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FRANKLIN RESOURCES, INC.,
Company
to
CHEMICAL BANK,
Trustee
_______________
INDENTURE
_______________
Dated as of April __, 1994
Debt Securities
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Reconciliation and tie between
Trust Indenture Act of 1939 (the "Trust Indenture Act")
and Indenture
Trust Indenture
--------------- Indenture Section
Act Section -----------------
-----------
Section 310(a)(1) . . . . . . . . . . . . . 606
(a)(2) . . . . . . . . . . . . . 606
(b) . . . . . . . . . . . . . . . 607
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 316(a) (last sentence) . . . . . . . 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 therein.
TABLE OF CONTENTS
Recitals . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions. . . . . . . . . . . . . . . . . 2
Act . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Additional Amounts . . . . . . . . . . . . . . . . . . 2
Affiliate . . . . . . . . . . . . . . . . . . . . . . . 3
Authenticating Agent . . . . . . . . . . . . . . . . . 3
Authorized Newspaper . . . . . . . . . . . . . . . . . 3
Bearer Security . . . . . . . . . . . . . . . . . . . . 3
Board of Directors . . . . . . . . . . . . . . . . . . 3
Board Resolution . . . . . . . . . . . . . . . . . . . 3
Business Day . . . . . . . . . . . . . . . . . . . . . 3
Commission . . . . . . . . . . . . . . . . . . . . . . 4
Company . . . . . . . . . . . . . . . . . . . . . . . . 4
Company Request and Company Order . . . . . . . . . . . 4
Corporate Trust Office . . . . . . . . . . . . . . . . 4
Corporation . . . . . . . . . . . . . . . . . . . . . . 4
Coupon . . . . . . . . . . . . . . . . . . . . . . . . 4
Currency or Money . . . . . . . . . . . . . . . . . . . 4
Currency Indexed Note . . . . . . . . . . . . . . . . . 4
Defaulted Interest . . . . . . . . . . . . . . . . . . 5
Dollars or $ . . . . . . . . . . . . . . . . . . . . . 5
Event of Default . . . . . . . . . . . . . . . . . . . 5
Government Obligations . . . . . . . . . . . . . . . . 5
Holder . . . . . . . . . . . . . . . . . . . . . . . . 5
Indebtedness . . . . . . . . . . . . . . . . . . . . . 5
Indenture . . . . . . . . . . . . . . . . . . . . . . . 6
Independent Public Accountants . . . . . . . . . . . . 6
Indexed Security . . . . . . . . . . . . . . . . . . . 6
Interest . . . . . . . . . . . . . . . . . . . . . . . 6
Interest Payment Date . . . . . . . . . . . . . . . . . 6
Legal Holiday . . . . . . . . . . . . . . . . . . . . . 6
Material Subsidiary . . . . . . . . . . . . . . . . . . 6
Maturity . . . . . . . . . . . . . . . . . . . . . . . 7
Office or Agency . . . . . . . . . . . . . . . . . . . 7
Officers' Certificate . . . . . . . . . . . . . . . . . 7
Opinion of Counsel . . . . . . . . . . . . . . . . . . 7
Original Issue Discount Security . . . . . . . . . . . 7
Outstanding . . . . . . . . . . . . . . . . . . . . . . 7
Paying Agent . . . . . . . . . . . . . . . . . . . . . 9
Person . . . . . . . . . . . . . . . . . . . . . . . . 9
Place of Payment . . . . . . . . . . . . . . . . . . . 9
Predecessor Security . . . . . . . . . . . . . . . . . 9
Redemption Date . . . . . . . . . . . . . . . . . . . . 9
Redemption Price . . . . . . . . . . . . . . . . . . . 9
Registered Security . . . . . . . . . . . . . . . . . . 9
Regular Record Date . . . . . . . . . . . . . . . . . . 10
Responsible Officer . . . . . . . . . . . . . . . . . . 10
Security or Securities . . . . . . . . . . . . . . . . 10
Security Register and Security Registrar . . . . . . . 10
Special Record Date . . . . . . . . . . . . . . . . . . 10
Stated Maturity . . . . . . . . . . . . . . . . . . . . 10
Subsidiary . . . . . . . . . . . . . . . . . . . . . . 10
Trust Indenture Act . . . . . . . . . . . . . . . . . . 10
Trustee . . . . . . . . . . . . . . . . . . . . . . . . 11
United States . . . . . . . . . . . . . . . . . . . . . 11
United States Alien . . . . . . . . . . . . . . . . . . 11
U.S. Depository or Depository . . . . . . . . . . . . . 11
Vice President . . . . . . . . . . . . . . . . . . . . 11
Voting Stock . . . . . . . . . . . . . . . . . . . . . 11
Section 102. Compliance Certificates and Opinions. . . . . 12
Section 103. Form of Documents Delivered to Trustee. . . . 13
Section 104. Acts of Holders. . . . . . . . . . . . . . . 13
Section 105. Notices, etc. to Trustee and Company. . . . . 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. . . . . . . . . . . . . 19
Section 112. Benefits of Indenture. . . . . . . . . . . . 19
Section 113. Governing Law. . . . . . . . . . . . . . . . 19
Section 114. Legal Holidays. . . . . . . . . . . . . . . . 19
Section 115. Counterparts. . . . . . . . . . . . . . . . . 19
ARTICLE TWO
SECURITIES FORMS
Section 201. Forms Generally. . . . . . . . . . . . . . . 20
Section 202. Form of Trustee's Certificate of
Authentication. . . . . . . . . . . . . . . . 20
Section 203. Securities in Global Form. . . . . . . . . . 21
ARTICLE THREE
THE SECURITIES
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. . . . . . . . . . . . . 30
Section 305. Registration, Transfer and Exchange. . . . . 31
Section 306. Mutilated, Destroyed, Lost and Stolen
Securities. . . . . . . . . . . . . . . . . . 35
Section 307. Payment of Interest and Certain Additional
Amounts; Rights to Interest and Certain
Additional Amounts Preserved. . . . . . . . . 37
Section 308. Persons Deemed Owners. . . . . . . . . . . . 39
Section 309. Cancellation. . . . . . . . . . . . . . . . . 40
Section 310. Computation of Interest. . . . . . . . . . . 40
ARTICLE FOUR
SATISFACTION AND DISCHARGE
Section 401. Satisfaction and Discharge. . . . . . . . . . 41
Section 402. Satisfaction, Discharge and Defeasance. . . . 43
Section 403. Application of Trust Money. . . . . . . . . . 45
ARTICLE FIVE
REMEDIES
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. . . . . . . 51
Section 505. Trustee May Enforce Claims without Possession
of Securities or Coupons. . . . . . . . . . . 52
Section 506. Application of Money Collected. . . . . . . . 52
Section 507. Limitations on Suits. . . . . . . . . . . . . 53
Section 508. Unconditional Right of Holders to Receive
Principal and any Premium, Interest and
Additional Amounts. . . . . . . . . . . . . . 53
Section 509. Restoration of Rights and Remedies. . . . . . 54
Section 510. Rights and Remedies. . . . . . . . . . . . . 54
Section 511. Delay or Omission Not Waiver. . . . . . . . . 54
Section 512. Control by Holders of Securities. . . . . . . 55
Section 513. Waiver of Past Defaults. . . . . . . . . . . 55
Section 514. Waiver of Stay or Extension Laws. . . . . . . 56
ARTICLE SIX
THE TRUSTEE
