. If at the time the Trustee shall not be the Conversion Agent, a copy of such notice and any notice referred to in the following paragraph shall also forthwith be filed by the Company with the Trustee. Section 1207. Company to Reserve Common Stock. ------------------------------- The Company shall at all times reserve and keep available, free from preemptive rights, out of its authorized but unissued Common Stock, for the purpose of effecting the conversion of Securities of any series, the full number of shares of Common Stock then issuable upon the conversion of all Outstanding Securities of such series. 91 Section 1208. Taxes on Conversions. -------------------- The Company will pay any and all stamp and similar taxes and duties that may be payable in respect of the issue or delivery of shares of Common Stock on conversion of Securities pursuant hereto. The Company shall not, however, be required to pay any tax which may be payable in respect of any transfer involved in the issue and delivery of shares of Common Stock in a name other than that of the Holder of the Security or Securities to be converted, and no such issue or delivery shall be made unless and until the Person requesting such issue has paid to the Company the amount of any such tax, or has established to the satisfaction of the Company that such tax has been paid. Section 1209. Covenant as to Common Stock. --------------------------- The Company agrees that all shares of Common Stock which may be delivered upon conversion of Securities, upon such delivery, will have been duly authorized and validly issued and will be fully paid and nonassessable and, except as provided in Section 1208, the Company will pay all stamp and similar taxes, liens and charges with respect to the issue thereof. Section 1210. Cancellation of Converted Securities. ------------------------------------ All Securities delivered for conversion shall be delivered to the Trustee or the Paying Agent or its agent to be canceled by or at the direction of the Trustee, which shall dispose of the same as provided in Section 309. Section 1211. Provision in Case of Consolidation, Merger or Sale of Assets. ------------------------------------------------------------ In case of any consolidation of the Company with, or merger of the Company into, any other Person, any merger of another Person into the Company (other than a merger which does not result in any reclassification, conversion, exchange or cancellation of outstanding shares of Common Stock of the Company) or any sale or transfer of all or substantially all of the assets of the Company, the Person formed by such consolidation or resulting from such merger or which acquires such assets, as the case may be, shall execute and deliver to the Trustee a supplemental indenture providing that the Holder of each Security then Outstanding shall have the right thereafter, during the period such Security shall be convertible as specified in Section 1201, to convert such Security only into the kind and amount of securities, cash and other property receivable upon such consolidation, merger, sale or transfer by a holder of the number of shares of Common Stock of the Company into which such Security might have been converted immediately prior to such consolidation, merger, sale or transfer. Such supplemental indenture shall provide for adjustments which, for events subsequent to the effective date of such supplemental indenture, shall be as nearly equivalent as may be practicable to the adjustments provided for in this Article Twelve. If in the case of any such consolidation, merger, sale or transfer, the stock or other securities and property receivable by a Holder of the Securities includes stock or other securities and property of a corporation other than the successor or purchasing corporation, then such supplemental indenture shall also be executed by such other corporation and shall contain such additional provisions to protect the interests of the Holders of 92 the Securities as the Board of Directors of the Company shall reasonably consider necessary. The above provisions of this Section 1211 shall similarly apply to successive consolidations, mergers, sales or transfers. Notice of the execution of such a supplemental indenture shall be given by the Company to the Holder of each Security as provided in Section 106 promptly upon such execution. Section 1212. Compliance with Governmental Requirements. The Company covenants ----------------------------------------- that if any shares of Common Stock required to be reserved for purposes of conversion of Securities hereunder require registration or listing with or approval of any governmental authority under any Federal or State law, pursuant to the Securities Act or the Exchange Act , or any national or regional securities exchange or other trading market on which the Common Stock is listed at the time of delivery of any Common Stock, before such shares may be issued upon conversion, the Company will use its best efforts to cause such shares to be duly registered, listed or approved, as the case may be. ARTICLE THIRTEEN SINKING FUNDS Section 1301. Applicability of Article. ------------------------ The provisions of this Article Thirteen shall be applicable to any sinking fund for the retirement of Securities of a series, except as otherwise permitted or required in or pursuant to this Indenture or any Security of such series issued pursuant to this Indenture. 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 such series is herein referred to as an "optional sinking fund payment." If provided for by the terms of Securities of any series, the cash amount of any sinking fund payment may be subject to reduction as provided in Section 1302. 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 and this Indenture. Section 1302. Satisfaction of Sinking Fund Payments With Securities. ----------------------------------------------------- The Company or the Guarantor may, in satisfaction of all or any part of any sinking fund payment with respect to the Securities of any series to be made pursuant to the terms of such Securities (1) deliver Outstanding Securities of such series (other than any of such Securities previously called for redemption or any of such Securities in respect of which cash shall have been released to the Company), together in the case of any Bearer Securities of such series with all unmatured Coupons appertaining thereto, and (2) apply as a credit Securities of such series which have been redeemed either at the election of the Company pursuant to the terms of such series of Securities or through the application of permitted optional sinking fund payments 93 pursuant to the terms of such Securities, provided that such Securities have not -------- ---- been previously so credited. Such Securities shall be received and credited for such purpose by the Trustee at the Redemption Price specified in such Securities for redemption through operation of the sinking fund and the amount of such sinking fund payment shall be reduced accordingly. If as a result of the delivery or credit of Securities of any series in lieu of cash payments pursuant to this Section 1302, the principal amount of Securities of such series to be redeemed in order to exhaust the aforesaid cash payment shall be less than $100,000, the Trustee need not call Securities of such series for redemption, except upon Company Request, and such cash payment shall be held by the Trustee or a Paying Agent and applied to the next succeeding sinking fund payment, provided, however, that -------- ------- the Trustee or such Paying Agent shall at the request of the Company from time to time pay over and deliver to the Company any cash payment so being held by the Trustee or such Paying Agent upon delivery by the Company to the Trustee of Securities of that series purchased by the Company having an unpaid principal amount equal to the cash payment requested to be released to the Company. Section 1303. Redemption of Securities for Sinking Fund. ----------------------------------------- Not less than 75 days prior to each sinking fund payment date for any series of Securities, the Company shall deliver to the Trustee an Officers' Certificate specifying the amount of the next ensuing mandatory 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 and crediting of Securities of that series pursuant to Section 1302, and the optional amount, if any, to be added in cash to the next ensuing mandatory sinking fund payment, and will also deliver to the Trustee any Securities to be so credited and not theretofore delivered. If such Officers' Certificate shall specify an optional amount to be added in cash to the next ensuing mandatory sinking fund payment, the Company shall thereupon be obligated to pay the amount therein specified. Not more than 75 days or less than 45 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 FOURTEEN GUARANTEES Section 1401. Guarantees. ---------- Except as otherwise contemplated by Section 1403 below, the Guarantor hereby unconditionally guarantees to each Holder of a Security authenticated and delivered by the Trustee, and to the Trustee on behalf of such Holder, the due and punctual payment of the 94 principal of and any premium and interest on and any Additional Amounts, if any, on such Security and the due and punctual payment of any sinking fund or analogous payments provided for pursuant to the terms of such Security, when and as the same shall become due and payable, whether at the Stated Maturity, by declaration of acceleration, call for redemption, repayment at the option of the Holder or otherwise, in accordance with the terms of such Security and of this Indenture, and any and all other amounts owed by the Company to the Trustee under the terms of this Indenture. The Guarantor further unconditionally guarantees to the Trustee the Company's obligations under Section 606 herein. In case of the failure of the Company punctually to make any such payment, the Guarantor hereby agrees to cause such payment to be made punctually when and as the same shall become due and payable, whether at the Stated Maturity or by declaration of acceleration, call for redemption, repayment at the option of the Holder or otherwise, and as if such payment were made by the Company. The Guarantor hereby agrees that its obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of such Security or this Indenture, the absence of any action to enforce the same, any waiver or consent by the Holder of such Security or by the Trustee with respect to any provisions thereof or of this Indenture, the obtaining of any judgment against the Company or any action to enforce the same or any other circumstances which might otherwise constitute a legal or equitable discharge or defense of a guarantor. The Guarantor hereby waives the benefits of diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest or notice with respect to such Security or the indebtedness evidenced thereby or with respect to any sinking fund payment required pursuant to the terms of such Security and all demands whatsoever, and covenants that the Guarantees will not be discharged in respect of such Security except by complete performance of the obligations contained in such Security and in this guarantee. The Guarantor hereby agrees that, in the event of a default in payment of principal (or premium, if any) or interest or Additional Amounts, if any, on such Security, or a default in any sinking fund or analogous payment referred to therein, legal proceedings may be instituted by the Trustee on behalf of, or by, the Holder of such Security, on the terms and conditions set forth in this Indenture, directly against the Guarantor to enforce the Guarantees without first proceeding against the Company. The Guarantor shall be subrogated to all rights of the Holders of the Securities of a particular series against the Company in respect of any amounts paid by the Guarantor on account of such Security pursuant to the provisions of the Guarantees or this Indenture; provided, however, that the Guarantor shall -------- ------- not be entitled to enforce or to receive any payments arising out of, or based upon, such right of subrogation until the principal of (and premium, if any) and interest and Additional Amounts, if any, on all Securities of such series issued hereunder shall have been paid in full. Section 1402. Execution and Delivery of Guarantees. ------------------------------------ The Guarantees to be endorsed on the Securities of each series shall include the terms of the Guarantee set forth in Section 1401 (except that references to premium and interest need be included only if any premium or interest, respectively, is provided for in the terms of such series) and any other terms that may be set forth in the form established pursuant to Section 202 with 95 respect to such series. The Guarantor hereby agrees to execute the Guarantees, in a form established pursuant to Section 202, to be endorsed on each Security authenticated and delivered by the Trustee. The Guarantees shall be executed on behalf of the Guarantor by its Chairman of the Board, a Vice Chairman of the Board, its President or one of its Vice Presidents, 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 Guarantees may be manual or facsimile. Guarantees bearing the manual or facsimile signatures of individuals who were at any time the proper officers of the Guarantor shall bind the Guarantor, notwithstanding that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Guarantees or did not hold such offices at the date of such Guarantees. The delivery of any Security by the Trustee, after the authentication thereof hereunder, shall constitute due delivery of the Guarantee endorsed thereon on behalf of the Guarantor. The Guarantor hereby agrees that its Guarantee set forth in Section 1401 shall remain in full force and effect notwithstanding any failure to endorse a Guarantee on any Security. Section 1403. Guarantees Optional. ------------------- Notwithstanding anything to the contrary in this Indenture, if so provided in the terms of any series of Securities, such series of Securities may be issued without the Guarantees contemplated by this Article Fourteen. In such case, any and all references to the "Guarantees" or the "Guarantor" (including the provisions relating thereto) throughout this Indenture shall be inapplicable to such series. ARTICLE FIFTEEN REPAYMENT AT THE OPTION OF HOLDERS Section 1501. Applicability Of Article. Repayment of Securities of any ------------------------ series that are convertible into Common Stock pursuant to Article Twelve before their Stated Maturity at the option of Holders thereof shall be made in accordance with the terms of such Securities, if any, and (except as otherwise specified by the terms of such series established pursuant to Section 301) in accordance with this Article Fifteen. Section 1502. Repayment Of Securities. Securities of any series subject to ----------------------- repayment in whole or in part (which shall be in a principal amount hereof which is U.S. $1,000 or an integral multiple thereof) at the option of the Holders thereof on any Repayment Date (as defined below) will, unless otherwise provided in the Company's Board Resolutions or Officers' Certificate establishing such series, be repaid at a price equal to the principal amount thereof, together with interest and Additional Amounts, if any (the "Repayment Price"), if a --------------- Repayment Event shall occur or have occurred. For purposes hereof a "Repayment --------- Event" shall have occurred if the Common Stock (or other equity securities into - ----- which such series of Securities is then 96 convertible) is neither listed for trading on a United States national securities exchange, the Nasdaq National Market nor approved for trading on an established automated over-the-counter trading market in the United States. The "Repayment Date" with respect to any Repayment Event shall be the ninetieth -------------- (90th) day after the later of the Exchange Date or the date a Repayment Event has occurred. The Company covenants that at or prior to 10:00 a.m., Eastern Time, on the Repayment Date it will 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 in Dollars sufficient to pay the principal (or, if so provided by the terms of the Securities of any series, a percentage of the principal) of, and (except if the Repayment Date shall be an Interest Payment Date) accrued interest and Additional Amounts, if any, on, all the Securities or portions thereof, as the case may be, to be repaid on such date. Section 1503. Notice of Repayment. Unless the Company shall have ------------------- theretofore called for redemption all of the Outstanding Securities of such series, on or before the 30th day after the later of the Exchange Date and the occurrence of a Repayment Event, the Company or, at the request and expense of the Company, the Trustee shall give notice to all Holders of Securities entitled to repayment pursuant to terms of such Securities established in accordance with Section 301, in the manner provided in Section 106 (the "Repayment Notice"), ---------------- that a Repayment Event has occurred and of the repayment right set forth herein arising as a result thereof. If applicable, the Company shall also deliver a copy of the Repayment Notice to the Trustee. All notices of repayment shall identify the Securities eligible for repayment and shall state: (1) the Repayment Date, (2) the date by which the repayment right must be exercised, (3) the Repayment Price, (4) the Conversion Price then in effect, the date on which the right to convert the Securities to be repaid will terminate and the place or places where such Securities, together (in the case of Bearer Securities) with all Coupons appertaining thereto, if any, maturing after the Repayment Date, may be surrendered for conversion, (5) a description of the procedure which a Holder must follow to exercise a repayment right and the place or places where such Securities, together (in the case of Bearer Securities) with all Coupons appertaining thereto, if any, maturing after the Repayment Date, are to be surrendered for payment and accrued interest and Additional Amounts, if any, pertaining thereto, and (6) that, unless otherwise specified in such notice, Bearer Securities of any series, if any, surrendered for repayment must be accompanied by all Coupons maturing subsequent to the Repayment Date or the amount of any such missing Coupon or Coupons will be deducted from 97 any amount due to such Holder, unless security or indemnity satisfactory to the Company, the Trustee and any Paying Agent is furnished. Section 1504. Exercise Of Option. Securities of any series subject to ------------------ repayment at the option of the Holders thereof will contain an "Option to Elect Repayment" form substantially in the form of Exhibit F, on the reverse of such --------- Securities. In order for any Security to be repaid at the option of the Holder, the Trustee must receive at the Place of Payment therefor specified in the terms of such Security (or at such other place or places of which the Company shall from time to time notify the Holders of such Securities) not earlier than 60 days nor later than 30 days prior to the Repayment Date (1) the Security so providing for such repayment together with the "Option to Elect Repayment" form on the reverse thereof duly completed by the Holder (or by the Holder's attorney duly authorized in writing) or (2) a telegram, facsimile transmission or a letter from a member of a national securities exchange or the National Association of Securities Dealers, Inc. ("NASD"), or a commercial bank or trust company in the United States setting forth the name of the Holder of the Security, the principal amount of the Security, the principal amount of the Security to be repaid, the CUSIP number, if any, or a description of the tenor and terms of the Security, a statement that the option to elect repayment is being exercised thereby and a guarantee that the Security to be repaid, together with the duly completed form entitled "Option to Elect Repayment" on the reverse of the Security, will be received by the Trustee not later than the fifth Business Day after the date of such telegram, facsimile transmission or letter; provided, however, that such telegram, facsimile transmission or letter shall - -------- ------- only be effective if such Security and form duly completed are received by the Trustee by such fifth Business Day. If less than the entire principal amount of such Security is to be repaid in accordance with the terms of such Security, the principal amount of such Security to be repaid, in increments of the minimum denomination for Securities of such series, and the denomination or denominations of the Security or Securities to be issued to the Holder for the portion of the principal amount of such Security surrendered that is not to be repaid, must be specified. The principal amount of any Security providing for repayment at the option of the Holder thereof may not be repaid in part if, following such repayment, the unpaid principal amount of such Security would be less than the minimum authorized denomination of Securities of the series of which such Security to be repaid is a part. Except as otherwise may be provided by the terms of any Security providing for repayment at the option of the Holder thereof, exercise of the repayment option by the Holder shall be irrevocable unless waived by the Company. Section 1505. When Securities Presented For Repayment Become Due And ------------------------------------------------------ Payable. If Securities of any series providing for repayment at the option of - ------- the Holders thereof shall have been surrendered as provided in this Article Fifteen and as provided by or pursuant to the terms of such Securities, such Securities or the portions thereof, as the case may be, to be repaid shall become due and payable and shall be paid by the Company on the Repayment Date therein specified, and on and after such Repayment Date (unless the Company shall default in the payment of such Securities on such Repayment Date) such Securities shall, if the same were interest-bearing, cease to bear interest and the Coupons for such interest appertaining to any Bearer Securities so to be repaid, except to the extent provided below, shall be void. Upon surrender of any such Security for repayment in accordance with such provisions, together with all Coupons, if any, appertaining thereto maturing after the Repayment Date, the principal amount of such Security so to be repaid shall be paid by the Company, together with accrued 98 interest and Additional Amounts, if any, to the Repayment Date; provided, -------- however, that Coupons whose Stated Maturity is on or prior to the Repayment Date - ------- shall be payable only at an office or agency located outside the United States (except as otherwise provided in Section 1002) and, unless otherwise specified pursuant to Section 301, only upon presentation and surrender of such Coupons; and provided, further, that, in the case of Registered Securities, installments of interest and Additional Amounts, if any, whose Stated Maturity is on or prior to the Repayment Date shall be payable (but without interest thereon, unless the Company shall default in the payment thereof) 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 Bearer Security surrendered for repayment shall not be accompanied by all appurtenant Coupons maturing after the Repayment Date, such Security may be paid after deducting from the amount payable therefor as provided in Section 1502 an amount equal to the face amount of all such missing Coupons, or the surrender of such missing Coupon or Coupons may be waived by the Company and the Trustee if there be furnished to them such security or indemnity as they may require to save each of them and any Paying Agent harmless. If thereafter the Holder of such Security shall surrender to the Trustee or any Paying Agent any such missing Coupon in respect of which a deduction shall have been made as provided in the preceding sentence, such Holder shall be entitled to receive the amount so deducted; provided, however, that interest represented by Coupons -------- ------- shall be payable only at an office or agency located outside the United States (except as otherwise provided in Section 1002) and, unless otherwise specified as contemplated by Section 301, only upon presentation and surrender of those Coupons. If the principal amount of any Security surrendered for repayment shall not be so repaid upon surrender thereof, such principal amount (together with interest, if any, thereon accrued to such Repayment Date) shall, until paid, bear interest from the Repayment Date at the rate of interest or yield to maturity (in the case of Original Issue Discount Securities ) set forth in such Security. Section 1506. Securities Repaid In Part. Upon surrender of any Registered ------------------------- Security which is to be repaid in part only, the Company shall execute and the Trustee shall authenticate and deliver to the Holder of such Security, without service charge and at the expense of the Company, a new Registered Security or Securities of the same series, of any authorized denomination specified by the Holder, in an aggregate principal amount equal to and in exchange for the portion of the principal of such Security so surrendered which is not to be repaid. ARTICLE SIXTEEN MEETINGS OF HOLDERS OF SECURITIES Section 1601. Purposes for Which Meetings May Be Called. ----------------------------------------- A meeting of Holders of Securities of any series may be called at any time and from time to time pursuant to this Article Sixteen to make, give or take any request, demand, authorization, 99 direction, notice, consent, waiver or other Act provided by this Indenture to be made, given or taken by Holders of Securities of such series. Section 1602. Call, Notice and Place of Meetings. ---------------------------------- (1) The Trustee may at any time call a meeting of Holders of Securities of any series for any purpose specified in Section 1601, to be held at such time and at such place in the Borough of Manhattan, The City of New York, or, if Securities of such series have been issued in whole or in part as Bearer Securities, in London or in such place outside the United States as the Trustee shall determine. Notice of every meeting of Holders of Securities of any series, setting forth the time and the place of such meeting and in general terms the action proposed to be taken at such meeting, shall be given, in the manner provided in Section 106, not less than 21 nor more than 180 days prior to the date fixed for the meeting. (2) In case at any time the Company (by or pursuant to a Board Resolution) or the Holders of at least 10% in principal amount of the Outstanding Securities of any series shall have requested the Trustee to call a meeting of the Holders of Securities of such series for any purpose specified in Section 1601, by written request setting forth in reasonable detail the action proposed to be taken at the meeting, and the Trustee shall not have mailed notice of or made the first publication of the notice of such meeting within 21 days after receipt of such request (whichever shall be required pursuant to Section 106) or shall not thereafter proceed to cause the meeting to be held as provided herein, then the Company or the Holders of Securities of such series in the amount above specified, as the case may be, may determine the time and the place in the Borough of Manhattan, The City of New York, or, if Securities of such series are to be issued as Bearer Securities, in London for such meeting and may call such meeting for such purposes by giving notice thereof as provided in clause (1) of this Section. Section 1603. Persons Entitled to Vote at Meetings. ------------------------------------ To be entitled to vote at any meeting of Holders of Securities of any series, a Person shall be (1) a Holder of one or more Outstanding Securities of such series, or (2) a Person appointed by an instrument in writing as proxy for a Holder or Holders of one or more Outstanding Securities of such series by such Holder or Holders. The only Persons who shall be entitled to be present or to speak at any meeting of Holders of Securities of any series shall be the Persons entitled to vote at such meeting and their counsel, any representatives of the Trustee and its counsel and any representatives of the Company and its counsel. Section 1604. Quorum; Action. -------------- The Persons entitled to vote a majority in principal amount of the Outstanding Securities of a series shall constitute a quorum for a meeting of Holders of Securities of such series; provided, however, that if any action is -------- ------- to be taken at such meeting with respect to a consent or waiver which this Indenture expressly provides may be given by the Holders of at least 66-2/3% in principal amount of the Outstanding Securities of a series, the Persons entitled to vote 66- 100 2/3% in principal amount of the Outstanding Securities of such series constitute a quorum. In the absence of a quorum within 30 minutes after the time appointed for any such meeting, the meeting shall, if convened at the request of Holders of Securities of such series, be dissolved. In any other case the meeting may be adjourned for a period of not less than 10 days as determined by the chairman of the meeting prior to the adjournment of such meeting. In the absence of a quorum at any such adjourned meeting, such adjourned meeting may be further adjourned for a period of not less than 10 days as determined by the chairman of the meeting prior to the adjournment of such adjourned meeting. Notice of the reconvening of any adjourned meeting shall be given as provided in Section 1602(1), except that such notice need be given only once not less than five days prior to the date on which the meeting is scheduled to be reconvened. Notice of the reconvening of an adjourned meeting shall state expressly the percentage, as provided above, of the principal amount of the Outstanding Securities of such series which shall constitute a quorum. Except as limited by the proviso to Section 902, any resolution presented to a meeting or adjourned meeting duly reconvened at which a quorum is present as aforesaid may be adopted only by the affirmative vote of the Holders of a majority in principal amount of the Outstanding Securities of that series; provided, however, that, except as limited by the proviso to Section 902, any - -------- ------- resolution with respect to any consent or waiver which this Indenture expressly provides may be given by the Holders of at least 66-2/3% in principal amount of the Outstanding Securities of a series may be adopted at a meeting or an adjourned meeting duly convened and at which a quorum is present as aforesaid only by the affirmative vote of the Holders of 66-2/3% in principal amount of the Outstanding Securities of that series; and provided, further, that, except as limited by the proviso to Section 902, any resolution with respect to any request, demand, authorization, direction, notice, consent, waiver or other Act which this Indenture expressly provides may be made, given or taken by the Holders of a specified percentage, which is less than a majority, in principal amount of the Outstanding Securities of a series may be adopted at a meeting or an adjourned meeting duly reconvened and at which a quorum is present as aforesaid by the affirmative vote of the Holders of such specified percentage in principal amount of the Outstanding Securities of such series. Any resolution passed or decision taken at any meeting of Holders of Securities of any series duly held in accordance with this Section shall be binding on all the Holders of Securities of such series and the Coupons appertaining thereto, whether or not such Holders were present or represented at the meeting. Section 1605. Determination of Voting Rights; Conduct and Adjournment of ---------------------------------------------------------- Meetings. - -------- (1) Notwithstanding any other provisions of this Indenture, the Trustee may make such reasonable regulations as it may deem advisable for any meeting of Holders of Securities of such series in regard to proof of the holding of Securities of such series and of the appointment of proxies and in regard to the appointment and duties of inspectors of votes, the submission and examination of proxies, certificates and other evidence of the right to vote, and such other matters concerning the conduct of the meeting as it shall deem appropriate. Except as otherwise permitted or required by any such regulations, the holding of Securities shall be proved in the manner specified in Section 104 and the 101 appointment of any proxy shall be proved in the manner specified in Section 104 or by having the signature of the person executing the proxy witnessed or guaranteed by any trust company, bank or banker authorized by Section 104 to certify to the holding of Bearer Securities. Such regulations may provide that written instruments appointing proxies, regular on their face, may be presumed valid and genuine without the proof specified in Section 104 or other proof. (2) The Trustee shall, by an instrument in writing, appoint a temporary chairman of the meeting, unless the meeting shall have been called by the Company, the Guarantor or by Holders of Securities as provided in Section 1602(2), in which case the Company, the Guarantor or the Holders of Securities of the series calling the meeting, as the case may be, shall in like manner appoint a temporary chairman. A permanent chairman and a permanent secretary of the meeting shall be elected by vote of the Persons entitled to vote a majority in principal amount of the Outstanding Securities of such series represented at the meeting. (3) At any meeting, each Holder of a Security of such series or proxy shall be entitled to one vote for each $1,000 principal amount of Securities of such series held or represented by him; provided, however, -------- ------- that no vote shall be cast or counted at any meeting in respect of any Security challenged as not Outstanding and ruled by the chairman of the meeting to be not Outstanding. The chairman of the meeting shall have no right to vote, except as a Holder of a Security of such series or proxy. (4) Any meeting of Holders of Securities of any series duly called pursuant to Section 1602 at which a quorum is present may be adjourned from time to time by Persons entitled to vote a majority in principal amount of the Outstanding Securities of such series represented at the meeting; and the meeting may be held as so adjourned without further notice. Section 1606. Counting Votes and Recording Action of Meetings. ----------------------------------------------- The vote upon any resolution submitted to any meeting of Holders of Securities of any series shall be by written ballots on which shall be subscribed the signatures of the Holders of Securities of such series or of their representatives by proxy and the principal amounts and serial numbers of the Outstanding Securities of such series held or represented by them. The permanent chairman of the meeting shall appoint two inspectors of votes who shall count all votes cast at the meeting for or against any resolution and who shall make and file with the secretary of the meeting their verified written reports in triplicate of all votes cast at the meeting. A record, at least in triplicate, of the proceedings of each meeting of Holders of Securities of any series shall be prepared by the secretary of the meeting and there shall be attached to said record the original reports of the inspectors of votes on any vote by ballot taken thereat and affidavits by one or more persons having knowledge of the facts setting forth a copy of the notice of the meeting and showing that said notice was given as provided in Section 1602 and, if applicable, Section 1604. Each copy shall be signed and verified by the affidavits of the permanent chairman and secretary of the meeting and one such copy shall be delivered to the Company, another to the Guarantor, and another to the Trustee to be preserved by the Trustee, the latter to 102 have attached thereto the ballots voted at the meeting. Any record so signed and verified shall be conclusive evidence of the matters therein stated. ARTICLE SEVENTEEN [INTENTIONALLY OMITTED] ARTICLE EIGHTEEN [INTENTIONALLY OMITTED] 103 * * * 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. [Remainder of page intentionally left blank] 104 IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed, and their respective corporate seals to be hereunto affixed, all as of the day and year first above written. THERMOTREX CORPORATION By:_____________________________ Name: Title: (SEAL) Attest: ______________________ Secretary THERMO ELECTRON CORPORATION (SEAL) By:______________________________ Name: Title: Attest: ______________________ Secretary BANKERS TRUST COMPANY, as TRUSTEE By:_____________________________ (SEAL) Name: Title: Attest: _________________________ 105 STATE OF ) ) :SS.: COUNTY OF ) On the _____ day of ________________, 1997, before me personally came _______________, to me known, who, being by me duly sworn, did depose and say that he is a _____________ of ThermoTrex Corporation, a Delaware corporation, one of the corporations described in and which executed the foregoing instrument; that he knows the seal of said Corporation; that the seal affixed to said instrument is such Corporation's seal; that it was so affixed by authority of the Board of Directors of said Corporation; and that he signed his name thereto by like authority. ____________________________________ Notary Public [NOTARIAL SEAL] 106 STATE OF ) ) :SS.: COUNTY OF ) On the _____ day of ________________, 1997, before me personally came _______________, to me known, who, being by me duly sworn, did depose and say that he is a _____________ of Thermo Electron Corporation, a Delaware corporation, one of the corporations described in and which executed the foregoing instrument; that he knows the seal of said Corporation; that the seal affixed to said instrument is such Corporation's seal; that it was so affixed by authority of the Board of Directors of said Corporation; and that he signed his name thereto by like authority. ____________________________________ Notary Public [NOTARIAL SEAL] STATE OF ) ) :SS.: COUNTY OF ) On the ___ day of ________________, 1997, before me personally came _______________, to me known, who, being by me duly sworn, did depose and say that he is a _____________ of Bankers Trust Company, a New York banking corporation, one of the persons described in and who executed the foregoing instrument; that he knows the seal of said Corporation; that the seal affixed to said instrument is such Corporation's seal; that it was so affixed by authority of the Board of Directors of said Corporation; and that he signed his name thereto by like authority. ____________________________________ Notary Public [NOTARIAL SEAL] 107 EXHIBIT A --------- GUARANTEE For value received, Thermo Electron Corporation, a corporation organized under the laws of the State of Delaware (herein called the "Guarantor," which --------- term includes any successor corporation under the Indenture referred to in the Security upon which this Guarantee is endorsed), hereby unconditionally guarantees to the Holder of the Security upon which this Guarantee is endorsed and to the Trustee on behalf of the Trustee and such Holder the due and punctual payment of the principal of, premium, if any, and interest and Additional Amounts, if any, on such Security, any other amount due and payable pursuant to the terms of the Indenture and the due and punctual payment of the sinking fund or analogous payments referred to therein if any, when and as the same shall become due and payable, whether at the Stated Maturity, by declaration of acceleration, call for redemption, repayment at the option of the Holder or otherwise, according to the terms hereof and of the Indenture. In case of the failure of ThermoTrex Corporation a corporation organized under the laws of Delaware (herein called the "Company," which term includes any successor ------- corporation under such Indenture), punctually to make any such payment of principal, premium, if any, or interest or Additional Amounts, if any, the Guarantor hereby agrees to cause any such payment to be made punctually when and as the same shall become due and payable, whether at the Stated Maturity or by declaration of acceleration, call for redemption, repayment at the option of the Holder or otherwise, and as if such payment were made by the Company. The Guarantor hereby agrees that its obligations hereunder shall be as if it were principal debtor and not merely surety, and shall be absolute and unconditional, irrespective of, and shall be unaffected by, any invalidity, subordination, irregularity or unenforceability of such Security or such Indenture, any failure to enforce the provisions of such Security or such Indenture, or any waiver, modification or indulgence granted to the Company with respect thereto, by the Holder of such Security or the Trustee or any other circumstance which may otherwise constitute a legal or equitable discharge of a surety or guarantor. The Guarantor hereby waives the benefits of diligence, presentment, demand of payment, filing of claims with a court in the event of merger, insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest or notice with respect to such Security or the indebtedness evidenced thereby and all demands whatsoever, and covenants that this Guarantee will not be discharged except by strict and complete performance of the obligations contained in such Security and this Guarantee. The Guarantor hereby agrees that, in the event of a default in payment of principal of, premium, if any, and interest, and Additional Amounts, if any, on such Security, or default in any sinking fund or analogous payment referred to therein, legal proceedings may be instituted by the Trustee on behalf of, or by, the Holder of such Security, on the terms and conditions set forth in the Indenture, directly against the Guarantor to enforce this Guarantee without first proceeding against the Company. The Guarantor shall be subrogated to all rights of the Holder of such Security and the Trustee against the Company in respect of any amounts paid to such Holder by the Guarantor on account of such Security pursuant to the provisions of this Guarantee or the Indenture; provided, however, that the -------- ------- Guarantor shall not be entitled to enforce, or to receive any payments arising A-1 out of or based upon, such right of subrogation until the principal of, premium, if any, and interest and Additional Amounts, if any, on all Securities issued under such Indenture shall have been paid in full. Each Holder of a Security upon which this Guarantee is endorsed, by accepting the same, (a) agrees to and shall be bound by such provisions, (b) authorizes and directs the Trustee on his behalf to take such action as may be necessary or appropriate to effectuate the subordination so provided and (c) appoints the Trustee his, her or its attorney-in-fact for any and all such purposes. No reference herein to such Indenture and no provision of this Guarantee or of such Indenture shall alter or impair the guarantee of the Guarantor, which is absolute and unconditional, of the due and punctual payment of principal, premium (if any), and interest and Additional Amounts, if any, on the Security upon which this Guarantee is endorsed. This Guarantee shall not be valid or obligatory for any purpose until the certificate of authentication of the Security upon which this Guarantee is endorsed shall have been manually executed by or on behalf of the Trustee under such Indenture. All terms used in this Guarantee which are defined in such Indenture shall have the meanings assigned to them in such Indenture. This Guarantee shall be deemed to be a contract made under the laws of the Commonwealth of Massachusetts, and for all purposes shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts. IN WITNESS WHEREOF, the Guarantor has caused this Guarantee to be duly executed under its corporate seal and dated the date on the face hereof. THERMO ELECTRON CORPORATION Attest:_________________________ By: __________________________________ Title: _______________________________ A-2 EXHIBIT B --------- This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture. NAME OF TRUSTEE, as Trustee *Dated: By:_________________________________ Authorized Officer ______________________________ * For Registered Securities Only B-1 EXHIBIT C --------- CONVERSION NOTICE (a) For Bearer Securities: The undersigned Holder of this Security hereby irrevocably exercises the option to convert this Security, or any portion of the principal amount hereof (which is an integral multiple of U.S. $1,000 below designated) into shares of Common Stock in accordance with the terms of the Indenture referred to in this Security and directs that such shares, together with a check in payment for any fractional share and any Securities representing any unconverted principal amount hereof, be registered in the name of and delivered to the undersigned unless a different name has been indicated below. The address for payment of any such check must be outside the United States. If shares are to be registered in the name of a Person other than the undersigned, the undersigned will pay all transfer taxes payable with respect thereto. Dated: __________________ ___________________________________ Signature [MUST BE GUARANTEED IF STOCK IS TO BE ISSUED IN A NAME OTHER THAN THE REGISTERED HOLDER OF THE SECURITY] If shares are to be registered in HOLDER the name of and delivered to a Person other than the Holder, please print such Person's name and address: Please print name and address of Holder ___________________________________ ____________________________________ Name Name ___________________________________ ____________________________________ Address Address ___________________________________ ____________________________________ ___________________________________ ____________________________________ ___________________________________ ____________________________________ Social Security or other Taxpayer Social Security or other Taxpayer Identification Number, if any Identification Number, if any C-1 Name and address (outside the If only a portion of the Securities is to United States) to where any be converted, please indicate: check referred to in the first paragraph of this Conversion Notice should be mailed: 1. Principal amount to be converted: U.S. $___________________ __________________________ 2. Principal amount and denomination of Name Registered Securities representing unconverted principal amount to be issued: __________________________ Address Amount: U.S.$_________________ Denominations: U.S.$__________ (any integral multiple of U.S. $1,000) C-2 (b) For Registered Securities: The undersigned Holder of this Security hereby irrevocably exercises the option to convert this Security, or any portion of the principal amount hereof (which is an integral multiple of U.S. $1,000 below designated) into shares of Common Stock in accordance with the terms of the Indenture referred to in this Security, and directs that such shares, together with a check in payment for any fractional share and any Securities representing any unconverted principal amount hereof, be delivered to and be registered in the name of the undersigned unless a different name has been indicated below. If shares or Securities are to be registered in the name of a Person other than the undersigned, the undersigned will pay all transfer taxes payable with respect thereto. Dated:______________________________ _______________________________ Signature [MUST BE GUARANTEED IF STOCK IS TO BE ISSUED IN A NAME OTHER THAN THE REGISTERED HOLDER OF THE SECURITY] ____________________________________ Name ____________________________________ Address ____________________________________ Social Security or other Taxpayer Identification Number, if any C-3 If shares or Registered If only a portion of the Securities is to be Securities are to be converted, please indicate: registered in the name of a Person other than the 1. Principal amount to be converted: Holder, please print such Person's name and address: U.S. $___________________ __________________________ 2. Principal amount and denomination of Name Registered Securities representing unconverted principal amount to be issued. __________________________ Address Amount: U.S.$_________________ __________________________ Social security or other Denominations: Taxpayer Identification U.S.$__________ Number, if any (any integral multiple of U.S. $1,000) C-4 EXHIBIT D --------- Form of Certificate of Beneficial Ownership for Bearer Securities to be Provided to the Euroclear Operator or to Cedel Bank, societe anonyme CERTIFICATION ------------- U.S. $____________ THERMOTREX CORPORATION [Title of Securities] (the "Securities") This is to certify that as of the date hereof and except as set forth below, $___________ aggregate principal amount of the above-mentioned Securities held by you for our account are owned or, if this certificate is being delivered in connection with a payment of interest, were owned, by or on behalf of, (a) a person (other than a financial institution for purposes of resale during the restricted period) who is not a United States person; or (b) a United States person (other than a financial institution for purposes of resale during the restricted period) who is (i) a foreign branch of a United States financial institution or (ii) a United States person acquiring such Securities through the foreign branch of a United States financial institution and who for purposes of this certification holds such Securities through such financial institution on the date hereof, and, in the case of either (i) or (ii), such United States financial institution has agreed, for the benefit of the Company, to comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the United States Internal Revenue Code of 1986, as from time to time amended, and the regulations thereunder; or (c) a financial institution for purposes of resale during the restricted period and such financial institution has not acquired such Securities for purposes of resale directly or indirectly to a United States person or to a person within the United States or its possessions; and the undersigned has obtained a similar certificate from its member organizations on which this certificate is based; provided, however, that if the undersigned has actual knowledge that the information contained in such a certificate is false (and, absent documentary evidence that the beneficial owner of such Security is not a United States person, it will be deemed to have actual knowledge that such certificate is false if it has a United States address for such beneficial owner, other than a financial institution described above), the undersigned will not deliver a Security in temporary or definitive bearer form to the person who signed such certificate notwithstanding the delivery of such certificate to the undersigned. D-1 No. of Certificates Amount $1,000 Denomination __________________ = $________________ $10,000 Denomination __________________ = $________________ [Other Authorized __________________ = $________________ Denomination] Total Requested __________________ = $________________* As used herein, (i) "United States person" means a citizen or resident of the United States, a corporation, partnership or other entity created or organized in or under the laws of the United States, an estate the income of which is subject to United States Federal income taxation regardless of its source, any trust if a court within the United States is able to exercise primary supervision of the administration thereof and one or more United States fiduciaries have the authority to control all substantial decisions thereof, and any other person deemed a "United States person" or a "U.S. person" under the Internal Revenue Code of 1986, as amended, (ii) "United States" means the United States of America (including the States and the District of Columbia) and its territories and possessions, including Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the Northern Mariana Islands, (iii) "restricted period" means the period described in Section 1.163-5(c)(2)(i)(D)(7) of the United States Treasury Regulations, and (iv) "financial institution" means the persons described in Section 1. 165-12(c)(1)(v) of the United States Treasury Regulations. We undertake to advise you promptly by tested telex on or prior to the date on which you intend to submit your certification relating to the Securities held by you for our account in accordance with your operating procedures if any applicable statement herein is not correct on such date, and in the absence of any such notification it may be assumed that this certification applies as of such date. This certification excepts and does not relate to U.S.$_______________ of such interest in the above Securities in respect of which we are not able to certify and as to which we understand exchange and delivery of Definitive Securities cannot be made until we do so certify. ____________________________ * Must equal the amount stated in the first paragraph of this certificate. D-2 We understand that this certification is required in connection with certain tax laws and, if applicable, certain securities laws of the United States. In connection therewith, if administrative or legal proceedings are commenced or threatened in connection with which this certification is or would be relevant, we irrevocably authorize you to produce this certification or a copy hereof to any interested party in such proceedings. Dated: ___________________, ____ ** [Name] By:_________________________ Signature As,or as agent for, the beneficial owner[s] of the Securities to which this certificate relates. _________________________________ ** Not earlier than 15 days prior to the earlier of the date that definitive Bearer Security is delivered and the Exchange Date. D-3 EXHIBIT E --------- Form of Certificate to be Given by the Euroclear Operator and Cedel Bank, societe anonyme CERTIFICATION ------------- U.S.$ THERMOTREX CORPORATION [Title of Securities] (the "Securities") This is to certify that, based solely on certifications we have received in writing, by tested telex or electronic transmission from member organizations appearing in our records as persons being entitled to a portion of the principal amount set forth below or to interest payable on an interest payment date (our "Member Organizations"), substantially to the effect set forth in the Indenture relating to the above-captioned Securities, as of the date hereof, U.S. $_______________ aggregate principal amount of the above-captioned Securities is owned by persons that are not citizens or residents of the United States, United States domestic partnerships, United States domestic corporations, any estate the income of which is subject to United States Federal income taxation regardless of its source, any trust if a court within the United States is able to exercise primary supervision of the administration thereof and one or more United States fiduciaries have the authority to control all substantial decisions thereof, or any other person deemed a "United States person" or a "U.S. person" under the Internal Revenue Code of 1986, as amended and the regulations thereunder ("United States persons"). The following denominations of Bearer Securities are requested: No. of Certificates Amount $1,000 Denomination ___________________ = $________________ $10,000 Denomination ___________________ = $________________ [Other Authorized ___________________ = $________________ Denomination] Total Requested ___________________ = $________________* We further certify (i) that we are not making available herewith for exchange any portion of the temporary global Security excepted in such certifications and (ii) that as of the date hereof we have not received any notification from any of our Member Organizations to the effect that the statements made by such Member Organization with respect to any portion of the part submitted herewith for exchange are no longer true and cannot be relied upon as of the date __________________________ * Must equal the amount stated in the first paragraph of this certificate E-1 hereof. We further certify that interest payable on the interest payment dates on _________________and ______________________ will be paid with respect to U.S. $____________________ principal amount of the Securities with respect to which we have received from Member Organizations certificates substantially in the form set out in Exhibit D to the Indenture relating to the Securities that the Securities (a) are owned by a person (other than a financial institution for purposes of resale during the restricted period) who is not a United States person; (b) are owned by a United States person (other than a financial institution for purposes of resale during the restricted period) who is (i) a foreign branch of a United States financial institution or (ii) a United States person who acquired such Securities through the foreign branch of a United States financial institution and who for purposes of this certification holds such Securities through such financial institution on the date hereof and, in either case, such United States financial institution has agreed, for the benefit of the Company, to comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the United States Internal Revenue Code of 1986, as from time to time amended, and the regulations thereunder; or (c) are owned by a financial institution for purposes of resale during the restricted period and such financial institution has certified that it has not acquired such Securities for purposes of resale directly or indirectly to a United States person or to a person within the United States or its possessions . To the extent that we have knowledge that any of such certificates from a Member Organization is false and to the extent that we have not received with respect to any Securities such certificates from Member Organization, we are not requesting that payment be made for interest with respect thereto. We further certify that as of the date hereof we have not received any notification from any of our Member Organizations to the effect that the statements made by such Member Organization with respect to any interest payment on any portion of the principal amount of the Securities are no longer true and cannot be relied upon as of the date hereof. We further certify that under the rules of the undersigned organization, each Member Organization has agreed that any electronic certification shall have the effect of a signed certification and that all certifications shall be retained for at least four calendar years following the year in which the certifications are received in compliance with the rules set forth under Treas. Reg. 1.163-5(c)(2)(i)(D)(3)(i). We undertake that any interest received by us and not paid as provided above shall be returned to the Trustee for the above-captioned Securities immediately prior to the expiration of two years after such interest payment date in order to be repaid by such Trustee to the above issuer at the end of two years after such interest payment date. We understand that this certification is required in connection with certain tax laws and, if applicable, certain securities laws of the United States. In connection therewith, if administrative or legal proceedings are commenced or threatened in connection with which this certification is or would be relevant, we irrevocably authorize you to produce this certification to any interested party in such proceedings. E-2 As used herein, "United States" means the United States of America (including the States and the District of Columbia); and its territories and possessions, including Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the Northern Mariana Islands. As used herein, "restricted period" means the period described in Section 1.163-5(c)(2)(i)(D)(7) of the United States Treasury Regulations and "financial institution" means the persons described in Section 1.165-12(c)(1)(v) of the United States Treasury Regulations. Dated: ____________________, ____** Yours faithfully, [MORGAN GUARANTY TRUST COMPANY OF NEW YORK, BRUSSELS OFFICE, AS OPERATOR OF THE EUROCLEAR SYSTEM] [CEDEL BANK, SOCIETE ANONYME]*** By:____________________________ ___________________________ ** To be dated no earlier than the earlier of the date the definitive Bearer Security is delivered and the Exchange Date. *** Delete as appropriate. E-3 EXHIBIT F --------- OPTION TO ELECT REPAYMENT UPON A REPAYMENT EVENT To: ThermoTrex Corporation The undersigned owner of this Security hereby acknowledges receipt of a notice from ThermoTrex Corporation (the "Company") as to the occurrence of a Repayment Event with respect to the Common Stock of the Company and requests and instructs the Company to repay the entire principal amount of this Security, or the portion thereof (which is $1,000 or an integral multiple thereof) below designated, in accordance with the terms of the Indenture referred to in this Security at the Repayment Price (or the relevant percentage thereof), together with accrued interest to such date (except if the Repayment Date shall be an Interest Payment Date), to the holder hereof. Dated: ________________________ ________________________________ Signature*(s) Name: __________________________ Address:________________________ ________________________ [* Signature Guarantee Required] Principal amount to be repaid (if less than all): $__________ NOTICE: If this Security is issued in registered form, the above signatures of the holder(s) hereof must correspond with the name as it appears in the Security in every particular without alteration or enlargement or any change whatever. __________________ Social Security or Other Taxpayer Identification Number F-1 EX-4.2 4 FORM OF SUBORDINATED INDENTURE EXHIBIT 4.2 THERMOTREX CORPORATION, ISSUER AND THERMO ELECTRON CORPORATION, GUARANTOR TO BANKERS TRUST COMPANY, TRUSTEE INDENTURE DATED AS OF ________, 1997 SUBORDINATED DEBT SECURITIES ================================================================================ Reconciliation and Tie between Trust Indenture Act of 1939 (the "Trust Indenture Act") and Indenture