Section 601. Certain Rights of Trustee. . . . . . . . . . 56
Section 602. Not Responsible for Recitals or Issuance of
Securities. . . . . . . . . . . . . . . . . . 58
Section 603. May Hold Securities. . . . . . . . . . . . . 59
Section 604. Money Held in Trust. . . . . . . . . . . . . 59
Section 605. Compensation and Reimbursement. . . . . . . . 59
Section 606. Corporate Trustee Required; Eligibility. . . 60
Section 607. Resignation and Removal; Appointment of
Successor. . . . . . . . . . . . . . . . . . 61
Section 608. Acceptance of Appointment by Successor. . . . 63
Section 609. Merger, Conversion, Consolidation or
Succession to Business. . . . . . . . . . . . 64
Section 610. Appointment of Authenticating Agent. . . . . 65
ARTICLE SEVEN
HOLDER'S LISTS AND REPORTS BY TRUSTEE, AND COMPANY
Section 701. Company to Furnish Trustee Names and
Addresses of Holders. . . . . . . . . . . . . 67
Section 702. Preservation of Information; Communications
to Holders. . . . . . . . . . . . . . . . . . 68
Section 703. Reports by Trustee. . . . . . . . . . . . . . 68
Section 704. Reports by Company. . . . . . . . . . . . . . 69
ARTICLE EIGHT
CONSOLIDATION, MERGER AND SALES
Section 801. Company May Consolidate, Etc., Only on
Certain Terms. . . . . . . . . . . . . . . . 70
Section 802. Successor Person Substituted for Company. . . 71
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures without Consent of
Holders. . . . . . . . . . . . . . . . . . . 71
Section 902. Supplemental Indentures with Consent of
Holders. . . . . . . . . . . . . . . . . . . 73
Section 903. Execution of Supplemental Indentures. . . . . 75
Section 904. Effect of Supplemental Indentures . . . . . . 75
Section 905. Reference in Securities to Supplemental
Indentures. . . . . . . . . . . . . . . . . . 75
ARTICLE TEN
COVENANTS
Section 1001. Payment of Principal and any Premium,
Interest and Additional Amounts. . . . . . . 76
Section 1002. Maintenance of Office or Agency. . . . . . . 76
Section 1003. Money for Securities Payments to Be Held in
Trust. . . . . . . . . . . . . . . . . . . . 78
Section 1004. Additional Amounts. . . . . . . . . . . . . . 79
Section 1005. Intentionally Omitted . . . . . . . . . . . . 80
Section 1006. Intentionally Omitted . . . . . . . . . . . . 81
Section 1007. Corporate Existence. . . . . . . . . . . . . 81
Section 1008. Waiver of Certain Covenants. . . . . . . . . 81
Section 1009. Company Statement as to Compliance; Notice of
Certain Defaults. . . . . . . . . . . . . . . 81
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 1101. Applicability of Article. . . . . . . . . . . 82
Section 1102. Election to Redeem; Notice to Trustee. . . . 82
Section 1103. Selection by Trustee of Securities to be
Redeemed. . . . . . . . . . . . . . . . . . . 83
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
SINKING FUNDS
Section 1201. Applicability of Article. . . . . . . . . . . 87
Section 1202. Satisfaction of Sinking Fund Payments with
Securities. . . . . . . . . . . . . . . . . . 88
Section 1203. Redemption of Securities for Sinking Fund. . 88
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
Section 1301. Applicability of Article. . . . . . . . . . . 89
ARTICLE FOURTEEN
SECURITIES IN FOREIGN CURRENCIES
Section 1401. Applicability of Article. . . . . . . . . . . 90
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
Section 1501. Purposes for Which Meetings May Be Called. . 90
Section 1502. Call, Notice and Place of Meetings. . . . . . 90
Section 1503. Persons Entitled to Vote at Meetings. . . . . 91
Section 1504. Quorum; Action. . . . . . . . . . . . . . . . 92
Section 1505. Determination of Voting Rights; Conduct and
Adjournment of Meetings. . . . . . . . . . . 93
Section 1506. Counting Votes and Recording Action of
Meetings. . . . . . . . . . . . . . . . . . . 94
INDENTURE, dated as of April __, 1994 (the "Indenture"),
between Franklin Resources, Inc., a corporation duly organized and
existing under the laws of Delaware (hereinafter called the
"Company"), having its principal executive office located at 777
Mariners Island Blvd., San Mateo, California 94404, and Chemical Bank,
a banking corporation duly organized and existing under the laws of
the State of New York (hereinafter called the "Trustee"), having its
Corporate Trust Office located at 450 West 33rd Street, 15th Floor,
New York, New York 10001.
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 hereinafter provided.
The Company has duly authorized the execution and delivery
of this Indenture. All things necessary to make this Indenture a
valid agreement of the Company, 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 thereof, it is mutually covenanted and
agreed, for the equal and proportionate benefit of all Holders of the
Securities or of any series thereof 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 and, except as
otherwise herein expressly provided, the term "generally
accepted accounting principles" with respect to any
computation required or permitted hereunder shall mean such
accounting principles as are generally accepted at the date
of such computation;
(4) 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
(5) 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" means any additional amounts which are
required hereby or by any Security, under circumstances specified
herein or therein, to be paid by the Company in respect of certain
taxes imposed on Holders specified therein and which are owing to such
Holders.
"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 the meanings correlative to the
foregoing.
"Authenticating Agent" means any Person authorized by the
Trustee pursuant to Section 610 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.
"Bearer Security" means any Security in the form established
pursuant to Section 201 which is payable to bearer.
"Board of Directors" means the board of directors of the
Company or any committee of that board duly authorized to act
generally or in any particular respect for the Company hereunder.
"Board Resolution" means a copy of one or more resolutions,
certified by the Secretary or an Assistant Secretary of the Company to
have been duly adopted by the Board of Directors and to be in full
force and effect on the date of such certification, delivered to the
Trustee.
"Business Day", with respect to any Place of Payment or
other location, means each Monday, Tuesday, Wednesday, Thursday and
Friday that is not a Legal Holiday in such Place of Payment or other
location, except as may otherwise be provided in the form of
Securities of any particular series pursuant to the provisions of this
Indenture.
"Commission" means the Securities and Exchange Commission,
as from time to time constituted, created under the Securities
Exchange Act of 1934, as amended, 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.
"Company" means the Person named as the "Company" in the
first paragraph of this instrument until a successor Person shall have
become such pursuant to the applicable provisions of this Indenture,
and thereafter "Company" shall mean such successor Person, and any
other obligor upon the Securities.
"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 the Chairman of the Board of Directors, a Vice
Chairman, the President or a Vice President, and by the Treasurer, an
Assistant Treasurer, the Secretary or an Assistant Secretary, of the
Company, and delivered to the Trustee.
"Corporate Trust Office" means the principal 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 the address specified in the first
paragraph of this instrument.
"Corporation" includes corporations and, except for purposes
of Article Eight, associations, companies and business trusts.
"Coupon" means any interest coupon appertaining to a Bearer
Security.
"Currency" or "Money", 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 the unit or units of legal tender for the payment of public and
private debts (or any composite thereof) in which such payment,
deposit or other transfer is required to be made by or pursuant to the
terms hereof and, with respect to any other payment, deposit or
transfer pursuant to or contemplated by the terms hereof, means
Dollars.
"Currency Indexed Note" means any Security with the amount
of principal payments determined by reference to an index Currency.
"Defaulted Interest" has the meaning specified in Section
307.
"Dollars" or "$" means a dollar or other equivalent unit of
legal tender for payment of public or private debts in the United
States of America.
"Event of Default" has the meaning specified in Section 501.
"Government Obligations", with respect to any Security,
means (i) direct obligations of the government or governments which
issued the Currency in which the principal of or any premium or
interest on such Security or any Additional Amounts in respect thereof
shall be payable, in each case where the payment or payments
thereunder are supported by the full faith and credit of such
government or governments or (ii) obligations of a Person controlled
or supervised by and acting as an agency or instrumentality of such
government or governments, in each case where the payment or payments
thereunder are unconditionally guaranteed as a full faith and credit
obligation by such government or governments, 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.
"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.
"Indebtedness", with respect to any Person, means
indebtedness for borrowed money or for the unpaid purchase price of
real or personal property of, or guaranteed by, such Person and
computed in accordance with generally accepted accounting principles.
"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 and any other obligor
under the Securities or the Coupons, are independent public accounts
within the meaning of the Securities Act of 1933, as amended, and the
rules and regulations promulgated by the Commission thereunder, who
may be the independent public accountants regularly retained by the
Company 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", with respect to any Original Issue Discount
Security which by its terms bears interest only after Maturity, means
interest payable after Maturity.
"Interest Payment Date", with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
"Legal Holiday", with respect to any Place of Payment or
other location, means a Saturday, a Sunday or a day on which banking
institutions in such Place of Payment or other location are not
authorized or obligated to be open.
"Material Subsidiary" means (a) Franklin Advisers, Inc., a
California corporation, (b) Franklin/Templeton Distributors, Inc., a
New York corporation, (c) Franklin/Templeton Investor Services, Inc.,
a California corporation, (d) Templeton, Galbraith & Hansberger, Ltd.,
a Bahamas corporation, (e) Templeton Investment Counsel, Inc., a
Florida corporation, (f) any other Subsidiary which owns, directly or
indirectly, any of the capital stock of any corporation listed in (a)
through (e) above or any successor
entity and (g) any other Subsidiary with which any corporation listed
in (a) through (e) above or any successor entity is merged or
consolidated or which acquires or succeeds to a significant portion of
the business, properties or assets of any corporation listed in (a)
through (e) above or any successor entity.
"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, 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 in 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.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, a Vice Chairman, the President or a Vice
President, and by the Treasurer, an Assistant Treasurer, the Secretary
or an Assistant Secretary of the Company, 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
may be an employee of or counsel for the Company or other counsel who
shall be acceptable to the Trustee, that, if required by the Trust
Indenture Act, complies with the requirements of Section 314(e) of the
Trust Indenture Act.
"Original Issue Discount Security" means a Security issued
pursuant to this Indenture which provides for declaration of an amount
less than the principal face amount thereof to be due and payable upon
acceleration 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:
(i) any such Security theretofore cancelled by the Trustee
or the Security Registrar or delivered to the Trustee
or the Security Registrar for cancellation;
(ii) any such Security for whose payment at the Maturity
thereof money in the necessary amount has been
theretofore deposited pursuant hereto with the Trustee
or any Paying Agent (other than the Company), in trust
or set aside and segregated in trust by the Company (if
the Company shall act as its own Paying Agent) for the
Holders of such Securities 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;
(iii) any such Security with respect to which the Company has
effected defeasance pursuant to Section 402 hereof; and
(iv) 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 owned by the Company or any other obligor upon the
Securities or any Affiliate of the Company or such other obligor,
shall be disregarded and deemed not to be Outstanding, except that, in
determining whether the Trustee shall be protected in
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 knows to be so
owned shall be so disregarded. Securities so owned which shall have
been pledged in good faith may 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 or any other obligor upon the
Securities or any Coupons appertaining thereto or any Affiliate of the
Company or such other obligor.
"Paying Agent" means any Person authorized by the Company to
pay the principal of, or any premium or interest on, or any Additional
Amounts with respect to, any Security or any Coupon on behalf of the
Company.
"Person" means any individual, Corporation, partnership,
joint venture, joint-stock company, trust, unincorporated organization
or government or any agency or political subdivision thereof.
"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 is payable as
provided in or pursuant to this Indenture.
"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.
"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.
"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 as the
"Regular Record Date".
"Responsible Officer" means any officer of the Trustee in
its Corporate Trust Office with direct responsibility for the
administration of this Indenture and also means, with respect to a
particular corporate trust matter, any other officer to whom such
matter is referred because of his knowledge of and familiarity with
the particular subject.
"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.
"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 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.
"Subsidiary" means any Corporation of which at the time of
determination the Company or one or more Subsidiaries owns or controls
directly or indirectly more than 50% of the shares of Voting Stock.
"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 each Person who is then a Trustee
hereunder; provided, however, that if at any time there is more than
one such Person, "Trustee" shall mean each such Person and as used
with respect to the Securities of any series shall mean the Trustee
with respect to the Securities of such series.
"United States", except as otherwise provided herein or in
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 Alien", except as otherwise provided in or
pursuant to this Indenture, means any Person who, for United States
Federal income tax purposes, is a foreign corporation, a non-resident
alien individual, a non-resident alien fiduciary of a foreign estate
or trust, or a foreign partnership one or more of the members of which
is, for United States Federal income tax purposes, a foreign
corporation, a non-resident alien individual or a non-resident alien
fiduciary of a foreign estate or trust.
"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 Securities Exchange Act of 1934, as amended, 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 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".
"Voting Stock" means stock of a Corporation of the class or
classes having general voting power under ordinary
circumstances to elect at least a majority of the board of directors,
managers or trustees of such Corporation provided that, for the
purposes hereof, stock which carries only the right to vote
conditionally on the happening of an event shall not be considered
voting stock whether or not such event shall have happened.