Trust Indenture Act Section Indenture Section --------------------------- ----------------- Section 310(a)(1)................................. 607 (a)(2)............................................ 607 (b)............................................... 608 Section 311....................................... 612 Section 312(a).................................... 701 (b)............................................... 702 (c)............................................... 702 Section 313(a).................................... 703 (b)(2)............................................ 703 (c)............................................... 703 (d)............................................... 703 Section 314(a).................................... 704 (c)(1)............................................ 102 (c)(2)............................................ 102 (e)............................................... 102 (f)............................................... 102 Section 315(a).................................... 601 (b)............................................... 602 (c)............................................... 601, 602 (d)............................................... 601 (e)............................................... 515 Section 316(a).................................... 101 (a)(1)(A)......................................... 502, 512 (a)(1)(B)......................................... 513 (b)............................................... 508 Section 317(a)(1)................................. 503 (a)(2)............................................ 504 (b)............................................... 1003 Section 318(a).................................... 108
Note: This reconciliation and tie shall not, for any purpose, be deemed to be part of the Indenture. Attention should also be directed to Section 318(c) of the Trust Indenture Act, which provides that the provisions of Sections 310 to and including 317 are a part of and govern every qualified indenture, whether or not physically contained herein. TABLE OF CONTENTS
ARTICLE ONE: DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION............................................ 2 Section 101. Definitions....................................................................................... 2 Section 102. Compliance Certificates and Opinions.............................................................. 15 Section 103. Form of Documents Delivered to Trustee............................................................ 16 Section 104. Acts of Holders................................................................................... 16 Section 105. Notices, Etc. to Trustee, Company and Guarantor................................................... 19 Section 106. Notice to Holders of Securities; Waiver........................................................... 19 Section 107. Language of Notices............................................................................... 20 Section 108. Conflict with Trust Indenture Act................................................................. 20 Section 109. Effect of Headings and Table of Contents.......................................................... 20 Section 110. Successors and Assigns............................................................................ 20 Section 111. Separability Clause............................................................................... 20 Section 112. Benefits of Indenture............................................................................. 21 Section 113. Governing Law..................................................................................... 21 Section 114. Legal Holidays.................................................................................... 21 Section 115. Taxes............................................................................................. 21 ARTICLE TWO: SECURITIES AND GUARANTEE FORMS..................................................................... 22 Section 201. Forms Generally................................................................................... 22 Section 202. Guarantee by Guarantor; Form of Guarantee......................................................... 23 Section 203. Form of Trustee's Certificate of Authentication................................................... 23 Section 204. Securities in Global Form......................................................................... 23 Section 205. Form of Conversion Notice......................................................................... 24 ARTICLE THREE: THE SECURITIES................................................................................... 24 Section 301. Amount Unlimited; Issuable in Series.............................................................. 24 Section 302. Currency; Denominations........................................................................... 28 Section 303. Execution, Authentication, Delivery and Dating.................................................... 28 Section 304. Temporary Securities.............................................................................. 30 Section 305. Registration, Transfer and Exchange............................................................... 33 Section 306. Mutilated, Destroyed, Lost and Stolen Securities.................................................. 36 Section 307. Payment of Interest and Certain Additional Amounts; Rights to Interest and Certain Additional Preserved...................................................................................... 38 Section 308. Persons Deemed Owners............................................................................. 41 Section 309. Cancellation...................................................................................... 41 Section 310. Computation of Interest........................................................................... 42 Section 311. CUSIP Numbers..................................................................................... 42 Section 312. Notification of Withholding....................................................................... 42 ARTICLE FOUR: SATISFACTION AND DISCHARGE OF INDENTURE........................................................... 42 Section 401. Satisfaction and Discharge........................................................................ 42 Section 402. Defeasance and Covenant Defeasance................................................................ 44
Section 403. Application of Trust Money........................................................................ 48 ARTICLE FIVE: REMEDIES.......................................................................................... 48 Section 501. Events of Default................................................................................. 48 Section 502. Acceleration of Maturity; Rescission and Annulment................................................ 50 Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee................................... 51 Section 504. Trustee May File Proofs of Claim.................................................................. 52 Section 505. Trustee May Enforce Claims Without Possession of Securities or Coupons............................ 53 Section 506. Application of Money Collected.................................................................... 53 Section 507. Limitations on Suits.............................................................................. 54 Section 508. Unconditional Right of Holders to Receive Principal and Any Premium, Interest and Additional Amounts........................................................................................ 54 Section 509. Restoration of Rights and Remedies................................................................ 55 Section 510. Rights and Remedies Cumulative.................................................................... 55 Section 511. Delay or Omission not Waiver...................................................................... 55 Section 512. Control by Holders of Securities.................................................................. 55 Section 513. Waiver of Past Defaults........................................................................... 56 Section 514. Waiver of Usury, Stay or Extension Laws........................................................... 56 Section 515. Undertaking for Costs............................................................................. 56 ARTICLE SIX: THE TRUSTEE......................................................................................... 57 Section 601. Certain Rights of Trustee; Certain Duties and Responsibilities.................................... 57 Section 602. Notice of Defaults................................................................................ 58 Section 603. Not Responsible for Recitals or Issuance of Securities............................................ 59 Section 604. May Hold Securities; Act as Trustee Under Other Indenture......................................... 59 Section 605. Money Held in Trust............................................................................... 59 Section 606. Compensation and Reimbursement.................................................................... 60 Section 607. Corporate Trustee Required; Eligibility........................................................... 60 Section 608. Resignation and Removal; Appointment of Successor................................................. 61 Section 609. Acceptance of Appointment by Successor............................................................ 62 Section 610. Merger, Conversion, Consolidation or Succession to Business....................................... 63 Section 611. Preferential Collection of Claims Against Company................................................. 64 Section 612. Appointment of Authenticating Agent............................................................... 64 Section 613. Conflicting Interests............................................................................. 66 Section 614. Protection of Agents.............................................................................. 66 ARTICLE SEVEN: HOLDERS LISTS AND REPORTS BY TRUSTEE, COMPANY AND GUARANTOR....................................... 66 Section 701. Company and Guarantor to Furnish Trustee Names and Addresses of Holders........................... 66 Section 702. Preservation of Information; Communications to Holders............................................ 67 Section 703. Reports by Trustee................................................................................ 67 Section 704. Reports by Company and Guarantor.................................................................. 67 ARTICLE EIGHT: CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER..................................................... 68
ii Section 801. Company or Guarantor May Consolidate, Etc., Only on Certain Terms................................. 68 Section 802. Successor Corporation Substituted................................................................. 69 ARTICLE NINE: SUPPLEMENTAL INDENTURES........................................................................... 70 Section 901. Supplemental Indentures Without Consent of Holders................................................ 70 Section 902. Supplemental Indentures With Consent of Holders................................................... 71 Section 903. Execution of Supplemental Indentures.............................................................. 72 Section 904. Effect of Supplemental Indentures................................................................. 73 Section 905. Reference in Securities to Supplemental Indentures................................................ 73 Section 906. Conformity with Trust Indenture Act............................................................... 73 ARTICLE TEN: COVENANTS........................................................................................... 73 Section 1001. Payment of Principal, Any Premium, Interest and Additional Amounts .............................. 73 Section 1002. Maintenance of Office or Agency.................................................................. 74 Section 1003. Money for Securities Payments to be Held in Trust................................................ 75 Section 1004. Additional Amounts............................................................................... 77 Section 1005. Statement as to Compliance....................................................................... 80 Section 1006. Corporate Existence.............................................................................. 80 ARTICLE ELEVEN: REDEMPTION OF SECURITIES........................................................................ 81 Section 1101. Applicability of Article......................................................................... 81 Section 1102. Election to Redeem; Notice to Trustee............................................................ 81 Section 1103. Selection by Trustee of Securities to be Redeemed................................................ 82 Section 1104. Notice of Redemption............................................................................. 83 Section 1105. Deposit of Redemption Price...................................................................... 85 Section 1106. Securities Payable on Redemption Date............................................................ 85 Section 1107. Securities Redeemed in Part...................................................................... 86 ARTICLE TWELVE: CONVERSION OF SECURITIES........................................................................ 86 Section 1201. Conversion Privilege and Conversion Price........................................................ 86 Section 1202. Exercise of Conversion Privilege................................................................. 88 Section 1203. Fractions of Shares.............................................................................. 89 Section 1204. Adjustment of Conversion Price................................................................... 90 Section 1205. Notice of Adjustments of Conversion Price........................................................ 92 Section 1206. Notice of Certain Corporate Action............................................................... 93 Section 1207. Company to Reserve Common Stock.................................................................. 93 Section 1208. Taxes on Conversions............................................................................. 94 Section 1209. Covenant as to Common Stock...................................................................... 94 Section 1210. Cancellation of Converted Securities............................................................. 94 Section 1211. Provision in Case of Consolidation, Merger or Sale of Assets..................................... 94 Section 1212. Compliance with Governmental Requirements........................................................ 95 ARTICLE THIRTEEN: SINKING FUNDS................................................................................. 95 Section 1301. Applicability of Article......................................................................... 95 Section 1302. Satisfaction of Sinking Fund Payments With Securities............................................ 95
iii Section 1303. Redemption of Securities for Sinking Fund........................................................ 96 ARTICLE FOURTEEN: GUARANTEES.................................................................................... 96 Section 1401. Guarantees....................................................................................... 96 Section 1402. Execution and Delivery of Guarantees............................................................. 98 Section 1403. Guarantees Optional............................................................................... 98 ARTICLE FIFTEEN: REPAYMENT AT THE OPTION OF HOLDERS............................................................. 98 Section 1501. Applicability Of Article......................................................................... 98 Section 1502. Repayment Of Securities.......................................................................... 98 Section 1503. Notice of Repayment............................................................................... 99 Section 1504. Exercise Of Option............................................................................... 100 Section 1505. When Securities Presented For Repayment Become Due And Payable................................... 100 Section 1506. Securities Repaid In Part......................................................................... 101 ARTICLE SIXTEEN: MEETINGS OF HOLDERS OF SECURITIES.............................................................. 102 Section 1601. Purposes for Which Meetings May Be Called........................................................ 102 Section 1602. Call, Notice and Place of Meetings............................................................... 102 Section 1603. Persons Entitled to Vote at Meetings............................................................. 103 Section 1604. Quorum; Action................................................................................... 103 Section 1605. Determination of Voting Rights; Conduct and Adjournment of Meetings.............................. 104 Section 1606. Counting Votes and Recording Action of Meetings.................................................. 105 ARTICLE SEVENTEEN: SUBORDINATION OF SECURITIES.................................................................. 105 Section 1701. Securities Subordinate to Senior Indebtedness.................................................... 105 Section 1702. Payment Over of Proceeds Upon Dissolution, Etc................................................... 105 Section 1703. No Payment When Senior Indebtedness in Default................................................... 107 Section 1704. Payment Permitted If No Default.................................................................. 107 Section 1705. Subrogation to Rights of Holders of Senior Indebtedness.......................................... 107 Section 1706. Provisions Solely to Define Relative Rights...................................................... 108 Section 1707. Trustee to Effectuate Subordination.............................................................. 108 Section 1708. No Waiver of Subordination Provisions............................................................ 108 Section 1709. Notice to Trustee................................................................................ 109 Section 1710. Reliance on Judicial Order or Certificate of Liquidating Agent................................... 110 Section 1711. Trustee Not Fiduciary for Holders of Senior Indebtedness......................................... 110 Section 1712. Rights of Trustee as Holder of Senior Indebtedness; Preservation of Trustee's Rights............. 110 Section 1713. Article Applicable to Paying Agents.............................................................. 110 ARTICLE EIGHTEEN: SUBORDINATION OF GUARANTEES................................................................... 111 Section 1801. Guarantees Subordinate to Senior Guarantor Indebtedness.......................................... 111 Section 1802. Payment Over of Proceeds Upon Dissolution, Etc................................................... 111 Section 1803. No Payment When Senior Indebtedness in Default................................................... 112 Section 1804. Payment Permitted If No Default.................................................................. 112
iv Section 1805. Subrogation to Rights of Holders of Senior Guarantor Indebtedness................................ 113 Section 1806. Provisions Solely to Define Relative Rights...................................................... 113 Section 1807. Trustee to Effectuate Subordination.............................................................. 114 Section 1808. No Waiver of Subordination Provisions............................................................ 114 Section 1809. Notice to Trustee................................................................................ 114 Section 1810. Reliance on Judicial Order or Certificate of Liquidating Agent................................... 115 Section 1811. Trustee Not Fiduciary for Holders of Senior Guarantor Indebtedness............................... 115 Section 1812. Rights of Trustee as Holder of Senior Guarantor Indebtedness; Preservation of Trustee's Rights... 115 Section 1813. Article Applicable to Paying Agents.............................................................. 116
Exhibits Exhibit A Form of Guarantee Exhibit B Form of Trustee's Certificate of Authentication Exhibit C Conversion Notice Exhibit D Form of Certificate of Beneficial Ownership for Bearer Securities to be Provided to the Euroclear Operator or to Cedel Bank, societe anonyme Exhibit E Form of Certificate to be Given by the Euroclear Operator and Cedel Bank, societe anonyme Exhibit F Option to Elect Repayment upon a Repayment Event v INDENTURE, dated as of __________ __, 1997 (the "Indenture"), among --------- ThermoTrex Corporation, a corporation duly organized and existing under the laws of the State of Delaware (hereinafter called the "Company"), having its ------- principal executive office located at 470 Wildwood Street, Woburn, Massachusetts 01888; Thermo Electron Corporation, a corporation duly organized and existing under the laws of the State of Delaware (hereinafter called the "Guarantor"), --------- having its principal executive office located at 81 Wyman Street, Waltham, Massachusetts 02254-9046; and Bankers Trust Company, a banking corporation duly organized and existing under the laws of the State of New York (hereinafter called the "Trustee"), having its principal Corporate Trust Office located at ------- Four Albany Street, 4th Floor, New York, New York 10006. RECITALS: The Company has duly authorized the execution and delivery of this Indenture to provide for the issuance from time to time of its unsecured subordinated debentures, notes or other evidences of indebtedness (hereinafter 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 provisions as shall be fixed as provided in this Indenture. The Guarantor has duly authorized the execution and delivery of this Indenture to provide for the Guarantees (as herein defined) by it with respect to the Securities as set forth in this Indenture. The Guarantor desires to make the Guarantees provided for herein, and has determined that such Guarantees are necessary and convenient to the conduct of the business of the Company, which is a subsidiary of the Guarantor. All things necessary to make the Securities and any Coupons (as herein defined), when executed by the Company and authenticated and delivered hereunder, the valid obligations of the Company, and to make this Indenture a valid agreement of the Company in accordance with its terms have been done. All things necessary to make the Guarantees, when executed by the Guarantor and endorsed on the Securities authenticated and delivered hereunder, the valid obligations of the Guarantor, and to make this Indenture a valid agreement of the Guarantor in accordance with its terms have been done. This Indenture is subject to the provisions of the Trust Indenture Act of 1939, as amended, and the rules and regulations of the Securities and Exchange Commission promulgated thereunder that are required to be part of this Indenture and, to the extent applicable, shall be governed by such provisions. NOW, THEREFORE, THIS INDENTURE WITNESSETH: For and in consideration of the premises and the purchase of the Securities by the Holders (as herein defined) thereof, it is mutually covenanted and agreed, for the equal and proportionate benefit of all Holders of the Securities or of any series thereof and any Coupons (as herein defined), as follows: ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION Section 101. Definitions. ----------- Except as otherwise expressly provided in or pursuant to this Indenture or unless the context otherwise requires, for all purposes of this Indenture: (1) the terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular; (2) all other terms used herein which are defined in the Trust Indenture Act, either directly or by reference therein, have the meanings assigned to them therein; (3) all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with generally accepted accounting principles in the United States of America and, except as otherwise herein expressly provided, the terms "generally accepted accounting principles" or ---------------------------------------- "GAAP" with respect to any computation required or permitted hereunder ---- shall mean such accounting principles as are generally accepted in the United States of America, consistently applied, at the date of such computation; (4) the words "Article" and "Section" refer to an Article and ------- ------- Section, respectively, of this Indenture; (5) the words "herein," "hereof," "hereto" 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; and (6) the word "or" is always used inclusively (for example, the -- phrase "A or B" means "A or B or both", not "either A or B but not both"). Certain terms used principally in certain Articles hereof are defined in those Articles. "Act," when used with respect to any Holders, has the meaning specified in --- Section 104. "Additional Amounts" has the meaning specified in Section 1004. ------------------ 2 "Affiliate" of any specified Person means any other Person directly or --------- indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, "control," when used with respect to any specified Person, means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms "controlling" and "controlled" have meanings correlative to the foregoing. "Authenticating Agent" means any Person authorized by the Trustee pursuant -------------------- to Section 612 to act on behalf of the Trustee to authenticate Securities of one or more series. "Authorized Newspaper" means a newspaper, in an official language of the -------------------- place of publication or in the English language, customarily published on each day that is a Business Day in the place of publication, whether or not published on days that are Legal Holidays in the place of publication, and of general circulation in each place in connection with which the term is used or in the financial community of each such place. Where successive publications are required to be made in Authorized Newspapers, the successive publications may be made in the same or in different newspapers in the same city meeting the foregoing requirements and in each case on any day that is a Business Day in the place of publication. "Bankruptcy Law" has the meaning specified in Section 501. -------------- "Bearer Security" means any Security established pursuant to Section 201 --------------- which is payable to bearer. "Board of Directors," when used with reference to the Company or the ------------------ Guarantor, means either the board of directors or any duly authorized committee of such board of directors of the Company or the Guarantor, as the case may be. "Board Resolution," when used with reference to the Company or the ---------------- Guarantor, means a copy of one or more resolutions, certified by the Corporate Secretary or an Assistant Corporate Secretary of the Company or the Guarantor, as the case may be, to have been duly adopted by its respective Board of Directors and to be in full force and effect on the date of such certification, and delivered to the Trustee. "Business Day," with respect to any Place of Payment, Place of Conversion ------------ or other location, means, unless otherwise specified with respect to any Securities pursuant to Section 301, any day other than a Saturday, Sunday or other day on which banking institutions in such Place of Payment, Place of Conversion or other location are authorized or obligated by law, regulation or executive order to close. "Cash Settlement Option" has the meaning specified in Section 1201. ---------------------- "CEDEL" has the meaning specified in Section 304(c). ----- "Closing Price Per Share" means, with respect to common stock, for any day, ----------------------- the reported last sales price regular way per share or, in case no such reported sale takes place on 3 such day, the average of the reported closing bid and asked prices regular way, as reported on the principal national or regional United States securities exchange on which such common stock is traded or, if such common stock is not listed or admitted to trading on a United States national or regional exchange, as reported on the Nasdaq National Market, or if such common stock is not listed or admitted to trading on the Nasdaq National Market, the average of the closing bid and asked prices in the over the counter market as furnished by any New York Stock Exchange member firm selected from time to time by the Company for that purpose. "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 Indenture 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. "Common Depository" means the Person specified as such pursuant to Section ----------------- 301. "Common Stock" means the Common Stock, par value $.01 per share, of the ------------ Company authorized at the date of this instrument as originally executed. Subject to the provisions of Section 1201 and 1211, shares issuable on conversion of Securities shall include only shares of Common Stock or shares of any class or classes of common stock resulting from any reclassification or reclassifications thereof; provided, however, that if at any time there shall be -------- ------- more than one such resulting class, the shares so issuable on conversion of Securities shall include shares of all such classes, and the shares of each such class then so issuable shall be substantially in the proportion that the total number of shares of such class resulting from all such reclassifications bears to the total number of shares of all such classes resulting from all such reclassifications. "common stock" includes any stock of any class of capital stock which has ------------ no preference in respect of dividends or of amounts payable in the event of any voluntary or involuntary liquidation, dissolution or winding up of the issuer thereof and which, by its terms, is not subject to redemption by the issuer thereof. "Company" means the Person named as the "Company" in the first paragraph of ------- ------- this Indenture until a successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter "Company" shall mean ------- such successor Person. "Company Request" and "Company Order" mean, respectively, a written --------------- ------------- request or order, as the case may be, signed in the name of the Company by any two Officers or by any Officer and either an Assistant Treasurer or an Assistant Corporate Secretary, of the Company and delivered to the Trustee. "Conversion Agent" means any Person authorized by the Company to convert ---------------- Securities in accordance with Article Twelve. "Conversion Date" means the date on which any Security, which is --------------- convertible by the terms and provisions of such Security established pursuant to Section 301, and the duly signed 4 and completed conversion notice shall have been delivered to any Place of Conversion in accordance with the provisions of Article Twelve. "Conversion Price" has the meaning specified in Section 1201. ---------------- "Corporate Secretary" or "Assistant Corporate Secretary" means the person ------------------- ----------------------------- elected by an entity's Board of Directors to hold the title of "Secretary" or "Clerk" or "Assistant Secretary" or "Assistant Clerk," as the case may be, as provided for by the applicable corporate law of an entity's jurisdiction of incorporation. "Corporate Trust Office" means the principal corporate trust office of the ---------------------- Trustee at which at any particular time its corporate trust business shall be administered, which office at the date of original execution of this Indenture is located at Four Albany Street, New York, New York 10006." "Corporation" and "corporation" includes corporations, associations, ----------- ----------- companies and business trusts. "Coupon" means any interest coupon appertaining to a Bearer Security. ------ "Currency," with respect to any payment, deposit or other transfer in -------- respect of the principal of or any premium or interest on or any Additional Amounts with respect to any Security, means Dollars, and, with respect to any other payment, deposit or transfer pursuant to or contemplated by the terms hereof or such Security, also means Dollars. "CUSIP Number" means the alphanumeric designation assigned to a Security by ------------ Standard & Poor's Ratings Services, CUSIP Service Bureau. "Custodian" has the meaning specified in Section 501. --------- "Default" means any event or condition the occurrence of which would, ------- with the lapse of time or the giving of notice, or both, constitute an Event of Default. "Defaulted Interest" has the meaning specified in Section 307. ------------------ "Definitive Security" means any Security that is a Bearer Security (other ------------------- than the temporary global Bearer Security) or a Registered Security. "Dollars" or "$" means a dollar or other equivalent unit of legal tender ------- - for payment of public or private debts in the United States. "EUROCLEAR" has the meaning specified in Section 304(c). --------- "Event of Default" has the meaning specified in Section 501. ---------------- "Exchange Act" means the Securities Exchange Act of 1934, as amended. ------------ 5 "Exchange Date" means the date specified as such pursuant to Section 301. ------------- "Exchange Act" means the Securities Exchange Act of 1934, as amended from ------------ time to time. "Foreign Entity" has the meaning specified in Section 801. -------------- "GAAP" means such accounting principles as are generally accepted in the ---- United States of America as of the date or time of any computation required hereunder. "Government Obligations" means securities which are (i) direct obligations ---------------------- of the United States or (ii) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States where the timely payment or payments thereunder are unconditionally guaranteed as a full faith and credit obligation by the United States, and which, in the case of (i) or (ii), are not callable or redeemable at the option of the issuer or issuers thereof, and shall also include a depository receipt issued by a bank or trust company as custodian with respect to any such Government Obligation or a specific payment of interest on or principal of or other amount with respect to any such 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 Government Obligation or the specific payment of interest on or principal of or other amount with respect to the Government Obligation evidenced by such depository receipt. "Guarantee" means any guarantee of the Guarantor endorsed on a Security --------- authenticated and delivered pursuant to this Indenture and shall include the guarantee attached to this Indenture as Exhibit A. --------- "Guarantor" means the Person named as "Guarantor" in the first paragraph of --------- --------- this Indenture until a successor corporation shall have become such pursuant to the applicable provisions of this Indenture, and thereafter "Guarantor" shall --------- include such successor corporation. "Guarantor Common Stock" means the common stock, par value $1.00 per share ----------------------of the Guarantor authorized at the date of this instrument as originally executed or shares of any class or classes of common stock resulting from any reclassification or reclassifications thereof; provided, however, that if at any time there shall be more than one such - -------- ------- resulting class, the shares so issuable on conversion of Securities in accordance with Section 1201 shall include shares of all such classes, and the shares of each such class then so issuable shall be substantially in the proportion that the total number of shares of such class resulting from all such reclassifications bears to the total number of shares of all such classes resulting from all such reclassifications. "Guarantor Request" and "Guarantor Order" mean, respectively, a written ----------------- --------------- request or order, as the case may be, signed in the name of the Guarantor by any two Officers or by any 6 Officer and either an Assistant Treasurer or an Assistant Corporate Secretary, of the Guarantor and delivered to the Trustee. "Holder," in the case of any Registered Security, means the Person in whose ------ name such Security is registered in the Security Register and, in the case of any Bearer Security, means the bearer thereof and, in the case of any Coupon, means the bearer thereof. "Indenture" means this instrument 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, with respect to any Security, by the terms and provisions of such Security and any Coupon appertaining thereto established pursuant to Section 301 (as such terms and provisions may be amended pursuant to the applicable provisions hereof). "Independent Public Accountants" means accountants or a firm of accountants ------------------------------ that, with respect to the Company, the Guarantor and any other obligor under the Securities or the Coupons, are independent public accountants within the meaning of the Securities Act, and the rules and regulations promulgated by the Commission thereunder, who may be the independent public accountants regularly retained by the Company or the Guarantor or who may be other independent public accountants. Such accountants or firm shall be entitled to rely upon any Opinion of Counsel as to the interpretation of any legal matters relating to this Indenture or certificates required to be provided hereunder. "Indexed Security" means a Security the terms of which provide that the ---------------- principal amount thereof payable at Stated Maturity may be more or less than the principal face amount thereof at original issuance. "Interest" or "interest," with respect to any Original Issue Discount -------- -------- Security, which by its terms bears interest only after Maturity, means interest payable after Maturity and, when used with respect to a Security which provides for the payment of Additional Amounts pursuant to Section 1004, includes such Additional Amounts. "Interest Payment Date," with respect to any Security, means the Stated ---------------------- Maturity of an installment of interest on such Security. "Interest Record Date" means any Regular Record Date or Special Record -------------------- Date. "Internal Revenue Code" means the United States Internal Revenue Code of --------------------- 1986 as amended. "Investment Company Act" means the Investment Company Act of 1940 and any ---------------------- statute successor thereto, in each case as amended from time to time. "Legal Holidays" has the meaning specified in Section 114. -------------- "Market Price" has the following meaning unless otherwise defined in the ------------ Company's Board Resolutions or Officers' Certificate relating to a particular series of Securities: (A) in case the Company chooses the Cash Settlement Option with respect to the conversion of Securities, 7 means the Weighted Average Price of the Common Stock on the last Trading Day preceding the applicable Conversion Date; and (B) in case the Company chooses the Stock Settlement Option with respect to the conversion of Securities, means either (a) if the Conversion Date is (i) a date prior to the date on which the Company gives notice of redemption of all (but not less than all) of the Securities in accordance with the provisions of Section 1104 (the "Redemption Notice Date") or (ii) a date on or after the Redemption Notice Date and the Company has not specified in its redemption notice that the Company will exercise the Stock Settlement Option with respect to all or a portion of the shares of Common Stock deliverable upon conversion of the Securities, the Closing Price Per Share of the Common Stock or Guarantor Common Stock, as the case may be, on such Conversion Date, or if the date is not a Trading Day, on the last Trading Day preceding such date, as reported on the principal national or regional United States securities exchange on which such shares are traded or, if the Common Stock or Guarantor Common Stock, as the case may be, is not listed or admitted to trading on a United States national or regional securities exchange, as reported on the Nasdaq National Market, or (b) if the Conversion Date occurs on or after the Redemption Notice Date and the Company has specified in its redemption notice that the Company will exercise the Stock Settlement Option with respect to all or a portion of the shares of Common Stock deliverable upon conversion of the Securities, the Weighted Average Price of the Common Stock or the Guarantor Common Stock, as the case may be, over all of the Trading Days falling within the twenty-day period commencing on the Redemption Notice Date. "Maturity," with respect to any Security, means the date on which the -------- principal of such Security or an installment of principal becomes due and payable as provided in or pursuant to this Indenture, whether at the Stated Maturity or by declaration of acceleration, notice of redemption or repayment, notice of option to elect repayment or otherwise, and includes the Redemption Date. "Office" or "Agency", with respect to any Securities, means an office or ------ ------ agency of the Company maintained or designated as a Place of Payment for such Securities pursuant to Section 1002 or any other office or agency of the Company maintained or designated for such Securities pursuant to Section 1002 or, to the extent designated or required by Section 1002 in lieu of such office or agency, the Corporate Trust Office of the Trustee. "Officer" means the Chairman of the Board, the President, any Vice ------- President (whether or not designated by a number or word added before or after the title vice president), the Treasurer or the Corporate Secretary of the Company or the Guarantor, as the case requires. "Officers' Certificate" of the Company or the Guarantor, as the case may --------------------- be, means a certificate signed by two Officers or by any Officer and either an Assistant Treasurer or an Assistant Corporate Secretary of the Company or the Guarantor, as the case may be, that complies with the requirements of Section 314(e) of the Trust Indenture Act and is delivered to the Trustee. "Opinion of Counsel" means a written opinion of counsel, who (unless ------------------ otherwise provided herein) may be an employee of or counsel for the Company or the Guarantor, as the case may be, or other counsel that, if required by the Trust Indenture Act, complies with the requirements of Section 314(e) of the Trust Indenture Act. 8 "Original Issue Discount Security" means any Security issued pursuant to -------------------------------- this Indenture which provides for an amount less than the principal face amount thereof to be due and payable upon acceleration of the Maturity thereof pursuant to Section 502. "Outstanding," when used with respect to any Securities, means, as of the ----------- date of determination, all such Securities theretofore authenticated and delivered under this Indenture, except: (1) any such Security theretofore canceled by the Trustee or the Security Registrar or delivered to the Trustee or the Security Registrar for cancellation; (2) any such Security for whose payment at the Maturity thereof money in the necessary amount has been theretofore deposited pursuant hereto (other than pursuant to Section 402) with the Trustee or any Paying Agent (other than the Company or the Guarantor) in trust or set aside and segregated in trust by the Company or the Guarantor, as the case may be (if the Company or Guarantor shall act as its own Paying Agent), for the Holders of such Securities and any Coupons appertaining thereto, provided -------- that, if such Securities are to be redeemed, notice of such redemption has ---- been duly given pursuant to this Indenture or provision therefor satisfactory to the Trustee has been made; (3) any such Security with respect to which the Company has effected defeasance or covenant defeasance pursuant to Section 402, except to the extent provided in Section 402; and (4) any such Security which has 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, unless there shall have been presented to the Trustee proof satisfactory to it that such Security is held by a bona fide purchaser in whose hands such Security is a valid obligation of the Company, provided, however, that in determining whether the Holders of the requisite -------- ------- principal amount of Outstanding Securities have given any request, demand, authorization, direction, notice, consent or waiver hereunder or are present at a meeting of Holders of Securities for quorum purposes, (i) the principal amount of an Original Issue Discount Security that may be counted in making such determination and that shall be deemed to be Outstanding for such purposes shall be equal to the amount of the principal thereof that pursuant to the terms of such Original Issue Discount Security would be declared (or shall have been declared to be) due and payable upon a declaration of acceleration thereof pursuant to Section 502 at the time of such determination, and (ii) the principal amount of any Indexed Security that may be counted in making such determination and that shall be deemed outstanding for such purpose shall be equal to the principal face amount of such Indexed Security at original issuance, unless otherwise provided in or pursuant to this Indenture, and (iii) Securities beneficially owned by the Company, the Guarantor or any other obligor upon the Securities or any Affiliate of the Company shall be disregarded and deemed not to be Outstanding, except that, in determining whether the Trustee shall 9 be protected in making any such determination or relying upon any such request, demand, authorization, direction, notice, consent or waiver, only Securities which a Responsible Officer of the Trustee actually knows to be so owned shall be so disregarded. Securities so owned which shall have been pledged in good faith shall be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee (a) the pledgee's right so to act with respect to such Securities and (b) that the pledgee is not the Company, the Guarantor or any other obligor upon the Securities or any Coupons appertaining thereto or an Affiliate of the Company, the Guarantor or such other obligor. "Paying Agent" means any Person authorized by the Company or the Guarantor ------------ to pay the principal of, or any premium or interest on, or any Additional Amounts with respect to, any Security or any Coupon or take any other actions specifically provided in this Indenture on behalf of the Company or the Guarantor, as the case may be. "Person" means any individual, corporation, partnership, association, joint ------ venture, joint-stock company, limited liability company, trust, estate, unincorporated organization or government or any agency or political subdivision thereof. "Place of Conversion" means any city in which any Conversion Agent is ------------------- located. "Place of Payment," with respect to any Security, means the place or places ---------------- where the principal of, or any premium or interest on, or any Additional Amounts with respect to, such Security are payable as provided in or pursuant to this Indenture or such Security. "Predecessor Security" of any particular Security means every previous -------------------- Security evidencing all or a portion of the same indebtedness 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 lost, destroyed, mutilated or stolen Security or any Security to which a mutilated, destroyed, lost or stolen Coupon appertains shall be deemed to evidence the same indebtedness as the lost, destroyed, mutilated or stolen Security or the Security to which a mutilated, destroyed, lost or stolen Coupon appertains. "Redemption Date," with respect to any Security or portion thereof to be --------------- redeemed, means the date fixed for such redemption by or pursuant to this Indenture or such Security. "Redemption Price," with respect to any Security or portion thereof to be ---------------- redeemed, means the price at which it is to be redeemed as determined by or pursuant to this Indenture or such Security. "Registered Security" means any Security established pursuant to Section ------------------- 201 which is registered in the Security Register. "Regular Record Date" for the interest payable on any Registered Security ------------------- on any Interest Payment Date therefor means the date, if any, specified in or pursuant to this Indenture or such Security as the "Regular Record Date." 10 "Repayment Date" has the meaning specified in Section 1502. -------------- "Repayment Event" has the meaning specified in Section 1502. --------------- "Repayment Notice" has the meaning specified in Section 1503. ---------------- "Repayment Price" has the meaning specified in Section 1502. --------------- "Responsible Officer," shall mean when used with respect to the Trustee, ------------------- any officer within the Corporate Trust Office including any Vice President, Managing Director, Assistant Vice President, Secretary, Assistant Secretary, Treasurer or Assistant Treasurer or any other officer of the Trustee customarily performing functions similar to those performed by any of the above designated officers and also, with respect to a particular matter, any other officer to whom such matter is referred because of such officer's knowledge and familiarity with the particular subject. "Security" or "Securities" means any note or notes, bond or bonds, -------- ---------- debenture or debentures, or any other evidences of indebtedness, as the case may be, authenticated and delivered under this Indenture; provided, however, that, -------- ------- if at any time there is more than one Person acting as Trustee under this Indenture, "Securities," with respect to any such Person, shall mean Securities ---------- authenticated and delivered under this Indenture, exclusive, however, of Securities of any series as to which such Person is not Trustee. "Securities Act" means the Securities Act of 1933, as amended. --------------- "Security Register" and "Security Registrar" have the respective meanings ----------------- ------------------ specified in Section 305. "Senior Indebtedness" of the Company means the principal of, premium, if ------------------- any, and interest on and all other amounts due on or with respect to the following, whether outstanding at the date of execution of this Indenture or thereafter incurred or created: (i) indebtedness of the Company for money borrowed by the Company (excluding the Securities being issued or to be issued pursuant to this Indenture, which will rank pari passu with the obligations represented by all other Securities issued pursuant to this Indenture in right of payment, but including, without limitation, purchase money obligations and money borrowed from Guarantor or any affiliate of Guarantor), whether or not evidenced by debentures, bonds, notes or other corporate debt securities or similar instruments issued by the Company; (ii) obligations to reimburse any bank or other person in respect of amounts paid under letters of credit; (iii) leases of real property, equipment or other assets, which leases are capitalized in the Company's financial statements in accordance with GAAP; 11 (iv) commitment, standby and other fees due and payable to financial institutions with respect to credit facilities available to the Company; (v) obligations of the Company under interest rate and currency swaps, floors, caps or other similar arrangements intended to hedge interest rates or currency exposure; (vi) obligations secured by any mortgage, pledge, lien or other encumbrance on property which is owned or held by the Company subject to such mortgage, pledge, lien or other encumbrance, whether or not the obligations secured thereby shall have been assumed by the Company; (vii) obligations of the Company constituting guarantees of indebtedness of or joint obligations with another or others which would be included in the preceding clauses (i), (ii), (iii), (iv), (v) or (vi); and (viii) modifications, renewals, extensions or refundings of any of the indebtedness, leases, fees or obligations referred to in the preceding clauses (i), (ii), (iii), (iv), (v), (vi) or (vii), or debentures, notes or other evidences of indebtedness issued in exchange therefor; provided that Senior Indebtedness shall not include any particular indebtedness, - -------- ---- lease, fee, obligation, modification, renewal, extension, refunding or exchanged securities if, under the express provisions of the instrument creating or evidencing the same, or pursuant to which the same is outstanding, such indebtedness, lease, fee or obligation or such modification, renewal, extension, refunding or exchanged security is stated to be not superior in right to payment to the Securities. "Senior Guarantor Indebtedness" means the principal of, premium, if any, ----------------------------- and interest on and all other amounts due on or with respect to the following, whether outstanding at the date hereof or hereafter created or incurred: (i) indebtedness of the Guarantor for money borrowed by the Guarantor (excluding the Guarantees being issued, which will rank pari passu with the obligations represented by all other Guarantees issued pursuant to this Indenture in right of payment, but including, without limitation purchase money obligations and money borrowed from any affiliate of the Guarantor) whether or not evidenced by debentures, bonds, notes or other corporate debt securities or similar instruments issued by the Guarantor (including the Guarantor's obligations with respect to its 5% Senior Convertible Debentures due 2001); provided, however, that Senior Guarantor Indebtedness shall not include the - -------- ------- Guarantor's subordinated guarantee of the obligations to redeem the common stock of Thermo Fibergen Inc., ThermoLyte Corporation and ThermoLase Corporation, the obligations represented by which shall rank pari passu with the obligations represented by the Guarantees issued pursuant to this Indenture; (ii) obligations to reimburse any bank or other person in respect of amounts paid under letters of credit; 12 (iii) leases for real property, equipment or other assets, which leases are capitalized in the Guarantor's consolidated financial statements in accordance with generally accepted accounting principles; (iv) commitment, standby and other fees due and payable to financial institutions with respect to credit facilities available to the Guarantor; (v) obligations of the Guarantor under interest rate and currency swaps, floors, caps or other similar arrangements intended to fix or hedge interest rate obligations or currency exposure; (vi) obligations secured by any mortgage, pledge, lien or other encumbrance on property which is owned or held by the Guarantor subject to such mortgage, pledge, lien or other encumbrance, whether or not the obligations secured thereby shall have been assumed by the Guarantor; (vii) obligations of the Guarantor constituting guarantees of indebtedness of or joint obligations with another or others which would be included in the preceding clauses (i), (ii), (iii), (iv), (v) or (vi) (including the Guarantor's guarantee of the principal, premium, if any, and interest on the 4-1/2% Senior Convertible Debentures due 2003 and 3-3/4% Senior Convertible Debentures due 2000 of Thermo Instrument Systems Inc.); or (viii) modifications, renewals, extensions or refundings of any of the indebtedness, leases, fees or obligations referred to in the preceding clauses (i), (ii), (iii), (iv), (v), (vi) and (vii), or debentures, notes or other evidences of indebtedness issued in exchange therefor; provided that Senior Guarantor Indebtedness shall not include any particular - -------- ---- indebtedness, lease, fee, obligation, modification, renewal, extension, refunding or exchanged security if, under the express provisions of the instrument creating or evidencing the same, or pursuant to which the same is outstanding, such indebtedness, lease, fee or obligation or such modification, renewal, extension, refunding or exchanged security is stated to be not superior in right of payment to the Guarantees. "Senior Lender" means any holder of Senior Indebtedness or Senior Guarantor ------------- Indebtedness. "Special Record Date" for the payment of any Defaulted Interest on any ------------------- Registered Security means a date fixed by the Trustee pursuant to Section 307. "Stated Maturity," with respect to any Security or any installment of --------------- principal thereof or interest thereon or any Additional Amounts with respect thereto, means the date established by or pursuant to this Indenture or such Security or Coupon as the fixed date on which the principal of such Security or such installment of principal or interest is, or such Additional Amounts are, due and payable. 