Section 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the
Trustee to take any action under any provision of this Indenture, the
Company shall furnish to the Trustee an Officers' Certificate stating
that all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with and an Opinion
of Counsel stating that, in the opinion of such counsel, all such
conditions precedent, if any, have been complied with, except that in
the case of any such application or request as to which the furnishing
of such documents or any of them is specifically required by any
provision of this Indenture relating to such particular application or
request, no additional certificate or opinion need be furnished.
Subject to the Trust Indenture Act, every certificate or
opinion with respect to compliance with a condition or covenant
provided for in this Indenture (other than annual statements of
compliance provided pursuant to Section 1009) shall include:
(1) a statement that each individual signing such
certificate or opinion has read such covenant or condition
and the definitions herein relating thereto;
(2) a statement that, in the opinion of each such
individual, he has made such examination or investigation as
is necessary to enable him to express an informed opinion as
to whether or not such covenant or condition has been
complied with; and
(3) a statement as to whether, in the opinion of each
such individual, such condition or covenant has been
complied with.
Section 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be
certified by, or covered by an opinion of, any specified Person, it is
not necessary that all such matters be certified by, or covered by the
opinion of, only one such Person, or that they be so certified or
covered by only one document, but one such Person may certify or give
an opinion with respect to some matters and one or more other such
Persons as to other matters, and any such Person may certify or give
an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may
be based, insofar as it relates to legal matters, upon 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 stating that the information with
respect to such factual matters is in the possession of the Company,
unless such counsel knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with
respect to such matters are erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements,
opinions or other instruments under this Indenture or any Security,
they may, but need not, be consolidated and form one instrument.
Section 104. Acts of Holders.
(a) 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 accordance with the
provisions of Article Fifteen, 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. 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 and the Company and any agent of the Trustee or
the Company, 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 1506.
Without limiting the generality of this Section 104, unless
otherwise provided in or pursuant to this Indenture, a Holder,
including a U.S. 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 action provided in or pursuant to this Indenture to be made,
given or taken by Holders, and a U.S. 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 U.S.
Depository's standing instructions and customary practices.
The Company shall fix a record date for the purpose of
determining the Persons who are beneficial owners of interest in any
permanent global Security held by a U.S. Depository entitled under the
procedures of such U.S. Depository to make, give or take, by a proxy
or proxies duly appointed in writing, any request, demand,
authorization, direction, notice, consent, waiver or other action
provided in or pursuant to this Indenture to be made, given or taken
by Holders. If such a record date is fixed, the Holders on such
record date or their duly appointed proxy or proxies, and only such
Persons, shall be entitled to make, give or take such request, demand,
authorization, direction, notice, consent, waiver or other action,
whether or not such Holders remain Holders after such record date. No
such request, demand, authorization, direction, notice, consent,
waiver or other action shall be valid or effective if made, given or
taken more than 90 days after such record date.
(b) 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.
(c) 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.
(d) 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 depositary, by any trust company, bank, banker or other depositary
reasonably acceptable to the Company, wherever situated, if such
certificate shall be deemed by the Company and the Trustee to be
satisfactory, showing that at the date therein mentioned such Person
had on deposit with such depositary, 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 Trustee to be
satisfactory. The Trustee and the Company may assume that such
ownership of any Bearer Security continues until (1) another
certificate or affidavit bearing a later date issued in respect of the
same Bearer Security is produced, or (2) such Bearer Security is
produced to the Trustee by some other Person, or (3) such Bearer
Security is surrendered in exchange for a Registered Security, or (4)
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 and the Trustee
deems sufficient.
(e) 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 no obligated to), by 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.
(f) Any request, demand, authorization, direction, notice,
consent, waiver or other action by the Holder of any Security shall
bind every future Holder of the same Security and the Holder of every
Security issued upon the registration of transfer thereof or in
exchange therefor or in lieu thereof in respect of anything done or
suffered to be done by the Trustee, any Security Registrar, any Paying
Agent or the Company in reliance thereon, whether or not notation of
such action is made upon such Security.
Section 105. Notices, etc. to Trustee and Company.
Any request, demand, authorization, direction, notice,
consent, waiver or Act of Holders or other document provided or
permitted by this Indenture to be made upon, given or furnished to, or
filed with,
(1) the Trustee by any Holder or the Company shall be
sufficient for every purpose hereunder if made, given,
furnished or filed in writing to or with the Trustee at its
Corporate Trust Office, or
(2) the Company 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 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.
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 twice, the first such
publication to be not earlier than the earliest date and not
later than the latest date prescribed for the giving of such
notice.
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 Bearers 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 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 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 or any Coupon,
express or implied, shall give to any Person, other than the parties
hereto, any Security Registrar, any Paying Agent and their successors
hereunder and the Holders of Securities or Coupons, any benefit or any
legal or equitable right, remedy or claim under this Indenture.
Section 113. Governing Law.
This Indenture, the Securities and any Coupons shall be
governed by and construed in accordance with the laws of the State of
New York applicable to agreements made or instruments entered into
and, in each case, performed in said state.
Section 114. Legal Holidays.
In any case where any Interest Payment Date, Stated Maturity
or Maturity of any Security, shall be a Legal Holiday at any Place of
Payment, then (notwithstanding any other provision of this Indenture,
any Security or any Coupon other than a provision in any Security or
Coupon that specifically states that such provision shall apply in
lieu of this Section) payment need not be made at such Place of
Payment on such date, but may be made on the next succeeding day that
is a Business Day at such Place of Payment with the same force and
effect as if made on the Interest Payment Date or at the Stated
Maturity or Maturity, 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, Stated Maturity or Maturity, as the case
may be.
Section 115. Counterparts.
This Indenture may be executed in several counterparts, each
of which shall be an original and all of which shall constitute but
one and the same instrument.
ARTICLE TWO
SECURITIES FORMS
Section 201. Forms Generally.
Each Registered Security, Bearer Security, Coupon and
temporary global Security issued pursuant to this Indenture shall be
in the form established by or pursuant to a 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 may have such letters, numbers or
other marks of identification and such legends or endorsements placed
thereon as may, consistently herewith, be determined by the officers
executing such Security or Coupon as evidenced by their execution of
such Security or Coupon.
Unless otherwise provided in or pursuant to this Indenture,
the Securities shall be issuable in registered form without Coupons
and shall not be issuable upon the exercise of warrants.
Definitive Securities and definitive Coupons shall be
printed, lithographed or engraved or produced by any combination of
these methods on a steel engraved border or steel engraved borders or
may be produced in any other manner, all as determined by the officers
of the Company executing such Securities or Coupons, as evidenced by
their execution of such Securities or Coupons.
Section 202. Form of Trustee's Certificate of
Authentication.