13 "Stock Settlement Option" has the meaning specified in Section 1201. ----------------------- "Subsidiary" means a corporation or other entity, a majority of the ---------- outstanding voting securities or other ownership interests having ordinary voting power to elect a majority of the corporate directors or other Persons performing similar functions of which is owned, directly or indirectly, by the Company, the Guarantor or by one or more other Subsidiaries, or by the Company, the Guarantor and one or more other Subsidiaries. "Tax" has the meaning specified in Section 1004. ----- "Tax Affected Security" means any Security held by a non-United States --------------------- person to whom Additional Amounts have or will become payable. "Tax Law Change" means any change in, or amendment to, the laws (including -------------- any regulations or rulings promulgated thereunder) of the United States or any political subdivision or taxing authority thereof or therein affecting taxation, or any change in, or amendment to, the application or official interpretation of such laws, regulations or rulings. "Trading Days" means (i) if the common stock is quoted on the Nasdaq ------------ National Market or any similar system of automated dissemination of quotations of securities prices, days on which trades may be effected through such system, (ii) if the common stock is listed or admitted for trading on any national securities exchange, days on which such national securities exchange is open for business or (iii) if the common stock is not quoted on the Nasdaq National Market or similar system or listed or admitted to trading on any national securities exchange, days on which the common stock is traded regular way in the over-the-counter market and for which a closing bid and a closing asked price for the common stock are available. "Trust Indenture Act" means the Trust Indenture Act of 1939, as amended, ------------------- and any reference herein to the Trust Indenture Act or a particular provision thereof shall mean such Act or provision, as the case may be, as amended or replaced from time to time or as supplemented from time to time by rules or regulations adopted by the Commission under or in furtherance of the purposes of such Act or provision, as the case may be. "Trustee" means the Person named as the "Trustee" in the first paragraph of ------- ------- this instrument until a successor Trustee shall have become such with respect to one or more series of Securities pursuant to the applicable provisions of this Indenture, and thereafter "Trustee" shall mean or include each Person who is ------- then a Trustee hereunder; provided, however, that if at any time there is more -------- ------- than one such Person, "Trustee" as used with respect to the Securities of any ------- series shall mean the Trustee with respect to Securities of such series. "United States," except as otherwise provided in or pursuant to this ------------- Indenture or any Security, means the United States of America (including the states thereof and the District of Columbia), its territories and possessions and other areas subject to its jurisdiction. "United States person" is a person that is, for United States Federal -------------------- income tax purposes, (a) a citizen or resident of the United States, (b) a corporation, partnership or other entity created 14 or organized in or under the laws of the United States or any political subdivision thereof, (c) an estate, the income of which is subject to United States Federal income taxation regardless of source, (d) any trust if a court within the United States is able to exercise primary supervision of the administration thereof and one or more United States fiduciaries have the authority to control all substantial decisions thereof, or (e) any other person included within the definition of United States person under the Internal Revenue Code and the regulations thereunder. "U.S. Depository" or "Depository" means, with respect to any Security --------------- ---------- issuable or issued in the form of one or more global Securities, the Person designated as U.S. Depository or Depository by the Company in or pursuant to this Indenture, which Person must be, to the extent required by applicable law or regulation, a clearing agency registered under the Exchange Act, and, if so provided with respect to any Security, any successor to such Person. If at any time there is more than one such Person, "U.S. Depository" or "Depository" shall --------------- ---------- mean, with respect to any Securities, the qualifying entity which has been appointed with respect to such Securities. "Vice President," when used with respect to the Company, the Guarantor or -------------- the Trustee, means any vice president, whether or not designated by a number or a word or words added before or after the title "Vice President." -------------- "Weighted Average Price" of a share of Common Stock or Guarantor Common ---------------------- Stock during any period, unless otherwise defined in the Company's Board Resolutions or Officers' Certificate relating to a particular series of Securities means the weighted average per share sale price for all reported sales of shares of Common Stock or Guarantor Common Stock, as the case may be, on the Trading Days included within such period (or, if the information necessary to calculate such weighted average per share sale price is not available, the average of the high and low sale prices or, if only one sale is reported, such sale price) as reported in the composite transactions on the principal national or regional United States securities exchange on which the Common Stock or Guarantor Common Stock, as the case may be, is listed or admitted to trading, or if the Common Stock or Guarantor Common Stock, as the case may be, is not listed or admitted to trading on a United States national or regional securities exchange, as reported on the Nasdaq National Market, or if the Common Stock or Guarantor Common Stock, as the case may be, is not listed or admitted to trading on the Nasdaq National Market, as reported in the over the counter market as furnished by any New York Stock Exchange member firm selected from time to time by the Company for that purpose. Section 102. Compliance Certificates and Opinions. ------------------------------------ Except as otherwise expressly provided in this Indenture, upon any application or request by the Company or the Guarantor to the Trustee to take any action under any provision of this Indenture, the Company or the Guarantor, as the case may be, shall furnish to the Trustee an Officers' Certificate stating that all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with and an Opinion of Counsel stating that, in the opinion of such counsel, all such conditions precedent, if any, have been complied with, except that in the case of any such application or request as to which the furnishing of such document is specifically required by any provision of this Indenture relating to such particular application or request, no additional certificate or opinion need be furnished. 15 Every certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture shall include: (1) a statement that each individual signing such certificate or opinion has read such condition or covenant and the definitions herein relating thereto; (2) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based; (3) a statement that, in the opinion of each such individual, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such condition or covenant has been satisfied or complied with; and (4) a statement as to whether, in the opinion of each such individual, such condition or covenant has been satisfied or 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 or the Guarantor may be based, insofar as it relates to legal matters, upon an Opinion of Counsel, unless such officer knows, or in the exercise of reasonable care should know, that the opinion with respect to the matters upon which his certificate or opinion is based are erroneous. Any such 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 or the Guarantor stating that the information with respect to such factual matters is in the possession of the Company or the Guarantor 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 or any Security, they may, but need not, be consolidated and form one instrument. Section 104. Acts of Holders. --------------- (1) Any request, demand, authorization, direction, notice, consent, waiver or other action provided by or pursuant to this Indenture to be given or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor 16 signed by such Holders in person or by an agent duly appointed in writing. If, but only if, Securities of a series are issuable as Bearer Securities, any request, demand, authorization, direction, notice, consent, waiver or other action provided in or pursuant to this Indenture to be given or taken by Holders of Securities of such series may, alternatively, be embodied in and evidenced by the record of Holders of Securities of such series voting in favor thereof, either in person or by proxies duly appointed in writing, at any meeting of Holders of Securities of such series duly called and held in accordance with the provisions of Article Sixteen, or a combination of such instruments and any such record. Except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments or record or both are delivered to the Trustee and, where it is hereby expressly required, to the Company or the Guarantor, as the case may be. Such instrument or instruments and any such record (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the "Act" of the Holders signing such instrument or instruments or so --- voting at any such meeting. Proof of execution of any such instrument or of a writing appointing any such agent, or of the holding by any Person of a Security, shall be sufficient for any purpose of this Indenture and (subject to Section 315 of the Trust Indenture Act) conclusive in favor of the Trustee, the Company and the Guarantor and any agent of the Trustee, the Company, or the Guarantor, if made in the manner provided in this Section. The record of any meeting of Holders of Securities shall be proved in the manner provided in Section 1606. Without limiting the generality of this Section 104, unless otherwise provided in or pursuant to this Indenture, a Holder, including a Depository that is a Holder of a global Security, may make, give or take, by a proxy, or proxies, duly appointed in writing, any request, demand, authorization, direction, notice, consent, waiver or other Act provided in or pursuant to this Indenture or the Securities to be made, given or taken by Holders, and a Depository that is a Holder of a global Security may provide its proxy or proxies to the beneficial owners of interests in any such global Security through such Depository's standing instructions and customary practices. (2) The fact and date of the execution by any Person of any such instrument or writing may be proved in any reasonable manner which the Trustee deems sufficient and in accordance with such reasonable rules as the Trustee may determine; and the Trustee may in any instance require further proof with respect to any of the matters referred to in this Section 104. (3) The ownership, principal amount and serial numbers of Registered Securities held by any Person, and the date of the commencement and the date of the termination of holding the same, shall be proved by the Security Register. (4) The ownership, principal amount and serial numbers of Bearer Securities held by any Person, and the date of the commencement and the date of the termination of holding the same, may be proved by the production of such Bearer Securities or by a certificate executed, as depository, by any trust company, bank or other depository reasonably acceptable to the Company and the Guarantor, wherever situated, if such certificate shall be deemed by the Company, the Guarantor and the Trustee to be 17 satisfactory, showing that at the date therein mentioned such Person had on deposit with such depository, or exhibited to it, the Bearer Securities therein described; or such facts may be proved by the certificate or affidavit of the Person holding such Bearer Securities, if such certificate or affidavit is deemed by the Company, the Guarantor and the Trustee to be satisfactory. The Trustee, the Company and the Guarantor may assume that such ownership of any Bearer Security continues until (i) another certificate or affidavit bearing a later date issued in respect of the same Bearer Security is produced, or (ii) such Bearer Security is produced to the Trustee by some other Person, or (iii) such Bearer Security is surrendered in exchange for a Registered Security, or (iv) such Bearer Security is no longer Outstanding. The ownership, principal amount and serial numbers of Bearer Securities held by the Person so executing such instrument or writing and the date of the commencement and the date of the termination of holding the same may also be proved in any other manner which the Company, the Guarantor and the Trustee deem sufficient. (5) If the Company shall solicit from the Holders of any Registered Securities any request, demand, authorization, direction, notice, consent, waiver or other Act, the Company may at its option (but is not obligated to), by a Company Board Resolution, fix in advance a record date for the determination of Holders of Registered Securities entitled to give such request, demand, authorization, direction, notice, consent, waiver or other Act. If such a record date is fixed, such request, demand, authorization, direction, notice, consent, waiver or other Act may be given before or after such record date, but only the Holders of Registered Securities of record at the close of business on such record date shall be deemed to be Holders for the purpose of determining whether Holders of the requisite proportion of Outstanding Securities have authorized or agreed or consented to such request, demand, authorization, direction, notice, consent, waiver or other Act, and for that purpose the Outstanding Securities shall be computed as of such record date; provided that no such authorization, agreement or consent by the Holders of Registered Securities shall be deemed effective unless it shall become effective pursuant to the provisions of this Indenture not later than six months after the record date. (6) Any request, demand, authorization, direction, notice, consent, waiver or other Act by the Holder of any Security shall bind every future Holder of the same Security and any Coupon appertaining thereto and the Holder of every Security or Coupon issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done or suffered to be done by the Trustee, any Security Registrar, any Paying Agent, the Company or the Guarantor in reliance thereon, whether or not notation of such Act is made upon such Security. (7) 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 by 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. 18 Section 105. Notices, Etc. to Trustee, Company and Guarantor. ----------------------------------------------- Any request, demand, authorization, direction, notice, consent, waiver or other Act of Holders or 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, the Company or the Guarantor shall be sufficient for every purpose hereunder if made, given, furnished or filed in writing to or with the Trustee at its Corporate Trust Office, or (2) the Company or the Guarantor by the Trustee or 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 or the Guarantor addressed to the attention of its Treasurer 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 or the Guarantor. Section 106. Notice to Holders of Securities; Waiver. --------------------------------------- Except as otherwise expressly provided in or pursuant to this Indenture, where this Indenture provides for notice to Holders of Securities of any event, (1) such notice shall be sufficiently given to Holders of Registered Securities if in writing and mailed, first-class postage prepaid, to each Holder of a Registered Security affected by such event, at his address as it appears in the Security Register, not later than the latest date, and not earlier than the earliest date, prescribed for the giving of such notice; and (2) such notice shall be sufficiently given to Holders of Bearer Securities, if any, if published in an Authorized Newspaper in The City of New York and, if such Securities are then listed on any stock exchange outside the United States, in an Authorized Newspaper in such city as the Company shall advise the Trustee that such stock exchange so requires, on a Business Day at least once, such publication to be not earlier than the earliest date and not later than the latest date prescribed for the giving of such notice; provided that any additional notice to Holders of ------------- Securities of any event may be provided at any time upon the request of the Company and shall provided in the manner set forth above. In any case where notice to Holders of Registered Securities is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder of a Registered Security shall affect the sufficiency of such notice with respect to other Holders of Registered Securities or the sufficiency of any notice to Holders of Bearer Securities given as provided herein. Any notice which is mailed in the manner herein provided shall be conclusively presumed to have been duly given or provided. In the 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, 19 then such notification as shall be made with the approval of the Trustee shall constitute a sufficient notification for every purpose hereunder. In case by reason of the suspension of publication of any Authorized Newspaper or Authorized Newspapers or by reason of any other cause it shall be impracticable to publish any notice to Holders of Bearer Securities as provided above, then such notification to Holders of Bearer Securities as shall be given with the approval of the Trustee shall constitute sufficient notice to such Holders for every purpose hereunder. Neither failure to give notice by publication to Holders of Bearer Securities as provided above, nor any defect in any notice so published, shall affect the sufficiency of any notice mailed to Holders of Registered Securities as provided above. 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 of Securities shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver. Section 107. Language of Notices. ------------------- Any request, demand, authorization, direction, notice, consent, election or waiver required or permitted under this Indenture shall be in the English language, except that, if the Company so elects, any published notice may be in an official language of the country of publication. Section 108. Conflict with Trust Indenture Act. --------------------------------- If any provision hereof limits, qualifies or conflicts with any duties under any required provision of the Trust Indenture Act imposed hereon by Section 318(c) thereof, such required provision shall control. Section 109. Effect of Headings and Table of Contents. ---------------------------------------- The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof. Section 110. Successors and Assigns. ---------------------- All covenants and agreements in this Indenture by the Company or the Guarantor shall bind its successors and assigns, whether so expressed or not. Section 111. Separability Clause. ------------------- In case any provision in this Indenture, any Security or any Coupon or Guarantee 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. 20 Section 112. Benefits of Indenture. --------------------- Nothing in this Indenture, any Security, any Coupon, or in the Guarantees shall give to any Person, other than the parties hereto, any Security Registrar, any Paying Agent or Conversion Agent and their successors hereunder and the Holders of Securities, Coupons or Guarantees, any benefit or any legal or equitable right, remedy or claim under this Indenture. Section 113. Governing Law. ------------- This Indenture, the Securities, any Coupons and the Guarantees shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts applicable to agreements made or instruments entered into and, in each case, performed in said state, except that the rights, protections, obligations, indemnities and immunities of the Trustee under this Indenture shall be governed by the laws of the State of New York, without regard to the principles of conflicts of laws of either state. Section 114. Legal Holidays. -------------- Unless otherwise specified in or pursuant to this Indenture or any Securities, in any case where any Interest Payment Date, Conversion Date, Redemption Date, Repayment Date, Stated Maturity or Maturity of any Security shall not be a Business Day at any Place of Payment or any Place of Conversion, as the case may be, then (notwithstanding any other provision of this Indenture, any Security, Coupon or Guarantee other than a provision in any Security, Coupon or Guarantee that specifically states that such provision shall apply in lieu of this Section) payment of interest or principal (and premium or Additional Amounts, if any) or delivery for conversion of such Security need not be made at such Place of Payment or Place of Conversion on such date, but such payment may be made on the next succeeding Business Day at such Place of Payment or Place of Conversion with the same force and effect as if made on the Interest Payment Date, Conversion Date, Redemption Date, Repayment Date or at the Stated Maturity or Maturity or by such last day for conversion, and no interest shall accrue on the amount payable on such date or at such time for the period from and after such Interest Payment Date, Redemption Date, Repayment Date, Conversion Date, Stated Maturity or Maturity or last day for conversion, as the case may be, to the next succeeding Business Day. Section 115. Taxes. ----- The Company will pay all stamp taxes and other similar duties, if any, that may be imposed by the United States or the United Kingdom, or any state or political subdivision thereof or taxing authority therein, with respect to the execution or delivery of this Indenture, or the issuance of the Securities, Coupons or the Guarantees, or the exchange from time to time of the temporary or permanent Securities in global form for Registered Securities or Bearer Securities, or with respect to the issue or delivery of shares of Common Stock on conversion of Securities; provided, however, that the Company shall not be -------- ------- required to pay any tax or duty which may be payable in respect of the registration of transfer or exchange of Securities and any transfer involved in the issue or delivery of shares of Common Stock in a name other than that of the 21 Holder of the Security or Securities to be converted in accordance with the provisions of Article Twelve, and no such issue or delivery shall be made unless and until the person requesting such issue has paid to the Company the amount of any such tax or duty or has established to the satisfaction of the Company that such tax or duty has been paid; and provided further, that the Company shall not -------- ------- be required to pay any tax or duty that may be payable in respect of any accrued interest paid in connection with the conversion of the Securities. ARTICLE TWO SECURITIES AND GUARANTEE FORMS Section 201. Forms Generally. --------------- Each Registered Security, Bearer Security, Coupon and temporary or permanent global Security issued pursuant to this Indenture shall be in the form established by or pursuant to a Company Board Resolution or in one or more indentures supplemental hereto, shall have such appropriate insertions, omissions, substitutions and other variations as are required or permitted by or pursuant to this Indenture or any indenture supplemental hereto, and the Guarantees, if any, shall be in substantially the form attached to this Indenture as Exhibit A or in such other form as shall be established pursuant to --------- a Guarantor 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 Security, Coupon or Guarantee as evidenced by their execution of such Security, Coupon or Guarantee. If the form of Registered Security, Bearer Security, Coupon, temporary or permanent global Security or Guarantee is established by action taken pursuant to a Board Resolution of the Company and the Guarantor, a copy of an appropriate record of such action shall be certified by the Secretary or an Assistant Secretary of the Company and the Guarantor, respectively, 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 Registered Security, Bearer Security, Coupon, temporary or permanent global Security or Guarantee. Definitive Securities, definitive Coupons and the Guarantees shall be printed, lithographed or engraved on steel engraved borders or may be produced in any other manner, all as determined by the officers of the Company executing such Securities, Coupons or Guarantees, as evidenced by their execution of such Securities, Coupons or Guarantees. Unless otherwise specified pursuant to Section 301 and except for temporary global Bearer Securities (as contemplated by Section 304 hereof), Bearer Securities shall have Coupons attached. 22 Section 202. Guarantee by Guarantor; Form of Guarantee. ----------------------------------------- The Guarantor by its execution of this Indenture hereby agrees with each Holder of a Security authenticated and delivered by the Trustee, and with the Trustee on behalf of each such Holder, to be unconditionally bound by the terms and provisions of the Guarantee substantially in the form attached to this Indenture as Exhibit A and authorizes the Chairman of the Board, President or a --------- Vice President or the Treasurer of the Guarantor to execute, manually or by facsimile signature in the name and on behalf of the Guarantor, and to confirm such Guarantee to the Holder of each such Security by its execution and delivery of each such Security, with such Guarantee endorsed thereon, authenticated and delivered by the Trustee. When delivered pursuant to the provisions of Section 303 hereof, the Guarantee so set forth on the Security shall bind the Guarantor notwithstanding the fact that such Guarantee does not bear the signature of the Guarantor. Each Guarantee shall be dated the date of the Security upon which it is endorsed. Reference is made to Articles Fourteen and Eighteen for further provisions with respect to the Guarantees. Section 203. Form of Trustee's Certificate of Authentication. ----------------------------------------------- Subject to Section 612, the Trustee's certificate of authentication shall be in substantially the form attached to this Indenture as Exhibit B. ---------- Section 204. Securities in Global Form. ------------------------- Unless otherwise provided in a Company Order, the Securities initially shall be issued in global form. Securities issued in temporary or permanent global form may provide that it or any number of such Securities shall represent the aggregate principal amount of all Outstanding Securities of such series (or such lesser amount as is permitted by the terms thereof) from time to time endorsed thereon and may also provide that the aggregate amount of Outstanding Securities represented thereby may from time to time be increased or reduced to reflect exchanges. Any endorsement of any global Security to reflect the amount, or any increase or decrease in the amount, or changes in the rights of Holders, of Outstanding Securities represented thereby shall be made in such manner and by such Person or Persons as shall be specified therein or in the Company Order or Guarantor Order to be delivered pursuant to Section 303 or 304 with respect thereto. Subject to the provisions of Section 303 and, if applicable, Section 304, the Trustee shall deliver and redeliver any Security in permanent global form in the manner and upon instructions given by the Person or Persons specified therein or in the applicable Company Order or Guarantor Order. If a Company Order pursuant to Section 303 or 304 has been, or simultaneously is, delivered, any instructions by the Company with respect to a Security in global form shall be in writing but need not be accompanied by or contained in a Company Officers' Certificate and need not be accompanied by an Opinion of Counsel. Notwithstanding the provisions of Section 307, unless otherwise specified in or pursuant to this Indenture or any Securities, payment of principal of, any premium and (except for temporary global Bearer Securities (as contemplated by Section 304 hereof)) interest on, and any 23 Additional Amounts in respect of, any temporary or permanent global Security shall be made to the Person or Persons specified therein. Notwithstanding the provisions of Section 308 and except as provided in the preceding paragraph, the Company, the Trustee and any agent of the Company and the Trustee shall treat as the Holder of such principal amount of Outstanding Securities represented by a global Security (i) in the case of a global Security in registered form, the Holder of such global Security in registered form, or (ii) in the case of a global Security in bearer form, the Person or Persons specified pursuant to Section 301. Section 205. Form of Conversion Notice. ------------------------- At the time of conversion of a Security in accordance with Article Twelve, the Holder of such Security shall deliver to the Trustee, the Conversion Agent, the Company and the Guarantor a notice of conversion in substantially the form attached to this Indenture as Exhibit C. --------- ARTICLE THREE THE SECURITIES Section 301. Amount Unlimited; Issuable in Series. ------------------------------------ The aggregate principal amount of Securities which may be authenticated and delivered and outstanding under this Indenture is unlimited. The Securities may be issued in one or more series. With respect to any Securities to be authenticated and delivered hereunder, there shall be established in or pursuant to one or more Company Board Resolutions and Guarantor Board Resolutions, or pursuant to authority granted by one or more Company Board Resolutions and Guarantor Board Resolutions and, subject to Section 303, set forth or determined in the manner provided in a Company and Guarantor Officers' Certificate, or established in one or more indentures supplemental hereto prior to the issuance of any Securities of a series any or all of the following; provided that if any of the following are -------- ---- already provided for in this Indenture, then such provisions shall be applicable to each series established hereunder unless otherwise provided pursuant to the Company and Guarantor Board Resolutions establishing such series and set forth in the applicable Company and Guarantor Officers' Certificate or unless otherwise provided in any Indenture or Indentures supplemental hereto pertaining to such series of Securities: (1) the title or designation of such Securities and the series in which such Securities shall be included; (2) any limit upon the aggregate principal amount of the Securities of such title or designation or the Securities of such series which may be authenticated and delivered under this Indenture (except for Securities authenticated and delivered upon registration or transfer of, or in exchange for, or in lieu of, other Securities of such series pursuant to 24 Section 304, 305, 306, 905 or 1107, upon repayment in part of any Security of such series pursuant to Article Fifteen, or upon surrender in part of any Security for conversion or exchange into other securities pursuant to its terms, or pursuant to the terms of such Securities); (3) if such Securities are to be issuable as Registered Securities, as Bearer Securities or alternatively as Bearer Securities and Registered Securities, and whether the Bearer Securities are to be issuable with Coupons, without Coupons or both, and any restrictions applicable to the offer, sale or delivery of the Bearer Securities and the terms, if any, upon which Bearer Securities may be exchanged for Registered Securities and vice versa; (4) if any of such Securities are to be issuable in global form, when any of such Securities are to be issuable in global form and (i) whether such Securities are to be issued in temporary or permanent global form or both, (ii) whether beneficial owners of interests in any such global Security may exchange such interests for Securities of the same series and of like tenor and of any authorized form and denomination, and the circumstances under which any such exchanges may occur, if other than in the manner specified in Section 305, (iii) the name of the Depository or the U.S. Depository, as the case may be, with respect to any global Security, (iv) the name of the Common Depository, if applicable, and (v) the Exchange Date, if applicable; (5) if any of such Securities are to be issuable as Bearer Securities or in global form, the date as of which any such Bearer Security or global Security shall be dated (if other than the date of original issuance of the first of such Securities to be issued); (6) if any of such Securities are to be issuable as Bearer Securities, whether interest in respect of any portion of a temporary Bearer Security in global form payable in respect of an Interest Payment Date therefor prior to the Exchange Date, shall be paid to any clearing organization with respect to the portion of such temporary Bearer Security held for its account and, in such event, the terms and conditions (including any certification requirements) upon which any such interest payment received by a clearing organization will be credited to the Persons entitled to interest payable on such Interest Payment Date, if other than as provided in Section 304; (7) the date or dates, or the method or methods, if any, by which such date or dates shall be determined, on which the principal of such Securities is payable; (8) the rate or rates at which such Securities shall bear interest, if any, or the method or methods, if any, by which such rate or rates are to be determined, the date or dates, if any, from which such interest shall accrue or the method or methods, if any, by which such date or dates are to be determined, the Interest Payment Dates, if any, on which such interest shall be payable and the Regular Record Date, if any, for the interest payable on Registered Securities on any Interest Payment Date, whether and under what circumstances Additional Amounts on such Securities or any of them shall be payable, the notice, if any, to Holders regarding the determination of interest on a floating rate 25 Security and the manner of giving such notice, and the basis upon which interest shall be calculated if other than that of a 360-day year of twelve 30-day months; (9) if in addition to or other than the Borough of Manhattan, The City of New York (or, in the case of Bearer Securities, except as otherwise provided herein, London, England), the place or places where the principal of, any premium and interest on or any Additional Amounts with respect to such Securities shall be payable, any of such Securities may be surrendered for registration of transfer or exchange, any of such Registered Securities may be surrendered for conversion, any of such Bearer Securities may be surrendered for conversion in the circumstances described herein and notices or demands to or upon the Company or the Guarantor in respect of such Securities and this Indenture may be served, the extent to which, or the manner in which, any interest payment or Additional Amounts on a global Security on an Interest Payment Date will be paid and the manner in which any principal of or premium, if any, on any global Security will be paid; (10) whether any of such Securities are to be redeemable at the option of the Company and, if so, the date or dates on which, the period or periods within which, the price or prices at which and the other terms and conditions upon which such Securities may be redeemed, in whole or in part, at the option of the Company and, if other than by a Company Board Resolution, the manner in which any election by the Company to redeem the Securities shall be evidenced; (11) if the Company is obligated to redeem or purchase any of such Securities pursuant to any sinking fund or analogous provision or at the option of any Holder thereof and, if so, the date or dates on which, the period or periods within which, the price or prices at which and the other terms and conditions upon which such Securities shall be redeemed or purchased, in whole or in part, pursuant to such obligation, and any provisions for the remarketing of such Securities so redeemed or purchased; (12) the denominations in which any of such Securities that are Registered Securities shall be issuable if other than denominations of $1,000 and any integral multiple thereof, and the denominations in which any of such Securities that are Bearer Securities shall be issuable if other than the denominations of $1,000 and $10,000; (13) if other than the principal amount thereof, the portion of the principal amount of any of such Securities that shall be payable upon declaration of acceleration of the Maturity thereof pursuant to Section 502 or the method by which such portion is to be determined; (14) if the amount of payments of principal of, any premium or interest on or any Additional Amounts with respect to such Securities may be determined with reference to an index, indices, formula or other method or methods (which index, indices, formula or method or methods may be based, without limitation, on one or more currencies, commodities, equity indices or other indices), and, if so, the terms and conditions upon which and the manner in which such amounts shall be determined and paid or payable; 26 (15) any deletions from, modifications of or additions to the Events of Default or covenants of the Company with respect to any of such Securities, whether or not such Events of Default or covenants are consistent with the Events of Default or covenants set forth herein; (16) if either or both of Section 402(2) relating to defeasance or Section 402(3) relating to covenant defeasance shall be applicable to the Securities of such series, or any covenants in addition to those specified in Section 402(3) relating to the Securities of such series which shall be subject to covenant defeasance, and any deletions from, or modifications or additions to, the provisions of Article Four in respect of the Securities of such series; (17) the terms, if any, on which such Securities may be converted into or exchanged for other securities of the Company, and whether on such conversion the Company may substitute cash or securities of the Company or the Guarantor in lieu of issuing Common Stock upon such conversion and the terms of such substitution; (18) if any of such Securities are to be issuable in global form and are to be issuable in definitive form (whether upon original issue or upon exchange of a temporary Security) only upon receipt of certain certificates or other documents or satisfaction of other conditions, then the form and terms of such certificates, documents or conditions; (19) if there is more than one Trustee, the identity of the Trustee and, if not the Trustee, the identity of each Security Registrar, and the identity of each Paying Agent, Conversion Agent or Authenticating Agent with respect to such Securities; (20) the subordination provisions with respect to the Securities and Guarantees if other than as set forth in Article Seventeen or Eighteen, respectively; and (21) any other terms of such Securities and any deletions from or modifications or additions to this Indenture in respect of such Securities (which terms shall not be inconsistent with the provisions of this Indenture, except as permitted by Section 901). All Securities (and Guarantees endorsed thereon) of any one series and all Coupons, if any, appertaining to Bearer Securities of such series shall be substantially identical except as to denomination and Maturity and except as may otherwise be provided by the Company in or pursuant to the Company Board Resolution and set forth in the Company Officers' Certificate or in any indenture or indentures supplemental hereto pertaining to such series of Securities. The terms of the Securities of any series (as set forth in the applicable Board Resolution or Company Order) may provide, without limitation, that the Securities shall be authenticated and delivered by the Trustee on original issue from time to time upon telephonic or written order of persons designated in the Company Officers' Certificate or supplemental indenture (telephonic instructions to be promptly confirmed in writing by such person) and that such persons are authorized to determine, consistent with such Company Officers' Certificate or any applicable supplemental indenture, such terms and conditions of the Securities of such series as are 27 specified in such Company Officers' Certificate or supplemental indenture. All Securities of any one series need not be issued at the same time and, unless otherwise so provided by the Company, a series may be reopened for issuances of additional Securities of such series. If any of the terms of the Securities of any series shall be established and approved by action taken by or pursuant Board Resolutions of the Company and the Guarantor, respectively, copies of appropriate records of such actions shall be certified by the Secretary or an Assistant Secretary of the Company and the Guarantor, respectively, and delivered to the Trustee at or prior to the delivery of the Officers' Certificates setting forth the terms of such series. Section 302. Currency; Denominations. ----------------------- The principal of, any premium and interest on and any Additional Amounts with respect to the Securities shall be payable in Dollars. Unless otherwise provided in or pursuant to this Indenture, Registered Securities shall be issuable in registered form without Coupons in denominations of $1,000 and any integral multiple thereof, and Bearer Securities shall be issuable in denominations of $1,000 and $10,000 (or any other authorized denominations) with Coupons attached. Section 303. Execution, Authentication, Delivery and Dating. ---------------------------------------------- Securities shall be executed on behalf of the Company by any Officer under its corporate seal reproduced thereon and attested by its Corporate Secretary (provided that the Corporate Secretary shall not attest his or her own signature as an Officer) or one of its Assistant Corporate Secretaries. Coupons shall be executed on behalf of the Company by any Officer. The signature of any of these officers on the Securities or any Coupons appertaining thereto may be manual or facsimile. Securities, Coupons appertaining thereto and Guarantees bearing the manual or facsimile signatures of individuals who were at any time the proper Officers of the Company or the Guarantor shall bind the Company and the Guarantor, respectively, notwithstanding that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Securities, Coupons or Guarantees or did not hold such offices at the date of such Securities, Coupons or Guarantees. At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Securities, together with any Coupons appertaining thereto, executed by the Company, having endorsed thereon Guarantees of the Guarantor, to the Trustee for authentication and, provided that the Company and Guarantor Board Resolutions, Company and Guarantor Officers' Certificate (if the terms of such Securities are provided therein pursuant to authority granted by Company and Guarantor Board Resolution) or supplemental indenture or indentures with respect to such Securities referred to in Section 301 and a Company Order for the authentication and delivery of such Securities and a Guarantor Order approving the delivery of the Guarantees endorsed thereon have been delivered to the Trustee, the Trustee in accordance with the Company and Guarantor Orders and subject to the provisions hereof and of such Securities shall authenticate and deliver such Securities having such Guarantees; provided, -------- 28 however, that, in connection with its original issuance, no Bearer Security - ------- shall be mailed or otherwise delivered to any location in the United States; and provided, further, that a Bearer Security (other than a temporary global Bearer - -------- ------- Security) may be delivered outside the United States in connection with its original issuance only if the certifications described in Section 304 are provided in accordance with the provisions of Section 304. If any Security shall be represented by a permanent global Security, then, for purposes of this Section and Section 304, the notation of a beneficial owner's interest therein upon original issuance of such Security or upon exchange of a portion of a temporary global Security shall be deemed to be delivery in connection with the original issuance of such beneficial owner's interest in such permanent global Security. Except as permitted by Section 306, the Trustee for the Securities of a series shall not authenticate and deliver any Bearer Security (or related Guarantee) unless all appurtenant Coupons for interest then matured other than matured coupons in default have been detached and canceled. If all the Securities of any one series are not to be issued at one time and if a Board Resolution relating to such Securities (or Officers' Certificate provided pursuant to authority granted by Board Resolution) shall so permit, such Company Order may set forth procedures acceptable to the Trustee for the issuance of such Securities, including, without limitation, procedures with respect to interest rate, Stated Maturity, date of issuance and date from which interest, if any, shall accrue. In authenticating such Securities, and accepting the additional responsibilities under this Indenture in relation to such Securities and any Coupons appertaining thereto, the Trustee shall be entitled to receive, and (subject to Sections 315(a) through 315(d) of the Trust Indenture Act) shall be fully protected in relying upon: (1) an Opinion of Counsel to the effect that: (a) the form or forms and terms of such Securities and Coupons, if any, and Guarantees have been established or approved by or pursuant to Board Resolutions of the Company and the Guarantor in conformity with Sections 201 and 301 of this Indenture; (b) all conditions precedent to the authentication and delivery of such Securities and Coupons, if any, appertaining thereto, and of such Guarantees have been complied with and that such Securities, Coupons and Guarantees, when completed by appropriate insertions, executed under the Company's corporate seal and attested by duly authorized officers of the Company (in the case of the Securities or Coupons) or when completed by appropriate insertions, executed under the Guarantor's corporate seal and attested by duly authorized officers of the Guarantor (in the case of the Guarantees), delivered by duly authorized officers of the Company or the Guarantor, as the case may be, to the Trustee for authentication pursuant to this Indenture, and authenticated and delivered by the Trustee and issued by the Company and the Guarantor in the manner and subject to any conditions specified in such Opinion of Counsel, will constitute legally valid and binding obligations of the Company and of the Guarantor, respectively, enforceable in accordance with their terms, subject, in the case of the Securities to bankruptcy, insolvency, reorganization, moratorium, arrangement, fraudulent conveyance, fraudulent transfer or other similar laws of general applicability to the Company and relating to or affecting creditors' rights and to general principles of equity 29 (regardless of whether enforcement is sought in a proceeding in equity or at law), and subject, in the case of the Guarantees, to bankruptcy, insolvency, reorganization, moratorium, arrangement, fraudulent conveyance, fraudulent transfer or other similar laws of general applicability to the Guarantor and relating to or affecting creditors' rights and to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law); and (c) this Indenture has been qualified under the Trust Indenture Act; and (2) a Company Officers' Certificate and Guarantor Officer's Certificate, each stating that, to the best knowledge of the Persons executing such certificate, no Default or Event of Default with respect to any of the Securities shall have occurred and be continuing. If all of the Securities of any series are not to be issued at one time, unless requested by the Trustee, it shall not be necessary to deliver an Opinion of Counsel at the time of issuance of each Security, but such opinion, with such modifications as counsel shall deem appropriate, shall be delivered at or before the time of issuance of the first Security of such series. After any such first delivery, any separate request by the Company that the Trustee authenticate additional Securities of such series for original issue will be deemed to be a certification by the Company that all conditions precedent provided for in this Indenture relating to authentication and delivery of such Securities continue to have been complied with. The Trustee shall not be required to authenticate or to cause an Authenticating Agent to authenticate any 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 or if the Trustee, being advised by counsel, determines that such action may not lawfully be taken. Each Registered Security shall be dated the date of its authentication. Each Bearer Security and any temporary global Security shall be dated as of the date specified in or pursuant to this Indenture. No Security or Guarantee endorsed thereon or Coupon appertaining to such 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 in Section 203 or 612 executed by or on behalf of the Trustee or by the Authenticating Agent by the manual signature of one of its authorized officers. Such certificate upon any Security shall be conclusive evidence, and the only evidence, that such Security has been duly authenticated and delivered hereunder. Section 304. Temporary Securities. -------------------- (a) Pending the preparation of Definitive Securities, the Company may execute and deliver to the Trustee and, upon Company Order and a Guarantor Order for authentication and delivery, the Trustee shall authenticate and deliver, in the manner provided in Section 303, 30 temporary Securities in lieu thereof 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, in registered form or, if authorized in or pursuant to this Indenture, in bearer form with one or more Coupons or without Coupons, and having endorsed thereon Guarantees of the Guarantor substantially of the tenor of the definitive Guarantees, with such appropriate insertions, omissions, substitutions and other variations as the officers executing such Securities or Guarantees may determine, as conclusively evidenced by their execution of such Securities or Guarantees. Such temporary Securities may be in global form. (b) Except in the case of temporary global Bearer Securities, which shall be exchanged in accordance with the provisions of clause (c) of this Section 304, if temporary Securities are issued, the Company shall cause Definitive Securities to be prepared without unreasonable delay. After the preparation of Definitive Securities of the same series and containing terms and provisions that are identical to those of any temporary Securities, such temporary Securities shall be exchangeable for such Definitive Securities with Guarantees of the Guarantor endorsed thereon upon surrender of such temporary Securities at an Office or Agency for such Securities, without charge to any Holder thereof. Upon surrender for cancellation of any one or more temporary Securities (accompanied by any unmatured Coupons appertaining thereto), the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a like principal amount of Definitive Securities of authorized denominations of the same series and containing identical terms and provisions which have endorsed thereon the Guarantees of the Guarantor; provided, however, that no -------- ------- definitive Bearer Security, except as provided in or pursuant to this Indenture, shall be delivered in exchange for a temporary Registered Security; and provided, further, that a definitive Bearer Security shall be delivered in - -------- ------- exchange for a temporary Bearer Security only in compliance with the conditions set forth in or pursuant to this Indenture. Unless otherwise provided in or pursuant to this Indenture with respect to a temporary global Bearer Security, 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. (c) All or a portion of the Securities constituting Bearer Securities may be initially issued as temporary global Bearer Securities without Coupons or conversion rights, having endorsed thereon the Guarantees. Such temporary global Bearer Securities shall be deposited on the applicable closing date on behalf of the subscribers for the Securities represented thereby with the Common Depository, for credit to their respective accounts (or to such other accounts as they may direct) at MORGAN GUARANTY TRUST COMPANY OF NEW YORK, Brussels Office, as operator of the EUROCLEAR CLEARANCE SYSTEM ("EUROCLEAR"), or CEDEL BANK, SOCIETE ANONYME ("CEDEL"). On or before the Exchange Date, the Company shall deliver to the Paying Agent in London at its principal London office or to its designated agent outside the United States, definitive Bearer Securities with Guarantees of the Guarantor endorsed thereon. On or after the applicable Exchange Date, the temporary global Bearer Securities may be surrendered by the Common Depository to the Trustee or its agent, as the Company's agent for such purpose, to be exchanged, in whole or from time to time in part, for definitive Bearer Securities without charge 31 to Holders, and the Trustee or the Paying Agent in London or other Paying Agent outside the United States shall authenticate and deliver (at an office or agency outside the United States), in exchange for the temporary global Bearer Securities or the portions thereof to be exchanged, an equal aggregate principal amount of definitive Bearer Securities, as shall be specified by the Holders thereof; provided, however, that upon such presentation by the Common -------- ------- Depository, the temporary global Bearer Securities are accompanied by a certificate dated the Exchange Date or a subsequent date and signed by EUROCLEAR as to the portion of the temporary global Bearer Securities held for its account then to be exchanged and a certificate dated the Exchange Date or a subsequent date and signed by CEDEL as to the portion of the temporary global Bearer Securities held for its account then to be exchanged, each substantially in the form of Exhibit E hereto to the effect that it has received a certificate or --------- certificates substantially in the form of Exhibit D hereto dated no earlier than --------- 15 days prior to the Exchange Date and signed by the person appearing in its records as the owner of the temporary global Bearer Securities or portions thereof being exchanged. The Company hereby appoints the principal office of the Paying Agent in London, England, or its designated agent, as its agent outside the United States where definitive Bearer Securities may be delivered in exchange for the temporary global Bearer Securities or portions thereof. Each beneficial owner of any portion of the temporary global Bearer Securities shall be entitled to take delivery of definitive Bearer Securities only at such office. Temporary global Bearer Securities will be exchangeable for Registered Securities in denominations of $1,000 or an integral multiple thereof at any time without the certification requirements set forth in the preceding paragraph; provided that such exchange is permitted by the rules and procedures -------- ---- then in effect of CEDEL and EUROCLEAR, and provided, further, that if and so -------- ------- long as Registered Securities of a series are represented solely by a permanent global Registered Security, the temporary global Bearer Security will only be exchangeable for an interest in the permanent global Registered Security as set forth in Section 305 herein. Notwithstanding any other provision hereof or of the Securities, no Bearer Security initially represented by the temporary global Bearer Securities will be mailed to or otherwise delivered in connection with its original issuance to any location within the United States. The Trustee agrees that it will cause the Paying Agent in London (if required) to retain each certificate provided by EUROCLEAR or CEDEL for a period of four calendar years following the year in which the certificate is received and not to destroy or otherwise dispose of any such certificate without first offering to deliver it to the Company. Upon any such exchange of a portion of the temporary global Bearer Security for definitive Bearer Securities, or for Registered Securities (if permitted by the rules and procedures then in effect of CEDEL and EUROCLEAR), the temporary global Bearer Security shall be deemed to reflect the reduction of the principal amount evidenced thereby. Until so exchanged in full, the temporary global Bearer Security shall in all respects be entitled to the same benefits under, and subject to the same terms and conditions of, this Indenture as definitive Bearer Securities authenticated and delivered hereunder, except that none of EUROCLEAR, CEDEL or the beneficial owners of the temporary global Bearer Security shall be entitled to receive payment of interest or other payments thereon or to convert the temporary global Bearer 32 Security, if applicable, or any portion thereof, as set forth in Article Twelve, except as otherwise permitted pursuant to this Indenture or the Securities. Section 305. Registration, Transfer and Exchange. ----------------------------------- With respect to the Registered Securities of each series, if any, the Company shall cause to be kept a register (each such register being herein sometimes referred to as the "Security Register") at an Office or Agency for ----------------- such series in which, subject to such reasonable regulations as it may prescribe, the Company shall provide for the registration of the Registered Securities of such series and of transfers of the Registered Securities of such series. Such Office or Agency shall be the "Security Registrar" for that series ------------------ of Securities. Unless otherwise specified in or pursuant to this Indenture or the Securities, the Trustee shall be the initial Security Registrar for each series of Securities. The Company shall have the right to remove and replace from time to time the Security Registrar for any series of Securities; provided -------- that no such removal or replacement shall be effective until a successor - ---- Security Registrar with respect to such series of Securities shall have been appointed by the Company and shall have accepted such appointment. In the event that the Trustee shall not be or shall cease to be Security Registrar with respect to a series of Securities, it shall have the right to examine the Security Register for such series at all reasonable times. There shall be only one Security Register for each series of Securities. Upon surrender for registration of transfer of any Registered Security of any series at any Office or Agency for such 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 Registered Securities of the same series denominated as authorized in or pursuant to this Indenture, of a like aggregate principal amount bearing a number not contemporaneously outstanding and containing identical terms and provisions, having endorsed thereon the Guarantee duly executed by the Guarantor. At the option of the Holder, Registered Securities of any series may be exchanged for other Registered Securities of the same series containing identical terms and provisions, in any authorized denominations, and of a like aggregate principal amount, upon surrender of the Securities to be exchanged at any applicable Office or Agency for such series. Whenever any Registered Securities are so surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and deliver, the Registered Securities which the Holder making the exchange is entitled to receive, having endorsed thereon Guarantees of the Guarantor which the Holder is entitled to receive. Registered Securities of any series may not be exchanged for Bearer Securities. At the option of the Holder, definitive Bearer Securities of such series may be exchanged at any time (except as otherwise provided in this Indenture) for Registered Securities or Bearer Securities of such series containing identical terms, denominated as authorized in or pursuant to this Indenture and in the same aggregate principal amount, upon surrender of the Bearer Securities to be exchanged at any applicable Office or Agency for such series located outside the United States, with any and all unmatured Coupons and any and all matured Coupons in default thereto appertaining; provided that if and so long as -------- ---- Registered Securities of a series are represented solely by a permanent global Registered Security, such definitive Bearer Securities 33 will only be exchangeable for an interest in the permanent global Registered Security as set forth in this Section 305. If the Holder of a Bearer Security is unable to produce any such unmatured Coupon or Coupons or matured Coupon or Coupons in default, such exchange may be effected if the Bearer Securities are accompanied by payment in funds acceptable to the Company, the Guarantor and the Trustee in an amount equal to the face amount of such missing Coupon or Coupons, or the surrender of such missing Coupon or Coupons may be waived by the Company, the Guarantor and the Trustee if there is furnished to them such security or indemnity as they may require to save each of them and any Paying Agent harmless. If thereafter the Holder of such Bearer Security shall surrender to any Paying Agent any such missing Coupon in respect of which such a payment shall have been made, such Holder shall be entitled to receive the amount of such payment; provided, however, that, except as otherwise provided in Section -------- ------- 1002, interest represented by Coupons shall be payable only upon presentation and surrender of those Coupons at an applicable Office or Agency for such series located outside the United States. Notwithstanding the foregoing, in case a Bearer Security of any series is surrendered at any such Office or Agency for such series in exchange for a Registered Security of such series and like tenor after the close of business at such Office or Agency on (i) any Regular Record Date and before the opening of business at such Office or Agency on the relevant Interest Payment Date, or (ii) any Special Record Date and before the opening of business at such Office or Agency on the related date for payment of Defaulted Interest, such Bearer Security shall be surrendered without the Coupon relating to such Interest Payment Date or proposed date for payment of Defaulted Interest, as the case may be (or, if such Coupon is so surrendered with such Bearer Security, such Coupon shall be returned to the Person so surrendering the Bearer Security), and interest or Defaulted Interest, as the case may be, shall not be payable on such Interest Payment Date or proposed date for payment or Defaulted Interest, as the case may be, in respect of the Registered Security issued in exchange for such Bearer Security, but shall be payable only to the Holder of such Coupon when due in accordance with the provisions of this Indenture. Whenever any Securities are surrendered for exchange as contemplated by the immediately preceding two paragraphs, the Company shall execute, and the Trustee shall authenticate and deliver, the Securities (with all Coupons, in the case of the issuance of Bearer Securities), having endorsed thereon Guarantees of the Guarantor, which the Holder making the exchange is entitled to receive. If the Holder of definitive Bearer Securities or definitive Registered Securities requests in writing that such Securities be exchanged for an interest in the applicable permanent global Registered Security, such Bearer Securities or Registered Securities (as the case may be) will be exchangeable into an equal aggregate principal amount of beneficial interest in the permanent global Registered Security; provided that in the case of definitive Bearer Securities, -------- ---- such Bearer Securities are only exchanged in the manner set forth in this Section 305 with respect to the exchange of definitive Bearer Securities for Registered Securities and in the case of Registered Securities, such exchange is made in accordance with the rules and procedures then in effect of the Depository. Upon any exchange as provided in the immediately preceding sentence, the Trustee shall cancel such Bearer Securities or Registered Securities (as the case may be) and cause, or direct any custodian for the permanent global Registered Security to cause, in accordance with the standing instructions and procedures existing between the Depository and any such custodian, the aggregate principal amount of Securities represented by the permanent 34 global Registered Security to be increased accordingly. If no permanent global Registered Securities are then outstanding, the Company shall issue and the Trustee shall authenticate a new permanent global Registered Security in the appropriate principal amount, having endorsed thereon a Guarantee duly executed by the Guarantor. Notwithstanding the foregoing, except as otherwise provided in or pursuant to this Indenture, any permanent global Registered Security shall be exchangeable for Definitive Securities only if (i) the Depository is at any time unwilling, unable or ineligible to continue as Depository or ceases to be a clearing agency registered under the Exchange Act (if so required by applicable law or regulation) and a successor depository is not appointed by the Company within 90 days of the date the Company is so informed in writing, (ii) the Company executes and delivers to the Trustee a Company Order to the effect that such permanent global Registered Security shall be so exchangeable or (iii) an Event of Default has occurred and is continuing with respect to the Securities. If the beneficial owners of interests in a permanent global Registered Security are entitled to exchange such interests for Definitive Securities as the result of an event described in clause (i), (ii) or (iii) of the preceding sentence, then without unnecessary delay but in any event not later than the earliest date on which such interests may be so exchanged, the Company shall deliver to the Trustee Definitive Securities in such form and denominations as are required by or pursuant to this Indenture, and of the same series, containing identical terms and in aggregate principal amount equal to the principal amount of such permanent global Registered Security, executed by the Company. On or after the earliest date on which such interests may be so exchanged, such permanent global Registered Security shall be surrendered from time to time by the U.S. Depository or such other Depository as shall be specified in the Company Order with respect thereto, and in accordance with instructions given to the Trustee and the U.S. Depository or such other Depository, as the case may be (which instructions shall be in writing but need not be contained in or accompanied by an Officers' Certificate or be accompanied by an Opinion of Counsel), as shall be specified in the Company Order with respect thereto to the Trustee, as the Company's agent for such purpose, to be exchanged, in whole or in part, for Definitive Securities as described above without charge. The Trustee shall authenticate and make available for delivery, in exchange for each portion of such surrendered permanent global Registered Security, a like aggregate principal amount of Definitive Securities of the same series of authorized denominations and of like tenor as the portion of such permanent global Registered Security to be exchanged, which shall be in the form of Registered Securities; provided, however, that no such exchanges may occur during a period -------- ------- beginning at the opening of business 15 days before any selection of Securities of the same series to be redeemed and ending at the close of business on the day of such selection. Promptly following any such exchange in part, a permanent global Registered Security for the portions not exchanged shall be returned by the Trustee to such Depository or the U.S. Depository, as the case may be, or such other Depository or U.S. Depository referred to above in accordance with the instructions of the Company referred to above. If a Registered Security is issued in exchange for any portion of a permanent global Registered Security after the close of business at the applicable Office or Agency for such Security where such exchange occurs on or after (i) any Regular Record Date for such Security and before the opening of business at such Office or Agency on the next Interest Payment Date, or (ii) any Special Record Date for such Security and before the opening of business at such Office or Agency on the related proposed date for payment of Defaulted Interest, as the case may be, interest shall not be payable on such Interest Payment Date or proposed date for payment of 35 Defaulted Interest, as the case may be, in respect of such Registered Security, but shall be payable on such Interest Payment Date or proposed date for payment of Defaulted Interest, as the case may be, only to the Person to whom interest in respect of such portion of such permanent global Registered Security shall be payable in accordance with the provisions of this Indenture. All Securities issued upon any registration of transfer or exchange of Securities, and all Guarantees endorsed thereon, shall be the valid obligations of the Company or the Guarantor, as the case may be, evidencing the same debt and entitling the Holders thereof to the same benefits under this Indenture as the Securities and all the Guarantees endorsed thereon surrendered upon such registration of transfer or exchange. Every Registered Security presented or surrendered for registration of transfer or for exchange or redemption shall (if so required by the Company or the Security Registrar for such Security) be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar for such Security duly executed by the Holder thereof or his attorney duly authorized in writing. No service charge shall be made for any registration of transfer or exchange, or redemption of Securities, but the Company may require payment of a sum sufficient to cover any stamp or similar tax or other governmental charge and any other expenses (including fees and expenses of the Trustee) that may be imposed in connection with any registration of transfer or exchange of Securities, other than exchanges pursuant to Section 304, 1107 or 1202, or upon repayment in part of any Registered Security pursuant to Article Fifteen, in each case not involving any transfer. Except as otherwise provided in or pursuant to this Indenture, the Company shall not be required (i) to issue, register the transfer of or exchange any Securities during a period beginning at the opening of business 15 days before the day of the selection for redemption of Securities of like tenor and the same series under Section 1103 and ending at the close of business on the day of such selection, or (ii) to register the transfer of or exchange any Registered 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, or (iii) to exchange any Bearer Security so selected for redemption except, to the extent provided with respect to such Bearer Security, that such Bearer Security may be exchanged for a Registered Security of like tenor and the same series, provided that such Registered Security shall be immediately surrendered for redemption with written instruction for payment consistent with the provisions of this Indenture or (iv) to issue, register the transfer of or exchange any Security which, in accordance with its terms, has been surrendered for repayment at the option of the Holder, except the portion, if any, of such Security not to be so repaid. Section 306. Mutilated, Destroyed, Lost and Stolen Securities. ------------------------------------------------ If any mutilated Security or a Security with a mutilated Coupon appertaining to it is surrendered to the Trustee, subject to the provisions of this Section 306, the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a new Security of the same series containing identical terms and of like principal amount, having endorsed thereon the 36 Guarantee of the Guarantor, and bearing a number not contemporaneously outstanding, with Coupons appertaining thereto corresponding to the Coupons, if any, appertaining to the surrendered Security; provided, however, that any -------- ------- Bearer Security or any Coupon shall be delivered only outside the United States and, if the Securities of such series are listed on the London Stock Exchange or the Luxembourg Stock Exchange or any other stock exchange located outside the United States and such stock exchange shall so require, such delivery shall occur at the Office or Agency located in London, Luxembourg or any other required city located outside the United States, as the case may be, so long as Securities of such series are listed on such exchange; and provided, further, -------- ------- that all Bearer Securities shall be delivered and received in person. If there be delivered to the Company, the Guarantor and the Trustee (i) evidence to their satisfaction of the destruction, loss or theft of any Security or Coupon, and (ii) such security or indemnity as may be required by them to save each of them and any agent of either of them harmless, then, in the absence of notice to the Company, the Guarantor or the Trustee that such Security or Coupon has been acquired by a bona fide purchaser, the Company shall execute and, upon the Company's request the Trustee shall authenticate and deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or stolen Security or in exchange for the Security to which a destroyed, lost or stolen Coupon appertains with all appurtenant Coupons not destroyed, lost or stolen, a new Security of the same series containing identical terms and of like principal amount, having endorsed thereon the Guarantee of the Guarantor, and bearing a number not contemporaneously outstanding, with Coupons corresponding to the Coupons, if any, appertaining to such destroyed, lost or stolen Security or to the Security to which such destroyed, lost or stolen Coupon appertains; provided, however, that any Bearer Security or any Coupon shall be delivered - -------- ------- only outside the United States and, if the Securities of such series are listed on the London Stock Exchange or the Luxembourg Stock Exchange or any other stock exchange located outside the United States and such stock exchange shall so require, such delivery shall occur at the Office or Agency located in London, Luxembourg or any other required city located outside the United States, as the case may be, so long as Securities of such series are listed on such exchange; and provided, further, that all Bearer Securities shall be delivered and -------- ------- received in person. Notwithstanding the foregoing provisions of this Section 306, in case any mutilated, destroyed, lost or stolen Security or Coupon has become or will become due and payable within seven (7) days, the Company in its discretion, but subject to any conversion rights, may, instead of issuing a new Security, pay such Security or Coupon; provided, however, that payment of principal of, any -------- ------- premium or interest on or any Additional Amounts with respect to any Bearer Securities shall, except as otherwise provided in Section 1002, be payable only at the applicable Office or Agency for such Securities located outside the United States and, unless otherwise provided in or pursuant to this Indenture, any interest on Bearer Securities and any Additional Amounts with respect to such interest shall be payable only upon presentation and surrender of the Coupons appertaining thereto. Upon the issuance of any new Security under this Section, the Company may require the payment of a sum sufficient to cover any stamp or similar tax or other governmental charge that 37 may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith. Every new Security with any Coupons appertaining thereto, and the Guarantee of the Guarantor endorsed thereon, issued pursuant to this Section 306 in lieu of any mutilated, destroyed, lost or stolen Security, or in exchange for a Security to which a mutilated, destroyed, lost or stolen Coupon appertains shall constitute a separate obligation of the Company and the Guarantor, respectively, whether or not the mutilated, destroyed, lost or stolen Security and Coupons appertaining thereto or the mutilated, destroyed, lost or stolen Coupon shall be at any time enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities of such series and any Coupons, and related Guarantees, duly issued hereunder. The provisions of this Section, as amended or supplemented pursuant to this Indenture with respect to particular Securities or generally, shall be 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 or Coupons. Section 307. Payment of Interest and Certain Additional Amounts; Rights to ------------------------------------------------------------- Interest and Certain Additional Amounts Preserved. - ------------------------------------------------- (a) Unless otherwise provided in or pursuant to this Indenture, any interest on and any Additional Amounts with respect to any Registered Security which shall be payable, and are punctually paid or duly provided for, on any Interest Payment Date shall be paid to the Person in whose name such Security (or one or more Predecessor Securities) is registered as of the close of business on the Regular Record Date for such interest. Unless otherwise provided as contemplated by Section 301 with respect to the Securities of any series, payment of interest may be made (i) by check mailed or delivered, in the case of Registered Securities, to the address of the Person entitled thereto as such address shall appear in the Security Register or, in the case of Bearer Securities, upon presentation and surrender of the appropriate Coupon appertaining thereto, or (ii) at the option of the Company with the consent of any Paying Agent, (1) in the case of a Bearer Security, upon presentation and surrender of the applicable Coupon at an applicable Office or Agency for such series outside the United States, except as otherwise provided in Section 1002, by transfer to an account maintained by the payee with a bank located outside the United States, or (2) in the case of a Registered Security, by transfer to an account maintained by the payee with a bank located inside the United States. Unless otherwise provided as contemplated by Section 301, every permanent global Security will provide that interest, if any, payable on any Interest Payment Date will be paid to DTC, EUROCLEAR and/or CEDEL, as the case may be, with respect to that portion of such permanent global Security held for its account by Cede & Co. or the Common Depository, as the case may be, for the purpose of permitting such party to credit the interest received by it in respect of such permanent global Security to the accounts of the beneficial owners thereof. 38 Unless otherwise provided in or pursuant to this Indenture, in case a Bearer Security is surrendered in exchange for a Registered Security after the close of business at the applicable Office or Agency for such Security on any Regular Record Date therefor and before the opening of business at such Office or Agency on the next succeeding Interest Payment Date therefor, such Bearer Security shall be surrendered without the Coupon relating to such Interest Payment Date and interest shall not be payable on such Interest Payment Date in respect of the Registered Security issued in exchange for such Bearer Security, but shall be payable only to the Holder of such Coupon when due in accordance with the provisions of this Indenture. Unless otherwise provided in or pursuant to this Indenture, any interest on and any Additional Amounts with respect to any Bearer Security shall, except as otherwise provided in Section 1002, be payable only at an Office or Agency for such Securities located outside the United States. Interest on any temporary global Bearer Security shall be payable only after the issuance of a Definitive Security for which it is exchangeable as provided in Section 304, except as otherwise provided pursuant to this Indenture or the Securities. (b) Unless otherwise provided in or pursuant to this Indenture, any interest on and any Additional Amounts with respect to any Registered Security which shall be payable, but shall not be punctually paid or duly provided for, on any Interest Payment Date for such Registered Security (herein called "Defaulted Interest") shall forthwith cease to be payable to the Holder thereof ------------------ 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 Person in whose name such Registered Security (or a Predecessor Security thereof) shall be 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 such Registered Security 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 on or prior to the date of the proposed payment, such money when so deposited to be held in trust for the benefit of the Person 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 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 the Holder of such Registered Security (or a Predecessor Security thereof) at his address as it appears in the Security Register not less than 10 days prior to such Special Record Date. The Trustee may, in its discretion, in the name and at the expense of the Company cause a similar notice to be published at least once in an Authorized Newspaper of general circulation in the Borough of Manhattan, 39 The City of New York, but such publication shall not be a condition precedent to the establishment of such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor having been mailed as aforesaid, such Defaulted Interest shall be paid to the Person in whose name such Registered Security (or a Predecessor Security thereof) shall be registered at the close of business on such Special Record Date and shall no longer be payable pursuant to the following clause (2). In case a Bearer Security is surrendered at the applicable Office or Agency for such Security in exchange for a Registered Security after the close of business at such Office or Agency on any Special Record Date and before the opening of business at such Office or Agency on the related proposed date for payment of Defaulted Interest, such Bearer Security shall be surrendered without the Coupon relating to such Defaulted Interest and Defaulted Interest shall not be payable on such proposed date of payment in respect of the Registered Security issued in exchange for such Bearer Security, but shall be payable only to the Holder of such Coupon when due in accordance with the provisions of this Indenture. (2) The Company may make payment of any Defaulted Interest in any other lawful manner not inconsistent with the requirements of any securities exchange on which such Security may be listed, and upon such notice as may be required by such exchange, if, after notice given by the Company to the Trustee of the proposed payment pursuant to this clause, such manner of payment shall be deemed practicable by the Trustee. (c) In the case of any Registered Security which is converted into Common Stock pursuant to Article Twelve after any Regular Record Date and on or prior to the next succeeding Interest Payment Date (other than any Registered Security whose Maturity is prior to such Interest Payment Date), interest whose Stated Maturity is on such Interest Payment Date shall be payable on such Interest Payment Date notwithstanding such conversion, and such interest (whether or not punctually paid or duly provided for) shall be paid to the Person in whose name such Registered Security (or one or more Predecessor Securities) is registered at the close of business on such Regular Record Date. Except as otherwise expressly provided in the immediately preceding sentence, in the case of any Security which is converted pursuant to Article Twelve, accrued interest from the immediately preceding Interest Payment Date until the Conversion Date shall be payable to the converting Holder within five Business Days after the Conversion Date. Upon presentment for conversion of any Securities pursuant to Article Twelve, the Paying Agent shall promptly notify the Company of the amount of any accrued interest due and owing thereon and the Company shall pay to the Paying Agent an amount sufficient to pay the accrued interest due on such Securities and Additional Amounts, if any, thereon, and the Paying Agent shall apply the amounts so paid to it to the payment of such accrued interest and Additional Amounts, if any, thereon in accordance with the terms of the Securities. (d) Subject to the foregoing provisions of this Section 307 and Section 305, each Security delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of any other Security shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Security. 40 Section 308. Persons Deemed Owners. --------------------- Title to any Bearer Security or Coupon shall pass by delivery. The Company, the Guarantor, the Trustee, the Paying Agent and any other agent of the Company, the Guarantor, the Trustee or the Paying Agent may treat the bearer of any Bearer Security or the temporary global Bearer Security and the bearer of any Coupon as the absolute owner of such Security or Coupon, as the case may be, for the purpose of receiving payment thereof or on account thereof and for all other purposes whatsoever, whether or not such Security or Coupon be overdue, and neither the Company, the Guarantor, the Trustee, the Paying Agent nor any other agent of the Company, the Guarantor, the Trustee or the Paying Agent shall be affected by notice to the contrary. Prior to due presentment of a Registered Security for registration of transfer, the Company, the Guarantor, the Trustee and any agent of the Company, the Guarantor or the Trustee shall treat the Person in whose name such Registered Security is registered in the Security Register as the absolute owner of such Registered Security for the purpose of receiving payment of principal of, any premium and (subject to Sections 305 and 307) interest on and any Additional Amounts with respect to such Registered Security and for all other purposes whatsoever, whether or not any payment with respect to such Registered Security shall be overdue, and neither the Company, the Guarantor, the Trustee or any agent of the Company, the Guarantor or the Trustee shall be affected by notice to the contrary. No holder of any beneficial interest in any global Security held on its behalf by a Depository shall have any rights under this Indenture with respect to such global Security, and such Depository may be treated by the Company, the Guarantor, the Trustee, and any agent of the Company, the Guarantor or the Trustee as the owner of such global Security for all purposes whatsoever. None of the Company, the Guarantor, the Trustee, any Paying Agent, any Conversion 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 global Security or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests. Section 309. Cancellation. ------------ All Securities and Coupons surrendered for payment, redemption, registration of transfer, exchange or conversion or for credit against any sinking fund payment shall, if surrendered to any Person other than the Trustee, be delivered to the Trustee, and any such Securities and Coupons, as well as Securities and Coupons surrendered directly to the Trustee for any such purpose, shall be canceled promptly by the Trustee. The Company or the Guarantor may at any time deliver to the Trustee for cancellation any Securities or Coupons previously authenticated and delivered hereunder which the Company or the Guarantor may have acquired in any manner whatsoever, and all Securities or Coupons so delivered shall be canceled promptly by the Trustee. No Securities or Coupons shall be authenticated in lieu of or in exchange for any Securities or Coupons canceled as provided in this Section 309, except as expressly permitted by or pursuant to this Indenture. All canceled Securities and Coupons held by the Trustee shall be destroyed by the Trustee, unless by a Company Order the Company directs their return to it. 41 Section 310. Computation of Interest. ----------------------- Except as otherwise provided in or pursuant to this Indenture or in the Securities of any series, interest on the Securities shall be computed on the basis of a 360-day year of twelve 30-day months. Section 311. CUSIP Numbers. ------------- The Company in issuing Registered Securities may use "CUSIP" numbers (if then generally in use) in addition to serial numbers, and in issuing Bearer Securities may use "ISIN" numbers (if then generally in use); if so, the Trustee shall use such "CUSIP" and "ISIN" numbers in addition to serial numbers in notices of redemption and repayment as a convenience to Holders; provided that -------- ---- any such notice may state that no representation is made as to the correctness of such CUSIP and ISIN numbers either as printed on the Securities or as contained in any notice of a redemption or repayment and that reliance may be placed only on the serial or other identification numbers printed on the Securities, and any such redemption or repayment shall not be affected by any defect in or omission of such CUSIP or ISIN numbers. Section 312. Notification of Withholding. --------------------------- The Company shall notify the Trustee in writing of the necessity, if any, to withhold any amounts from payments to Holders (and the amount of any such withholding). ARTICLE FOUR SATISFACTION AND DISCHARGE OF INDENTURE Section 401. Satisfaction and Discharge. -------------------------- Upon the direction of the Company by a Company Order, this Indenture shall cease to be of further effect with respect to any series of Securities specified in such Company Order and any Coupons appertaining thereto (except as to any surviving rights of conversion, or registration of transfer or exchange or replacement of Securities herein expressly provided for and any right to receive Additional Amounts and the Company's obligations to the Trustee pursuant to Section 606), and the Trustee, on receipt of a Company Order, at the expense of the Company, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture as to such series, when (1) either (A) all Securities of such series theretofore authenticated and delivered and all Coupons appertaining thereto (other than (i) Coupons appertaining to Bearer Securities of such series surrendered in exchange for Registered Securities of such series and maturing after such exchange whose surrender is not required or has been waived as provided in Section 305, (ii) Securities and Coupons of such series which have been destroyed, lost or stolen and which have been replaced or paid as provided in Section 306, (iii) Coupons 42 appertaining to Securities of such series called for redemption and maturing after the relevant Redemption Date whose surrender has been waived as provided in Section 1106, and (iv) Securities and Coupons of such series for whose payment money has theretofore been deposited in trust or segregated and held in trust by the Company or the Guarantor and thereafter repaid to the Company or the Guarantor or discharged from such trust, as provided in Section 1003) have been delivered to the Trustee for cancellation; or (B) all Securities of such series and any Coupons appertaining thereto not theretofore delivered to the Trustee or the Paying Agent for cancellation (other than Securities or Coupons referred to in clauses (i) through (iii) of clause (A) above) (i) have become due and payable, or (ii) will have become due and payable at their Stated Maturity within one year and such Securities are not convertible into or exchangeable for other securities, or (iii) if redeemable at the option of the Company, such Securities are not convertible into or exchangeable for other securities and 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 or the Guarantor, in the case of (i), (ii), or (iii) above, has irrevocably deposited or caused to be deposited with the Trustee as trust funds (immediately available to the Holders in the case of clause (i) above) in trust for such purpose, money in the Currency in which such Securities are payable in an amount sufficient to pay and discharge the entire indebtedness on such Securities and any Coupons appertaining thereto not theretofore delivered to the Trustee for cancellation, including the principal of, any premium and interest on, and, to the extent that the Securities of such series provide for the payment of Additional Amounts thereon and the amount of any such Additional Amounts is at the time of deposit reasonably determinable by the Company (in the exercise by the Company of its sole and absolute discretion), any Additional Amounts with respect to such Securities and any Coupons appertaining thereto, to the date of such deposit (in the case of Securities which have become due and payable) or to the Maturity thereof, as the case may be; (2) the Company or the Guarantor, as the case may be, has paid or caused to be paid all other sums payable hereunder by the Company or the Guarantor with respect to the Outstanding Securities of such series and any Coupons appertaining thereto; 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 as to such series 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 43 only if requested to do so with respect to Securities of such series as to which it is Trustee and if the other conditions thereto are met. Notwithstanding the satisfaction and discharge of this Indenture with respect to any series of Securities, the obligations of the Company and the Guarantor to the Trustee under Section 606, the obligations of the Company and the Guarantor to any Authenticating Agent under Section 612, and, if money shall have been deposited with the Trustee pursuant to clause (1)(B) of this Section, the obligations of the Company, the Guarantor and the Trustee with respect to the Securities of such series under Sections 305, 306, 403, 1002 and 1003, and with respect to the payment of Additional Amounts, if any, with respect to such Securities as contemplated by Section 1004 (but only to the extent that the Additional Amounts payable with respect to such Securities exceed the amount deposited in respect of such Additional Amounts pursuant to Section 401(B)(iii)), shall survive. Section 402. Defeasance and Covenant Defeasance. ---------------------------------- (1) Unless, pursuant to Section 301, provision is made for either or both of (i) defeasance of the Securities of or within a series under clause (2) of this Section 402 or (ii) covenant defeasance of the Securities of or within a series under clause (3) of this Section 402, such provisions, together with the other provisions of this Section 402, shall not be applicable to such Securities and any Coupons appertaining thereto. (2) Upon the Company's exercise of the above option applicable to this Section 402(2) with respect to any Securities of or within a series, the Company and the Guarantor shall be deemed to have been discharged from their respective obligations with respect to such Outstanding Securities and any Coupons appertaining thereto, and with respect to the corresponding Guarantees on the date the conditions set forth in clause (4) of this Section 402 are satisfied (hereinafter, "defeasance"). For this purpose, such defeasance means that the ---------- Company and the Guarantor shall be deemed to have paid and discharged the entire indebtedness represented by such Outstanding Securities and Guarantees and any Coupons appertaining thereto, which shall thereafter be deemed to be "Outstanding" only for the purposes of clause (5) of this Section 402 and the other Sections of this Indenture referred to in clauses (i) and (ii) below, and to have satisfied all of its other obligations under such Securities and any Coupons appertaining thereto and under such corresponding Guarantees and this Indenture insofar as such Securities and any Coupons appertaining thereto and such Guarantees are concerned (and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging the same), except for the following which shall survive until otherwise terminated or discharged hereunder: (i) the rights of Holders of such Outstanding Securities and Guarantees and any Coupons appertaining thereto to receive, solely from the trust fund described in clause (4) of this Section 402 and as more fully set forth in such Section, payments in respect of the principal of (and premium, if any) and interest, if any, on, and Additional Amounts, if any, with respect to, such Securities and Guarantees and any Coupons appertaining thereto when such payments are due, (ii) the obligations of the Company and the Trustee with respect to such Securities under Sections 304, 305, 306, 403, 1002 and 1003, with respect to the payment of Additional Amounts, if any, on such Securities as contemplated by Section 1004 (but only to the extent that the Additional Amounts payable with respect to such Securities exceed the amount deposited in 44 respect of such Additional Amounts pursuant to Section 402(4)(a) below), and any obligation of the Guarantor relating to a surviving obligation of the Company, (iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder, (iv) any rights of conversion or exchange of such Securities and (v) this Section 402. The Company may exercise its option under this Section 402(2) notwithstanding the prior exercise of its option under clause (3) of this Section 402 with respect to such Securities and any Coupons appertaining thereto. (3) Upon the Company's exercise of the above option applicable to this Section 402(3) with respect to any Securities of or within a series, the Company and the Guarantor, as the case may be, shall be released from its obligations under Sections 1005 and Section 102 and, to the extent specified pursuant to Section 301, any other covenant applicable to such Securities, with respect to such Outstanding Securities and any Coupons appertaining thereto on and after the date the conditions set forth in clause (4) of this Section 402 are satisfied (hereinafter, "covenant defeasance"), and such Securities and any ------------------- Coupons appertaining thereto shall thereafter be deemed to be not "Outstanding" for the purposes of any direction, waiver, consent or declaration or Act of Holders (and the consequences of any thereof) in connection with any such covenant, but shall continue to be deemed "Outstanding" for all other purposes hereunder. For this purpose, such covenant defeasance means that, with respect to such Outstanding Securities and any Coupons appertaining thereto, the Company and the Guarantor may omit to comply with, and shall have no liability in respect of, any term, condition or limitation set forth in any such Section or such other covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such Section or such other covenant or by reason of reference in any such Section or such other covenant to any other provision herein or in any other document and such omission to comply shall not constitute a default or an Event of Default under Section 501(4) or otherwise, as the case may be, but, except as specified above, the remainder of this Indenture and such Securities and Coupons appertaining thereto, and the Guarantees endorsed thereon, shall be unaffected thereby. (4) The following shall be the conditions to application of clause (2) or (3) of this Section 402 to any Outstanding Securities of or within a series and any Coupons appertaining thereto, or to any Guarantees endorsed thereon: (a) The Company shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 607 who shall agree to comply with the provisions of this Section 402 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 such Securities and any Coupons appertaining thereto, (i) an amount in Dollars, or (ii) Government Obligations applicable to such Securities and Coupons appertaining thereto (determined on the basis of the Currency in which such Securities and Coupons appertaining thereto are then specified as payable at Stated Maturity) which 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 of principal of (and premium, if any) and interest, if any, on such Securities and any Coupons appertaining thereto, money in an amount, or (iii) a combination thereof, in any case, in an amount, sufficient, without consideration of any reinvestment of such principal and interest, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof 45 delivered to the Trustee, to pay and discharge, and which shall be applied by the Trustee (or other qualifying trustee) to pay and discharge, (y) the principal of (and premium, if any) and interest, if any, on, and, to the extent that such Securities provide for the payment of Additional Amounts thereon and the amount of any such Additional Amounts is at the time of deposit reasonably determinable by the Company, any Additional Amounts with respect to, such Outstanding Securities and any Coupons appertaining thereto on the Stated Maturity of such principal or installment of principal or interest and (z) any mandatory sinking fund payments or analogous payments applicable to such Outstanding Securities and any Coupons appertaining thereto on the day on which such payments are due and payable in accordance with the terms of this Indenture and of such Securities and any Coupons appertaining thereto. (b) Such defeasance or covenant defeasance shall not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or the Guarantor is a party or by which it is bound. (c) No Default or Event of Default with respect to such Securities and any Coupons appertaining thereto shall have occurred and be continuing on the date of such deposit and, with respect to defeasance only, at any time during the period ending on the 91st day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until the expiration of such period). (d) In the case of an election under clause (2) of this Section 402, the Company shall have delivered to the Trustee an Opinion of Counsel stating that (i) the Company has received from the Internal Revenue Service a letter ruling, or there has been published by the Internal Revenue Service a revenue ruling, or (ii) since the date of execution of this Indenture, there has been a change in the applicable Federal income tax law, in either case to the effect that, and based thereon such opinion shall confirm that, the Holders of such Outstanding Securities and any Coupons appertaining thereto will not recognize income, gain or loss for Federal income tax purposes as a result of such defeasance and will be subject to Federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such defeasance had not occurred. (e) In the case of an election under clause (3) of this Section 402, the Company and the Guarantor shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of such Outstanding Securities and any Coupons appertaining thereto will not recognize income, gain or loss for Federal income tax purposes as a result of such covenant defeasance and will be subject to Federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such covenant defeasance had not occurred. (f) The Company and the Guarantor shall have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that all conditions precedent to the defeasance or covenant defeasance under clause (2) or (3) of this Section 402 (as the case may be) have been complied with. 46 (g) Each of the Company and the Guarantor shall have delivered to the Trustee an Officers' Certificate to the effect that neither such Securities nor any other Securities of the same series, if then listed on any securities exchange, will be delisted as a result of such deposit. (h) 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). (i) 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 unless such trust shall be registered under such Act or exempt from registration thereunder. (j) Notwithstanding any other provisions of this Section 402(4), such defeasance or covenant defeasance shall be effected in compliance with any additional or substitute terms, conditions or limitations which may be imposed on the Company or the Guarantor in connection therewith pursuant to Section 301. (5) Subject to the provisions of the last paragraph of Section 1003, all money and Government Obligations (or other property as may be provided pursuant to Section 301) (including the proceeds thereof) deposited with the Trustee (or other qualifying trustee-- collectively for purposes of this Section 402(5) and Section 403, the "Trustee") pursuant to clause (4) of Section 402 in respect of ------- any Outstanding Securities of any series and any Coupons appertaining thereto shall be held in trust and applied by the Trustee, in accordance with the provisions of such Securities and any Coupons appertaining thereto 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 Holders of such Securities and any Coupons appertaining thereto of all sums due and to become due thereon in respect of principal (and premium, if any) and interest and Additional Amounts, if any, but such money need not be segregated from other funds except to the extent required by law. The Company and the Guarantor shall pay and indemnify the Trustee and its officers, directors, employees and agents against any tax, fee or other charge, imposed on or assessed against the Government Obligations deposited pursuant to this Section 402 or the principal or interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of such Outstanding Securities and any Coupons appertaining thereto. Anything in this Section 402 to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon Company Request any money or Government Obligations (or other property and any proceeds therefrom) held by it as provided in clause (4) of this Section 402 which, 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 which would then be required to be deposited to effect a defeasance or covenant defeasance, as applicable, in accordance with this Section 402. 47 Section 403. Application of Trust Money. -------------------------- Subject to the provisions of the last paragraph of Section 1003, all money and Government Obligations deposited with the Trustee pursuant to Section 401 or 402 shall be held in trust and applied by it, in accordance with the provisions of the Securities, the Coupons appertaining thereto, the Guarantees and this Indenture, as applicable, to the payment, either directly or through any Paying Agent (including the Company or the Guarantor acting as its own Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of the principal, premium, interest and Additional Amounts for whose payment such money has or Government Obligations have been deposited with or received by the Trustee; but such money and Government Obligations need not be segregated from other funds except to the extent required by law. 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 specifically deleted or modified in or pursuant to the supplemental indenture, Company and Guarantor Board Resolutions or Company and Guarantor Officers' Certificate establishing the terms of such series pursuant to this Indenture: (1) default in the payment of any interest on, or any Additional Amounts payable in respect of any interest on, any Security of such series when such interest or such Additional Amounts, as the case may be, become due and payable, and continuance of such default for a period of 10 days, whether or not such payment is prohibited by the subordination provisions of Article Seventeen or Article Eighteen; or (2) default in the payment of the principal of or premium, if any, on, or any Additional Amounts payable in respect of the principal of or premium, if any, on any Security of such series when due upon Maturity (whether upon redemption or otherwise), whether or not such payment is prohibited by the subordination provisions of Article Seventeen or Article Eighteen; or (3) default in the payment of any sinking fund payment, or analogous payment, when and as due by the terms of a Security of such series, whether or not such payment is prohibited by the subordination provisions of Article Seventeen or Article Eighteen; or (4) default in the performance, or breach, of any covenant or warranty of the Company or the Guarantor in this Indenture or any Security of such series (other than a covenant 48 or warranty for which the consequences of breach or nonperformance are addressed elsewhere in this Section 501 or in the Securities or in a covenant or warranty which has expressly been included in this Indenture or a Security of that series, whether or not by means of a supplemental Indenture, solely for the benefit of Securities of a series other than such series), and continuance of such default or breach for a period of 60 days after there has been given, by registered or certified mail, to the Company and the Guarantor by the Trustee or to the Company, the Guarantor and the Trustee by the Holders of at least 25% in principal amount of the Outstanding Securities of such 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) the Company or the Guarantor pursuant to or under or within the meaning of any Bankruptcy Law: (a) commences a voluntary case or proceeding; (b) consents to the entry of an order for relief against it in an involuntary case or proceeding or the commencement of any case against it; (c) consents to the appointment of a Custodian of it or for any substantial part of its property; (d) makes a general assignment for the benefit of its creditors; (e) files a petition in bankruptcy or answer or consent seeking reorganization or relief; or (f) consents to the filing of such petition or the appointment of or taking possession by a Custodian; or (6) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that: (a) is for relief against the Company or the Guarantor in an involuntary case or proceeding, or adjudicates the Company or the Guarantor insolvent or bankrupt; (b) appoints a Custodian of the Company or the Guarantor or for any substantial part of their respective property; or (c) orders the winding up or liquidation of the Company or the Guarantor; and the order or decree remains unstayed and in effect for 20 consecutive days; or (7) a default by the Company (including a default with respect to Securities of any series other than that series) under any indenture, including this Indenture, or instrument evidencing, or under which the Company has at the date of this Indenture or shall hereafter have, any indebtedness for money borrowed with a principal amount then outstanding in excess of 49 $25,000,000 or such other amount as may be specified in the Company's Board Resolutions or Officers' Certificate establishing the series (or the equivalent in any other currency) shall happen and be continuing and such indebtedness shall have been accelerated so that the same shall be or become due and payable prior to the date on which the same would otherwise have become due and payable, or a default in payment of such indebtedness at its stated maturity shall have occurred, and such indebtedness shall not have been discharged or such acceleration shall not be rescinded or annulled within 20 days after written notice thereof shall have been given, by registered or certified mail, to the Company and the Guarantor by the Trustee, or to the Company, the Guarantor and the Trustee by the Holders of at least 25% in aggregate principal amount of the Outstanding Securities of that series; provided, however, that if such default -------- ------- under such indenture or instrument shall be remedied or cured by the Company or waived by the holders of such indebtedness, then the Event of Default hereunder by reason thereof shall be deemed likewise to have been thereupon remedied, cured or waived without further action upon the part of either the Trustee or any of the Holders; provided, further, however, that subject to the provisions -------- ------- of Section 601, the Trustee will not be considered to have knowledge of any default by the Company under this Section 501 unless the Trustee shall have received written or actual notice of such default; or (8) any other Event of Default provided in or pursuant to this Indenture with respect to Securities of such series. "Bankruptcy Law" means Title 11, United States Code, or any similar Federal -------------- or state law for the relief of debtors. "Custodian" means any receiver, --------- trustee, assignee, liquidator, sequestrator, custodian or similar official under any Bankruptcy Law. 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 throughout the period permitted under this Indenture or any supplemental indenture to cure such default, then the Trustee or the Holders of not less than 25% in principal amount of the Outstanding Securities of such series may declare the principal (or, if any Securities are Original Issue Discount Securities or Indexed Securities, such portion of the principal as may be specified in the terms thereof) of all the Securities of such series, or such lesser amount as may be provided for in the Securities of such series, to be due and payable immediately, by a notice in writing to the Company and the Guarantor (and to the Trustee if given by the Holders), and upon any such declaration such principal or such lesser amount shall become immediately due and payable. Notwithstanding any other provision of Section 502, if an Event of Default specified in Section 501(5) or 501(6) occurs, all principal of, any premium and interest on, and any Additional Amounts on the Securities then Outstanding shall be immediately due and payable without any declaration or other act on the part of the Trustee or the Holders. At any time after Securities of any series have been accelerated and before a judgment or decree for payment of the money due has been obtained by the Trustee as hereinafter in this Article Five provided, the Holders of not less than a majority in principal amount of the 50 Outstanding Securities of such series, by written notice to the Company, the Guarantor and the Trustee, may rescind and annul such declaration and its consequences if: (1) the Company or the Guarantor has paid or deposited with the Trustee a sum of money sufficient to pay (a) all overdue installments of any interest on any Securities of such series and any Coupons appertaining thereto and any Additional Amounts with respect thereto, (b) the principal of and any premium on any Securities of such series which have become due otherwise than by such declaration of acceleration and any Additional Amounts with respect thereto and, to the extent the payment of such interest is lawful, interest thereon at the rate or rates borne by or provided for in such Securities, (c) to the extent that payment of such interest is lawful, interest upon overdue installments of any interest and any Additional Amounts with respect thereto at the rate or rates borne by or provided for 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 all other amounts due the Trustee under Section 606; and (2) all Events of Default with respect to Securities of such series, other than the non-payment of the principal of, any premium and interest on, and any Additional Amounts with respect to Securities of such series which shall have become due solely by such declaration of acceleration, shall have been cured or waived as provided in Section 513. No such rescission shall affect any subsequent default or impair any right consequent thereon. Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee. --------------------------------------------------------------- The Company covenants that if (1) default is made in the payment of any installment of interest on or any Additional Amounts with respect to any Security or any Coupon appertaining thereto when such interest or Additional Amounts shall have become due and payable and such default continues for a period of 10 days, or (2) default is made in the payment of the principal of or any premium on any Security at its Maturity, the Company shall, upon demand of the Trustee, pay to the Trustee, for the benefit of the Holders of such Securities and any Coupons appertaining thereto, the whole amount of money then due and payable with respect to such Securities and any Coupons appertaining thereto, with interest upon the overdue principal, any premium and, to the extent that payment of such interest shall be 51 legally enforceable, upon any overdue installments of interest and Additional Amounts at the rate or rates borne by or provided for in such Securities, and, in addition thereto, such further amount of money as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel and all other amounts due to the Trustee under Section 606. If the Company fails to pay the money it is required to pay the Trustee pursuant to the preceding paragraph, forthwith upon the demand of the Trustee, the Trustee, in its own name and as trustee of an express trust, may institute a judicial proceeding for the collection of the money so due and unpaid, and may prosecute such proceeding to judgment or final decree, and may enforce the same against the Company, the Guarantor or any other obligor upon such Securities and any Coupons appertaining thereto and collect the monies adjudged or decreed to be payable in the manner provided by law out of the property of the Company, the Guarantor or any other obligor upon such Securities and any Coupons appertaining thereto, 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 and any Coupons appertaining thereto 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 such Securities or in aid of the exercise of any power granted herein or therein, or to enforce any other proper remedy. Section 504. Trustee May File Proofs of Claim. -------------------------------- In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative to the Company, the Guarantor or any other obligor upon the Securities or the property of the Company, the Guarantor, or such other obligor or their creditors, the Trustee (irrespective of whether the principal of the Securities shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand on the Company or the Guarantor for the payment of any overdue principal, premium, interest or Additional Amounts) 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, including: (1) to file and prove a claim for the whole amount, or such lesser amount as may be provided for in the Securities of such series, of the principal and any premium, interest and Additional Amounts owing and unpaid in respect of the Securities and any Coupons appertaining thereto and to file such other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents or counsel) and of the Holders of Securities or any Coupons allowed in such judicial proceeding, and (2) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same; 52 and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Holder of Securities or any Coupons to make such payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Holders of Securities or any Coupons, to pay to the Trustee any amount due to it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel and any other amounts due the Trustee under Section 606. Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder of a Security or any Coupon any plan of reorganization, arrangement, adjustment or composition affecting the Securities or Coupons or the rights of any Holder thereof, or to authorize the Trustee to vote in respect of the claim of any Holder of a Security or any Coupon in any such proceeding; provided, however, that the -------- ------- Trustee may, on behalf of the Holders of Securities or any Coupons, vote for the election of a trustee in bankruptcy or similar official and be a member of a creditors or other similar committee. Section 505. Trustee May Enforce Claims Without Possession of Securities or -------------------------------------------------------------- Coupons. - ------- All rights of action and claims under this Indenture or any of the Securities or Coupons may be prosecuted and enforced by the Trustee without the possession of any of the Securities or Coupons 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 or judgment, after provision for the payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, shall be for the ratable benefit of each and every Holder of a Security or Coupon in respect of which such judgment has been recovered. Section 506. Application of Money Collected. ------------------------------ Subject to Article Thirteen, any money collected by the Trustee pursuant to this Article Five 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, interest or Additional Amounts, upon presentation of the Securities or Coupons, or both, as the case may be, and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid: FIRST: To the payment of all amounts due the Trustee and any predecessor Trustee under Section 606; SECOND: To the payment of the amounts then due and unpaid upon the Securities and any Coupons for principal and any premium, interest and Additional Amounts 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 aggregate amounts due and payable on such Securities and Coupons for principal and any premium, interest and Additional Amounts, respectively; THIRD: The balance, if any, to the Person or Persons entitled thereto. 53 Section 507. Limitations on Suits. -------------------- No Holder of any Security of any series or any Coupons appertaining thereto shall have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture, the Guarantees, the Securities of any series or any Coupons appertaining thereto, 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 such series; (2) the Holders of not less than 25% in principal amount of the Outstanding Securities of such series shall have made written request to the Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder; (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 its 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 such 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 or any Security to affect, disturb or prejudice the rights of any other such Holders or Holders of Securities of any other series, or to obtain or to seek to obtain priority or preference over any other Holders or to enforce any right under this Indenture, except in the manner herein provided and for the equal and ratable benefit of all such Holders. Section 508. Unconditional Right of Holders to Receive Principal and Any ----------------------------------------------------------- Premium, Interest and Additional Amounts. - ---------------------------------------- Notwithstanding any other provision in this Indenture, the Holder of any Security or Coupon shall have the right, which is absolute and unconditional, to receive payment of the principal of, any premium and (subject to Section 307) interest on, and any Additional Amounts with respect to such Security or such Coupon, as the case may be, on the respective Stated Maturity or Maturities therefor specified in such Security or Coupon (or, in the case of redemption, on the Redemption Date or, in the case of repayment at the option of such Holder if provided in or pursuant to this Indenture, on the Repayment Date) and to convert such Security in accordance with Article Twelve (if conversion is permitted by the terms of such Security), and to institute suit for the enforcement of any such payment and right to convert, and such rights shall not be impaired without the consent of such Holder. 54 Section 509. Restoration of Rights and Remedies. ---------------------------------- If the Trustee or any Holder of a Security or a Coupon has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case the Company, the Guarantor, the Trustee and each such Holder shall, subject to any determination in such proceeding, be restored severally and respectively to their former positions hereunder, and thereafter all rights and remedies of the Trustee and each such Holder 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 or Coupons in the last paragraph of Section 306, no right or remedy herein conferred upon or reserved to the Trustee or to each and every Holder of a Security or a Coupon is intended to be exclusive of any other right or remedy, and every right and remedy, to the extent permitted by law, shall 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, to the extent permitted by law, 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 Security or Coupon 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 Five or by law to the Trustee or to any Holder of a Security or a Coupon may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or (subject to the limitations contained in this Indenture) by such Holder, as the case may be. Section 512. Control by Holders of Securities. -------------------------------- 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 and any Coupons appertaining thereto, provided that -------- ---- (1) such direction shall not be in conflict with any rule of law or with this Indenture or with the Securities of such series, (2) the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction, and 55 (3) such Holders have offered the Trustee an indemnity reasonably satisfactory to it against any loss, cost, liability or expense that might been incurred by the Trustee in following such direction. Section 513. Waiver of Past Defaults. ----------------------- The Holders of not less than a majority in principal amount of the Outstanding Securities of any series on behalf of the Holders of all the Securities of such series and any Coupons appertaining thereto may waive any past default hereunder with respect to such series and its consequences, except a default (1) in the payment of the principal of, any premium or interest on, or any Additional Amounts with respect to, any Security of such series or any Coupons appertaining thereto, 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 such waiver shall extend to any subsequent or other default or impair any right consequent thereon. Section 514. Waiver of Usury, Stay or Extension Laws. --------------------------------------- Each of the Company and the Guarantor covenants that (to the extent that it may lawfully do so) it will not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any usury, stay or extension law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of this Indenture; and each of the Company and the Guarantor expressly waives (to the extent that it may lawfully do so) 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. Section 515. Undertaking for Costs. --------------------- All parties to this Indenture agree, and each Holder of any Security by his acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action taken or omitted by it as Trustee, the filing by any party litigant in such suit of any undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys' fees, against any party litigant in such suit having due regard to the merits and good faith of the claims or defenses made by such party litigant; but the provisions of this Section 515 shall not apply to any suit instituted by the Trustee, to any suit instituted by any Holder, or group of Holders, holding in the aggregate more than 10% in principal amount of Outstanding Securities of any series, or to any suit instituted by any Holder for the enforcement of the payment of the principal of (or premium, if any) or 56 interest, if any, on or Additional Amounts, if any, with respect to any Security on or after the respective Stated Maturities expressed in such Security (or, in the case of redemption, on or after the Redemption Date, and, in the case of repayment, on or after the date for repayment) or for the enforcement of the right to convert any Security in accordance with Article Twelve. ARTICLE SIX THE TRUSTEE Section 601. Certain Rights of Trustee; Certain Duties and Responsibilities. -------------------------------------------------------------- Subject to Sections 315(a) through 315(d) of the Trust Indenture Act: (1) the Trustee may conclusively rely and shall be fully protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, coupon, other evidence of indebtedness or other paper or document reasonably 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 or the Guarantor mentioned herein shall be sufficiently evidenced by a Company Request or a Company Order or Guarantor Request or Guarantor Order, as the case may be (in each case, other than delivery of any Security, together with any Coupons appertaining thereto, to the Trustee for authentication and delivery pursuant to Section 303 which shall be sufficiently evidenced as provided therein) and any resolution of the Board of Directors of the Company or the Guarantor, as the case may be, shall be sufficiently evidenced by a Board Resolution of the Company or the Guarantor, as the case may be; (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 shall 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 of its selection and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon; (5) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by or pursuant to this Indenture at the request or direction of any of the Holders of Securities of any series or any Coupons appertaining thereto 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, 57 direction, consent, order, bond, debenture, note, coupon, 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, during business hours and upon reasonable notice, the books, records and premises of the Company and the Guarantor, personally or by agent or attorney; (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; (8) the Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and (9) No provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that this paragraph (9) shall not be construed to limit the effect of paragraph (8) of this Section; (a) the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts; and (b) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Holders of a majority in principal amount of the Securities relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture. The duties and responsibilities of the Trustee shall be as provided by the Trust Indenture Act. Notwithstanding the foregoing, no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or indemnity reasonably satisfactory to it 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 601. Section 602. Notice of Defaults. ------------------ Within 90 days after the occurrence of any Default (actually known to a Responsible Officer of the Trustee) hereunder with respect to the Securities of any series, the Trustee shall transmit by mail to all Holders of Securities of such series entitled to receive reports pursuant to Section 703(3), notice of such Default hereunder known to the Trustee, unless such Default shall 58 have been cured or waived; provided, however, that, except in the case of a -------- ------- default in the payment of the principal of (or premium, if any), or interest, if any, on, or Additional Amounts or any sinking fund or purchase fund installment with respect to, any Security of such series, the Trustee shall be protected in withholding such notice if and so long as the board of directors, the executive committee or a trust committee of directors and/or Responsible Officers of the Trustee in good faith determine that the withholding of such notice is in the best interest of the Holders of Securities and Coupons of such series, and provided, further, 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 60 days after the occurrence thereof. Section 603. Not Responsible for Recitals or Issuance of Securities. ------------------------------------------------------ The recitals contained herein and in the Securities, except the Trustee's certificate of authentication, and in any Coupons shall be taken as the statements of the Company or the Guarantor, as the case may be, and neither the Trustee nor any Authenticating Agent assumes any responsibility for their correctness. The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Securities or Coupons appertaining thereto or the Guarantees or the Common Stock issuable upon the conversion of Securities in accordance with the provisions of Article Twelve, except that the Trustee represents that it is duly authorized to execute and deliver this Indenture, authenticate the Securities and perform its obligations hereunder and that the statements made by it in a Statement of Eligibility and Qualification on Form T-1 supplied to the Company are true and accurate, subject to the qualifications set forth therein. Neither the Trustee nor any Authenticating Agent shall be accountable for the use or application by the Company of the Securities or the proceeds thereof. Section 604. May Hold Securities; Act as Trustee Under Other Indenture. --------------------------------------------------------- The Trustee, any Authenticating Agent, any Paying Agent, any Security Registrar or any other Person that may be an agent of the Trustee, the Company, or the Guarantor, in its individual or any other capacity, may become the owner or pledgee of Securities or Coupons and, subject to Sections 310(b) and 311 of the Trust Indenture Act, may otherwise deal with the Company and the Guarantor with the same rights it would have if it were not Trustee, Authenticating Agent, Paying Agent, Security Registrar or such other agent. The Trustee may become and act as trustee under other indentures under which other securities, or certificates of interest or participation in other securities, of the Company are outstanding in the same manner as if it were not Trustee hereunder. Section 605. Money Held in Trust. ------------------- Except as provided in Section 403 and Section 1003, money held by the Trustee in trust hereunder need not be segregated from other funds except to the extent required by law and shall be held uninvested. The Trustee shall be under no liability for interest on any money received by it hereunder except as otherwise agreed in writing with the Company or the Guarantor, as the case may be. 59 Section 606. Compensation and Reimbursement. ------------------------------ Each of the Company and the Guarantor agrees: (1) to pay to the Trustee from time to time reasonable compensation as shall be agreed in writing between the Company on the one hand and the Trustee on the other for all services rendered by the Trustee 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 any such expense, disbursement or advance as may be attributable to the Trustee's negligence or bad faith; and (3) to indemnify the Trustee and its officers, directors, employees and agents for, and to hold them harmless against, any loss, liability or expense incurred without negligence or bad faith on their part, arising out of or in connection with the acceptance or administration of the trust or trusts hereunder, including the costs and expenses of defending themselves against any claim or liability in connection with the exercise or performance of any of their powers or duties hereunder, except to the extent that any such loss, liability or expense was due to the Trustee's negligence or bad faith. The indemnification provided for herein shall survive the termination of this Indenture or the earlier resignation or removal of the Trustee. As security for the performance of the obligations of the Company under this Section 606, the Trustee shall have a lien prior to the Securities of any series upon all property and funds held or collected by the Trustee as such, except funds held in trust for the payment of principal of, and premium or interest on or any Additional Amounts with respect to Securities or any Coupons appertaining thereto. Any compensation or expense incurred by the Trustee after a default specified by Section 501 is intended to constitute an expense of administration under any then applicable bankruptcy or insolvency law. "Trustee" for purposes ------- of this Section 606 shall include any predecessor Trustee but the negligence or bad faith of any Trustee shall not affect the rights of any other Trustee under this Section 606. Section 607. Corporate Trustee Required; Eligibility. --------------------------------------- There shall at all times be a Trustee hereunder that is a Corporation, organized and doing business under the laws of the United States, eligible under Section 310(a)(1) of the Trust Indenture Act to act as trustee under an indenture qualified under the Trust Indenture Act and that has a combined capital and surplus (computed in accordance with Section 310(a)(2) of the Trust Indenture Act) of at least $50,000,000 subject to supervision or examination by Federal or state authority. 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. 60 Section 608. Resignation and Removal; Appointment of Successor. ------------------------------------------------- (1) 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 pursuant to Section 609. (2) 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 609 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. (3) 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 and the Guarantor. (4) If at any time: (a) the Trustee shall fail to comply with the obligations imposed upon it under Section 310(b) of the Trust Indenture Act with respect to Securities of any series after written request therefor by the Company, the Guarantor or any Holder of a Security of such series who has been a bona fide Holder of a Security of such series for at least six months, or (b) the Trustee shall cease to be eligible under Section 607 and shall fail to resign after written request therefor by the Company, the Guarantor or any such Holder, or (c) the Trustee shall become incapable of acting or shall be adjudged to be 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 or pursuant to a Board Resolution, may remove the Trustee with respect to all Securities or the Securities of such series, or (ii) subject to Section 315(e) of the Trust Indenture Act, any Holder of a Security 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 removal of the Trustee with respect to all Securities of such series and the appointment of a successor Trustee or Trustees. (5) 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 or pursuant to a Board Resolution, shall promptly appoint a successor Trustee or Trustees with respect to the Securities of that or those series (it being 61 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 609. If, within one year after such resignation, removal or incapability, or the occurrence of such vacancy, a successor Trustee with respect to the Securities of any series shall be appointed by Act of the Holders of a majority in principal amount of the Outstanding Securities of such series delivered to the Company and the retiring Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance of such appointment in accordance with the applicable requirements of Section 609, 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 of Securities and accepted appointment in the manner required by Section 609, any Holder of a Security 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. (6) The Company shall give notice of each resignation and each removal of the Trustee with respect to the Securities of any series and each appointment of a successor Trustee with respect to the Securities of any series by mailing written notice of event by first-class mail, postage prepaid, to the Holders of Registered Securities, if any, of such series as their names and addresses appear in the Security Register and, if Securities of such series are issued as Bearer Securities, by publishing notice of such event once in an Authorized Newspaper in each Place of Payment located outside the United States. 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. (7) The retiring Trustee shall not be liable for any of the acts or omissions of any successor Trustee appointed hereunder. (8) No appointment of a successor Trustee shall be effective until all fees, charges and expenses of the retiring Trustee not subject to any good faith dispute, have been paid. Section 609. Acceptance of Appointment by Successor. -------------------------------------- (1) Upon the appointment hereunder of any successor Trustee with respect to all Securities, such successor Trustee so appointed shall execute, acknowledge and deliver to the Company, the Guarantor and 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 hereunder of the retiring Trustee; but, on the request of the Company, the Guarantor or such successor Trustee, such retiring Trustee, upon payment of its charges, shall execute and deliver an instrument transferring to such successor Trustee all the rights, powers and trusts of the retiring Trustee and, subject to Section 1003, shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder, subject nevertheless to its claim, if any, provided for in Section 606. 62 (2) Upon the appointment hereunder of any successor Trustee with respect to the Securities of one or more series, the Company, the Guarantor, the retiring Trustee and such successor Trustee shall execute and deliver an indenture supplemental hereto wherein each successor Trustee shall accept such appointment and which (a) shall contain such provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, such 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, (b) 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 (c) shall add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it being understood that nothing herein or in such supplemental indenture shall constitute such Trustees co-trustees of the same trust, 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 that no Trustee shall be responsible for any notice given to, or received by, or any act or failure to act on the part of any other Trustee hereunder, 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, such retiring Trustee shall have no further responsibility for the exercise of rights and powers or for the performance of the duties and obligations vested in the Trustee under this Indenture with respect to the Securities of that or those series to which the appointment of such successor Trustee relates other than as hereinafter expressly set forth, 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 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, the Guarantor or such successor Trustee, such retiring Trustee, upon payment of its charges with respect to the Securities of that or those series to which the appointment of such successor relates and subject to Section 1003 shall duly assign, transfer and deliver to such successor Trustee, to the extent contemplated by such supplemental indenture, the property and money held by retiring Trustee hereunder with respect to the securities of that or those series to which the appointment of such successor Trustee relates, subject to its claim, if any, provided for in Section 606. (3) Upon request of any Person appointed hereunder as a successor Trustee, the Company or the Guarantor shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor Trustee all such rights, powers and trusts referred to in paragraph (1) or (2) of this Section, as the case may be. (4) No Person shall accept its appointment hereunder as a successor Trustee unless at the time of such acceptance such successor Person shall be qualified and eligible under this Article Six. Section 610. 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 63 to which the Trustee shall be a party, or any Corporation succeeding to all or all of the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder, provided such Corporation shall be otherwise qualified and eligible under this Article Six, without the execution or filing of any paper or any further act on the part of any of the parties hereto. In case any Securities shall have been authenticated but not delivered by the Trustee then in office, any successor by merger, conversion or consolidation to such authenticating Trustee may adopt such authentication and deliver the Securities so authenticated with the same effect as if such successor Trustee had itself authenticated such Securities. Section 611. Preferential Collection of Claims Against Company. ------------------------------------------------- If and when the Trustee shall be or become a creditor of the Company, the Guarantor 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, the Guarantor or any such other obligor. Section 612. Appointment of Authenticating Agent. ----------------------------------- The Trustee may appoint one or more Authenticating Agents acceptable to the Company with respect to one or more series of Securities which shall be authorized to act on behalf of the Trustee to authenticate Securities of that or those series issued upon original issue, exchange, registration of transfer, partial redemption or partial repayment, 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. Except an original issuance or in replacement of lost, stolen or destroyed securities, 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, except as provided in or pursuant to this Indenture, shall at all times be a corporation that would be permitted by the Trust Indenture Act to act as trustee under an indenture qualified under the Trust Indenture Act, is authorized under applicable law and by its charter to act as an Authenticating Agent and has a combined capital and surplus (computed in accordance with Section 310(a)(2) of the Trust Indenture Act) of at least $50,000,000. If at any time an Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, it shall resign immediately in the manner and with the effect specified in this Section. Any corporation into which an Authenticating Agent may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which such Authenticating Agent shall be a party, or any corporation succeeding to all or substantially all of the corporate agency or corporate trust business of an Authenticating Agent, shall be the successor of such Authenticating Agent hereunder, provided such corporation shall be otherwise eligible under this Section, without the execution or filing of any paper or any further act on the part of the Trustee or the Authenticating Agent. 64 An Authenticating Agent may resign at any time by giving written notice thereof to the Trustee, the Company and the Guarantor. The Trustee may at any time terminate the agency of an Authenticating Agent by giving written notice thereof to such Authenticating Agent, the Company and the Guarantor. 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 (i) mail written notice of such appointment by first-class mail, postage prepaid, to all Holders of Registered Securities, if any, of the series with respect to which such Authenticating Agent shall serve, as their names and addresses appear in the Security Register, and (ii) if Securities of the series are issued as Bearer Securities, publish notice of such appointment at least once in an Authorized Newspaper in the place where such successor Authenticating Agent has its principal office if such office is located outside the United States. Any successor Authenticating Agent, upon acceptance of its appointment hereunder, shall become vested with all the rights, powers and duties of its predecessor hereunder, with like effect as if originally named as an Authenticating Agent. No successor Authenticating Agent shall be appointed unless eligible under the provisions of this Section. The Company agrees to pay each Authenticating Agent from time to time reasonable compensation for its services under this Section. If the Trustee makes such payments, it shall be entitled to be reimbursed for such payments, subject to the provisions of Section 606. The provisions of Sections 308, 603 and 604 shall be applicable to each Authenticating Agent. If an Authenticating Agent is appointed with respect to one or more series of Securities pursuant to this Section, the Securities of such series may have endorsed thereon, in addition to or in lieu of the Trustee's certificate of authentication, an alternate certificate of authentication in substantially the following form: This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture. Dated:_______________ [NAME OF TRUSTEE], As Trustee By: [NAME OF AUTHENTICATION AGENT] As Authenticating Agent By:____________________________ Authorized Officer 65 If all of the Securities of any series may not be originally issued at one time, and if the Trustee does not have an office capable of authenticating Securities upon original issuance located in a Place of Payment where the Company wishes to have Securities of such series authenticated upon original issuance, the Trustee, if so requested in writing (which writing need not be accompanied by or contained in an Officers' Certificate by the Company), shall appoint in accordance with this Section 612 an Authenticating Agent having an office in a Place of Payment designated by the Company with respect to such series of Securities. Section 613. Conflicting Interests. --------------------- If the Trustee has or shall acquire any 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. To the extent permitted by such Act, the Trustee shall not be deemed to have a conflicting interest by virtue of being a trustee under this Indenture with respect to Securities of more than one series or a trustee under prior indentures between the Company and the Trustee that have not been satisfied and discharged and that may be excluded by the proviso to Section 310(b)(1) of the Trust Indenture Act. Section 614. Protection of Agents. -------------------- Any Authenticating Agent, Conversion Agent, Paying Agent or Securities Registrar hereunder shall be entitled to all of the rights, immunities, indemnities and protections afforded to the Trustee hereunder. ARTICLE SEVEN HOLDERS LISTS AND REPORTS BY TRUSTEE, COMPANY AND GUARANTOR Section 701. Company and Guarantor to Furnish Trustee Names and Addresses of --------------------------------------------------------------- Holders. ------- In accordance with Section 312(a) of the Trust Indenture Act, with respect to each series of the Securities, the Company and the Guarantor shall furnish or cause to be furnished to the Trustee: (1) semi-annually, not later than 15 days after the Regular Record Date or upon such other dates as are set forth in or pursuant to the Board Resolution or indenture supplemental hereto authorizing such series, a list for each series of Securities, in such form as the Trustee may reasonably require, of the names and addresses of Holders of Registered Securities as of the applicable date, and (2) at such other times as the Trustee may request in writing, within 30 days after the receipt by the Company or the Guarantor of any such request, a list of similar form and content as of a date not more than 15 days prior to the time such list is furnished, excluding from any such list names and addresses received by the Trustee in its capacity as Security Registrar. 66 Section 702. Preservation of Information; Communications to Holders. ------------------------------------------------------ The Trustee shall preserve, in as current a form as is reasonably practicable, the names and addresses of Holders contained in the most recent list furnished to the Trustee as provided in Section 701 and the names and addresses of Holders received by the Trustee in its capacity as Security Registrar. The Trustee may destroy any list furnished to it as provided in Section 701 upon receipt of a new list so furnished. The rights of the Holders to communicate with other Holders with respect to their rights under this Indenture or under the Securities, and the corresponding rights and privileges of the Trustee, shall be as provided by the Trust Indenture Act. Every Holder of Securities or Coupons, by receiving and holding the same, agrees with the Company, the Guarantor and the Trustee that neither the Company, the Guarantor nor the Trustee, nor any agent of any of them, shall be held accountable by reason of the disclosure of any such information as to the names and addresses of the Holders of Securities in accordance with Section 312(c) of the Trust Indenture Act, regardless of the source from which such information was derived, and that the Trustee shall not be held accountable by reason of mailing any material pursuant to a request made under Section 312(b) of the Trust Indenture Act. Section 703. Reports by Trustee. ------------------ (1) Within 60 days after July 15 of each year commencing with the first July 15, 1998 following the first issuance of Securities pursuant to Section 301, if required by Section 313(a) of the Trust Indenture Act, the Trustee shall transmit, pursuant to Section 313(c) of the Trust Indenture Act, a brief report dated as of such July 15 with respect to any of the events specified in said Section 313(a) which may have occurred since the later of the immediately preceding July 15 and the date of this Indenture. (2) The Trustee shall transmit to Holders the 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 specified therein. (3) Reports pursuant to this Section shall be transmitted in the manner and to the Persons required by Sections 313(c) and 313(d) of the Trust Indenture Act. Section 704. Reports by Company and Guarantor. -------------------------------- The Company and the Guarantor, pursuant to Section 314(a) of the Trust Indenture Act, shall: (1) file with the Trustee, within 15 days after the Company and the Guarantor are required to file the same with the Commission, copies of the annual reports and of the information, documents and other reports (or copies of such portions of any of the foregoing as the Commission may from time to time by rules and regulations prescribe) 67 which the Company and the Guarantor may be required to file with the Commission pursuant to Section 13 or Section 15(d) of the Exchange Act; or, if the Company or the Guarantor is not required to file information, documents or reports pursuant to either of said Sections, then they shall file with the Trustee and the Commission, in accordance with rules and regulations prescribed from time to time by the Commission, such of the supplementary and periodic information, documents and reports which may be required pursuant to Section 13 of the Exchange Act in respect of a security listed and registered on a national securities exchange as may be prescribed from time to time in such rules and regulations; (2) file with the Trustee and the Commission, in accordance with rules and regulations prescribed from time to time by the Commission, such additional information, documents and reports with respect to compliance by the Company and the Guarantor with the conditions and covenants of this Indenture as may be required from time to time by such rules and regulations; and (3) transmit within 30 days after the filing thereof with the Trustee, in the manner and to the extent provided in Section 313(c) of the Trust Indenture Act, such summaries of any information, documents and reports required to be filed by the Company and the Guarantor pursuant to paragraphs (1) and (2) of this Section as may be required by rules and regulations prescribed from time to time by the Commission. ARTICLE EIGHT CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER Section 801. Company or Guarantor May Consolidate, Etc., Only on Certain Terms. ----------------------------------------------------------------- Neither the Company nor the Guarantor shall consolidate with or merge into any other Person or convey, transfer or lease all or substantially all of its properties and assets to any Person, and neither the Company nor the Guarantor shall permit any Person to consolidate with or merge into the Company or the Guarantor, as the case may be, or convey, transfer or lease all or substantially all of its properties and assets to the Company or the Guarantor, as the case may be, unless either: (a) in case the Company or the Guarantor, as the case may be, shall consolidate with or merge into another Person or convey, transfer or lease all or substantially all of its properties and assets to any Person, the Person formed by such consolidation or into which the Company or the Guarantor, as the case may be, is merged or the Person which acquires by conveyance or transfer, or which leases, all or substantially all of the properties and assets of the Company or the Guarantor, as the case may be, shall be (i) a corporation, limited liability company, partnership or trust organized and validly existing under the laws of the United States or (ii) a corporation, limited liability company, partnership or trust organized and validly existing under the laws of a jurisdiction other than the United States (a "Foreign Entity") that shall expressly assume, by an indenture -------------- 68 supplemental hereto executed and delivered to the Trustee, in form reasonably satisfactory to the Trustee, in the case of the Company, the due and punctual payment of the principal of (and premium, if any) and interest and Additional Amounts on all the Securities and Coupons and the performance and observance of every covenant of this Indenture on the part of the Company to be performed or observed and shall have provided for conversion rights in accordance with Article Twelve, and, in the case of the Guarantor, the due and punctual performance of the Guarantees and the performance and observance of every covenant of this Indenture on the part of the Guarantor to be performed or observed. In the event that such Person is a Foreign Entity, it shall expressly agree to make payments under the Securities and Coupons free of any deduction or withholding for any and all then existing or future withholding taxes, levies, imposts and charges whatsoever imposed by or for the account of the jurisdiction where such Foreign Entity is generally subject to taxation (or any political subdivision or taxing authority thereof or therein) in a manner equivalent to that set forth herein, subject to the exceptions contained elsewhere herein; (b) immediately after giving effect to such transaction and treating any indebtedness which becomes an obligation of the Company or one of its Subsidiaries or of the Guarantor or one of its Subsidiaries as a result of such transaction as having been incurred by the Company, the Guarantor or such Subsidiary at the time of such transaction, no Event of Default, and no event which, after notice or lapse of time or both, would become an Event of Default, shall have happened and be continuing; and (c) the Company or the Guarantor, as the case may be, 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 Corporation Substituted. --------------------------------- Upon any consolidation by the Company or the Guarantor, as the case may be, with or merger by the Company or the Guarantor, as the case may be, into any other Person or any conveyance, transfer or lease of all or substantially all of the properties and assets of the Company or the Guarantor, as the case may be, in accordance with Section 801, the successor Person formed by such consolidation or into which the Company or the Guarantor, as the case may be, 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 or the Guarantor, as the case may be, under this Indenture with the same effect as if such successor Person had been named as the Company or the Guarantor, as the case may be, 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. 69 ARTICLE NINE SUPPLEMENTAL INDENTURES Section 901. Supplemental Indentures Without Consent of Holders. -------------------------------------------------- Without the consent of any Holders of Securities or Coupons, the Company, when authorized by or pursuant to a Board Resolution, the Guarantor, when authorized by a Board Resolution, and the Trustee, at any time and from time to time, may enter into one or more indentures supplemental hereto, in form satisfactory to the Trustee, for any of the following purposes: (1) to evidence the succession of another Person to the Company or the Guarantor, as the case may be, and the assumption by any such successor of the covenants of the Company or the Guarantor, as the case may be, contained herein and in the Securities or the Guarantees; or (2) to add to the covenants of the Company or the Guarantor for the benefit of the Holders of all or any series of Securities (as shall be specified in such supplemental indenture or indentures and if such covenants are to be for the benefit of less than all series of Securities, stating that such covenants are being included solely for the benefit of such series) or to surrender any right or power herein conferred upon the Company or the Guarantor; or (3) to add to or change any of the provisions of this Indenture to provide that Bearer Securities may be registrable as to principal, to change or eliminate any restrictions on the payment of principal of, any premium or interest on or any Additional Amounts with respect to Securities, to permit Bearer Securities to be issued in exchange for Registered Securities, to permit Bearer Securities to be exchanged for Bearer Securities of additional authorized denominations or to permit or facilitate the issuance of Securities in uncertificated form, provided any such action shall not adversely affect the interests of the Holders of Securities of any series or any Coupons appertaining thereto in any material respect; or (4) to establish the form or terms of Securities of any series and any Coupons appertaining thereto as permitted by Sections 201 and 301 or of the related Guarantees as permitted by Section 202; or (5) 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 609; or (6) to cure any ambiguity or to correct or supplement any provision herein which may be defective or inconsistent with any other provision herein, or to make any other provisions with respect to matters or questions arising under this Indenture which shall not adversely affect the interests of the Holders of Securities of any series then Outstanding or any Coupons appertaining thereto in any material respect; or 70 (7) to add any additional Events of Default with respect to all or any series of Securities (as shall be specified in such supplemental indenture and if such additional Events of Default are to be for the benefit of less than all series of Securities, stating that such additional Event of Default are expressly being included solely for the benefit of such series); or (8) to supplement any of the provisions of this Indenture to such extent as shall be necessary to permit or facilitate the defeasance and discharge of any series of Securities pursuant to Article Four, provided that any such action shall not adversely affect the interests of any Holder of a Security of such series and any Coupons appertaining thereto or any other Security or Coupon in any material respect; or (9) to secure the Securities and Guarantees; or (10) to amend or supplement any provision contained herein or in any supplemental indenture (which amendment or supplement may apply to one or more series of Securities or to one or more Securities within any series as specified in such supplemental indenture or indentures), provided that such amendment or supplement does not apply to any Outstanding Security issued prior to the date of such supplemental indenture and entitled to the benefits of such provision or modify the rights of the Holder of any such Security with respect to such provision. 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, the Guarantor and the Trustee, the Company, when authorized by or pursuant to a Board Resolution, the Guarantor, when authorized by or pursuant to 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 the Securities of such series 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, without the consent of the Holder of each Outstanding Security affected thereby, shall (1) change the Stated Maturity of the principal of, or any premium or installment of principal or interest on or any Additional Amounts with respect to, any Security, or any sinking fund or analogous payment in respect thereof, or reduce the principal amount thereof or the rate (or modify the calculation of such rate) of interest thereon or any Additional Amounts with respect thereto, or any premium payable upon the redemption thereof or otherwise, or change the obligation of the Company to pay Additional Amounts pursuant to Section 1004, or reduce the amount of the principal of any Security that would be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 502 or the amount thereof provable in bankruptcy pursuant to Section 504, adversely affect the right of repayment at the option of any Holder as contemplated by Article Fifteen, or change the provisions of Article Ten 71 relating to Place of Payment for Bearer Securities being located outside the United States, or the Currency in which the principal of, any premium or interest on, or any Additional Amounts with respect to any Security or any sinking or analogous fund payment in respect thereof, is payable, or impair the right to institute suit for the enforcement of any such payment on or after the Stated Maturity thereof (or, in the case of redemption, on or after the Redemption Date or, in the case of repayment at the option of the Holder, on or after the Repayment Date) or, except as permitted by Article Twelve, adversely affect in any material respect the right to convert or exchange any Security, or modify the provisions of this Indenture with respect to the subordination of the Securities and the Guarantees in a manner adverse to the Holders in any material respect, 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 reduce the requirements of Section 1604 for quorum or voting, or (3) modify any of the provisions of this Section, Section 513 or Section 1001, 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; or (4) change in any manner adverse in any material respect to the interests of the Holders of any Outstanding Securities the terms and conditions of the obligations of the Guarantor in respect of the due and punctual payment of the principal thereof and any premium or interest thereon or any sinking or analogous fund payments provided in respect thereof. A supplemental indenture which changes or eliminates any covenant or other provision of this Indenture which shall have been included expressly and 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 of Securities under this Section to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such Act shall approve the substance thereof. Section 903. Execution of Supplemental Indentures. ------------------------------------ As a condition to executing, or accepting the additional trusts created by, any supplemental indenture permitted by this Article Nine or the modifications thereby of the trust created by this Indenture, the Trustee shall be entitled to receive, and (subject to Section 315 of the Trust Indenture Act) 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 72 and an Officers' Certificate stating that all conditions precedent to the execution of supplemental indenture have been fulfilled. 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 a Security theretofore or thereafter authenticated and delivered hereunder and of any Coupon appertaining thereto shall be bound thereby. Section 905. 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 and the Guarantor shall so determine, new Securities of any series so modified as to conform, in the opinion of the Trustee, the Company and the Guarantor, to any such supplemental indenture may be prepared and executed by the Company, the Guarantees of the Guarantor may be endorsed thereon and such securities authenticated and delivered by the Trustee in exchange for Outstanding Securities of such series. Section 906. 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. ARTICLE TEN COVENANTS Section 1001. Payment of Principal, Any Premium, Interest and Additional ----------------------------------------------------------- Amounts. ------- The Company covenants and agrees for the benefit of each series of Securities that it will duly and punctually pay the principal of, any premium and interest on and any Additional Amounts with respect to the Securities of each series in accordance with the terms thereof, any Coupons appertaining thereto and this Indenture. Any interest due on any Bearer Security on or before the Maturity thereof, and any Additional Amounts payable with respect to such interest, shall be payable only upon presentation and surrender of the Coupons appertaining thereto for such interest as they severally mature. 73 Section 1002. Maintenance of Office or Agency. ------------------------------- The Company and the Guarantor shall maintain in each Place of Payment for any series of Securities, an Office or Agency where Securities of such series, and Guarantees with respect thereto (but not Bearer Securities, except as otherwise provided below, unless such Place of Payment is located outside the United States) may be presented or surrendered for payment, where Securities of such series may be surrendered for registration of transfer or exchange, where Registered Securities may be surrendered for conversion, where Bearer Securities may be surrendered for conversion in the circumstances described below (and not otherwise) and where notices and demands to or upon the Company and the Guarantor in respect of the Securities of such series relating thereto and this Indenture may be served. If Securities of a series are issuable as Bearer Securities, the Company shall maintain, subject to any laws or regulations applicable thereto, an Office or Agency in a Place of Payment and Place of Conversion for such series which is located outside the United States where Securities of such series and any Coupons appertaining thereto, and Guarantees with respect thereto, may be presented and surrendered for payment or conversion; provided, however, that if the Securities of such series are listed -------- ------- on the London Stock Exchange or the Luxembourg Stock Exchange or any other stock exchange located outside the United States and such stock exchange shall so require, the Company shall maintain a Paying Agent and a Conversion Agent in London, Luxembourg or any other required city located outside the United States, as the case may be, so long as the Securities of such series are listed on such exchange. The Company and the Guarantor 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 or the Guarantor 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, except that Bearer Securities of such series and any Coupons appertaining thereto, and Guarantees with respect thereto, may be presented and surrendered for payment or conversion at the place specified for that purpose with respect to such Securities as provided in or pursuant to this Indenture, and the Company and the Guarantor hereby appoint the Trustee as their agent to receive all such presentations, surrenders, notices and demands. Except as otherwise provided in or pursuant to this Indenture, no payment of principal, premium, interest or Additional Amounts with respect to Bearer Securities (including payments by reason of the conversion thereof) shall be made at any Office or Agency in the United States or by check mailed to any address in the United States or by transfer to an account maintained with a bank located in the United States; provided, however, that if amounts owing with -------- ------- respect to any Bearer Securities shall be payable in Dollars, payment of principal of, any premium or interest on and any Additional Amounts with respect to any such Security, or Guarantees with respect thereto, may be made, and any Bearer Securities may be surrendered for conversion, at the Corporate Trust Office of the Trustee or any Office or Agency designated by the Company in the Borough of Manhattan, The City of New York, if (but only if) payment of the full amount of such principal, premium, interest or Additional Amounts, or surrender of Bearer Securities for conversion, at all offices outside the United States maintained for such purpose by the Company in accordance with this Indenture is illegal or effectively precluded by exchange controls or other similar restrictions on the full payment or receipt of such amounts in Dollars as determined by the Company, or on surrender of any Bearer Securities for conversion. 74 The Company and the Guarantor may also from time to time designate one or more other Offices or Agencies where the Securities of one or more series, and Guarantees endorsed thereon, 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 or the Guarantor of its obligation to maintain an Office or Agency in each Place of Payment and Place of Conversion for Securities of any series for such purposes. The Company and the Guarantor shall 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. Unless otherwise provided in or pursuant to this Indenture, the Company and the Guarantor hereby designate as the Place of Payment and the Place of Conversion for each series of Securities (other than those issued as Bearer Securities) and the Guarantees endorsed thereon, the Borough of Manhattan, The City of New York, and initially appoint the Corporate Trust Office of the Trustee as the Company's and the Guarantor's Office or Agency in the Borough of Manhattan, The City of New York for such purpose. The Company and the Guarantor may subsequently appoint a different Office or Agency in the Borough of Manhattan, The City of New York for the Securities of any series, and the Guarantees endorsed thereon. Unless otherwise provided in or pursuant to this Indenture, the Company and the Guarantor hereby designate as the Place of Payment and the Place of Conversion for Bearer Securities and the Guarantees endorsed thereon, to be London, England, and initially appoint the office of the Trustee in London as the Office or Agency for such purpose and initially appoint the office of the Trustee in London as its Paying Agent in London. 