Subject to Section 610, the Trustee's certificate of
authentication shall be in substantially the following form:
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
CHEMICAL BANK,
as Trustee
By
--------------------
Authorized Officer
Section 203. Securities in Global Form.
Unless otherwise provided in or pursuant to this Indenture,
the Securities shall not be issuable in global form. If Securities of
a series shall be issuable in global form, any such Security may
provide that it or any number of such Securities shall represent the
aggregate 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
Security in global form 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 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. 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 an Officers'
Certificate and need not be accompanied by an Opinion of Counsel.
ARTICLE THREE
THE SECURITIES
Section 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited. The
Securities may be issued in one or more series.
With respect to any Securities to be authenticated and
delivered hereunder, there shall be established in or pursuant to a
Board Resolution and set forth in an Officers' Certificate, or
established in one or more indentures supplemental hereto,
(1) the title 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 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 or the terms of such Securities);
(3) whether 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 beneficial owners of
interests in any such global Security may exchange such
interest 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, and (ii)
the name of the
Depository or the U.S. Depository, as the case may be, with
respect to any global Security;
(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, if any, of such temporary Bearer
Security for definitive Securities 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;
(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, 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, 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 that are Registered
Securities may be surrendered for registration of transfer,
any of such Securities may be surrendered for exchange and
notices or demands to or upon the Company in respect of such
Securities and this Indenture may be served;
(10) whether any of such Securities are to be
redeemable at the option of the Company and, if so, 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;
(11) whether the Company is obligated to redeem or
purchase any of such Securities pursuant to any sinking fund
or at the option of any Holder thereof and, if so, 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 denomination of $5,000;
(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 other than Dollars, the Currency in which
payment of the principal of, any premium or interest on or
any Additional Amounts with respect to any of such
Securities shall be payable;
(15) if the principal of, any premium or interest on or
any Additional Amounts with respect to, any of such
Securities are to be payable, at the election of the Company
or a Holder thereof or otherwise, in a
Currency other than that in which such Securities are stated
to be payable, the period or periods within which, and the
other terms and conditions upon which, such election may be
made, and the time and manner of determining the exchange
rate between the Currency in which such Securities are
denominated or stated to be payable and the Currency in
which such Securities or any of them are to be so payable;
(16) whether 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, formula or other method or methods (which
index, 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;
(17) 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;
(18) the applicability, if any, of Section 402 to any
of such Securities and any provisions in modification of, in
addition to or in lieu of any of the provisions of Section
402;
(19) if any of such Securities are to be issuable upon
the exercise of warrants, this shall be so established and
(if established by Board Resolution) so set forth, as well
as the time, manner and place for such Securities to be
authenticated and delivered;
(20) 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;
(21) if there is more than one Trustee, the identity of
the Trustee and, if not the Trustee, the
identity of each Security Registrar, Paying Agent or
Authenticating Agent with respect to such Securities;
(22) any other terms of such Securities which the
Company may establish in accordance with Section 901.
All Securities of any one series and all Coupons, if any,
appertaining to Bearer Securities of such series shall be
substantially identical except as to Currency of payments due
thereunder, denomination and the rate or rates of interest, if any,
and Maturity, the date from which interest, if any, shall accrue and
except as may otherwise be provided by the Company in or pursuant to
the Board Resolution and set forth in the Officers' Certificate or in
any indenture or indentures supplemental hereto pertaining to such
series of Securities. 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 or to establish additional terms of such
series of Securities.
If any of the terms of the Securities of any series shall be
established by action taken by or pursuant to a Board Resolution, the
Board Resolution shall be delivered to the Trustee at or prior to the
delivery of the Officers' Certificate setting forth the terms of such
series.
Section 302. Currency; Denominations.
Unless otherwise provided in or pursuant to this Indenture,
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 denominated in Dollars shall be issuable in registered form
without Coupons in denominations of $1,000 and any integral multiple
thereof, and the Bearer Securities denominated in Dollars shall be
issuable in the denomination of $5,000. Securities not denominated in
Dollars shall be issuable in such denominations as are established
with respect to such Securities in or pursuant to this Indenture.
Section 303. Execution, Authentication, Delivery and
Dating.
Securities shall be executed on behalf of the Company by its
Chairman of the Board, one of its Vice Chairmen, its
President, its Treasurer or one of its Vice Presidents under its
corporate seal reproduced thereon and attested by its Secretary or one
of its Assistant Secretaries. Coupons shall be executed on behalf of
the Company by the Treasurer or any Assistant Treasurer of the
Company. The signature of any of these officers on the Securities or
any Coupons appertaining thereto may be manual or facsimile.
Securities and any Coupons appertaining thereto bearing the
manual or facsimile signatures of individuals who were at any time the
proper officers of the Company shall bind the Company, notwithstanding
that such individuals or any of them have ceased to hold such offices
prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities,
together with any Coupons appertaining thereto, executed by the
Company, to the Trustee for authentication and, provided that the
Board Resolution and Officers' Certificate 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 has been delivered to the Trustee, the Trustee in
accordance with the Company Order and subject to the provisions hereof
and of such Securities shall authenticate and deliver such Securities.
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,
(i) an Opinion of Counsel stating to the effect:
(a) the form or forms and terms of such Securities and
Coupons, if any, have been established in conformity with
the provisions of this Indenture;
(b) all conditions precedent to the authentication and
delivery of such Securities and Coupons, if any,
appertaining thereto, have been complied with and that such
Securities, and Coupons, when authenticated and delivered by
the Trustee, will constitute legally valid and binding
obligations of the Company, enforceable against the Company
in accordance with their terms, subject to bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer
or
other similar laws affecting the enforcement of creditors'
rights generally, and subject to general principles of
equity (regardless of whether enforcement is sought in a
proceeding in equity or at law) and will entitle the Holders
thereof to the benefits of this Indenture; such Opinion of
Counsel need express no opinion as to the availability of
equitable remedies;
(c) all laws and requirements in respect of the
execution and delivery by the Company of such Securities and
Coupons, if any, have been complied with;
(d) this Indenture has been qualified under the Trust
Indenture Act; and
(e) as to such other matters as the Trustee may
reasonably request; and, if the authentication and delivery
relates to a new series of Securities created by an
indenture supplemental hereto, also stating that all laws
and requirements with respect to the form and execution by
the Company of the supplemental indenture with respect to
that series of Securities have been complied with, the
Company has corporate power to execute and deliver any such
supplemental indenture and has taken all necessary corporate
action for those purposes and any such supplemental
indenture has been executed and delivered and constitutes
the legal, valid and binding obligation of the Company
enforceable in accordance with its terms (subject, as to
enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium or other laws and
legal principles affecting creditors' rights generally from
time to time in effect and to general equitable principles,
whether applied in an action at law or in equity).
(ii) an Officers' Certificate stating that, to the best
knowledge of the Persons executing such certificate, no event
which is, or after notice or lapse of time would become, an Event
of Default with respect to any of the Securities shall have
occurred and be continuing.
If all the Securities of any series are not to be issued at
one time, it shall not be necessary to deliver an Opinion of Counsel
and an Officers' Certificate at the time of issuance of each Security,
but such opinion and certificate, with appropriate modifications,
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 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.
A Company Order, Officers' Certificate or Board Resolution
or supplemental indenture delivered by the Company to the Trustee in
the circumstances set forth in the second preceding paragraph may
provide that Securities which are the subject thereof will be
authenticated and delivered by the Trustee or its agent on original
issue from time to time in the aggregate principal amount, if any,
established for such series pursuant to such procedures acceptable to
the Trustee as may be specified from time to time by Company Order
upon the telephonic, electronic or written order of Persons designated
in such Company Order, Officers' Certificate, supplemental indenture
or Board Resolution (any such telephonic or electronic instructions to
be promptly confirmed in writing by such Persons) and that such
Persons are authorized to determine, consistent with such Company
Order, Officers' Certificate, supplemental indenture or Board
Resolution, such terms and conditions of said Securities as are
specified in such Company Order, Officers' Certificate, supplemental
indenture or Board Resolution.
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 Bearer
Security in global form shall be dated as of the date specified in or
pursuant to this Indenture.
No Security or Coupon appertaining thereto 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 202
or 610 executed by or on behalf of the Trustee by the manual signature
of one of its authorized officers or by the Authenticating Agent.
Such certificate upon
any Security shall be conclusive evidence, and the only evidence, that
such Security has been duly authenticated and delivered hereunder.
Except as permitted by Section 306 or 307, the Trustee shall not
authenticate and deliver any Bearer Security unless all Coupons
appertaining thereto then matured have been detached and cancelled.
Section 304. Temporary Securities.
Pending the preparation of definitive Securities, the
Company may execute and deliver to the Trustee and, upon Company
Order, 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 with such
appropriate insertions, omissions, substitutions and other variations
as the officers of the Company executing such Securities may
determine, as conclusively evidenced by their execution of such
Securities. Such temporary Securities may be in global form.
Except in the case of temporary Securities in global form,
which shall be exchanged in accordance with the provisions thereof, 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 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; 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 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.
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. In the event that the Trustee shall not be the Security
Registrar, it shall have the right to examine the Security Register at
all reasonable times. The Trustee is hereby initially appointed as
Security Registrar for each series of Securities. In the event that
the Trustee 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.
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 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.
If provided in or pursuant to this Indenture, with respect
to Securities of any series, at the option of the Holder, Bearer
Securities of such series may be exchanged for Registered 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
Office or Agency for such series, with all unmatured Coupons and all
matured Coupons in default thereto appertaining. 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 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 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 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 of payment, 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, 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.
If provided in or pursuant to this Indenture with respect to
Securities of any series, at the option of the Holder, Registered
Securities of such series may be exchanged for Bearer
Securities upon such terms and conditions as may be provided in or
pursuant to this Indenture with respect to such series.
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 which the Holder making the exchange is entitled to
receive.
Notwithstanding the foregoing, except as otherwise provided
in or pursuant to this Indenture, any global Security shall be
exchangeable for definitive Securities only if (i) the Depository is
at any time unwilling, unable or ineligible to continue as Depository
and a successor depository is not appointed by the Company within 60
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 global 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 global
Security are entitled to exchange such interests for definitive
Securities, 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
global Security, executed by the Company. On or after the earliest
date on which such interests may be so exchanged, such global 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 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 global 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
global Security to be exchanged, which (unless such Securities are not
issuable both as Bearer Securities and as Registered Securities, in
which case the definitive Securities exchanged for the global Security
shall be issuable only in the
form in which the Securities are issuable, as provided in or pursuant
to this Indenture) shall be in the form of Bearer Securities or
Registered Securities, or any combination thereof, as shall be
specified by the beneficial owner thereof; 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 on the relevant Redemption Date; and
provided, further, that (unless otherwise provided in or pursuant to
this Indenture) no Bearer Security delivered in exchange for a portion
of a global Security shall be mailed or otherwise delivered to any
location in the United States. Promptly following any such exchange
in part, such global Security 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 global Security
after the close of business at the 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 interest
or Defaulted Interest, as the case may be, interest shall not be
payable on such Interest Payment Date or proposed date for payment, 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, as
the case may be, only to the Person to whom interest in respect of
such portion of such global Security shall be payable in accordance
with the provisions of this Indenture.
All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the Company
evidencing the same debt and entitling the Holders thereof to the same
benefits under this Indenture as the Securities 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 tax or other
governmental charge that may be imposed in connection with any
registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 905 or 1107 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 and bearing a number not contemporaneously
outstanding, with Coupons appertaining thereto corresponding to the
Coupons, if any, appertaining to the surrendered Security.
If there be delivered to the Company and to 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 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 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.
Notwithstanding the foregoing provisions of this Section
306, in case any mutilated, destroyed, lost or stolen Security or
Coupon has become or is about to become due and payable, the Company
in its discretion may, instead of issuing a new Security, pay such
Security 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 an 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
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,
issued pursuant to this Section in lieu of any destroyed, lost or
stolen Security, or in exchange for a Security to which a destroyed,
lost or stolen Coupon appertains, shall constitute a separate
obligation of the Company, whether or not the destroyed, lost or
stolen Security and Coupons appertaining thereto or the 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, if any, 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.
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 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
an 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
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
the receipt by the Trustee of the notice of the proposed payment.
The Trustee shall promptly notify the Company of such Special
Record Date and, in the name and at the expense of the Company
shall cause notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor to be mailed,
first-class postage prepaid, to 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 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 proposed date of payment 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 payment shall be deemed
practicable by the Trustee.
Unless otherwise provided in the form of Securities of any
particular series pursuant to the provisions of this Indenture, at the
option of the Company, interest on Registered Securities that bear
interest may be paid by mailing a check to the address of the Person
entitled thereto as such address shall appear in the Security
Register.
Subject to the foregoing provisions of this Section 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.
Prior to due presentment of a Registered Security for
registration of transfer, the Company, the Trustee and any agent of
the Company or the Trustee may treat the Person in whose name such
Registered Security is registered in the Security Register as the
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, nor the Trustee or any agent of the Company or
the Trustee shall be affected by notice to the contrary.