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, presentations and surrenders may be made and notices and demands may be served on the Corporate Trust Office of the Trustee, except that Bearer Securities and Coupons may be presented and surrendered for payment and conversion to the Paying Agent in London at its office in the City of London, England or other Paying Agent or Conversion Agent outside the United States, and the Company hereby appoints the Paying Agent in London as its agent to receive such respective presentations, surrenders, notices and demands. Section 1003. Money for Securities Payments to be Held in Trust. ------------------------------------------------- If the Company or the Guarantor, as the case may be, shall at any time act as its own Paying Agent with respect to any series of Securities, it shall, on or before each due date of the principal of, any premium or interest on or Additional Amounts with respect to any of the Securities of such series, segregate and hold in trust for the benefit of the Persons entitled thereto a sum in Dollars sufficient to pay the principal or any premium, interest or Additional Amounts so becoming due until such sums shall be paid to such Persons or otherwise disposed of as herein provided, and shall promptly notify the Trustee of its action or failure so to act. Whenever the Company or the Guarantor, as the case may be, shall have one or more Paying Agents for any series of Securities, it shall, on or prior to each due date of the principal of, any premium or interest on or any Additional Amounts with respect to any Securities of such series, deposit with any Paying Agent a sum in Dollars sufficient to pay the principal or any 75 premium, interest or Additional Amounts so becoming due, such sum to be held in trust for the benefit of the Persons entitled thereto, and (unless such Paying Agent is the Trustee) the Company or the Guarantor, as the case may be, will promptly notify the Trustee of its action or failure so to act. The Company or the Guarantor, as the case may be, shall cause each Paying Agent for any series of Securities other than the Trustee to execute and deliver to the Trustee an instrument in which such Paying Agent shall agree with the Trustee, subject to the provisions of this Section, that such Paying Agent shall: (1) hold all sums held by it for the payment of the principal of, any premium or interest on or any Additional Amounts with respect to Securities of such series in trust for the benefit of the Persons entitled thereto until such sums shall be paid to such Persons or otherwise disposed of as provided in or pursuant to this Indenture; (2) give the Trustee notice of any default by the Company or the Guarantor (or any other obligor upon the Securities of such series) in the making of any payment of the principal of, any premium or interest on or any Additional Amounts with respect to the Securities of such series; (3) at any time during the continuance of any such default, upon the written request of the Trustee, forthwith pay to the Trustee all sums so held in trust by such Paying Agent; and (4) indemnify the Trustee for any loss, cost, liability, or expense caused by any error, act or omission of the Paying Agent. The Company or the Guarantor, as the case may be, 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 of the Company or the Guarantor direct any Paying Agent to pay, to the Trustee all sums held in trust by the Company, the Guarantor or such Paying Agent, such sums to be held by the Trustee upon the same terms as those upon which such sums were held by the Company, the Guarantor 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 sums. Except as otherwise provided herein or pursuant hereto, any money deposited with the Trustee or any Paying Agent, or then held by the Company or the Guarantor, as the case may be, in trust for the payment of the principal of, any premium or interest on or any Additional Amounts with respect to any Security of any series or any Coupon appertaining thereto and remaining unclaimed for two years after such principal or any such premium or interest or any such Additional Amounts shall have become due and payable shall be paid to the Company or the Guarantor, as the case may be, on Company Request, or (if then held by the Company or the Guarantor) shall be discharged from such trust; and the Holder of such Security or any Coupon appertaining thereto, or Guarantees endorsed thereon, shall thereafter, as an unsecured general creditor, look only to the Company or the Guarantor (pursuant to the Guarantee) for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, 76 and all liability of the Company or the Guarantor as trustee thereof, shall thereupon cease; provided, however, that the Trustee or such Paying Agent, --------- -------- before being required to make any such repayment, may at the expense of the Company cause to be published once, in an Authorized Newspaper in each Place of Payment for such series or to be mailed to Holders of Registered Securities of such series, or both, notice that such money remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such publication or mailing, any unclaimed balance of such money then remaining will be repaid to the Company or the Guarantor, as the case may be. Section 1004. Additional Amounts. ------------------ All payments of principal of, premium, if any, and interest on Securities of any series to a Holder thereof who is not a United States person, and all payments on the Guarantees to a Holder thereof who is not a United States person shall be made without set-off, counterclaim, fees, liabilities or similar deductions (including payments on redemption, repayment and the exercise of either the Cash Settlement Option or the Stock Settlement Option), and free and clear of, and without deduction or withholding for, taxes, levies, imposts, duties, assessments, charges or fees of whatsoever nature now or hereafter imposed, levied, collected, deducted, withheld or assessed by or on behalf of the Government of the United States, or any state or other political subdivision or taxing authority thereof or therein ("Taxes"). If the Company, the ----- Guarantor, or any agent of either is required by law or regulation to make any deduction or withholding for or on account of Taxes, the Company or Guarantor, as the case may be, shall pay such additional amounts ("Additional Amounts") as ------------------ shall be necessary in order that the net amounts received by the Holders of the Securities of any series who are not United States persons after such deduction or withholding shall equal the amount that would have been receivable thereunder in the absence of such deduction or withholding, except that no such Additional Amounts shall be payable on account of: (a) any Tax which would not have been so imposed but for (i) the existence of any present or former connection between such Holder (or between a fiduciary, settlor, beneficiary, member, shareholder of or possessor of a power over such Holder, if such Holder is an estate, a trust, a partnership or a corporation) and the United States or any political subdivision or taxing authority thereof or therein, including, without limitation, such Holder (or such fiduciary, settlor, beneficiary, member, shareholder or possessor) being or having been a citizen or resident of the United States or treated as a resident thereof, or being or having been engaged in trade or business or present therein, or having had a permanent establishment therein, (ii) such Holder's present or former status as a personal holding company, a foreign personal holding company with respect to the United States, a controlled foreign corporation, a passive foreign investment company, or a foreign private foundation or foreign tax exempt entity for United States tax purposes, or a corporation which accumulates earnings to avoid United States Federal income tax, or (iii) such holder's status as a bank extending credit pursuant to a loan agreement entered into in the ordinary course of business; (b) any Tax which would not have been so imposed but for the presentation by the Holder of such Security or any Coupon appertaining thereto for payment on a date 77 more than 15 days after the date on which such payment became due and payable or the date on which payment thereof is duly provided for, whichever occurs later; (c) any estate, inheritance, gift, sales, transfer, personal property or similar Tax; (d) any Tax which would not have been imposed but for the failure to comply with any certification, identification or other reporting requirements concerning the nationality, residence, identity or connection with the United States of the Holder or beneficial owner of such Security or any Coupon appertaining thereto, if compliance is required by statute or by regulation or ruling of the United States Treasury Department as a precondition to exemption from such Tax; (e) any Tax which is payable otherwise than by deduction or withholding from payments of principal of, premium, if any, or interest on such Security; (f) any Tax imposed as a result of a Person's past or present actual or constructive ownership, including by virtue of the right to convert Securities, of 10% or more of the total combined voting power of all classes of stock of the Company entitled to vote; (g) any Tax required to be withheld by any Paying Agent from any payment of the principal of, premium, if any, or interest on such Security, if such payment can be made without such withholding by any other Paying Agent in Western Europe; (h) any Tax imposed on the disposition of any Security by a person holding at any time, actually or constructively, Securities of the applicable series having a fair market value in excess of the greater of the fair market value of five percent of (i) the Company's Common Stock or (ii) the Securities of such series; (i) any Tax imposed on a Holder that is a partnership or a fiduciary, but only to the extent that any beneficial owner or member of the partnership or beneficiary or settlor with respect to the fiduciary would not have been entitled to the payment of Additional Amounts had the beneficial owner, member, beneficiary or settlor directly received its beneficial or distributive share of payments on such Security; (j) any Tax which would not have been imposed but for the fact that such Security constitutes a "United States real property interest," as defined in Section 897(c)(1) of the Internal Revenue Code and the regulations thereunder, with respect to the beneficial owner of such Security; or (k) any combination of items (a), (b), (c), (d), (e), (f), (g), (h), (i) and (j). Notwithstanding the foregoing, if and so long as a certification, identification or other information reporting requirement referred to in the third paragraph of Section 1102 of this Indenture would be fully satisfied by payment of a backup withholding tax or similar charge, the Company may elect, by so stating in the Determination Notice (as hereinafter defined), to have 78 the provisions of this paragraph apply in lieu of redeeming the Security pursuant to such Section 1102. In such event, the Company will pay as Additional Amounts such amounts as may be necessary so that every net payment made, following the effective date of such requirements, outside the United States by the Company or any Paying Agent of principal and premium, if any, due in respect of a Security, or interest represented by any Coupon, the beneficial owner of which is not a United States person (but without any requirement that the nationality, residence or identity of such beneficial owner be disclosed to the Company, any Paying Agent or any governmental authority), after deduction or withholding for or on account of such backup withholding tax or similar charge, other than a backup withholding tax or similar charge which is (a) the result of a certification, identification or information reporting requirement described in the first parenthetical clause of such third paragraph of Section 1102, (b) imposed as a result of the fact that the Company or any Paying Agent has actual knowledge that the beneficial owner of the Security or such Coupon is within the category of Persons described in clause (a) of the preceding paragraph or (c) imposed as a result of presentation of the Security or such Coupon for payment more than 15 days after the date on which such payment becomes due and payable or on which payment thereof is duly provided for, whichever occurs later, will not be less than the amount provided for in the Security or such Coupon to be then due and payable. Except as specifically provided in this Indenture, the Company shall not be required to make any payment with respect to any Taxes. If the Company, the Guarantor or any successor to either of them under this Indenture shall be incorporated under the laws of a jurisdiction other than the United States, the Company or its successor will pay, and the Guarantor or its successor will jointly and severally guarantee the payment of, and the Company or the Guarantor shall provide notice to the Trustee of the payment of, such additional amounts ("Other Additional Amounts") as may be necessary in order ------------------------ that every net payment on each Security, after withholding for or on account of any present or future tax, assessment or other governmental charge imposed upon or as a result of such payment by such other jurisdiction (or any political subdivision or taxing authority thereof or therein), will be not less than the amount provided for in such Security to be then due and payable; provided, -------- however, that (i) the Other Additional Amounts payable to a Holder of a Security - ------- will be reduced to the extent that such withholding reduces any tax liability to which such Holder of the Security was and is subject both prior to and after such incorporation in another jurisdiction and (ii) the exceptions listed in the second preceding paragraph shall apply, substituting for the United States the relevant jurisdiction that imposes the tax giving rise to the payment of Other Additional Amounts. Whenever in this Indenture there is mentioned, in any context, the payment of the principal of or any premium or interest on, or in respect of, any Security of any series or any Coupon or the net proceeds received on the sale or exchange of any Security of any series, such mention shall be deemed to include mention of the payment of Additional Amounts provided by the terms of this Indenture or by the terms of such series established hereby or pursuant hereto to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to such terms, and express mention of the payment of Additional Amounts (if applicable) in any provision hereof shall not be construed as excluding Additional Amounts in those provisions hereof where such express mention is not made. 79 Except as otherwise provided in or pursuant to this Indenture or the Securities of any series, if the Securities of a series provide for the payment of Additional Amounts, at least 10 days prior to the first Interest Payment Date with respect to such series of Securities (or if the Securities of such series shall not bear interest prior to Maturity, the first day on which a payment of principal is made), and at least 10 days prior to each date of payment of principal or interest if there has been any change with respect to the matters set forth in the below-mentioned Officers' Certificate, the Company shall furnish to the Trustee and the principal Paying Agent or Paying Agents, if other than the Trustee, an Officers' Certificate instructing the Trustee and such Paying Agent or Paying Agents whether such payment of principal of and premium, if any, or interest, if any, on the Securities of such series shall be made to Holders of Securities of such series or the Coupons appertaining thereto who are not United States persons without withholding for or on account of any Tax described in the Securities of such series. If any such withholding shall be required, then such Officers' Certificate shall specify by country the amount, if any, required to be withheld on such payments to such Holders of Securities or Coupons, and the Company agrees to pay to the Trustee or such Paying Agent the Additional Amounts required hereby or by the terms of such Securities. The Company covenants to indemnify the Trustee and any Paying Agent and other officers, directors, employees and agents for, and to hold them harmless against, any loss, liability or expense reasonably incurred without negligence or bad faith on their part arising out of or in connection with actions taken or omitted by any of them in reliance on any Officers' Certificate furnished pursuant to this Section. Section 1005. Statement as to Compliance. -------------------------- Each of the Company and the Guarantor will deliver to the Trustee, within 120 days after the end of each fiscal year of the Company and the Guarantor, as the case may be, an Officers' Certificate, stating as to each signer, that (1) a review of the activities of the Company or the Guarantor, as the case may be, during such year and of performance under this Indenture has been made under his or her supervision; and (2) to the best of his or her knowledge, based on such review, (a) the Company or the Guarantor, as the case may be, has fulfilled all its obligations under this Indenture throughout such year, or, if there has been a material default in the fulfillment of any such obligation, specifying each such default known to him or her and the nature and status thereof, and (b) no event has occurred and is continuing which is, or after notice or lapse of time or both would become, an Event of Default, or, if such an event has occurred and is continuing, specifying each such event known to him or her and the nature and status thereof. Section 1006. Corporate Existence. ------------------- Subject to Article Eight, the Company and the Guarantor will do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence. 80 ARTICLE ELEVEN REDEMPTION OF SECURITIES Section 1101. Applicability of Article. ------------------------ Redemption of Securities of any series at the option of the Company as permitted or required in or pursuant to this Indenture or by the terms of such Securities shall be made in accordance with the terms of this Indenture or such Securities and (except as otherwise provided herein or pursuant hereto) this Article Eleven. Section 1102. Election to Redeem; Notice to Trustee. ------------------------------------- The election of the Company to redeem any Securities shall be evidenced by or pursuant to a Board Resolution. In case of any redemption at the election of the Company of the Securities of any series, the Company shall, at least 75 days 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. In addition, notwithstanding the above, if as a result of a Tax Law Change, the Company has or will become obligated to pay to the Holder of any Security or Coupon Additional Amounts, and such obligation cannot be avoided by the Company taking reasonable measures available to it, then the Company may, at its option, redeem the Tax Affected Securities as a whole, but not in part, upon not less than 20 nor more than 60 days' notice to the Holders prior to the Redemption Date therefor, at a Redemption Price equal to 100% of the principal amount plus interest accrued to the Redemption Date, and any Additional Amounts then payable; provided that (i) no such notice of redemption shall be given -------- ---- earlier than 90 days prior to the earliest date on which the Company would be obligated to pay any such Additional Amounts were a payment in respect of the Tax Affected Securities then due and (ii) at the time such notice of redemption is given, such obligation to pay such Additional Amounts remains in effect. Prior to the publication of any notice of redemption pursuant to this paragraph, the Company shall deliver to the Trustee (a) an Officers' Certificate stating that the Company is entitled to effect such redemption and setting forth a statement of facts showing that the conditions precedent to the right of the Company so to redeem have occurred and (b) an Opinion of Counsel selected by the Company to the effect that the Company has or will become obligated to pay such Additional Amounts as a result of such Tax Law Change. The Company's right to redeem the Tax Affected Securities shall continue as long as the Company is obligated to pay such Additional Amounts, notwithstanding that the Company shall have made payments of Additional Amounts specified in Section 1004. In addition, if the Company determines, based upon an Opinion of Counsel, that, as a result of a Tax Law Change, any payment made outside the United States by the Company or any of its Paying Agents of the full amount of principal, premium, if any, or interest due with respect to any Bearer Security or Coupon appertaining thereto would be subject to any certification, identification or other information reporting requirement of any kind, the effect of which 81 requirement is the disclosure to the Company, any Paying Agent or any governmental authority of the nationality, residence or identity of a beneficial owner of such Bearer Security or Coupon who is not a United States person (other than such a requirement (a) which would not be applicable to a payment made by the Company or any one of its Paying Agents (i) directly to the beneficial owner or (ii) to any custodian, nominee or other agent of the beneficial owner, (b) which can be satisfied by the custodian, nominee or other agent certifying that such beneficial owner is not a United States person, Provided that, in each case -------- ---- referred to in clauses (a) (ii) and (b), payment by such custodian, nominee or agent to such beneficial owner is not otherwise subject to any such requirement, or (c) which would not be applicable but for the fact that such Bearer Security constitutes a "United States real property interest," as defined in Section 897(c)(1) of the Internal Revenue Code, with respect to the beneficial owner of such Bearer Security), the Company at its election will either (x) redeem the Bearer Securities, as a whole but not in part, upon not less than 20 nor more than 60 days' notice prior to the Redemption Date, at a Redemption Price equal to 100% of the principal amount thereof plus interest accrued to the Redemption Date and any Additional Amounts, or (y) if and so long as the certification, identification or other information reporting requirement referred to above would be fully satisfied by payment of a backup withholding tax or similar charge, pay the bearer the Additional Amounts specified in Section 1004. The Company will make such determination and election and notify the Trustee and the Paying Agent in London, England thereof in writing as soon as practicable, and the Trustee will promptly give notice of such determination in the manner provided in Section 106 (the "Determination Notice"), in each case stating the -------------------- effective date of such certification, identification or information reporting requirement, whether the Company will redeem the Bearer Securities or will pay the Additional Amounts specified in the second paragraph of Section 1004 and (if applicable) the last date by which the redemption of the Bearer Securities must take place. If the Company elects to redeem the Bearer Securities pursuant to clause (x) above, such redemption shall take place on a date, not later than one year after the publication of the Determination Notice, as the Company elects by notice in writing to the Trustee and the Paying Agent in London at least 75 days before the Redemption Date, unless shorter notice is acceptable to the Trustee. Notwithstanding the foregoing, the Company will not so redeem the Bearer Securities if the Company, based upon an Opinion of Counsel which counsel shall be reasonably acceptable to the Trustee, subsequently determines, not less than 20 days prior to the Redemption Date, that subsequent payments would not be subject to any such requirement, in which case the Company will notify the Trustee in writing of its determination not to so redeem the Securities, and the Trustee will promptly give notice to the Holders of the Bearer Securities of that determination and any earlier redemption notice will thereupon be revoked and of no further effect. If the Company elects as provided in clause (y) above to pay Additional Amounts, the Company may, as long as the Company is obligated to pay such Additional Amounts, subsequently redeem the Bearer Securities, at any time, as a whole but not in part, upon not less than 20 nor more than 60 days' notice prior to the Redemption Date, at a Redemption Price equal to 100% of the principal amount thereof plus interest accrued to the Redemption Date, and any Additional Amounts. Section 1103. Selection by Trustee of Securities to be Redeemed. ------------------------------------------------- If any Securities of any series are to be redeemed in part, the particular Securities to be redeemed shall be selected not more than 60 days prior to the Redemption Date by the Trustee 82 from the Outstanding Securities of such series not previously called for redemption, by such method as the Trustee shall deem fair and appropriate, under circumstances intended not to discriminate between Registered and Bearer Securities to be redeemed, and which may provide for the selection for redemption of portions of the principal amount of Registered Securities of such series; provided, however, that no such partial redemption shall reduce the -------- ------- portion of the principal amount of a Registered Security of such series not redeemed to less than the minimum denomination for a Security of such series established herein or pursuant hereto. The Trustee shall have no liability in connection with any selection of securities to redemption made in good faith and without negligence. If any Registered Security selected for partial redemption, which is convertible by the terms of such Security established pursuant to Section 301, is converted in part before termination of the conversion right with respect to the portion of the Security so selected, the converted portion of such Security shall be deemed (so far as may be) to be the portion selected for redemption. Securities which have been converted during a selection of Securities to be redeemed may be treated by the Trustee as Outstanding for the purpose of such selection. The Trustee shall promptly notify the Company and the Security Registrar (if other than itself) 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 of such Securities which has been or is to be redeemed. Section 1104. Notice of Redemption. -------------------- Notice of redemption shall be given by the Trustee in the manner provided in Section 106, not less than 20 nor more than 60 days prior to the Redemption Date, unless a different period is specified in the Securities to be redeemed. All such redemption notices (except, in the case of a redemption specified in the penultimate paragraph of Section 1102) shall be irrevocable. Failure to give notice by mailing in the manner herein provided to the Holder of any Registered Securities designated for redemption as a whole or in part, or any defect in the notice to any such Holder, shall not affect the validity of the proceedings for the redemption of any other Securities or portion thereof. Any notice that is mailed to the Holder of any Registered 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 identify the Securities to be redeemed and shall state: (1) the Redemption Date, (2) the Redemption Price, and accrued interest, if any, 83 (3) if less than all Outstanding Securities of any series are to be redeemed, the identification (and, in the case of partial redemption, the principal amount) of the particular Security or Securities to be redeemed, (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 shall become due and payable upon each such Security or portion thereof to be redeemed, and, if applicable, that interest thereon shall cease to accrue on and after said date, (6) if applicable, the Conversion Price, the date on which the right to convert the Securities to be redeemed will terminate and the places where such Securities, together with all unmatured Coupons and any matured Coupons in default appertaining thereto, may be surrendered for conversion, (7) the place or places where such Securities, together (in the case of Bearer Securities) with all Coupons appertaining thereto, if any, maturing after the Redemption Date, are to be surrendered for payment of the Redemption Price and any accrued interest and Additional Amounts pertaining thereto, (8) that the redemption is for a sinking fund, if such is the case, (9) that, unless otherwise specified in such notice, Bearer Securities of any series, if any, surrendered for redemption must be accompanied by all Coupons maturing subsequent to the date fixed for redemption or the amount of any such missing Coupon or Coupons will be deducted from the Redemption Price, unless security or indemnity satisfactory to the Company, the Trustee and any Paying Agent is furnished, (10) if Bearer Securities of any series are to be redeemed and any Registered Securities of such series are not to be redeemed, and if such Bearer Securities may be exchanged for Registered Securities not subject to redemption on the Redemption Date pursuant to Section 305 or otherwise, the last date, as determined by the Company, on which such exchanges may be made, and (11) the CUSIP number, ISIN number or the EUROCLEAR or the CEDEL reference numbers of such Securities, if any (or any other numbers used by a Depository to identify such Securities). 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. 84 Section 1105. Deposit of Redemption Price. --------------------------- On or prior to 10:00 a.m., Eastern Time, on any Redemption Date, the Company shall deposit, in immediately available funds, with respect to the Securities of any series called for redemption pursuant to Section 1104, 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 in Dollars sufficient to pay the Redemption Price of, and (except if the Redemption Date shall be an Interest Payment Date, unless otherwise specified pursuant to Section 301 for or in the Securities of such series) any accrued interest on and Additional Amounts with respect thereto, all such Securities or portions thereof which are to be redeemed on that date. If any Security called for redemption, which is convertible by the terms of such Security established pursuant to Section 301, is converted, any money deposited with the Trustee or with a Paying Agent or so segregated and held in trust for the redemption of such Security shall (subject to any right of the Holder of such Security or any predecessor Security to receive interest as provided in Section 307) be paid to the Company on Company Request or, if then held by the Company, shall be discharged from such trust. 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 and the Coupons for such interest appertaining to any Bearer Securities so to be redeemed, except to the extent provided below, shall be void. Upon surrender of any such Security for redemption in accordance with said notice, together with all Coupons, if any, appertaining thereto maturing after the Redemption Date, such Security shall be paid by the Company at the Redemption Price, together with any accrued interest and Additional Amounts to the Redemption Date; provided, however, that, except -------- ------- as otherwise provided in or pursuant to this Indenture or the Bearer Securities of such series, installments of interest on Bearer Securities whose Stated Maturity is on or prior to the Redemption Date shall be payable only upon presentation and surrender of Coupons for such interest (at an Office or Agency located outside the United States except as otherwise provided in Section 1002), and provided, further, that, except as otherwise specified in or pursuant to -------- ------- this Indenture or the Registered Securities of such series, installments of interest on Registered Securities whose Stated Maturity is on or prior to the Redemption Date shall be payable to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the Regular Record Dates therefor according to their terms and the provisions of Section 307. If any Bearer Security surrendered for redemption shall not be accompanied by all appurtenant Coupons maturing after the Redemption Date, such Security may be paid after deducting from the Redemption Price an amount equal to the face amount of all such missing Coupons, or the surrender of such missing Coupon or Coupons may be waived by the Company and the Trustee if there be furnished to them such security or indemnity as they may require to 85 save each of them and any Paying Agent harmless. If thereafter the Holder of such Security shall surrender to the Trustee or any Paying Agent any such missing Coupon in respect of which a deduction shall have been made from the Redemption Price, such Holder shall be entitled to receive the amount so deducted; provided, however, that any interest or Additional Amounts represented -------- ------- by Coupons shall be payable only upon presentation and surrender of those Coupons at an Office or Agency for such Security located outside of the United States except as otherwise provided in Section 1002. If any Security called for redemption shall not be so paid upon surrender thereof for redemption, the principal and any premium, until paid, shall bear interest from the Redemption Date at the rate prescribed therefor in the Security and each Security shall remain convertible (if applicable) until the principal of such Security (or portion thereof, as the case may be) shall have been paid or duly provided for. Section 1107. Securities Redeemed in Part. --------------------------- Any Registered Security which is to be redeemed only in part shall be surrendered at any applicable Office or Agency for such Security (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, the Guarantees of the Guarantor shall be endorsed on and the Trustee shall authenticate and deliver to the Holder of such Security without service charge, a new Registered Security or Securities of the same series, containing identical terms and provisions, 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. If a Security in global form is so surrendered, the Company shall execute, and the Trustee shall authenticate and deliver to the U.S. Depository or other Depository for such Security in global form as shall be specified in the Company Order with respect thereto to the Trustee, without service charge, a new Security in global form in a denomination equal to and in exchange for the unredeemed portion of the principal of the Security in global form so surrendered. ARTICLE TWELVE CONVERSION OF SECURITIES Section 1201. Conversion Privilege and Conversion Price. ----------------------------------------- Conversion of Securities of any series at the option of the Holder thereof as permitted by the terms of such Securities shall be made in accordance with the terms of such Securities and (except as otherwise provided herein or pursuant hereto) this Article Twelve. Each reference in this Article Twelve to "a Security" or "the Securities" refers to the Securities of the particular series that are convertible into shares of Common Stock. At the option of the Holder any Security other than the temporary global Bearer Security may be converted into fully paid and nonassessable shares (calculated as to each conversion to the nearest 1/100th of a share) of Common Stock of the Company at the Conversion Price (as defined below) in effect at the time of conversion. The period for conversion shall be set forth in the terms of the Securities. In case 86 a Security or portion thereof is called for redemption or is delivered for repayment, such conversion right in respect of the Security or portion so called or delivered shall expire at the close of business on the fifth Business Day preceding the Redemption Date or the second Business Day preceding a repayment on the Securities Repayment Date (as set forth in Article Fifteen), as the case may be, unless the Company defaults in making the payment due upon redemption or repayment, as the case may be. The price at which shares of Common Stock shall be delivered upon conversion (herein called the "Conversion Price") shall be as set forth in the ---------------- terms of the Securities. The Conversion Price shall be adjusted in certain instances as provided in this Article Twelve. As permitted by the terms of such Securities, the Company may provide for either or both of the options set forth in clauses (i) and (ii) of this paragraph to apply to any series of Securities, in which case such provisions shall be applicable to such Securities (except as otherwise provided herein or pursuant hereto). In lieu of issuing shares of Common Stock upon conversion of the Securities, the Company may elect, in its sole discretion to (i) pay cash in respect of all or a portion of the shares of Common Stock otherwise issuable upon such conversion (the "Cash Settlement Option") and/or (ii) to deliver fully ---------------------- paid and non-assessable shares of Guarantor Common Stock, in respect of all or a portion of the shares of Common Stock otherwise issuable upon such conversion (the "Stock Settlement Option"). The amount of cash to be so delivered upon the ----------------------- exercise of the Cash Settlement Option shall be equal to the number of shares of Common Stock as to which cash is being paid in lieu of issuance of shares of Common Stock multiplied by the Market Price of a share of Common Stock. ---------- In the event the Company exercises the Stock Settlement Option, the number of shares of Guarantor Common Stock to be so delivered shall be equal to the quotient obtained by dividing (a) the product of (i) the number of shares of Common Stock (as to which the Stock Settlement Option is being exercised) into which the Security is being converted multiplied by (ii) the Market Price of a ------------- share of Common Stock by (b) the Market Price of a share of Guarantor Common -- Stock. Upon exercise of either the Cash Settlement Option or the Stock Settlement Option, the Company shall inform each Conversion Agent and Paying Agent of the Market Price of the Common Stock and, if applicable, the Guarantor Common Stock. Upon presentment for conversion of any Securities pursuant to this Section 1201, the applicable Conversion Agent shall that day notify the Company of such presentment. Within two Business Days after the Conversion Date, the Company shall deliver to the Paying Agent written notice of whether such Security shall be converted into shares of Common Stock, cash, Guarantor Common Stock or a combination of shares of Common Stock, cash and Guarantor Common Stock (specifying the amounts of each). The Company shall deliver to such Holder no later than the fifth Business Day following the Conversion Date, through the Paying Agent, in respect of the portion of the converted security to be settled in cash, and as promptly as practicable on or following the Conversion Date in respect of the portion of the converted Security as to which shares of Common Stock and/or Guarantor Common Stock are to be issued, the amount of cash and certificates representing the number of shares of Common Stock and/or Guarantor Common Stock to be delivered, and cash in lieu of any fractional shares. No payment 87 or adjustment shall be made upon any conversion on account of any dividends on the Common Stock issued upon conversion. In the event that payment by the Company of cash in lieu of issuing shares of Common Stock upon conversion of a Security shall require any withholding for or on account of any present or future Tax imposed upon or as a result of such cash payment by the United States or any political subdivision or taxing authority thereof or therein, then the Company will be required to pay Additional Amounts with respect thereto in the same manner and to the same extent as is provided for in Section 1004. In the event that payment by the Company of cash in lieu of issuing shares of Common stock upon conversion of a Security shall require any certification, identification or information reporting requirement of United States law or regulation with regard to the nationality, residence or identity of a beneficial owner of a Bearer Security who is not a United States person (other than a requirement (a) which would not be applicable to a payment made (i) directly to the beneficial owner or (ii) to a custodian, nominee or other agent of the beneficial owner, or (b) which could be satisfied by the Holder, custodian, nominee or other agent certifying that the beneficial owner is not a United States person, provided, however, in each case referred to in clauses (a) (ii) -------- ------- and (b) payment by such custodian, nominee or agent to the beneficial owner is not otherwise subject to any requirement referred to in this sentence), the Company may not elect to make the cash payment unless such certification, identification or information reporting requirement would be fully satisfied by payment of United States withholding, backup withholding or similar taxes and the Company pays such Additional Amounts as are necessary in order that, following the effective date of such requirement, every net payment made outside the United States by the Company or a related Paying Agent of the cash payment on a Bearer Security to a Holder who is not a United States person (without regard to a certification, identification or information reporting requirement as to the nationality, residence or identity of such Holder), after deduction for United States withholding, backup withholding or similar taxes (other than withholding, backup withholding or similar taxes which would not be applicable in the circumstances referred to in the parenthetical clauses above), will not be less than the amount to be then due and payable thereon. Section 1202. Exercise of Conversion Privilege. -------------------------------- In order to exercise the conversion privilege, the Holder of any Definitive Security to be converted shall surrender such Security, duly endorsed or assigned to the Company or in blank (in the case of any Registered Security), at any applicable Place of Conversion, accompanied by a duly signed and completed conversion notice substantially in the form attached hereto as Exhibit C stating --------- that the Holder elects to convert such Security or, if less than the entire principal amount thereof is to be converted, the portion thereof to be converted. Each Bearer Security surrendered for conversion must be surrendered together with all Coupons appertaining thereto that mature after the Conversion Date. If any Bearer Security surrendered for conversion shall not be accompanied by all such appurtenant Coupons, the surrender of any or all of such missing Coupons may be waived by the Company, the Guarantor and the Trustee, if there be furnished to them such security or indemnity as they may require to save each of them and any Paying Agent harmless. Matured Coupons not in default (including Coupons maturing on the 88 Conversion Date) will be payable against surrender thereof, and matured Coupons previously surrendered and in default will continue to be payable, notwithstanding the exercise of the right of conversion by the Holder of the Security to which the Coupon appertains. Accrued interest from the immediately preceding Interest Payment Date until the Conversion Date (and Additional Amounts, if any, thereon) will be paid, through the Paying Agent, in the same manner as regular payments of interest and as provided in Section 307, within five Business Days after the Conversion Date. The Company's delivery to the Holder of the fixed number of shares of Common Stock (or cash or Guarantor Common Stock in lieu thereof, as provided in this Indenture) into which a Definitive Security is convertible will be deemed to satisfy the Company's obligation to pay the principal amount of the Security. Definitive Securities shall be deemed to have been converted immediately prior to the close of business on the day of surrender of such Securities for conversion (accompanied by a duly signed and completed conversion notice as contemplated above) in accordance with the foregoing provisions, and at such time the rights of the Holders of such Securities as Holders shall cease, and the Person or Persons entitled to receive the Common Stock issuable upon conversion shall be treated for all purposes as the record holder or holders of such Common Stock at such time; provided, however, that if the Company exercises -------- ------- the Cash Settlement Option or the Stock Settlement Option, then the Person or Persons who were to receive the Common Stock upon conversion shall not be deemed to have ever been a record holder of the Common Stock as to which the Cash Settlement Option or the Stock Settlement Option has been exercised and provided, further, that in the event the Company exercises the Stock Settlement - -------- ------- Option, the Person or Persons who elected to convert shall be treated as the record holder of Guarantor Common Stock deliverable to such Person or Persons on the date the Company exercises the Stock Settlement Option. Subject to Section 1201, as promptly as practicable on or after the Conversion Date, the Company shall issue and deliver to the Trustee, for delivery to the Holder, a certificate or certificates for the number of full shares of Common Stock issuable upon conversion, together with payment in lieu of any fraction of a share, as provided in Section 1203. In the case of any Security which is converted in part only, upon such conversion the Company shall execute and the Trustee shall authenticate and deliver to the Holder thereof, at the expense of the Company, a new Security or Securities of authorized denominations in an aggregate principal amount equal to the unconverted portion of the principal amount of such Security. A Security may be converted in part, but only if the principal amount of such Security to be converted is any integral multiple of U.S. $1,000 and the principal amount of such security to remain Outstanding after such conversion is equal to U.S. $1,000 or any integral multiple of $1,000 in excess thereof. Section 1203. Fractions of Shares. ------------------- No fractional shares of Common Stock shall be issued upon conversion of any Definitive Security. If more than one Definitive Security shall be surrendered for conversion at one time by the same Holder, the number of full shares which shall be issuable upon conversion thereof shall be computed on the basis of the aggregate principal amount of the Definitive Securities (or specified portions thereof) so surrendered. Instead of any fractional share of Common Stock which would otherwise be issuable upon conversion of any Definitive Security or Securities (or 89 specified portions thereof) the Company shall calculate and pay a cash adjustment in respect of such fraction (calculated to the nearest 1/100th of a share) in an amount equal to the same fraction of the current Closing Price Per Share (calculated in accordance with Section 1204 (6) below) at the close of business on the Conversion Date. Such cash payments shall, in the case of a conversion of Bearer Securities, be made to an address outside of the United States. Section 1204. Adjustment of Conversion Price. ------------------------------ The Conversion Price shall be subject to adjustment from time to time as follows: (1) In case the Company shall pay or make a dividend or other distribution on any class of capital stock of the Company in shares of Common Stock, the Conversion Price in effect at the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares of Common Stock constituting such dividend or other distribution, such reduction to become effective at the opening of business on the day following the date fixed for such determination. For the purposes of this paragraph (1), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company. (2) In case at any time the Company shall issue rights, options or warrants to all holders of its Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the then current market price per share (determined as provided in paragraph (6) of this Section) of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options or warrants, the Conversion Price in effect at the opening of business on the day following the date fixed for such determination shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock which the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market price and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock so offered for subscription or purchase, such reduction to become effective at the opening of business on the day following the date fixed for such determination; provided, -------- however, that if an adjustment to the Conversion Price is made and any or all of - ------- such rights, options and warrants are not exercised, then a corresponding reversing adjustment of the Conversion Price shall be made, on an equitable basis, to take account of such event. For the purposes of this paragraph (2), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company 90 will not issue any rights or warrants in respect of shares of Common Stock held in the treasury of the Company. (3) In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the Conversion Price in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately reduced, and, conversely, in case outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, the Conversion Price in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately increased, such reduction or increase, as the case may be, to become effective at the opening of business on the day following the day upon which such subdivision or combination becomes effective. (4) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock, cash or assets (including securities, but excluding any (i) rights, options or warrants referred to in paragraph (2) of this Section, (ii) any dividend or distribution paid exclusively in cash out of the retained earnings of the Company, (iii) any dividend or distribution referred to in paragraph (1) of this Section and (iv) shares issued upon any merger or consolidation to which Section 1211 applies), the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the close of business on the date fixed for the determination of stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (6) of this Section) of the Common Stock on the date fixed for such determination less the then fair market value (as determined by the Board of Directors of the Company, whose determination shall be conclusive and described in a Company Board Resolution filed with the Trustee) of the portion of the assets, shares or evidences of indebtedness so distributed applicable to one share of Common Stock and the denominator shall be such current market price per share of the Common Stock, such adjustment to become effective at the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such distribution. (5) The reclassification of Common Stock into securities including other than Common Stock (other than any reclassification upon a consolidation or merger to which Section 1211 applies) shall be deemed to involve (a) a distribution of such securities other than Common Stock to all holders of Common Stock (and the effective date of such reclassification shall be deemed to be "the date fixed for the determination of stockholders entitled to receive such distribution" and "the date fixed for such determination" within the meaning of paragraph (4) of this Section), and (b) a subdivision or combination, as the case may be, of the number of shares of Common Stock outstanding immediately prior to such reclassification into the number of shares of Common Stock outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be "the day upon which such subdivision becomes effective" or "the day upon which such combination becomes effective", as the case may be, and "the day upon which such subdivision or combination becomes effective," within the meaning of paragraph (3) of this Section). 91 (6) For the purpose of any computation under paragraphs (2) and (4) of this Section 1204, the current market price per share of Common Stock on any date shall be calculated by the Company and be deemed to be the average of the daily Closing Prices Per Share for the five consecutive Trading Days selected by the Company commencing not more than 10 Trading Days before, and ending not later than, the earlier of the day in question and the day before the "ex date" with respect to the issuance or distribution requiring such computation. For purposes of this paragraph, the term "ex date," when used with respect to any issuance or distribution, means the first date on which the Common Stock trades regular way in the applicable securities market or on the applicable securities exchange without the right to receive such issuance or distribution. (7) No adjustment in the Conversion Price shall be required unless such adjustment (plus any adjustments not previously made by reason of this paragraph (7)) would require an increase or decrease of at least one percent in such Conversion Price; provided, however, that any adjustments which by reason -------- ------- of this paragraph (7) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Article shall be made to the nearest cent or to the nearest one-thousandth of a share, as the case may be. (8) The Company may make such reductions in the Conversion Price, for the remaining term of any series of Securities or any shorter term, in addition to those required by paragraphs (1), (2), (3) and (4) of this Section 1204, as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes. Section 1205. Notice of Adjustments of Conversion Price. ----------------------------------------- Whenever the Conversion Price is adjusted as herein provided: (1) the Company shall compute the adjusted Conversion Price in accordance with Section 1204 and shall prepare a certificate signed by the Treasurer of the Company setting forth the adjusted Conversion Price and showing in reasonable detail the facts upon which such adjustment is based, and such certificate shall promptly be filed with the Trustee and with each Conversion Agent; and (2) a notice stating that the Conversion Price has been adjusted and setting forth the adjusted Conversion Price shall forthwith be required, and as soon as practicable after it is required, such notice shall be provided by the Company to all Holders in accordance with Section 106. Neither the Trustee nor any Conversion Agent shall be under any duty or responsibility with respect to any such certificate or the information and calculations contained therein, except to exhibit the same to any Holder of Securities desiring inspection thereof at its office during normal business hours. 92 Section 1206. Notice of Certain Corporate Action. ---------------------------------- In case: (a) the Company shall declare a dividend (or any other distribution) on its Common Stock payable otherwise than exclusively in cash out of the retained earnings of the Company; or (b) the Company shall authorize the granting to the holders of its Common Stock of rights, options or warrants to subscribe for or purchase any shares of capital stock of any class or of any other rights (other than rights, options or warrants to subscribe for or purchase any shares of capital stock of any class or of any other rights of a corporation, a majority of each class of common stock of which is owned, directly or indirectly, by the Company or the Guarantor); or (c) of any reclassification of the Common Stock of the Company (other than a subdivision or combination of its outstanding shares of Common Stock), or of any consolidation or merger to which the Company is a party and for which approval of the stockholders of the Company is required pursuant to applicable corporate law, or of the sale or transfer of all or substantially all of the assets of the Company(; or (d) of the voluntary or involuntary dissolution, liquidation or winding up of the Company; then the Company shall cause to be filed at each office or agency maintained for the purpose of conversion of Securities pursuant to Section 1002, and shall cause to be provided to all Holders in accordance with Section 106, at least 20 days (or 10 days in any case specified in clause (a) or (b) above) prior to the applicable record, expiration or effective date hereinafter specified, a notice stating (y) the date on which a record is to be taken for the purpose of such dividend, distribution, rights, options or warrants, or, if a record is not to be taken, the date as of which the holders of Common Stock of record to be entitled to such dividend, distribution, rights, options or warrants are to be determined, or (z) the date on which such reclassification, consolidation, merger, share exchange, conveyance, transfer, sale, lease, dissolution, liquidation or winding up is expected to become effective, and the date as of which it is expected that holders of Common Stock of record shall be entitled to exchange their shares of Common Stock for securities, cash or other property deliverable upon such reclassification, consolidation, merger, share exchange, conveyance, transfer, sale, lease, dissolution, liquidation or winding up. If at the time the Trustee shall not be the Conversion Agent, a copy of such notice and any notice referred to in the following paragraph shall also forthwith be filed by the Company with the Trustee. Section 1207. Company to Reserve Common Stock. ------------------------------- The Company shall at all times reserve and keep available, free from preemptive rights, out of its authorized but unissued Common Stock, for the purpose of effecting the conversion of Securities of any series, the full number of shares of Common Stock then issuable upon the conversion of all Outstanding Securities of such series. 93 Section 1208. Taxes on Conversions. -------------------- The Company will pay any and all stamp and similar taxes and duties that may be payable in respect of the issue or delivery of shares of Common Stock on conversion of Securities pursuant hereto. The Company shall not, however, be required to pay any tax which may be payable in respect of any transfer involved in the issue and delivery of shares of Common Stock in a name other than that of the Holder of the Security or Securities to be converted, and no such issue or delivery shall be made unless and until the Person requesting such issue has paid to the Company the amount of any such tax, or has established to the satisfaction of the Company that such tax has been paid. Section 1209. Covenant as to Common Stock. --------------------------- The Company agrees that all shares of Common Stock which may be delivered upon conversion of Securities, upon such delivery, will have been duly authorized and validly issued and will be fully paid and nonassessable and, except as provided in Section 1208, the Company will pay all stamp and similar taxes, liens and charges with respect to the issue thereof. Section 1210. Cancellation of Converted Securities. ------------------------------------ All Securities delivered for conversion shall be delivered to the Trustee or the Paying Agent or its agent to be canceled by or at the direction of the Trustee, which shall dispose of the same as provided in Section 309. Section 1211. Provision in Case of Consolidation, Merger or Sale of Assets. ------------------------------------------------------------ In case of any consolidation of the Company with, or merger of the Company into, any other Person, any merger of another Person into the Company (other than a merger which does not result in any reclassification, conversion, exchange or cancellation of outstanding shares of Common Stock of the Company) or any sale or transfer of all or substantially all of the assets of the Company, the Person formed by such consolidation or resulting from such merger or which acquires such assets, as the case may be, shall execute and deliver to the Trustee a supplemental indenture providing that the Holder of each Security then Outstanding shall have the right thereafter, during the period such Security shall be convertible as specified in Section 1201, to convert such Security only into the kind and amount of securities, cash and other property receivable upon such consolidation, merger, sale or transfer by a holder of the number of shares of Common Stock of the Company into which such Security might have been converted immediately prior to such consolidation, merger, sale or transfer. Such supplemental indenture shall provide for adjustments which, for events subsequent to the effective date of such supplemental indenture, shall be as nearly equivalent as may be practicable to the adjustments provided for in this Article Twelve. If in the case of any such consolidation, merger, sale or transfer, the stock or other securities and property receivable by a Holder of the Securities includes stock or other securities and property of a corporation other than the successor or purchasing corporation, then such supplemental indenture shall also be executed by such other corporation and shall contain such additional provisions to protect the interests of the Holders of 94 the Securities as the Board of Directors of the Company shall reasonably consider necessary. The above provisions of this Section 1211 shall similarly apply to successive consolidations, mergers, sales or transfers. Notice of the execution of such a supplemental indenture shall be given by the Company to the Holder of each Security as provided in Section 106 promptly upon such execution. Section 1212. Compliance with Governmental Requirements. The Company covenants ----------------------------------------- that if any shares of Common Stock required to be reserved for purposes of conversion of Securities hereunder require registration or listing with or approval of any governmental authority under any Federal or State law, pursuant to the Securities Act or the Exchange Act, or any national or regional securities exchange or other trading market on which the Common Stock is listed at the time of delivery of any Common Stock, before such shares may be issued upon conversion, the Company will use its best efforts to cause such shares to be duly registered, listed or approved, as the case may be. ARTICLE THIRTEEN SINKING FUNDS Section 1301. Applicability of Article. ------------------------ The provisions of this Article Thirteen shall be applicable to any sinking fund for the retirement of Securities of a series, except as otherwise permitted or required in or pursuant to this Indenture or any Security of such series issued pursuant to this Indenture. 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 such series is herein referred to as an "optional sinking fund payment." If provided for by the terms of Securities of any series, the cash amount of any sinking fund payment may be subject to reduction as provided in Section 1302. 