The Company, the Trustee and any agent of the Company or the
Trustee may treat the bearer of any Bearer Security or the bearer of
any Coupon as the absolute owner of such Security or Coupon for the
purpose of receiving payment thereof or on account thereof and for all
other purposes whatsoever, whether or not any payment with respect to
such Security or Coupon shall be overdue,
and neither the Company, nor the Trustee or any agent of the Company
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 Trustee, and any agent of the
Company or the Trustee as the owner of such Global Security for all
purposes whatsoever. None of the Company, the Trustee, any Paying
Agent or the Security Registrar will have any responsibility or
liability for any aspect of the records relating to or payments made
on account of beneficial ownership interests of a 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 or exchange or for credit against
any sinking fund payment shall, if surrendered to any Person other
than the Trustee, be delivered to the Trustee, and any such Securities
and Coupons, as well as Securities and Coupons surrendered directly to
the Trustee for any such purpose, shall be cancelled promptly by the
Trustee. The Company may at any time deliver to the Trustee for
cancellation any Securities previously authenticated and delivered
hereunder which the Company may have acquired in any manner
whatsoever, and all Securities so delivered shall be cancelled
promptly by the Trustee. No Securities shall be authenticated in lieu
of or in exchange for any Securities cancelled as provided in this
Section, except as expressly permitted by or pursuant to this
Indenture. All cancelled 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, interest on the Securities shall be computed on the basis
of a 360-day year of twelve 30-day months.
ARTICLE FOUR
SATISFACTION AND DISCHARGE.
Section 401. Satisfaction and Discharge.
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 (except as to any
surviving rights of registration of transfer or exchange of Securities
of such series herein expressly provided for and any right to receive
Additional Amounts) and any Coupons appertaining thereto, 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 1107, 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 and thereafter repaid
to the Company 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, in the case of
(i) or (ii) below, any Coupons appertaining thereto not
theretofore delivered to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) if redeemable at the option of the Company, are
to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of
notice of redemption by the Trustee in the name, and at the
expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee as trust
funds in trust for such purpose, Money 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 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 has paid or caused to be paid all other
sums payable hereunder by the Company 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 to the Trustee under Section 605 and, if money shall have
been deposited with the Trustee pursuant to subclause (B) of Clause
(1) of this Section, the obligations of the Trustee under Sections
305, 306, 403 and the last paragraph of Section 1003 shall survive.
Section 402. Satisfaction, Discharge and Defeasance
If provision is made in or pursuant to this Indenture for
defeasance of Securities of any series and any Coupons appertaining
thereto pursuant to this Section 402, the Company shall be deemed to
have paid and discharged the entire indebtedness on all the
Outstanding Securities of such series and the Trustee, upon receipt of
a Company Request and at the expense of the Company, shall execute
proper instruments acknowledging satisfaction and discharge of such
indebtedness, when
(1) either
(A) with respect to all Outstanding Securities of such
series and any Coupons appertaining thereto,
(i) the Company has irrevocably deposited or caused to
be deposited with the Trustee, as trust funds in trust for
such purpose, an amount sufficient to pay and discharge the
entire indebtedness on such Securities and any Coupons
appertaining thereto for the principal of, any premium and
interest on, and any Additional Amounts with respect to,
such Securities and any Coupons appertaining thereto to the
Maturity thereof as contemplated by the penultimate
paragraph of this Section 402; or
(ii) the Company has deposited or caused to be
deposited with the Trustee, as obligations in trust for such
purpose, such amount of Government Obligations applicable to
such Securities or any Coupons appertaining thereto
(determined on the basis of the Currency in which such
Securities or any Coupons appertaining thereto are specified
as payable at the Maturity thereof) as shall, together with
the income to accrue thereon without consideration of any
reinvestment thereof, be sufficient to pay and discharge the
entire indebtedness on all such Securities and any Coupons
appertaining thereto for the principal and any premium,
interest or Additional Amounts with respect to such
Securities and any Coupons appertaining thereto to the
Maturity thereof, as contemplated by the penultimate
paragraph of this Section 402; or
(B) the Company has properly fulfilled such other
means of satisfaction and discharge as is
provided in or pursuant to this Indenture for the Securities
of such series; and
(2) the Company has paid or caused to be paid all
other sums payable hereunder with respect to the Outstanding
Securities of such series and any Coupons appertaining thereto;
and
(3) the Company has delivered to the Trustee a
certificate signed by Independent Public Accountants certifying
as to the sufficiency of the amounts deposited pursuant to
subsections (A)(i) or (ii) of this Section for payment of the
principal of, any premium and interest on and any Additional
Amounts with respect to, such Securities and any Coupons
appertaining thereto on the dates such payments are due, an
Officers' Certificate and an Opinion of Counsel, each such
Certificate and Opinion stating 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 such Securities shall have occurred
and all conditions precedent herein provided for relating to the
satisfaction and discharge of the entire indebtedness on all
Outstanding Securities of any such series and any Coupons
appertaining thereto shall have been complied with; and
(4) the Company has delivered to the Trustee
(A) an opinion of independent counsel that the
Holders of the Securities of such series and any Coupons
appertaining thereto shall have no federal income tax
consequences as a result of such deposit and termination;
and
(B) if the Securities of such series are then
listed on any stock exchange, an opinion of independent
counsel that the Securities of such series shall not be
delisted as a result of the exercise of this option.
Any deposits with the Trustee referred to in subsection
(1)(A) of this Section shall be irrevocable and shall be made under
the terms of an escrow trust agreement in form and substance
satisfactory to the Trustee. If any Outstanding Securities of such
series are to be redeemed prior to their Stated Maturity, whether
pursuant to any optional redemption provisions or in accordance with
any mandatory sinking fund requirement or otherwise, the Company shall
make such arrangements as are satisfactory to the Trustee for the
giving of
notice of redemption by the Trustee in the name, and at the expense,
of the Company.
Upon the satisfaction of the conditions set forth in this
Section 402 with respect to all the Outstanding Securities of any
series and any Coupons appertaining thereto, the terms and conditions
of such series (including the terms and conditions with respect
thereto set forth in this Indenture, other than the provisions of
Sections 305, 306, and 1002 and other than the right of Holders of
Securities of such series and any Coupons appertaining thereto to
receive, from the trust fund described in this Section, payment of the
principal of, any premium or the interest on, or any Additional
Amounts with respect to such Securities and any Coupons appertaining
thereto when such payments shall be due) and the rights, powers,
duties and immunities of the Trustee hereunder shall no longer be
binding upon, or applicable to, the Company; provided that the Company
shall not be discharged from any payment obligations in respect of
Securities of such series or any Coupons appertaining thereto which
are deemed not to be Outstanding under clause (iii) of the definition
of Outstanding if such obligations continue to be valid obligations of
the Company under applicable law.