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 and this Indenture. Section 1302. Satisfaction of Sinking Fund Payments With Securities. ----------------------------------------------------- The Company or the Guarantor may, in satisfaction of all or any part of any sinking fund payment with respect to the Securities of any series to be made pursuant to the terms of such Securities (1) deliver Outstanding Securities of such series (other than any of such Securities previously called for redemption or any of such Securities in respect of which cash shall have been released to the Company), together in the case of any Bearer Securities of such series with all unmatured Coupons appertaining thereto, and (2) apply as a credit Securities of such series which have been redeemed either at the election of the Company pursuant to the terms of such series of Securities or through the application of permitted optional sinking fund payments 95 pursuant to the terms of such Securities, provided that such Securities have not -------- ---- been previously so credited. Such Securities shall be received and credited for such purpose by the Trustee at the Redemption Price specified in such Securities for redemption through operation of the sinking fund and the amount of such sinking fund payment shall be reduced accordingly. If as a result of the delivery or credit of Securities of any series in lieu of cash payments pursuant to this Section 1302, the principal amount of Securities of such series to be redeemed in order to exhaust the aforesaid cash payment shall be less than $100,000, the Trustee need not call Securities of such series for redemption, except upon Company Request, and such cash payment shall be held by the Trustee or a Paying Agent and applied to the next succeeding sinking fund payment, provided, however, that -------- ------- the Trustee or such Paying Agent shall at the request of the Company from time to time pay over and deliver to the Company any cash payment so being held by the Trustee or such Paying Agent upon delivery by the Company to the Trustee of Securities of that series purchased by the Company having an unpaid principal amount equal to the cash payment requested to be released to the Company. Section 1303. Redemption of Securities for Sinking Fund. ----------------------------------------- Not less than 75 days prior to each sinking fund payment date for any series of Securities, the Company shall deliver to the Trustee an Officers' Certificate specifying the amount of the next ensuing mandatory 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 and crediting of Securities of that series pursuant to Section 1302, and the optional amount, if any, to be added in cash to the next ensuing mandatory sinking fund payment, and will also deliver to the Trustee any Securities to be so credited and not theretofore delivered. If such Officers' Certificate shall specify an optional amount to be added in cash to the next ensuing mandatory sinking fund payment, the Company shall thereupon be obligated to pay the amount therein specified. Not more than 75 days or less than 45 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 FOURTEEN GUARANTEES Section 1401. Guarantees. ---------- Except as otherwise contemplated by Section 1403 below and subject to Article Eighteen, the Guarantor hereby unconditionally guarantees to each Holder of a Security authenticated and delivered by the Trustee, and to the Trustee on behalf of such Holder, the due and punctual 96 payment of the principal of and any premium and interest on and any Additional Amounts, if any, on such Security and the due and punctual payment of any sinking fund or analogous payments provided for pursuant to the terms of such Security, when and as the same shall become due and payable, whether at the Stated Maturity, by declaration of acceleration, call for redemption, repayment at the option of the Holder or otherwise, in accordance with the terms of such Security and of this Indenture, and whether or not such payment is prohibited by the subordination provisions of Article Seventeen and any and all other amounts owed by the Company to the Trustee under the terms of this Indenture. The Guarantor further unconditionally guarantees to the Trustee the Company's obligations under Section 606 herein. In case of the failure of the Company punctually to make any such payment, the Guarantor hereby agrees to cause such payment to be made punctually when and as the same shall become due and payable, whether at the Stated Maturity or by declaration of acceleration, call for redemption, repayment at the option of the Holder or otherwise, and whether or not such payment is prohibited by the subordination provisions of Article Seventeen and as if such payment were made by the Company, subject to Article Eighteen. The Guarantor hereby agrees that its obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of such Security or this Indenture, the absence of any action to enforce the same, any waiver or consent by the Holder of such Security or by the Trustee with respect to any provisions thereof or of this Indenture, the obtaining of any judgment against the Company or any action to enforce the same or any other circumstances which might otherwise constitute a legal or equitable discharge or defense of a guarantor. The Guarantor hereby waives the benefits of diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest or notice with respect to such Security or the indebtedness evidenced thereby or with respect to any sinking fund payment required pursuant to the terms of such Security and all demands whatsoever, and covenants that the Guarantees will not be discharged in respect of such Security except by complete performance of the obligations contained in such Security and in this guarantee. The Guarantor hereby agrees that, in the event of a default in payment of principal (or premium, if any) or interest or Additional Amounts, if any, on such Security, or a default in any sinking fund or analogous payment referred to therein, legal proceedings may be instituted by the Trustee on behalf of, or by, the Holder of such Security, on the terms and conditions set forth in this Indenture, directly against the Guarantor to enforce the Guarantees without first proceeding against the Company. The Guarantor shall be subrogated to all rights of the Holders of the Securities of a particular series against the Company in respect of any amounts paid by the Guarantor on account of such Security pursuant to the provisions of the Guarantees or this Indenture; provided, however, that the Guarantor shall -------- ------- not be entitled to enforce or to receive any payments arising out of, or based upon, such right of subrogation until the principal of (and premium, if any) and interest and Additional Amounts, if any, on all Securities of such series issued hereunder shall have been paid in full. 97 Section 1402. Execution and Delivery of Guarantees. ------------------------------------ The Guarantees to be endorsed on the Securities of each series shall include the terms of the Guarantee set forth in Section 1401 (except that references to premium and interest need be included only if any premium or interest, respectively, is provided for in the terms of such series) and any other terms that may be set forth in the form established pursuant to Section 202 with respect to such series. The Guarantor hereby agrees to execute the Guarantees, in a form established pursuant to Section 202, to be endorsed on each Security authenticated and delivered by the Trustee. The Guarantees shall be executed on behalf of the Guarantor by its Chairman of the Board, a Vice Chairman of the Board, its President or one of its Vice Presidents, 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 Guarantees may be manual or facsimile. Guarantees bearing the manual or facsimile signatures of individuals who were at any time the proper officers of the Guarantor shall bind the Guarantor, notwithstanding that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Guarantees or did not hold such offices at the date of such Guarantees. The delivery of any Security by the Trustee, after the authentication thereof hereunder, shall constitute due delivery of the Guarantee endorsed thereon on behalf of the Guarantor. The Guarantor hereby agrees that its Guarantee set forth in Section 1401 shall remain in full force and effect notwithstanding any failure to endorse a Guarantee on any Security. Section 1403. Guarantees Optional. ------------------- Notwithstanding anything to the contrary in this Indenture, if so provided in the terms of any series of Securities, such series of Securities may be issued without the Guarantees contemplated by this Article Fourteen. In such case, any and all references to the "Guarantees" or the "Guarantor" (including the provisions relating thereto) throughout this Indenture shall be inapplicable to such series. ARTICLE FIFTEEN REPAYMENT AT THE OPTION OF HOLDERS Section 1501. Applicability Of Article. Repayment of Securities of any ------------------------ series that are convertible into Common Stock pursuant to Article Twelve before their Stated Maturity at the option of Holders thereof shall be made in accordance with the terms of such Securities, if any, and (except as otherwise specified by the terms of such series established pursuant to Section 301) in accordance with this Article Fifteen. Section 1502. Repayment Of Securities. Securities of any series subject to ----------------------- repayment in whole or in part (which shall be in a principal amount hereof which is U.S. $1,000 or an integral 98 multiple thereof) at the option of the Holders thereof on any Repayment Date (as defined below) will, unless otherwise provided in the Company's Board Resolutions or Officers' Certificate establishing such series, be repaid at a price equal to the principal amount thereof, together with interest and Additional Amounts, if any (the "Repayment Price"), if a Repayment Event shall --------------- occur or have occurred. For purposes hereof a "Repayment Event" shall have --------------- occurred if the Common Stock (or other equity securities into which such series of Securities is then convertible) is neither listed for trading on a United States national securities exchange, the Nasdaq National Market nor approved for trading on an established automated over-the-counter trading market in the United States. The "Repayment Date" with respect to any Repayment Event shall be -------------- the ninetieth (90th) day after the later of the Exchange Date or the date a Repayment Event has occurred. The Company covenants that at or prior to 10:00 a.m., Eastern Time, on the Repayment Date it will 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 in Dollars sufficient to pay the principal (or, if so provided by the terms of the Securities of any series, a percentage of the principal) of, and (except if the Repayment Date shall be an Interest Payment Date) accrued interest and Additional Amounts, if any, on, all the Securities or portions thereof, as the case may be, to be repaid on such date. Section 1503. Notice of Repayment. Unless the Company shall have ------------------- theretofore called for redemption all of the Outstanding Securities of such series, on or before the 30th day after the later of the Exchange Date and the occurrence of a Repayment Event, the Company or, at the request and expense of the Company, the Trustee shall give notice to all Holders of Securities entitled to repayment pursuant to terms of such Securities established in accordance with Section 301, in the manner provided in Section 106 (the "Repayment Notice"), ---------------- that a Repayment Event has occurred and of the repayment right set forth herein arising as a result thereof. If applicable, the Company shall also deliver a copy of the Repayment Notice to the Trustee. All notices of repayment shall identify the Securities eligible for repayment and shall state: (1) the Repayment Date, (2) the date by which the repayment right must be exercised, (3) the Repayment Price, (4) the Conversion Price then in effect, the date on which the right to convert the Securities to be repaid will terminate and the place or places where such Securities, together (in the case of Bearer Securities) with all Coupons appertaining thereto, if any, maturing after the Repayment Date, may be surrendered for conversion, (5) a description of the procedure which a Holder must follow to exercise a repayment right and the place or places where such Securities, together (in the case of Bearer Securities) with all Coupons appertaining thereto, if any, maturing after the Repayment Date, are 99 to be surrendered for payment and accrued interest and Additional Amounts, if any, pertaining thereto, and (6) that, unless otherwise specified in such notice, Bearer Securities of any series, if any, surrendered for repayment must be accompanied by all Coupons maturing subsequent to the Repayment Date or the amount of any such missing Coupon or Coupons will be deducted from any amount due to such Holder, unless security or indemnity satisfactory to the Company, the Trustee and any Paying Agent is furnished. Section 1504. Exercise Of Option. Securities of any series subject to ------------------ repayment at the option of the Holders thereof will contain an "Option to Elect Repayment" form substantially in the form of Exhibit F, on the reverse of such --------- Securities. In order for any Security to be repaid at the option of the Holder, the Trustee must receive at the Place of Payment therefor specified in the terms of such Security (or at such other place or places of which the Company shall from time to time notify the Holders of such Securities) not earlier than 60 days nor later than 30 days prior to the Repayment Date (1) the Security so providing for such repayment together with the "Option to Elect Repayment" form on the reverse thereof duly completed by the Holder (or by the Holder's attorney duly authorized in writing) or (2) a telegram, facsimile transmission or a letter from a member of a national securities exchange or the National Association of Securities Dealers, Inc. ("NASD"), or a commercial bank or trust company in the United States setting forth the name of the Holder of the Security, the principal amount of the Security, the principal amount of the Security to be repaid, the CUSIP number, if any, or a description of the tenor and terms of the Security, a statement that the option to elect repayment is being exercised thereby and a guarantee that the Security to be repaid, together with the duly completed form entitled "Option to Elect Repayment" on the reverse of the Security, will be received by the Trustee not later than the fifth Business Day after the date of such telegram, facsimile transmission or letter; provided, however, that such telegram, facsimile transmission or letter shall - -------- ------- only be effective if such Security and form duly completed are received by the Trustee by such fifth Business Day. If less than the entire principal amount of such Security is to be repaid in accordance with the terms of such Security, the principal amount of such Security to be repaid, in increments of the minimum denomination for Securities of such series, and the denomination or denominations of the Security or Securities to be issued to the Holder for the portion of the principal amount of such Security surrendered that is not to be repaid, must be specified. The principal amount of any Security providing for repayment at the option of the Holder thereof may not be repaid in part if, following such repayment, the unpaid principal amount of such Security would be less than the minimum authorized denomination of Securities of the series of which such Security to be repaid is a part. Except as otherwise may be provided by the terms of any Security providing for repayment at the option of the Holder thereof, exercise of the repayment option by the Holder shall be irrevocable unless waived by the Company. Section 1505. When Securities Presented For Repayment Become Due And ------------------------------------------------------ Payable. If Securities of any series providing for repayment at the option of - ------- the Holders thereof shall have been surrendered as provided in this Article Fifteen and as provided by or pursuant to the terms of such Securities, such Securities or the portions thereof, as the case may be, to be repaid shall become due and payable and shall be paid by the Company on the Repayment Date therein specified, and on and after such Repayment Date (unless the Company shall default in the 100 payment of such Securities on such Repayment Date) such Securities shall, if the same were interest-bearing, cease to bear interest and the Coupons for such interest appertaining to any Bearer Securities so to be repaid, except to the extent provided below, shall be void. Upon surrender of any such Security for repayment in accordance with such provisions, together with all Coupons, if any, appertaining thereto maturing after the Repayment Date, the principal amount of such Security so to be repaid shall be paid by the Company, together with accrued interest and Additional Amounts, if any, to the Repayment Date; provided, however, that Coupons whose Stated Maturity is on or prior to the - -------- ------- Repayment Date shall be payable only at an office or agency located outside the United States (except as otherwise provided in Section 1002) and, unless otherwise specified pursuant to Section 301, only upon presentation and surrender of such Coupons; and provided, further, that, in the case of Registered Securities, installments of interest and Additional Amounts, if any, whose Stated Maturity is on or prior to the Repayment Date shall be payable (but without interest thereon, unless the Company shall default in the payment thereof) 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 Bearer Security surrendered for repayment shall not be accompanied by all appurtenant Coupons maturing after the Repayment Date, such Security may be paid after deducting from the amount payable therefor as provided in Section 1502 an amount equal to the face amount of all such missing Coupons, or the surrender of such missing Coupon or Coupons may be waived by the Company and the Trustee if there be furnished to them such security or indemnity as they may require to save each of them and any Paying Agent harmless. If thereafter the Holder of such Security shall surrender to the Trustee or any Paying Agent any such missing Coupon in respect of which a deduction shall have been made as provided in the preceding sentence, such Holder shall be entitled to receive the amount so deducted; provided, however, that interest represented by Coupons -------- ------- shall be payable only at an office or agency located outside the United States (except as otherwise provided in Section 1002) and, unless otherwise specified as contemplated by Section 301, only upon presentation and surrender of those Coupons. If the principal amount of any Security surrendered for repayment shall not be so repaid upon surrender thereof, such principal amount (together with interest, if any, thereon accrued to such Repayment Date) shall, until paid, bear interest from the Repayment Date at the rate of interest or yield to maturity (in the case of Original Issue Discount Securities) set forth in such Security. Section 1506. Securities Repaid In Part. Upon surrender of any Registered ------------------------- Security which is to be repaid in part only, the Company shall execute and the Trustee shall authenticate and deliver to the Holder of such Security, without service charge and at the expense of the Company, a new Registered Security or Securities of the same series, of any authorized denomination specified by the Holder, in an aggregate principal amount equal to and in exchange for the portion of the principal of such Security so surrendered which is not to be repaid. 101 ARTICLE SIXTEEN MEETINGS OF HOLDERS OF SECURITIES Section 1601. Purposes for Which Meetings May Be Called. ----------------------------------------- A meeting of Holders of Securities of any series may be called at any time and from time to time pursuant to this Article Sixteen to make, give or take any request, demand, authorization, direction, notice, consent, waiver or other Act provided by this Indenture to be made, given or taken by Holders of Securities of such series. Section 1602. Call, Notice and Place of Meetings. ---------------------------------- (1) The Trustee may at any time call a meeting of Holders of Securities of any series for any purpose specified in Section 1601, to be held at such time and at such place in the Borough of Manhattan, The City of New York, or, if Securities of such series have been issued in whole or in part as Bearer Securities, in London or in such place outside the United States as the Trustee shall determine. Notice of every meeting of Holders of Securities of any series, setting forth the time and the place of such meeting and in general terms the action proposed to be taken at such meeting, shall be given, in the manner provided in Section 106, not less than 21 nor more than 180 days prior to the date fixed for the meeting. (2) In case at any time the Company (by or pursuant to a Board Resolution) or the Holders of at least 10% in principal amount of the Outstanding Securities of any series shall have requested the Trustee to call a meeting of the Holders of Securities of such series for any purpose specified in Section 1601, by written request setting forth in reasonable detail the action proposed to be taken at the meeting, and the Trustee shall not have mailed notice of or made the first publication of the notice of such meeting within 21 days after receipt of such request (whichever shall be required pursuant to Section 106) or shall not thereafter proceed to cause the meeting to be held as provided herein, then the Company or the Holders of Securities of such series in the amount above specified, as the case may be, may determine the time and the place in the Borough of Manhattan, The City of New York, or, if Securities of such series are to be issued as Bearer Securities, in London for such meeting and may call such meeting for such purposes by giving notice thereof as provided in clause (1) of this Section. 102 Section 1603. Persons Entitled to Vote at Meetings. ------------------------------------ To be entitled to vote at any meeting of Holders of Securities of any series, a Person shall be (1) a Holder of one or more Outstanding Securities of such series, or (2) a Person appointed by an instrument in writing as proxy for a Holder or Holders of one or more Outstanding Securities of such series by such Holder or Holders. The only Persons who shall be entitled to be present or to speak at any meeting of Holders of Securities of any series shall be the Persons entitled to vote at such meeting and their counsel, any representatives of the Trustee and its counsel and any representatives of the Company and its counsel. Section 1604. Quorum; Action. -------------- The Persons entitled to vote a majority in principal amount of the Outstanding Securities of a series shall constitute a quorum for a meeting of Holders of Securities of such series; provided, however, that if any action is -------- ------- to be taken at such meeting with respect to a consent or waiver which this Indenture expressly provides may be given by the Holders of at least 66-2/3% in principal amount of the Outstanding Securities of a series, the Persons entitled to vote 66-2/3% in principal amount of the Outstanding Securities of such series constitute a quorum. In the absence of a quorum within 30 minutes after the time appointed for any such meeting, the meeting shall, if convened at the request of Holders of Securities of such series, be dissolved. In any other case the meeting may be adjourned for a period of not less than 10 days as determined by the chairman of the meeting prior to the adjournment of such meeting. In the absence of a quorum at any such adjourned meeting, such adjourned meeting may be further adjourned for a period of not less than 10 days as determined by the chairman of the meeting prior to the adjournment of such adjourned meeting. Notice of the reconvening of any adjourned meeting shall be given as provided in Section 1602(1), except that such notice need be given only once not less than five days prior to the date on which the meeting is scheduled to be reconvened. Notice of the reconvening of an adjourned meeting shall state expressly the percentage, as provided above, of the principal amount of the Outstanding Securities of such series which shall constitute a quorum. Except as limited by the proviso to Section 902, any resolution presented to a meeting or adjourned meeting duly reconvened at which a quorum is present as aforesaid may be adopted only by the affirmative vote of the Holders of a majority in principal amount of the Outstanding Securities of that series; provided, however, that, except as limited by the proviso to Section 902, any - -------- ------- resolution with respect to any consent or waiver which this Indenture expressly provides may be given by the Holders of at least 66-2/3% in principal amount of the Outstanding Securities of a series may be adopted at a meeting or an adjourned meeting duly convened and at which a quorum is present as aforesaid only by the affirmative vote of the Holders of 66-2/3% in principal amount of the Outstanding Securities of that series; and provided, further, that, except as limited by the proviso to Section 902, any resolution with respect to any request, demand, authorization, direction, notice, consent, waiver or other Act which this Indenture expressly provides may be made, given or taken by the Holders of a specified percentage, which is less than a majority, in principal amount of the Outstanding Securities of a series may be adopted at a meeting or an adjourned meeting duly reconvened and at which a quorum is present as aforesaid 103 by the affirmative vote of the Holders of such specified percentage in principal amount of the Outstanding Securities of such series. Any resolution passed or decision taken at any meeting of Holders of Securities of any series duly held in accordance with this Section shall be binding on all the Holders of Securities of such series and the Coupons appertaining thereto, whether or not such Holders were present or represented at the meeting. Section 1605. Determination of Voting Rights; Conduct and Adjournment of ---------------------------------------------------------- Meetings. - -------- (1) Notwithstanding any other provisions of this Indenture, the Trustee may make such reasonable regulations as it may deem advisable for any meeting of Holders of Securities of such series in regard to proof of the holding of Securities of such series and of the appointment of proxies and in regard to the appointment and duties of inspectors of votes, the submission and examination of proxies, certificates and other evidence of the right to vote, and such other matters concerning the conduct of the meeting as it shall deem appropriate. Except as otherwise permitted or required by any such regulations, the holding of Securities shall be proved in the manner specified in Section 104 and the appointment of any proxy shall be proved in the manner specified in Section 104 or by having the signature of the person executing the proxy witnessed or guaranteed by any trust company, bank or banker authorized by Section 104 to certify to the holding of Bearer Securities. Such regulations may provide that written instruments appointing proxies, regular on their face, may be presumed valid and genuine without the proof specified in Section 104 or other proof. (2) The Trustee shall, by an instrument in writing, appoint a temporary chairman of the meeting, unless the meeting shall have been called by the Company, the Guarantor or by Holders of Securities as provided in Section 1602(2), in which case the Company, the Guarantor or the Holders of Securities of the series calling the meeting, as the case may be, shall in like manner appoint a temporary chairman. A permanent chairman and a permanent secretary of the meeting shall be elected by vote of the Persons entitled to vote a majority in principal amount of the Outstanding Securities of such series represented at the meeting. (3) At any meeting, each Holder of a Security of such series or proxy shall be entitled to one vote for each $1,000 principal amount of Securities of such series held or represented by him; provided, however, -------- ------- that no vote shall be cast or counted at any meeting in respect of any Security challenged as not Outstanding and ruled by the chairman of the meeting to be not Outstanding. The chairman of the meeting shall have no right to vote, except as a Holder of a Security of such series or proxy. (4) Any meeting of Holders of Securities of any series duly called pursuant to Section 1602 at which a quorum is present may be adjourned from time to time by Persons entitled to vote a majority in principal amount of the Outstanding Securities of such series represented at the meeting; and the meeting may be held as so adjourned without further notice. 104 Section 1606. Counting Votes and Recording Action of Meetings. ----------------------------------------------- The vote upon any resolution submitted to any meeting of Holders of Securities of any series shall be by written ballots on which shall be subscribed the signatures of the Holders of Securities of such series or of their representatives by proxy and the principal amounts and serial numbers of the Outstanding Securities of such series held or represented by them. The permanent chairman of the meeting shall appoint two inspectors of votes who shall count all votes cast at the meeting for or against any resolution and who shall make and file with the secretary of the meeting their verified written reports in triplicate of all votes cast at the meeting. A record, at least in triplicate, of the proceedings of each meeting of Holders of Securities of any series shall be prepared by the secretary of the meeting and there shall be attached to said record the original reports of the inspectors of votes on any vote by ballot taken thereat and affidavits by one or more persons having knowledge of the facts setting forth a copy of the notice of the meeting and showing that said notice was given as provided in Section 1602 and, if applicable, Section 1604. Each copy shall be signed and verified by the affidavits of the permanent chairman and secretary of the meeting and one such copy shall be delivered to the Company, another to the Guarantor, and another to the Trustee to be preserved by the Trustee, the latter to have attached thereto the ballots voted at the meeting. Any record so signed and verified shall be conclusive evidence of the matters therein stated. ARTICLE SEVENTEEN SUBORDINATION OF SECURITIES Section 1701. Securities Subordinate to Senior Indebtedness. --------------------------------------------- The Company covenants and agrees, and each Holder of a Security, by his acceptance thereof, likewise covenants and agrees, that, to the extent and in the manner hereinafter set forth in this Article Seventeen, the indebtedness represented by the Securities and the payment of the principal of, premium, if any, and interest on each and all of the Securities are hereby expressly made subordinate and subject in right of payment to the prior payment in full of all Senior Indebtedness. Section 1702. Payment Over of Proceeds Upon Dissolution, Etc. ---------------------------------------------- In the event of (a) any insolvency or bankruptcy case or proceeding, or any receivership, liquidation, reorganization or other similar case or proceeding in connection therewith, relative to the Company or its creditors, as such, or to its assets, or (b) any liquidation, dissolution or other winding up of the Company, whether voluntary or involuntary and whether or not involving insolvency or bankruptcy, or (c) any assignment for the benefit of creditors or any other marshaling of assets and liabilities of the Company, then and in any such event the holders of Senior Indebtedness shall be entitled to receive payment in full of all amounts due or to become due on or in respect of all Senior Indebtedness, or provision shall be made for such payment in money or money's worth, before the Holders of the Securities are entitled to receive any payment 105 on account of principal of, premium, if any, or interest on the Securities and to that end the holders of Senior Indebtedness shall be entitled to receive, for application to the payment thereof, any payment or distribution of any kind or character, whether in cash, property or securities, which may be payable or deliverable in respect of the Securities in any such case, proceeding, dissolution, liquidation or other winding up or event. In the event that, notwithstanding the foregoing provisions of this Section 1702, the Trustee or the Holder of any Security shall have received any payment or distribution of assets of the Company of any kind or character, whether in cash, property or securities, before all Senior Indebtedness is paid in full or payment thereof provided for, and if such fact shall, at or prior to the time of such payment or distribution, have been made known to the Trustee or, as the case may be, such Holder, then and in such event such payment or distribution shall be paid over or delivered forthwith to the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or other Person making payment or distribution of assets of the Company for application to the payment of all Senior Indebtedness remaining unpaid, to the extent necessary to pay all Senior Indebtedness in full, after giving effect to any concurrent payment or distribution to or for the holder of Senior Indebtedness. For purposes of this Article only, the words "cash, property or securities" shall not be deemed to include shares of stock of the Company as reorganized or readjusted, or securities of the Company or any other corporation provided for by a plan of reorganization or readjustment which are subordinated in right of payment to all Senior Indebtedness which may at the time be outstanding to substantially the same extent as, or to a greater extent than, the Securities are so subordinated as provided in this Article Seventeen. The issuance and delivery of junior securities upon conversion of Securities in accordance with Article Twelve shall not be deemed to constitute a payment or distribution on account of the principal of or premium or interest on Securities or on account of the purchase or other acquisition of securities. For the purposes of this Section, the term "junior securities" means Common Stock ----------------- and any other cash, property or securities into which the Securities are convertible pursuant to Article Twelve. Nothing contained in this Article or elsewhere in this Indenture or in the Securities is intended to or shall impair, as among the Company, its creditors other than holders of Senior Indebtedness and the Holders of the Securities, the right, which is absolute and unconditional, of the Holder of any Security to convert such Security in accordance with Article Twelve. The consolidation of the Company with, or the merger of the Company into, another Person or the liquidation or dissolution of the Company following the conveyance or transfer of all or substantially all of its properties and assets to another Person upon the terms and conditions set forth in Article Eight shall not be deemed a dissolution, winding up, liquidation, reorganization, assignment for the benefit of creditors or marshaling of assets and liabilities of the Company for the purposes of this Section if the Person formed by such consolidation or into which the Company is merged or which acquires by conveyance or transfer all or substantially all of such properties and assets, as the case may be, shall, as a part of such consolidation, merger, conveyance or transfer, comply with the conditions set forth in Article Eight. 106 Section 1703. No Payment When Senior Indebtedness in Default ---------------------------------------------- Upon the maturity of any Senior Indebtedness of the Company by lapse of time, acceleration or otherwise, all principal thereof (and premium, if any) and interest due thereon, including interest thereon accruing after the commencement of any proceeding of the type referred to in Section 1702 above, and all other amounts due on or with respect thereto, shall first be paid in full, or such payment duly provided for in cash, before any payment, directly or indirectly, is made by the Company on account of the principal of, premium, if any, or interest and Additional Amounts on the Securities or Coupons. Upon the happening of an event of default with respect to any Senior Indebtedness of the Company, as defined therein or in the instrument under which it is outstanding permitting the holders to accelerate the maturity thereof, then, unless and until such event of default shall have been cured or waived or shall have ceased to exist, no payment shall be made by the Company, directly or indirectly, on account of the principal of, premium, if any, or interest and Additional Amounts on the Securities or Coupons; provided, however, that nothing in this Section shall -------- ------- prevent the satisfaction of any sinking fund payment in accordance with Article Thirteen by delivering and crediting pursuant to Section 1302 Securities which have been acquired (upon redemption or otherwise) prior to such default in payment or other default. In the event that, notwithstanding the foregoing, the Company shall make any payment to the Trustee or the Holder of any Security prohibited by the foregoing provisions of this Section, and if such fact shall, at or prior to the time of such payment, have been made known to the Trustee or, as the case may be, such Holder, then and in such event such payment shall be paid over and delivered forthwith to the Company. The provisions of this Section 1703 shall not apply to any payment with respect to which Section 1702 would be applicable. Section 1704. Payment Permitted If No Default ------------------------------- Nothing contained in this Article Seventeen or elsewhere in this Indenture or in any of the Securities shall prevent (a) the Company, at any time except during the pendency of any case, proceeding, dissolution, liquidation or other winding up, assignment for the benefit of creditors or other marshaling of assets and liabilities of the Company referred to in Section 1702 or under the conditions described in Section 1703, from making payments at any time of principal of, premium, if any, or interest on the Securities, or (b) the application by the Trustee of any money deposited with it hereunder to the payment of or on account of the principal of, premium, if any, or interest on the Securities or the retention of such payment by the Holders if, at the time of such application by the Trustee, it did not have knowledge that such payment would have been prohibited by the provisions of this Article Seventeen. Section 1705. Subrogation to Rights of Holders of Senior Indebtedness. ------------------------------------------------------- Subject to the payment in full of all Senior Indebtedness, the Holders of the Securities shall be subrogated to the extent of the payments or distributions made to the holders of such Senior Indebtedness pursuant to the provisions of this Article Seventeen to the rights of the 107 holders of such Senior Indebtedness to receive payments and distributions of cash, property and securities applicable to the Senior Indebtedness until the principal of, premium, if any, and interest on the Securities shall be paid in full. For purposes of such subrogation, no payments or distributions to the holders of the Senior Indebtedness of any cash, property or securities to which the Holders of the Securities or the Trustee would be entitled except for the provisions of this Article Seventeen, and no payments over pursuant to the provisions of this Article Seventeen to the holders of Senior Indebtedness by Holders of the Securities or the Trustee, shall, as among the Company, its creditors other than holders of Senior Indebtedness and the Holders of the Securities, be deemed to be a payment or distribution by the Company to or on account of the Senior Indebtedness. Section 1706. Provisions Solely to Define Relative Rights. ------------------------------------------- The provisions of this Article Seventeen are and are intended solely for the purpose of defining the relative rights of the Holders of the Securities on the one hand and the holders of Senior Indebtedness on the other hand. Nothing contained in this Article Seventeen or elsewhere in this Indenture or in the Securities is intended to or shall (a) impair, as among the Company, its creditors other than holders of Senior Indebtedness and the Holders of the Securities, the obligation of the Company, which is absolute and unconditional (and which, subject to the rights under this Article Seventeen of the holders of Senior Indebtedness, is intended to rank equally with all other general unsecured obligations of the Company), to pay to the Holders of the Securities the principal of, premium, if any, and interest on the Securities as and when the same shall become due and payable in accordance with their terms; or (b) affect the relative rights against the Company of the Holders of the Securities and creditors of the Company other than the holders of Senior Indebtedness; or (c) prevent the Trustee or the Holder of any Security from exercising all remedies otherwise permitted by applicable law upon default under this Indenture, subject to the rights, if any, under this Article Seventeen of the holders of Senior Indebtedness to receive cash, property and securities otherwise payable or deliverable to the Trustee or such Holder. Section 1707. Trustee to Effectuate Subordination. ----------------------------------- Each holder of a Security by his acceptance thereof authorizes and directs the Trustee on his behalf to take such action as may be necessary or appropriate to effectuate the subordination provided in this Article Seventeen and appoints the Trustee his attorney-in-fact for any and all such purposes. Section 1708. No Waiver of Subordination Provisions. ------------------------------------- No right of any present or future holder of any Senior Indebtedness to enforce subordination as herein provided shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company or by any act or failure to act, in good faith, by any such holder, or by any non-compliance by the Company with the terms, provisions and covenants of this Indenture, regardless of any knowledge thereof any such holder may have or be otherwise charged with. 108 Without in any way limiting the generality of the foregoing paragraph, the holders of Senior Indebtedness may, at any time and from time to time, without the consent of or notice to the Trustee or the Holders of the Securities, without incurring responsibility to the Holders of the Securities and without impairing or releasing the subordination provided in this Article Seventeen or the obligations hereunder of the Holders of the Securities to the holders of Senior Indebtedness, do any one or more of the following: (i) change the manner, place or terms of payment or extend the time of payment of, or renew or alter, Senior Indebtedness, or otherwise amend or supplement in any manner Senior Indebtedness or any instrument evidencing the same or any agreement under which Senior Indebtedness is outstanding; (ii) sell, exchange, release or otherwise deal with any property pledged, mortgaged or otherwise securing Senior Indebtedness; (iii) release any Person liable in any manner for the collection of Senior Indebtedness; and (iv) exercise or refrain from exercising any rights against the Company and any other Person. Section 1709. Notice to Trustee. ----------------- The Company shall give prompt written notice to the Trustee of any fact known to the Company which would prohibit the making of any payment to or by the Trustee in respect of the Securities. Notwithstanding the provisions of this Article Seventeen or any other provision of this Indenture, the Trustee shall not be charged with knowledge of the existence of any facts which would prohibit the making of any payment to or by the Trustee in respect of the Securities, unless and until the Trustee shall have received written notice thereof from the Company, the Guarantor or a Senior Lender or from any trustee therefor; and, prior to the receipt of any such written notice, the Trustee, subject to the provisions of Section 601, shall be entitled in all respects to assume that no such facts exist; provided, however, that if the Trustee shall not have received -------- ------- the notice provided for in this Section at least three Business Days prior to the date upon which by the terms hereof any money may become payable for any purpose (including, without limitation, the payment of the principal of, premium, if any, or interest on any Security), then, anything herein contained to the contrary notwithstanding, the Trustee shall have full power and authority to receive such money and to apply the same to the purpose for which such money was received and shall not be affected by any notice to the contrary which may be received by it within three Business Days prior to such date. Subject to the provisions of Section 601, the Trustee shall be entitled to conclusively rely on the delivery to it of a written notice by a Person representing himself to be a Senior Lender (or a trustee therefor) to establish that such notice has been given by a Senior Lender (or a trustee therefor). In the event that the Trustee determines in good faith that further evidence is required with respect to the right of any Person as holders of Senior Indebtedness to participate in any payment or distribution pursuant to this Article Seventeen, the Trustee may request such Person to furnish evidence to the reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness held by such Person, the extent to which such Person is entitled to participate in such payment or distribution and any other facts pertinent to the rights of such Person under this Article Seventeen, and if such evidence is not furnished, the Trustee may defer any payment to such Person pending judicial determination as to the right of such Person to receive such payment. 109 Section 1710. Reliance on Judicial Order or Certificate of Liquidating Agent. -------------------------------------------------------------- Upon any payment or distribution of assets of the Company referred to in this Article Seventeen, the Trustee, subject to the provisions of Section 601, and the Holders of the Securities shall be entitled to conclusively rely upon any order or decree entered by any court of competent jurisdiction in which such insolvency, bankruptcy, receivership, liquidation, reorganization, dissolution, winding up or similar case or proceeding is pending, or a certificate of the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee for the benefit of creditors, agent or other Person making such payment or distribution, delivered to the Trustee or to the Holders of Securities, for the purpose of ascertaining the Persons entitled to participate in such payment or distribution, the holders of the Senior Indebtedness and other indebtedness of the Company, the amount thereof or payable thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto or to this Article Seventeen. Section 1711. Trustee Not Fiduciary for Holders of Senior Indebtedness. -------------------------------------------------------- The Trustee shall not be deemed to owe any fiduciary duty to the holders of Senior Indebtedness and shall not be liable to any such holders if it shall in good faith mistakenly pay over or distribute to Holders of Securities or to the Company or to any other Person cash, property or securities to which any holders of Senior Indebtedness shall be entitled by virtue of this Article Seventeen or otherwise. Section 1712. Rights of Trustee as Holder of Senior Indebtedness; Preservation ----------------------------------------------------------------- of Trustee's Rights. - ------------------- The Trustee in its individual capacity shall be entitled to all the rights set forth in this Article Seventeen with respect to any Senior Indebtedness which may at any time be held by it, to the same extent as any other holder of Senior Indebtedness, and nothing in this Indenture shall deprive the Trustee of any of its rights as such holder. Nothing in this Article Seventeen shall apply to claims of, or payments to, the Trustee under or pursuant to Section 606. Section 1713. Article Applicable to Paying Agents. ----------------------------------- In case at any time any Paying Agent other than the Trustee shall have been appointed by the Company and be then acting hereunder, the term "Trustee" ------- as used in this Article shall in such case (unless the context otherwise requires) be construed as extending to and including such Paying Agent within its meaning as fully for all intents and purposes as if such Paying Agent were named in this Article Seventeen in addition to or in place of the Trustee; provided, however, that Section 1712 shall not apply to the Company or any - -------- ------- Affiliate of the Company if it or such Affiliate acts as Paying Agent. 110 ARTICLE EIGHTEEN SUBORDINATION OF GUARANTEES Section 1801. Guarantees Subordinate to Senior Guarantor Indebtedness. ------------------------------------------------------- The Guarantor covenants and agrees, and each Holder of a Security and the related Guarantee, by his acceptance thereof, likewise covenants and agrees, that, to the extent and in the manner hereinafter set forth in this Article Eighteen, the Guarantees in respect of the Securities are hereby expressly made subordinate and subject in right of payment to the prior payment in full of all Senior Guarantor Indebtedness. Section 1802. Payment Over of Proceeds Upon Dissolution, Etc. ---------------------------------------------- In the event of (a) any insolvency or bankruptcy case or proceeding, or any receivership, liquidation, reorganization or other similar case or proceeding in connection therewith, relative to the Guarantor or its creditors, as such, or to its assets, or (b) any liquidation, dissolution or other winding up of the Guarantor, whether voluntary or involuntary and whether or not involving insolvency or bankruptcy, or (c) any assignment for the benefit or creditors or any other marshaling of assets and liabilities of the Guarantor, then and in any such event the holders of Senior Guarantor Indebtedness shall be entitled to receive payment in full of all amounts due or to become due on or in respect of all Senior Guarantor Indebtedness, or provision shall be made for such payment in money or money's worth, before the Holders of the Guarantees are entitled to receive any payment under the Guarantees on account of principal on, premium, if any, or interest on the Securities and to that end the holders of Senior Guarantor Indebtedness shall be entitled to receive, for application to the payment thereof, any payment or distribution of any kind or character, whether in cash, property or securities, which may be payable or deliverable in respect of the Guarantees in any such case, proceeding, dissolution, liquidation or other winding up or event. In the event that, notwithstanding the foregoing provisions of this Section, the Trustee or the Holder of any Security in respect of the related Guarantee shall have received any payment or distribution of assets of the Guarantor of any kind or character, whether in cash, property or securities, before all Senior Guarantor Indebtedness is paid in full or payment thereof provided for, and if such fact shall, at or prior to the time of such payment or distribution, have been made known to the Trustee or, as the case may be, such Holder, then and in such event such payment or distribution shall be paid over or delivered forthwith to the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or other Person making payment or distribution of assets of the Guarantor for application to the payment of all Senior Guarantor Indebtedness remaining unpaid, to the extent necessary to pay all Senior Guarantor Indebtedness in full, after giving effect to any concurrent payment or distribution to or for the holder of Senior Guarantor Indebtedness. For purposes of this Article Eighteen only, the words "cash, property or securities" shall not be deemed to include shares of stock of the Guarantor as reorganized or readjusted, or securities of the Guarantor or any other corporation provided for by a plan of reorganization or 111 readjustment, which are subordinated in right of payment to all Senior Guarantor Indebtedness which may at the time be outstanding to substantially the same extent as, or to a greater extent than, the Guarantees are so subordinated as provided in this Article Eighteen. The consolidation of the Guarantor with, or the merger of the Guarantor into, another Person or the liquidation or dissolution of the Guarantor following the conveyance or transfer of all or substantially all of its properties and assets to another Person upon the terms and conditions set forth in Article Eight shall not be deemed a dissolution, winding up, liquidation, reorganization, assignment for the benefit of creditors or marshaling of assets and liabilities of the Guarantor for the purposes of this Section if the Person formed by such consolidation or into which the Guarantor is merged or which acquires by conveyance or transfer all or substantially all of such properties and assets, as the case may be, shall, as a part of such consolidation, merger, conveyance or transfer, comply with the conditions set forth in Article Eight. Section 1803. No Payment When Senior Indebtedness in Default. ---------------------------------------------- Upon the maturity of any Senior Guarantor Indebtedness by lapse of time, acceleration or otherwise, all principal thereof (and premium, if any) and interest due thereon, including interest thereon accruing after the commencement of any proceeding of the type referred to in Section 1802 above, and all other amounts due on or with respect thereto, shall first be paid in full, or such payment duly provided for in cash, before any payment, directly or indirectly, is made by the Guarantor, directly or indirectly, in respect of the Guarantees on account of the principal of, premium, if any, or interest and Additional Amounts on the Securities or Coupons. Upon the happening of an event of default with respect to any Senior Guarantor Indebtedness, as defined therein or in the instrument under which it is outstanding permitting the holders to accelerate the maturity thereof, then, unless and until such event of default shall have been cured or waived or shall have ceased to exist, no payment shall be made by the Guarantor, directly or indirectly, in respect of the Guarantees on account of the principal of, premium, if any, or interest and Additional Amounts on the Securities or Coupons. In the event that, notwithstanding the foregoing, the Guarantor shall make any payment to the Trustee or with respect to the Guarantee of any Security prohibited by the foregoing provisions of this Section, and if such fact shall, at or prior to the time of such payment, have been made known to the Trustee or, as the case may be, the Holder of the Security to which such Guarantee relates, then and in such event such payment shall be paid over and delivered forthwith to the Guarantor. Section 1804. Payment Permitted If No Default. ------------------------------- Nothing contained in this Article Eighteen or elsewhere in this Indenture or in any of the Securities or the Guarantees shall prevent (a) the Guarantor, at any time except during the pendency of any case, proceeding, dissolution, liquidation or other winding up, assignment for the benefit of creditors or other marshaling of assets and liabilities of the Guarantor referred to in Section 1802 or under the conditions described in Section 1803, from making payments at any time on the Guarantees on account of principal of, premium, if any, or interest on the Securities or (b) the application by the Trustee of any money deposited with it hereunder to the payment of or on the Guarantees on account of the principal of, if any, or interest on the Securities 112 or the retention of such payment by the Holders if, at the time of such application by the Trustee, it did not have knowledge that such payment would have been prohibited by the provisions of this Article Eighteen. Section 1805. Subrogation to Rights of Holders of Senior Guarantor Indebtedness. ----------------------------------------------------------------- Subject to the payment in full of all Senior Guarantor Indebtedness, the Holders of the Securities which are entitled to the benefits of the Guarantee shall be subrogated to the extent of the payments or distributions made to the holders of such Senior Guarantor Indebtedness pursuant to the provisions of this Article Eighteen to the rights of the holders of such Senior Guarantor Indebtedness to receive payments and distributions of cash, property and securities applicable to the Senior Guarantor Indebtedness until the principal of, premium, if any, and interest on the Securities shall be paid in full. For purposes of such subrogation, no payments or distributions to the holders of the Senior Guarantor Indebtedness of any cash, property or securities to which the Holders of any Security entitled to the benefits of a Guarantee or the Trustee would be entitled except for the provisions of this Article Eighteen, and no payments over pursuant to the provisions of this Article Eighteen to the holders of Senior Guarantor Indebtedness by Holders of any Security entitled to the benefits of a Guarantee or the Trustee, shall, as among the Guarantor, its creditors other than holders of Senior Guarantor Indebtedness and the Holders of any Security entitled to the benefits of a Guarantee, be deemed to be a payment or distribution by the Guarantor to or on account of the Senior Guarantor Indebtedness. Section 1806. Provisions Solely to Define Relative Rights. ------------------------------------------- The provisions of this Article Eighteen are and are intended solely for the purpose of defining the relative rights of the Holders of any Security entitled to the benefits of a Guarantee on the one hand and the holders of Senior Guarantor Indebtedness on the other hand. Nothing contained in this Article Eighteen or elsewhere in this Indenture or in the Guarantees or the Securities is intended to or shall (a) impair, as among the Guarantor, its creditors other than holders of Senior Guarantor Indebtedness and the Holders of any Security entitled to the benefits of a Guarantee, the obligation of the Guarantor, which is absolute and unconditional (and which, subject to the rights under this Article Eighteen of the holders of Senior Guarantor Indebtedness, is intended to rank equally with all other general obligations of the Guarantor), to pay to the Holders of any Security entitled to the benefits of a Guarantee on account of the principal of, premium, if any, and interest on the Securities as and when the same shall become due and payable in accordance with their terms; or (b) affect the relative rights against the Guarantor of the Holders of any Security entitled to the benefits of a Guarantee and creditors of the Guarantor other than the holders of Senior Guarantor Indebtedness; or (c) prevent the Trustee or the Holder of any Security entitled to the benefits of a Guarantee from exercising all remedies otherwise permitted by applicable law upon default under this Indenture, subject to the rights, if any, under this Article Eighteen of the holders of Senior Guarantor Indebtedness to receive cash, property and securities otherwise payable or deliverable to the Trustee or such Holder. 113 Section 1807. Trustee to Effectuate Subordination. ----------------------------------- Each holder of a Guarantee by his acceptance thereof authorizes and directs the Trustee on his behalf to take such action as may be necessary or appropriate to effectuate the subordination provided in this Article Eighteen and appoints the Trustee his attorney-in-fact for any and all such purposes. Section 1808. No Waiver of Subordination Provisions. ------------------------------------- No right of any present or future holder of any Senior Guarantor Indebtedness to enforce subordination as herein provided shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Guarantor or by any act or failure to act, in good faith, by any such holder, or by any non-compliance by the Guarantor with the terms, provisions and covenants of this Indenture, regardless of any knowledge thereof any such holder may have or be otherwise charged with. Without in any way limiting the generality of the foregoing paragraph, the holders of Senior Guarantor Indebtedness may, at any time and from time to time, without the consent of or notice to the Trustee or the Holders of any Security entitled to the benefits of a Guarantee, without incurring responsibility to the Holders of any Security entitled to the benefits of a Guarantee and without impairing or releasing the subordination provided in this Article Eighteen or the obligations hereunder of the Holders of any Security entitled to the benefits of a Guarantee to the holders of Senior Guarantor Indebtedness, do any one or more of the following: (i) change the manner, place or terms of payment or extend the time of payment of, or renew or alter, Senior Guarantor Indebtedness, or otherwise amend or supplement in any manner Senior Guarantor Indebtedness or any instrument evidencing the same or any agreement under which Senior Guarantor Indebtedness is outstanding; (ii) sell, exchange, release or otherwise deal with any property pledged, mortgaged or otherwise securing Senior Guarantor Indebtedness; (iii) release any Person liable in any manner for the collection of Senior Guarantor Indebtedness; and (iv) exercise or refrain from exercising any rights against the Guarantor and any other Person. Section 1809. Notice to Trustee. ----------------- The Guarantor shall give prompt written notice to the Trustee of any fact known to the Guarantor which would prohibit the making of any payment to or by the Trustee in respect of the Guarantees. Notwithstanding the provisions of this Article Eighteen or any other provision of this Indenture, the Trustee shall not be charged with knowledge of the existence of any facts which would prohibit the making of any payment to or by the Trustee in respect of the Guarantees, unless and until the Trustee shall have received written notice thereof from the Guarantor, the Company or a holder of Senior Guarantor Indebtedness or from any trustee therefor; and, prior to the receipt of any such written notice, the Trustee, subject to the provisions of Section 601, shall be entitled in all respects to assume that no such facts exist; provided, however, that if the -------- ------- Trustee shall not have received the notice provided for in this Section at least three Business Days prior to the date upon which by the terms hereof any money may become payable for any purpose (including, without limitation, the payment under the Guarantees on account of the principal of, premium, if any, or interest on any Security), then, anything herein 114 contained to the contrary notwithstanding, the Trustee shall have full power and authority to receive such money and to apply the same to the purpose for which such money was received and shall not be affected by any notice to the contrary which may be received by it within three Business Days prior to such date. Subject to the provisions of Section 601, the Trustee shall be entitled to conclusively rely on the delivery to it of a written notice by a Person representing himself to be a holder of Senior Guarantor Indebtedness (or a trustee therefor) to establish that such notice has been given by a holder of Senior Guarantor Indebtedness (or a trustee therefor). In the event that the Trustee determines in good faith that further evidence is required with respect to the right of any Person as a holder of Senior Guarantor Indebtedness to participate in any payment or distribution pursuant to this Article Eighteen, the Trustee may request such Person to furnish evidence to the reasonable satisfaction of the Trustee as to the amount of Senior Guarantor Indebtedness held by such Person, the extent to which such Person is entitled to participate in such payment or distribution and any other facts pertinent to the rights of such Person under this Article Eighteen, and if such evidence is not furnished, the Trustee may defer any payment to such Person pending judicial determination as to the right of such Person to receive such payment. Section 1810. Reliance on Judicial Order or Certificate of Liquidating -------------------------------------------------------- Agent. - ----- Upon any payment or distribution of assets of the Guarantor referred to in this Article Eighteen, the Trustee, subject to the provisions of Section 601, and the Holders of any Security entitled to the benefits of a Guarantee shall be entitled to rely upon any order or decree entered by any court of competent jurisdiction in which such insolvency, bankruptcy, receivership, liquidation, reorganization, dissolution, winding up or similar case or proceeding is pending, or a certificate of the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee for the benefit of creditors, agent or other Person making such payment or distribution, delivered to the Trustee or to the Holders of any Security entitled to the benefits of a Guarantee, for the purpose of ascertaining the Persons entitled to participate in such payment or distribution, the holders of the Senior Guarantor Indebtedness and other indebtedness of the Guarantor, the amount thereof or payable thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto or to this Article Eighteen. Section 1811. Trustee Not Fiduciary for Holders of Senior Guarantor ----------------------------------------------------- Indebtedness. - ------------ The Trustee shall not be deemed to owe any fiduciary duty to the holders of Senior Guarantor Indebtedness and shall not be liable to any such holders if it shall in good faith mistakenly pay over or distribute to Holders of Guarantees or to the Guarantor or to any other Person cash, property or securities to which any holders of Senior Guarantor Indebtedness shall be entitled by virtue of this Article Eighteen or otherwise. Section 1812. Rights of Trustee as Holder of Senior Guarantor Indebtedness; ------------------------------------------------------------- Preservation of Trustee's Rights. - --------------------------------- The Trustee in its individual capacity shall be entitled to all the rights set forth in this Article Eighteen with respect to any Senior Guarantor Indebtedness which may at any time be 115 held by it, to the same extent as any other holder of Senior Guarantor Indebtedness, and nothing in this Indenture shall deprive the Trustee of any of its rights as such holder. Nothing in this Article Eighteen shall apply to claims of, or payments to, the Trustee under or pursuant to Section 606. Section 1813. Article Applicable to Paying Agents. ----------------------------------- In case at any time any Paying Agent other than the Trustee shall have been appointed by the Company and be then acting hereunder, the term "Trustee" as ------- used in this Article Eighteen shall in such case (unless the context otherwise requires) be construed as extending to and including such Paying Agent within its meaning as fully for all intents and purposes as if such Paying Agent were named in this Article Eighteen in addition to or in place of the Trustee; provided, however, that Section 1812 shall not apply to the Company or any - -------- ------- Affiliate of the Company if it or such Affiliate acts as Paying Agent. * * * 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. [Remainder of page intentionally left blank] 116 IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed, and their respective corporate seals to be hereunto affixed, all as of the day and year first above written. THERMOTREX CORPORATION By:____________________________ Name: Title: (SEAL) Attest: ______________________ Secretary THERMO ELECTRON CORPORATION (SEAL) By:____________________________ Name: Title: Attest: ______________________ Secretary BANKERS TRUST COMPANY, as TRUSTEE By:____________________________ (SEAL) Name: Title: Attest: _________________________ 117 STATE OF ) ) : SS.: COUNTY OF ) On the ___ day of ________________, 1997, before me personally came _______________, to me known, who, being by me duly sworn, did depose and say that he is a _____________ of ThermoTrex Corporation, a Delaware corporation, one of the corporations described in and which executed the foregoing instrument; that he knows the seal of said Corporation; that the seal affixed to said instrument is such Corporation's seal; that it was so affixed by authority of the Board of Directors of said Corporation; and that he signed his name thereto by like authority. ____________________________________ Notary Public [NOTARIAL SEAL] 118 STATE OF ) ) : SS.: COUNTY OF ) On the ___ day of ________________, 1997, before me personally came _______________, to me known, who, being by me duly sworn, did depose and say that he is a _____________ of Thermo Electron Corporation, a Delaware corporation, one of the corporations described in and which executed the foregoing instrument; that he knows the seal of said Corporation; that the seal affixed to said instrument is such Corporation's seal; that it was so affixed by authority of the Board of Directors of said Corporation; and that he signed his name thereto by like authority. ____________________________________ Notary Public [NOTARIAL SEAL] STATE OF ) ) : SS.: COUNTY OF ) On the ___ day of ________________, 1997, before me personally came _______________, to me known, who, being by me duly sworn, did depose and say that he is a _____________ of Bankers Trust Company, a New York banking corporation, one of the persons described in and who executed the foregoing instrument; that he knows the seal of said Corporation; that the seal affixed to said instrument is such Corporation's seal; that it was so affixed by authority of the Board of Directors of said Corporation; and that he signed his name thereto by like authority. ____________________________________ Notary Public [NOTARIAL SEAL] 119 EXHIBIT A --------- GUARANTEE For value received, Thermo Electron Corporation, a corporation organized under the laws of the State of Delaware (herein called the "Guarantor," which --------- term includes any successor corporation under the Indenture referred to in the Security upon which this Guarantee is endorsed), hereby unconditionally guarantees to the Holder of the Security upon which this Guarantee is endorsed and to the Trustee on behalf of the Trustee and such Holder the due and punctual payment of the principal of, premium, if any, and interest and Additional Amounts, if any, on such Security, any other amount due and payable pursuant to the terms of the Indenture and the due and punctual payment of the sinking fund or analogous payments referred to therein if any, when and as the same shall become due and payable, whether at the Stated Maturity, by declaration of acceleration, call for redemption, repayment at the option of the Holder or otherwise, according to the terms hereof and of the Indenture. In case of the failure of ThermoTrex Corporation, a corporation organized under the laws of Delaware (herein called the "Company," which term includes any successor ------- corporation under such Indenture), punctually to make any such payment of principal, premium, if any, or interest or Additional Amounts, if any, the Guarantor hereby agrees to cause any such payment to be made punctually when and as the same shall become due and payable, whether at the Stated Maturity or by declaration of acceleration, call for redemption, repayment at the option of the Holder or otherwise, and as if such payment were made by the Company. The Guarantor hereby agrees that its obligations hereunder shall be as if it were principal debtor and not merely surety, and shall be absolute and unconditional, irrespective of, and shall be unaffected by, any invalidity, subordination, irregularity or unenforceability of such Security or such Indenture, any failure to enforce the provisions of such Security or such Indenture, or any waiver, modification or indulgence granted to the Company with respect thereto, by the Holder of such Security or the Trustee or any other circumstance which may otherwise constitute a legal or equitable discharge of a surety or guarantor. The Guarantor hereby waives the benefits of diligence, presentment, demand of payment, filing of claims with a court in the event of merger, insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest or notice with respect to such Security or the indebtedness evidenced thereby and all demands whatsoever, and covenants that this Guarantee will not be discharged except by strict and complete performance of the obligations contained in such Security and this Guarantee. The Guarantor hereby agrees that, in the event of a default in payment of principal of, premium, if any, and interest, and Additional Amounts, if any, on such Security, or default in any sinking fund or analogous payment referred to therein, legal proceedings may be instituted by the Trustee on behalf of, or by, the Holder of such Security, on the terms and conditions set forth in the Indenture, directly against the Guarantor to enforce this Guarantee without first proceeding against the Company. The Guarantor shall be subrogated to all rights of the Holder of such Security and the Trustee against the Company in respect of any amounts paid to such Holder by the Guarantor on account of such Security pursuant to the provisions of this Guarantee or the Indenture; provided, however, that the -------- ------- Guarantor shall not be entitled to enforce, or to receive any payments arising A-1 out of or based upon, such right of subrogation until the principal of, premium, if any, and interest and Additional Amounts, if any, on all Securities issued under such Indenture shall have been paid in full. Claims under this Guarantee are, to the extent provided in the Indenture, subject in right of payment to the prior payment in full of all Senior Guarantor Indebtedness, and this Guarantee is issued subject to the provisions of the Indenture with respect thereto. Each Holder of a Security upon which this Guarantee is endorsed, by accepting the same, (a) agrees to and shall be bound by such provisions, (b) authorizes and directs the Trustee on his behalf to take such action as may be necessary or appropriate to effectuate the subordination so provided and (c) appoints the Trustee his, her or its attorney-in-fact for any and all such purposes. No reference herein to such Indenture and no provision of this Guarantee or of such Indenture shall alter or impair the guarantee of the Guarantor, which is absolute and unconditional (except as to the specific subordination provisions contained in Article Eighteen of the Indenture), of the due and punctual payment of principal, premium (if any), and interest and Additional Amounts, if any, on the Security upon which this Guarantee is endorsed. This Guarantee shall not be valid or obligatory for any purpose until the certificate of authentication of the Security upon which this Guarantee is endorsed shall have been manually executed by or on behalf of the Trustee under such Indenture. All terms used in this Guarantee which are defined in such Indenture shall have the meanings assigned to them in such Indenture. This Guarantee shall be deemed to be a contract made under the laws of the Commonwealth of Massachusetts, and for all purposes shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts. IN WITNESS WHEREOF, the Guarantor has caused this Guarantee to be duly executed under its corporate seal and dated the date on the face hereof. THERMO ELECTRON CORPORATION Attest:______________________________ By: ________________________________ Title: _____________________________ A-2 EXHIBIT B --------- This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture. NAME OF TRUSTEE, as Trustee *Dated: By:_______________________ Authorized Officer _________________________________ * For Registered Securities Only B-1 EXHIBIT C --------- CONVERSION NOTICE (a) For Bearer Securities: The undersigned Holder of this Security hereby irrevocably exercises the option to convert this Security, or any portion of the principal amount hereof (which is an integral multiple of U.S. $1,000 below designated) into shares of Common Stock in accordance with the terms of the Indenture referred to in this Security and directs that such shares, together with a check in payment for any fractional share and any Securities representing any unconverted principal amount hereof, be registered in the name of and delivered to the undersigned unless a different name has been indicated below. The address for payment of any such check must be outside the United States. If shares are to be registered in the name of a Person other than the undersigned, the undersigned will pay all transfer taxes payable with respect thereto. Dated: ____________ ___________________________________ Signature [MUST BE GUARANTEED IF STOCK IS TO BE ISSUED IN A NAME OTHER THAN THE REGISTERED HOLDER OF THE SECURITY] If shares are to be registered in HOLDER the name of and delivered to a Person other than the Holder, please print such Person's name and address: Please print name and address of Holder _________________________________ ____________________________________ Name Name _________________________________ ____________________________________ Address Address _________________________________ ____________________________________ _________________________________ ____________________________________ _________________________________ ____________________________________ Social Security or other Taxpayer Social Security or other Taxpayer Identification Number, if any Identification Number, if any C-1 Name and address (outside the United If only a portion of the Securities is States) to where any check referred to be converted, please indicate: to in the first paragraph of this Conversion Notice should be mailed: 1. Principal amount to be converted: U.S. $__________________________ __________________________ 2. Principal amount and denomination Name of Registered Securities representing unconverted principal amount to be issued: __________________________ Address Amount: U.S.$______________________ Denominations: U.S.$___________ (any integral multiple of U.S. $1,000) C-2 (b) For Registered Securities: The undersigned Holder of this Security hereby irrevocably exercises the option to convert this Security, or any portion of the principal amount hereof (which is an integral multiple of U.S. $1,000 below designated) into shares of Common Stock in accordance with the terms of the Indenture referred to in this Security, and directs that such shares, together with a check in payment for any fractional share and any Securities representing any unconverted principal amount hereof, be delivered to and be registered in the name of the undersigned unless a different name has been indicated below. If shares or Securities are to be registered in the name of a Person other than the undersigned, the undersigned will pay all transfer taxes payable with respect thereto. Dated:______________________________ ______________________________ Signature [MUST BE GUARANTEED IF STOCK IS TO BE ISSUED IN A NAME OTHER THAN THE REGISTERED HOLDER OF THE SECURITY] ____________________________________ Name ____________________________________ Address ____________________________________ Social Security or other Taxpayer Identification Number, if any C-3 If shares or Registered Securities If only a portion of the Securities is to be are to be registered in the name converted, please indicate: of a Person other than the Holder, please print such Person's name and address: 1. Principal amount to be converted: U.S. $______________________________ __________________________ 2. Principal amount and denomination of Name Registered Securities representing unconverted principal amount to be issued. __________________________ Address Amount: U.S.$______________________ __________________________ Social security or other Taxpayer Denominations: Identification Number, if any U.S.$_____________ (any integral multiple of U.S. $1,000) C-4 EXHIBIT D --------- Form of Certificate of Beneficial Ownership for Bearer Securities to be Provided to the Euroclear Operator or to Cedel Bank, societe anonyme CERTIFICATION ------------- U.S. $____________ THERMOTREX CORPORATION [Title of Securities] (the "Securities") This is to certify that as of the date hereof and except as set forth below, $___________ aggregate principal amount of the above-mentioned Securities held by you for our account are owned or, if this certificate is being delivered in connection with a payment of interest, were owned, by or on behalf of, (a) a person (other than a financial institution for purposes of resale during the restricted period) who is not a United States person; or (b) a United States person (other than a financial institution for purposes of resale during the restricted period) who is (i) a foreign branch of a United States financial institution or (ii) a United States person acquiring such Securities through the foreign branch of a United States financial institution and who for purposes of this certification holds such Securities through such financial institution on the date hereof, and, in the case of either (i) or (ii), such United States financial institution has agreed, for the benefit of the Company, to comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the United States Internal Revenue Code of 1986, as from time to time amended, and the regulations thereunder; or (c) a financial institution for purposes of resale during the restricted period and such financial institution has not acquired such Securities for purposes of resale directly or indirectly to a United States person or to a person within the United States or its possessions; and the undersigned has obtained a similar certificate from its member organizations on which this certificate is based; provided, however, that if the undersigned has actual knowledge that the information contained in such a certificate is false (and, absent documentary evidence that the beneficial owner of such Security is not a United States person, it will be deemed to have actual knowledge that such certificate is false if it has a United States address for such beneficial owner, other than a financial institution described above), the undersigned will not deliver a Security in temporary or definitive bearer form to the person who signed such certificate notwithstanding the delivery of such certificate to the undersigned. D-1 No. of Certificates Amount $1,000 Denomination ________________ = $________________ $10,000 Denomination ________________ = $________________ [Other Authorized ________________ = $________________ Denomination] Total Requested ________________ = $________________/*/ As used herein, (i) "United States person" means a citizen or resident of the United States, a corporation, partnership or other entity created or organized in or under the laws of the United States, an estate the income of which is subject to United States Federal income taxation regardless of its source, any trust if a court within the United States is able to exercise primary supervision of the administration thereof and one or more United States fiduciaries have the authority to control all substantial decisions thereof, and any other person deemed a "United States person" or a "U.S. person" under the Internal Revenue Code of 1986, as amended, (ii) "United States" means the United States of America (including the States and the District of Columbia) and its territories and possessions, including Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the Northern Mariana Islands, (iii) "restricted period" means the period described in Section 1.163-5(c)(2)(i)(D)(7) of the United States Treasury Regulations, and (iv) "financial institution" means the persons described in Section 1. 165-12(c)(1)(v) of the United States Treasury Regulations. We undertake to advise you promptly by tested telex on or prior to the date on which you intend to submit your certification relating to the Securities held by you for our account in accordance with your operating procedures if any applicable statement herein is not correct on such date, and in the absence of any such notification it may be assumed that this certification applies as of such date. This certification excepts and does not relate to U.S.$_______________ of such interest in the above Securities in respect of which we are not able to certify and as to which we understand exchange and delivery of Definitive Securities cannot be made until we do so certify. ______________________ /*/ Must equal the amount stated in the first paragraph of this certificate. D-2 We understand that this certification is required in connection with certain tax laws and, if applicable, certain securities laws of the United States. In connection therewith, if administrative or legal proceedings are commenced or threatened in connection with which this certification is or would be relevant, we irrevocably authorize you to produce this certification or a copy hereof to any interested party in such proceedings. Dated: ___________________, ____/**/ . [NAME] By:_________________________ Signature As, or as agent for, the beneficial owner[s] of the Securities to which this certificate relates. _________________________ /**/ Not earlier than 15 days prior to the earlier of the date that definitive Bearer Security is delivered and the Exchange Date D-3 EXHIBIT E --------- Form of Certificate to be Given by the Euroclear Operator and Cedel Bank, societe anonyme CERTIFICATION ------------- U.S. $ THERMOTREX CORPORATION [Title of Securities] (the "Securities") This is to certify that, based solely on certifications we have received in writing, by tested telex or electronic transmission from member organizations appearing in our records as persons being entitled to a portion of the principal amount set forth below or to interest payable on an interest payment date (our "Member Organizations"), substantially to the effect set forth in the Indenture relating to the above-captioned Securities, as of the date hereof, U.S. $_______________ aggregate principal amount of the above-captioned Securities is owned by persons that are not citizens or residents of the United States, United States domestic partnerships, United States domestic corporations, any estate the income of which is subject to United States Federal income taxation regardless of its source, any trust if a court within the United States is able to exercise primary supervision of the administration thereof and one or more United States fiduciaries have the authority to control all substantial decisions thereof, or any other person deemed a "United States person" or a "U.S. person" under the Internal Revenue Code of 1986, as amended and the regulations thereunder ("United States persons"). The following denominations of Bearer Securities are requested: No. of Certificates Amount $1,000 Denomination ________________ = $________________ $10,000 Denomination ________________ = $________________ [Other Authorized Denomination] ________________ = $________________ Total Requested ________________ = $________________/*/ We further certify (i) that we are not making available herewith for exchange any portion of the temporary global Security excepted in such certifications and (ii) that as of the date hereof we have not received any notification from any of our Member Organizations to the effect that the statements made by such Member Organization with respect to any portion of the part submitted herewith for exchange are no longer true and cannot be relied upon as of the date ____________________ /*/ Must equal the amount stated in the first paragraph of this certificate. E-1 hereof. We further certify that interest payable on the interest payment dates on _________ and _________ will be paid with respect to U.S. $_____________ principal amount of the Securities with respect to which we have received from Member Organizations certificates substantially in the form set out in Exhibit D to the Indenture relating to the Securities that the Securities (a) are owned by a person (other than a financial institution for purposes of resale during the restricted period) who is not a United States person; (b) are owned by a United States person (other than a financial institution for purposes of resale during the restricted period) who is (i) a foreign branch of a United States financial institution or (ii) a United States person who acquired such Securities through the foreign branch of a United States financial institution and who for purposes of this certification holds such Securities through such financial institution on the date hereof and, in either case, such United States financial institution has agreed, for the benefit of the Company, to comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the United States Internal Revenue Code of 1986, as from time to time amended, and the regulations thereunder; or (c) are owned by a financial institution for purposes of resale during the restricted period and such financial institution has certified that it has not acquired such Securities for purposes of resale directly or indirectly to a United States person or to a person within the United States or its possessions. To the extent that we have knowledge that any of such certificates from a Member Organization is false and to the extent that we have not received with respect to any Securities such certificates from Member Organization, we are not requesting that payment be made for interest with respect thereto. We further certify that as of the date hereof we have not received any notification from any of our Member Organizations to the effect that the statements made by such Member Organization with respect to any interest payment on any portion of the principal amount of the Securities are no longer true and cannot be relied upon as of the date hereof. We further certify that under the rules of the undersigned organization, each Member Organization has agreed that any electronic certification shall have the effect of a signed certification and that all certifications shall be retained for at least four calendar years following the year in which the certifications are received in compliance with the rules set forth under Treas. Reg. 1.163-5(c)(2)(i)(D)(3)(i). We undertake that any interest received by us and not paid as provided above shall be returned to the Trustee for the above-captioned Securities immediately prior to the expiration of two years after such interest payment date in order to be repaid by such Trustee to the above issuer at the end of two years after such interest payment date. We understand that this certification is required in connection with certain tax laws and, if applicable, certain securities laws of the United States. In connection therewith, if administrative or legal proceedings are commenced or threatened in connection with which this certification is or would be relevant, we irrevocably authorize you to produce this certification to any interested party in such proceedings. E-2 As used herein, "United States" means the United States of America (including the States and the District of Columbia); and its territories and possessions, including Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the Northern Mariana Islands. As used herein, "restricted period" means the period described in Section 1.163-5(c)(2)(i)(D)(7) of the United States Treasury Regulations and "financial institution" means the persons described in Section 1.165-12(c)(1)(v) of the United States Treasury Regulations. Dated: ____________________, ____/**/ Yours faithfully, [MORGAN GUARANTY TRUST COMPANY OF NEW YORK, BRUSSELS OFFICE, AS OPERATOR OF THE EUROCLEAR SYSTEM] [CEDEL BANK, SOCIETE ANONYME]/***/ By:_____________________________ __________________________ /**/ To be dated no earlier than the earlier of the date the definitive Bearer Security is delivered and the Exchange Date. /***/ Delete as appropriate. E-3 EXHIBIT F --------- OPTION TO ELECT REPAYMENT UPON A REPAYMENT EVENT To: ThermoTrex Corporation The undersigned owner of this Security hereby acknowledges receipt of a notice from ThermoTrex Corporation (the "Company") as to the occurrence of a Repayment Event with respect to the Common Stock of the Company and requests and instructs the Company to repay the entire principal amount of this Security, or the portion thereof (which is $1,000 or an integral multiple thereof) below designated, in accordance with the terms of the Indenture referred to in this Security at the Repayment Price (or the relevant percentage thereof), together with accrued interest to such date (except if the Repayment Date shall be an Interest Payment Date), to the holder hereof. Dated: ________________________ ________________________________ Signature*(s) Name: __________________________ Address:_________________________ _________________________ [* Signature Guarantee Required] Principal amount to be repaid (if less than all): $__________ NOTICE: If this Security is issued in registered form, the above signatures of the holder(s) hereof must correspond with the name as it appears in the Security in every particular without alteration or enlargement or any change whatever. __________________ Social Security or Other Taxpayer Identification Number F-1 EX-5.1 5 OPINION OF SETH HOOGASIAN, ESQ. EXHIBIT 5.1 ThermoTrex Corporation 10455 Pacific Center Court San Diego, California 92121-4339 Thermo Electron Corporation 81 Wyman Street Waltham, Massachusetts 02254-9046 September 3, 1997 ThermoTrex Corporation 10455 Pacific Center Court San Diego, California 92121-4339 Thermo Electron Corporation 81 Wyman Street Waltham, Massachusetts 02254-9046 Re: Registration Statement on Form S-3; $250,000,000 Aggregate Principal Amount of Securities of ThermoTrex Corporation ------------------------------------------------------------------ Dear Sirs: I am General Counsel to ThermoTrex Corporation, a Delaware corporation (the "Company") and Thermo Electron Corporation, a Delaware corporation (the "Guarantor"), and have acted as their counsel in connection with the registration under the Securities Act of 1933, as amended (the "Act"), of $250,000,000 aggregate principal amount of (i) common stock, par value $.01 per share (the "Common Stock"), of the Company, (ii) debt securities (the "Debt Securities") of the Company, which may be either senior debt securities or subordinated debt securities, consisting of debentures, notes and/or other unsecured evidences of indebtedness, (iii) the guarantees (the "Guarantees") of the Debt Securities by the Guarantor, and (iv) common stock, par value $1.00 per share (the "Guarantor Common Stock" and, collectively with the Common Stock, the Debt Securities, and the Guarantees, the "Securities"), of the Guarantor, which may be delivered upon conversion of the Debt Securities, on a Registration Statement on Form S-3 (the "Registration Statement") to be filed today with the Securities and Exchange Commission (the "Commission"), and the offering of such Securities from time to time, as set forth in the prospectus contained in the Registration Statement (the "Prospectus") and as to be set forth in one or more supplements to the Prospectus (each a "Prospectus Supplement"). I or a member of my staff have reviewed the corporate proceedings taken by the Company and the Guarantor with respect to the authorization of the issuance of the Securities. I or a member of my staff have also examined and relied upon originals or copies, certified or otherwise authenticated to my satisfaction, of all corporate records, documents, agreements or other instruments of the Company and the Guarantor, and have made investigations of law and have discussed with the Company's and the Guarantor's representatives questions of fact that I or a member of my staff have deemed necessary or appropriate. I express no opinion concerning the laws of any jurisdictions other than the laws of the United States of America, the Delaware General Corporation Law and the laws of the Commonwealth of Massachusetts. Based on the foregoing, I am of the opinion that, when specifically authorized for issuance by the Company's Board of Directors or an authorized committee thereof and by the Guarantor's Board of Directors or an authorized committee thereof ("Authorizing Resolutions"), and when issued as described in the Registration Statement and a Prospectus Supplement that is consistent with the Authorizing Resolutions, and upon receipt by the Company of the consideration provided for in the Authorizing Resolutions, the Securities will be legally issued, fully paid and nonassessable, and in the case of Debt Securities and Guarantees, binding obligations of the Company and the Guarantor, respectively, enforceable against the Company and the Guarantor, respectively, in accordance with their respective terms, subject to the effect of bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to or affecting the rights and remedies of creditors, and the effect of general principles of equity, whether enforcement is considered in a proceeding in equity or at law, and the discretion of the court before which any proceeding therefor may be brought. The foregoing assumes that all requisite steps will be taken to comply with the requirements of the Act and applicable requirements of state laws regulating the offer and sale of securities. To the extent that the obligations of the Company and the Guarantor under the Indentures referred to in the Registration Statement may be dependent upon such matters, I assume for purposes of this opinion that the Trustee is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization; that the Trustee is duly qualified to engage in the activities contemplated by the Indentures; that the Indentures will have been duly authorized, executed and delivered by the Trustee and will constitute the legally valid, binding and enforceable obligations of the Trustee enforceable against the Trustee in accordance with their terms; that the Trustee is in compliance, generally and with respect to acting as a trustee under the Indentures, with all applicable laws and regulations; and that the Trustee has the requisite organizational and legal power and authority to perform its obligations under the Indentures. I hereby consent to the filing of this opinion as Exhibit 5.1 to the Registration Statement, including any amendments thereto, and to the use of my name under the caption "Legal Opinion" in the prospectus constituting a part thereof. Sincerely, /s/ Seth H. Hoogasian ______________________________ Seth H. Hoogasian General Counsel EX-12.1 6 COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES OF THE COMPANY Exhibit 12.1 THERMOTREX CORPORATION Ratio of Earnings to Fixed Charges (Dollars in thousands)
Nine Nine Months Year Months Year Ended Ended Ended Ended ---------------------------- -------- -------- --------- Jan. 2, Jan. 1, Dec. 31, Sept. 30, Sept. 28, June 28, 1993 1994 1994 1995 1996 1997 -------- -------- -------- -------- -------- --------- Income before provision for income taxes and cumulative effect of change in accounting principle $ 627 $1,490 $11,542 $38,456 $47,916 $ 4,839 Less: Minority interest in losses of consolidated subsidiaries - - - (565) (462) (2,903) Add: Minority interest in consolidated subsidiaries with fixed charges - - - - 838 1,728 Interest on indebtedness and amortization of debt expense 45 257 7 6 464 70 Portion of rents representative of the interest factor (1) 353 322 391 314 876 1,443 -------- -------- -------- -------- -------- -------- Income, As Adjusted $ 1,025 $ 2,069 $ 11,940 $ 38,211 $ 49,632 $ 5,177 ======== ======== ======== ======== ======== ======== Fixed Charges: Interest on indebtedness and amortization of debt expense $ 45 $ 257 $ 7 $ 6 $ 464 $ 70 Portion of rents representative of the interest factor (1) 353 322 391 314 876 1,443 -------- -------- -------- -------- -------- -------- Fixed Charges $ 398 $ 579 $ 398 $ 320 $ 1,340 $ 1,513 ======== ======== ======== ======== ======== ======== Ratio of Earnings to Fixed Charges 2.58 3.57 30.00 119.41 37.04 3.42 ======== ======== ======== ======== ======== ========
- --------------- (1) Portion of rents representative of the interest factor is 1/3 of total rents. EX-12.2 7 COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES OF THERMO ELECTRON Exhibit 12.2 THERMO ELECTRON CORPORATION Ratio of Earnings to Fixed Charges (Dollars in thousands)
Six Months Ended --------- June 28, 1992 1993 1994 1995 1996 1997 -------- -------- -------- -------- -------- --------- Income before provision for income taxes and cumulative effect of change in accounting principle $ 88,673 $110,381 $175,414 $238,293 $301,661 $178,639 Less: Minority interest in losses of consolidated subsidiaries (281) (215) - (789) (1,797) (4,889) Add: Minority interest in consolidated subsidiaries with fixed charges 14,183 21,301 30,962 61,044 74,306 36,639 Interest on indebtedness and amortization of debt expense 24,322 31,736 59,844 77,861 96,695 42,898 Portion of rents representative of the interest factor (1) 15,208 15,621 15,806 16,251 20,856 11,179 -------- -------- -------- -------- -------- -------- Income, As Adjusted $142,105 $178,824 $282,026 $392,660 $491,721 $264,466 ======== ======== ======== ======== ======== ======== Fixed Charges: Interest on indebtedness and amortization of debt expense $ 24,322 $ 31,736 $ 59,844 $ 77,861 $ 96,695 $ 42,898 Portion of rents representative of the interest factor (1) 15,208 15,621 15,806 16,251 20,856 11,179 Capitalized interest 7,100 8,400 2,114 - - - -------- -------- -------- -------- -------- -------- Fixed Charges $ 46,630 $ 55,757 $ 77,764 $ 94,112 $117,551 $ 54,077 ======== ======== ======== ======== ======== ======== Ratio of Earnings to Fixed Charges 3.05 3.21 3.63 4.17 4.18 4.89 ======== ======== ======== ======== ======== ========
- --------------- (1) Portion of rents representative of the interest factor is 1/3 of total rents. EX-23.1 8 CONSENT OF ARTHUR ANDERSEN LLP EXHIBIT 23.1 CONSENT OF INDEPENDENT AUDITORS To ThermoTrex Corporation and Thermo Electron Corporation: As independent public accountants, we hereby consent to the incorporation by reference in this registration statement of our report dated November 1, 1996, included in ThermoTrex Corporation's Form 10-K for the year ended September 28, 1996, and our report dated February 12, 1997 (except with respect to the matter discussed in Note 16 as to which the date is March 12, 1997), included in Thermo Electron Corporation's Form 10-K for the year ended December 28, 1996, and to all references to our Firm included in this registration statement. Arthur Andersen LLP Boston, Massachusetts August 29, 1997 EX-25.1 9 FORM T-1 STATEMENT OF ELIGIBILITY Exhibit 25.1 ________________________________________________________________________________ UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ____________________ FORM T-1 STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939 OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(b)(2) ___________ ______________________________ BANKERS TRUST COMPANY (Exact name of trustee as specified in its charter) NEW YORK 13-4941247 (Jurisdiction of Incorporation or (I.R.S. Employer organization if not a U.S. national bank) Identification no.) FOUR ALBANY STREET NEW YORK, NEW YORK 10006 (Address of principal (Zip Code) executive offices) BANKERS TRUST COMPANY LEGAL DEPARTMENT 130 LIBERTY STREET, 31ST FLOOR NEW YORK, NEW YORK 10006 (212) 250-2201 (Name, address and telephone number of agent for service) _________________________________ THERMOTREX CORPORATION (Exact name of obligor as specified in its charter) DELAWARE 52-1711436 (State or other jurisdiction of (I.R.S. employer Incorporation or organization) Identification no.) 10455 PACIFIC CENTER COURT SAN DIEGO, CALIFORNIA 92121-4339 (Address of principal executive offices) (Zip Code) THERMOTREX CORPORATION DEBT SECURITIES OF THERMOTREX (Title of the indenture securities) ITEM 1. GENERAL INFORMATION. Furnish the following information as to the trustee. (a) Name and address of each examining or supervising authority to which it is subject. NAME ADDRESS ---- ------- Federal Reserve Bank (2nd District) New York, NY Federal Deposit Insurance Corporation Washington, D.C. New York State Banking Department Albany, NY (b) Whether it is authorized to exercise corporate trust powers. Yes. ITEM 2. AFFILIATIONS WITH OBLIGOR. If the obligor is an affiliate of the Trustee, describe each such affiliation. None. ITEM 3. Number of bank holding company common shares as of September 1, 1997 was 100,166,667. ITEM 4. -15. NOT APPLICABLE ITEM 16. LIST OF EXHIBITS. EXHIBIT 1 - Restated Organization Certificate of Bankers Trust Company dated August 7, 1990, Certificate of Amendment of the Organization Certificate of Bankers Trust Company dated June 21, 1995 - Incorporated herein by reference to Exhibit 1 filed with Form T-1 Statement, Registration No. 33-65171, Certificate of Amendment of the Organization Certificate of Bankers Trust Company dated March 20, 1996, incorporated by referenced to Exhibit 1 filed with Form T-1 Statement, Registration No. 333- 25843 and Certificate of Amendment of the Organization Certificate of Bankers Trust Company dated June 19, 1997, copy attached. EXHIBIT 2 - Certificate of Authority to commence business - Incorporated herein by reference to Exhibit 2 filed with Form T-1 Statement, Registration No. 33-21047. EXHIBIT 3 - Authorization of the Trustee to exercise corporate trust powers - Incorporated herein by reference to Exhibit 2 filed with Form T-1 Statement, Registration No. 33-21047. EXHIBIT 4 - Existing By-Laws of Bankers Trust Company, as amended on February 18, 1997, Incorporated herein by reference to Exhibit 4 filed with Form T-1 Statement, Registration No. 333-24509-01. -2- EXHIBIT 5 - Not applicable. EXHIBIT 6 - Consent of Bankers Trust Company required by Section 321(b) of the Act. - Incorporated herein by reference to Exhibit 4 filed with Form T-1 Statement, Registration No. 22-18864. EXHIBIT 7 - The latest report of condition of Bankers Trust Company dated as of June 30, 1997. Copy attached. EXHIBIT 8 - Not Applicable. EXHIBIT 9 - Not Applicable. -3- SIGNATURE Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the trustee, Bankers Trust Company, a corporation organized and existing under the laws of the State of New York, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in The City of New York, and State of New York, on the 20th day of August, 1997. BANKERS TRUST COMPANY By: /s/Sandra J. Shaffer -------------------- Sandra J. Shaffer Assistant Vice President -4- Exhibit 1 --------- State of New York, Banking Department I, MANUEL KURSKY, Deputy Superintendent of Banks of the State of New York, DO HEREBY APPROVE the annexed Certificate entitled "CERTIFICATE OF AMENDMENT OF THE ORGANIZATION CERTIFICATE OF BANKERS TRUST COMPANY UNDER SECTION 8005 OF THE BANKING LAW," dated June 19, 1997, providing for an increase in authorized capital stock from $1,601,666,670 consisting of 100,166,667 shares with a par value of $10 each designated as Common Stock and 600 shares with a par value of $1,000,000 each designated as Series Preferred Stock to $2,001,666,670 consisting of 100,166,667 shares with a par value of $10 each designated as Common Stock and 1,000 shares with a par value of $1,000,000 each designated as Series Preferred Stock. WITNESS, my hand and official seal of the Banking Department at the City of New York, this 27TH day of __ June in the Year of our Lord --------- --------- one thousand nine hundred and NINETY-SEVEN. Manuel Kursky ------------------------------ Deputy Superintendent of Banks CERTIFICATE OF AMENDMENT OF THE ORGANIZATION CERTIFICATE OF BANKERS TRUST Under Section 8005 of the Banking Law _____________________________ We, James T. Byrne, Jr. and Lea Lahtinen, being respectively a Managing Director and an Assistant Secretary of Bankers Trust Company, do hereby certify: 1. The name of the corporation is Bankers Trust Company. 2. The organization certificate of said corporation was filed by the Superintendent of Banks on the 5th of March, 1903. 3. The organization certificate as heretofore amended is hereby amended to increase the aggregate number of shares which the corporation shall have authority to issue and to increase the amount of its authorized capital stock in conformity therewith. 4. Article III of the organization certificate with reference to the authorized capital stock, the number of shares into which the capital stock shall be divided, the par value of the shares and the capital stock outstanding, which reads as follows: "III. The amount of capital stock which the corporation is hereafter to have is One Billion, Six Hundred and One Million, Six Hundred Sixty-Six Thousand, Six Hundred Seventy Dollars ($1,601,666,670), divided into One Hundred Million, One Hundred Sixty-Six Thousand, Six Hundred Sixty-Seven (100,166,667) shares with a par value of $10 each designated as Common Stock and 600 shares with a par value of One Million Dollars ($1,000,000) each designated as Series Preferred Stock." is hereby amended to read as follows: "III. The amount of capital stock which the corporation is hereafter to have is Two Billion One Million, Six Hundred Sixty-Six Thousand, Six Hundred Seventy Dollars ($2,001,666,670), divided into One Hundred Million, One Hundred Sixty-Six Thousand, Six Hundred Sixty-Seven (100,166,667) shares with a par value of $10 each designated as Common Stock and 1000 shares with a par value of One Million Dollars ($1,000,000) each designated as Series Preferred Stock." 5. The foregoing amendment of the organization certificate was authorized by unanimous written consent signed by the holder of all outstanding shares entitled to vote thereon. IN WITNESS WHEREOF, we have made and subscribed this certificate this 19th day of June, 1997. /s/ James T. Byrne, Jr. -------------------------- James T. Byrne, Jr. Managing Director /s/ Lea Lahtinen -------------------------- Lea Lahtinen Assistant Secretary State of New York ) ) ss: County of New York ) Lea Lahtinen, being fully sworn, deposes and says that she is an Assistant Secretary of Bankers Trust Company, the corporation described in the foregoing certificate; that she has read the foregoing certificate and knows the contents thereof, and that the statements herein contained are true. /s/ Lea Lahtinen ------------------------- Lea Lahtinen Sworn to before me this 19th day of June, 1997. /s/ Sandra L. West - ----------------------- Notary Public SANDRA L. WEST Notary Public State of New York No. 31-4942101 Qualified in New York County Commission Expires September 19, 1998 Exhibit 7 ---------
Legal Title of Bank: Bankers Trust Company Call Date: 6/30/97 ST-BK: 36-4840 FFIEC 031 Address: 130 Liberty Street Vendor ID: D CERT: 00623 Page RC-1 City, State ZIP: New York, NY 10006 11 FDIC Certificate No.: | 0 | 0 | 6 | 2 | 3
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL AND STATE-CHARTERED SAVINGS BANKS JUNE 30, 1997 All schedules are to be reported in thousands of dollars. Unless otherwise indicated, reported the amount outstanding as of the last business day of the quarter. SCHEDULE RC--BALANCE SHEET
------------ |C400 | ----------------------------- | Dollar Amounts in Thousands | RCFD Bil Mil Thou | - ----------------------------------------------------------------------------------------------------------------------------------- ASSETS | / / / / / / / / / / / / / | 1. Cash and balances due from depository institutions (from Schedule RC-A): |/ / / / / / / / / / / / a. Noninterest-bearing balances and currency and coin(1)............... | 0081 1,724,000 |1.a. b. Interest-bearing balances(2)........................................ | 0071 2,648,000 |1.b. 2. Securities: | / / / / / / / / / / / | a. Held-to-maturity securities (from Schedule RC-B, column A).......... | 1754 0 |2.a. b. Available-for-sale securities (from Schedule RC-B, column D)........ | 1773 3,990,000 |2.b. 3. Federal funds sold and securities purchased under agreements to resell in domestic | 1350 26,430,000 offices of the bank and of its Edge and Agreement subsidiaries, and in IBFs: | / / / / / / / / / / / | a. Federal funds sold.................................................. | b. Securities purchased under agreements to resell..................... | 4. Loans and lease financing receivables: | / / / / / / / / / / / | a. Loans and leases, net of unearned income (from Schedule RC-C) RCFD 2122 17,815,000 | / / / / / / / / / / / |4.a. b. LESS: Allowance for loan and lease losses..................RCFD 3123 723,000 | / / / / / / / / / / / |4.b. c. LESS: Allocated transfer risk reserve......................RCFD 3128 0 | / / / / / / / / / / / |4.c. d. Loans and leases, net of unearned income, | / / / / / / / / / / / | allowance, and reserve (item 4.a minus 4.b and 4.c)................. | 2125 17,092,000 |4.d. 5. Assets held in trading accounts........................................... | 3545 40,350,000 |5. 6. Premises and fixed assets (including capitalized leases).................. | 2145 937,000 |6. 7. Other real estate owned (from Schedule RC-M).............................. | 2150 195,000 |7. 8. Investments in unconsolidated subsidiaries and associated companies (from Schedule RC-M) | 2130 96,000 |8. 9. Customers' liability to this bank on acceptances outstanding.............. | 2155 691,000 |9. 10. Intangible assets (from Schedule RC-M).................................... | 2143 85,000 |10. 11. Other assets (from Schedule RC-F)......................................... | 2160 4,633,000 |11. 12. Total assets (sum of items 1 through 11).................................. | 2170 98,871,000 |12. -----------------------------
__________________________ (1) Includes cash items in process of collection and unposted debits. (2) Includes time certificates of deposit not held in trading accounts.
Legal Title of Bank: Bankers Trust Company Call Date: 6/30/97 ST-BK: 36-4840 FFIEC 031 Address: 130 Liberty Street Vendor ID: D CERT: 00623 Page RC-2 City, State ZIP: New York, NY 10006 12 FDIC Certificate No.: | 0 | 0 | 6 | 2 | 3
SCHEDULE RC--CONTINUED
---------------------------- Dollar Amounts in Thousands |/ / / / / / Bil Mil Thou | - --------------------------------------------------------------------------------------------------------------------------- LIABILITIES | / / / / / / / / / / / / | 13. Deposits: | / / / / / / / / / / / / | a. In domestic offices (sum of totals of columns A and C from Schedule RC-E, part I) | RCON 2200 18,026,000 |13.a. (1) Noninterest-bearing(1) .......................RCON 6631 3,184,000...... | / / / / / / / / / / / / |13.a.(1) (2) Interest-bearing .............................RCON 6636 14,842,000...... | / / / / / / / / / / / / |13.a.(2) b. In foreign offices, Edge and Agreement subsidiaries, and IBFs (from Schedule RC-E | / / / / / / / / / / / / | part II) | RCFN 2200 22,173,000 |13.b. (1) Noninterest-bearing ..........................RCFN 6631 1,454,000 | / / / / / / / / / (2) Interest-bearing .............................RCFN 6636 20,719,000 | / / / / / / / / / / / / |13.b.(2)| 14. Federal funds purchased and securities sold under agreements to repurchase in | / / 2800 14,623,000 |14 domestic offices of the bank and of its Edge and Agreement subsidiaries, and in IBFs: | / / / / / / / / / / / | a. Federal funds purchased.......................................................... | RCFD 0278 | b. Securities sold under agreements to repurchase................................... |RCFD 0279 | 15. a. Demand notes issued to the U.S. Treasury......................................... | RCON 2840 0 |15.a. b. Trading liabilities.............................................................. |RCFD 3548 19,819,000| 16. Other borrowed money: | / / / / / / / / / / | a. With original maturity of one year or less....................................... | RCFD 2332 6,877,000 |16.a. b. With original maturity of more than one year..................................... | A547 217,000 |16.b. c. With a remaining maturity of more than three years............................... | A548 4,848,000 |16.c. 17. Mortgage indebtedness and obligations under capitalized leases....................... 18. Bank's liability on acceptances executed and outstanding............................. | RCFD 2920 691,000 |18. 19. Subordinated notes and debentures.................................................... | RCFD 3200 1,251,000 |19. 20. Other liabilities (from Schedule RC-G)............................................... | RCFD 2930 4,872,000 |20. 21. Total liabilities (sum of items 13 through 20)....................................... |RCFD 2948 93,397,000 | 22. Limited-life preferred stock and related surplus..................................... | RCFD 3282 0 |22. EQUITY CAPITAL | / / / / / / / / / / / / | 23. Perpetual preferred stock and related surplus........................................ | RCFD 3838 1,000,000 |23. 24. Common stock......................................................................... | RCFD 3230 1,001,000 |24. 25. Surplus (exclude all surplus related to preferred stock)............................. | RCFD 3839 540,000 |25. 26. a. Undivided profits and capital reserves........................................... | RCFD 3632 3,314,000 |26.a b. Net unrealized holding gains (losses) on available-for-sale securities........... |RCFD 8434 ( 3,000) | 27. Cumulative foreign currency translation adjustments.................................. | RCFD 3284 ( 378,000) |27. 28. Total equity capital (sum of items 23 through 27).................................... | RCFD 3210 5,474,000 |28. 29. Total liabilities, limited-life preferred stock, and equity capital |/ / / / / / / / / / / / (sum of items 21, 22, and 28)........................................................ | RCFD 3300 98,871,000 |29. Memorandum To be reported only with the March Report of Condition. 1. Indicate in the box at the right the number of the statement below that best describes the most comprehensive Number level of auditing work performed for the ------------ bank by independent external auditors as of |RCFD 6724 N/A |M.1 any date during 1996............................. --------------------
1 = Independent audit of the bank 4 = Directors' examination of the bank conducted in accordance with performed by other external generally accepted auditing auditors (may be required by standards by a certified state chartering authority) public accounting firm which 5 = Review of the bank's financial submits a report on the bank statements by external auditors 2 = Independent audit of the bank's 6 = Compilation of the bank's financial parent holding company statements by external auditors conducted in accordance with 7 = Other audit procedures (excluding generally accepted auditing tax preparation work) standards by a certified 8 = No external audit work public accounting firm which submits a report on the consolidated holding company (but not on the bank separately) 3 = Directors' examination of the bank conducted in accordance with generally accepted auditing standards by a certified public accounting firm (may be required by state chartering authority)
______________________ (1) Including total demand deposits and noninterest-bearing time and savings deposits. (2) Includes limited - life preferred stock and related surplus. -----END PRIVACY-ENHANCED MESSAGE-----