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
and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent) as
the Trustee may determine, to the Persons entitled thereto, of the
principal, 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 be effected by operation of law 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 or Board Resolution creating a particular series of
Securities or in the Officers' Certificate for such series:
(1) default in the payment of any interest on or any
Additional Amounts payable in respect of any Security of such
series when such interest becomes or such Additional Amounts
become due and payable, and continuance of such default for a
period of 30 days; or
(2) default in the payment of the principal of and any
premium on any Security of such series when it becomes due and
payable at its Maturity; or
(3) default in the deposit of any sinking fund payment,
when and as due by the terms of a Security of such series; or
(4) default in the performance, or breach, of any covenant
or warranty of the Company in this Indenture or the Securities
(other than a covenant or warranty a default in the performance
or the breach of which is elsewhere in this Section specifically
dealt with or which has been expressly included in this Indenture
solely for the benefit of a series of Securities 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 by the Trustee or to the Company 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) if any event of default as defined in any mortgage,
indenture or instrument under which there may be issued, or by
which there may be secured or evidenced, any Indebtedness of the
Company or any Material Subsidiary, whether such Indebtedness now
exists or shall hereafter be created, shall happen and shall
result in such Indebtedness in principal amount in excess of
$10,000,000 becoming or being declared due and payable prior to
the date on which it would otherwise become due and payable, and
such acceleration shall not be rescinded or annulled, or such
Indebtedness shall not have been discharged, within a period of
30 days after there shall have been given, by registered or
certified mail, to the Company by the Trustee or to the Company
and the Trustee by the Holders of at least 25% in principal
amount of the Outstanding Securities of such series, a written
notice specifying such event of default and requiring the Company
to cause such acceleration to be rescinded or annulled or to
cause such Indebtedness to be discharged and stating that such
notice is a "Notice of Default" hereunder; or
(6) the entry by a court having competent jurisdiction of:
(a) a decree or order for relief in respect of the
Company or any Material Subsidiary in an involuntary
proceeding under any applicable bankruptcy, insolvency,
reorganization or other similar law and such decree or order
shall remain unstayed and in effect for a period of 60
consecutive days; or
(b) a decree or order adjudging the Company or any
Material Subsidiary to be insolvent, or approving a petition
seeking reorganization, arrangement, adjustment or
composition of the Company or any Material Subsidiary and
such decree or order shall remain unstayed and in effect for
a period of 60 consecutive days; or
(c) a final and non-appealable order appointing a
custodian, receiver, liquidator, assignee, trustee or other
similar official of the Company or any Material Subsidiary
or of any substantial part of the property of the Company or
any Material Subsidiary, as the case may be, or ordering the
winding up or liquidation of the affairs of the Company or
any Material Subsidiary; or
(7) the commencement by the Company or any Material
Subsidiary of a voluntary proceeding under any applicable
bankruptcy, insolvency, reorganization or other similar law or of
a voluntary proceeding seeking to be adjudicated insolvent or the
consent by the Company or any Material Subsidiary to the entry of
a decree or order for relief in an involuntary proceeding under
any applicable bankruptcy, insolvency, reorganization or other
similar law or to the commencement of any insolvency proceedings
against it, or the filing by the Company or any Material
Subsidiary of a petition or answer or consent seeking
reorganization or relief under any applicable law, or the consent
by the Company or any Material Subsidiary to the filing of such
petition or to the appointment of or taking possession by a
custodian, receiver, liquidator, assignee, trustee or similar
official of the Company or any Material Subsidiary or any
substantial part of the property of the Company or any Material
Subsidiary or the making by the Company or any Material
Subsidiary of an assignment for the benefit of creditors, or the
taking of corporate action by the Company or any Material
Subsidiary in furtherance of any such action; or
(8) any other Event of Default provided in or pursuant to
this Indenture with respect to Securities of such series.
Section 502. Acceleration of Maturity; Rescission and
Annulment.
If an Event of Default with respect to Securities of any
series at the time Outstanding occurs and is continuing, then the
Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities of such series may declare the principal 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 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.
At any time after such a declaration of acceleration with
respect to Securities of any series has been made and before a
judgment or decree for payment of the money due has been obtained by
the Trustee as hereinafter in this Article provided, the Holders of
not less than a majority in principal amount of the Outstanding
Securities of such series, by written notice to
the Company and the Trustee, may rescind and annul such declaration
and its consequences if
(1) the Company has paid or deposited with the Trustee a
sum of money sufficient to pay
(A) all overdue installments of any interest on and
Additional Amounts with respect to all Securities of such
series and any Coupon appertaining 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 interest thereon and any
Additional Amounts with respect thereto at the rate or rates
borne by or provided for in such Securities,
(C) to the extent that payment of such interest or
Additional Amounts is lawful, interest upon overdue
installments of any interest and Additional Amounts 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 605; 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 30 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 605.
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 or any other obligor upon such Securities and any
Coupons appertaining thereto and collect the moneys adjudged or
decreed to be payable in the manner provided by law out of the
property of the Company or any other obligor upon 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 or
any other obligor upon the Securities or the property of the Company
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 for
the payment of any overdue principal, premium, interest or Additional
Amounts) shall be entitled and empowered, by intervention in such
proceeding or otherwise,
(i) 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 all other amounts due the Trustee
under Section 605) and of the Holders of Securities or any
Coupons allowed in such judicial proceeding, and
(ii) 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 605.
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.
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 and any other amounts due the Trustee under Section 605, 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.
Any money collected by the Trustee pursuant to this Article
shall be applied in the following order, at the date or dates fixed by
the Trustee and, in case of the distribution of such money on account
of principal, or any premium, 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 605;
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, 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 Sections 305 and 307) interest on, and any
Additional Amounts with respect to, such Security or payment of 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 date such repayment is due) and to institute
suit for the enforcement of any such payment, and such right 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 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.
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 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 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 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 any
series,
(2) the Trustee may take any other action deemed proper by
the Trustee which is not inconsistent with such direction, and
(3) such direction is not unduly prejudicial to the rights
of the other Holders of Securities of such series not joining in
such action.
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 Stay or Extension Laws.
The Company 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
stay or extension law wherever enacted, now or at any time hereafter
in force, which may affect the covenants or the performance of this
Indenture; and the Company expressly waives (to the extent that it may
lawfully do so) all benefit or advantage of any such law and covenant
that it will not hinder, delay or impede the execution of any power
herein granted to the Trustee, but will suffer and permit the
execution of every such power as though no such law had been enacted.
ARTICLE SIX
THE TRUSTEE
Section 601. Certain Rights of Trustee.
Subject to Sections 315(a) through 315(d) of the Trust
Indenture Act:
(a) the Trustee may rely and shall be protected in acting
or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, coupon 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;
(b) any request or direction of the Company mentioned
herein shall be sufficiently evidenced by a Company Request or a
Company Order (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 may be sufficiently
evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or
established prior to taking, suffering or omitting any action
hereunder, the Trustee (unless other evidence shall be herein
specifically prescribed) may, in the absence of bad faith on its
part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full
and complete authorization and protection in respect of any
action taken, suffered or omitted by it hereunder in good faith
and in reliance thereon;
(e) the Trustee 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;
(f) the Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, coupon 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, personally or by
agent or attorney; and
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by
or through agents or attorneys and the Trustee shall not be
responsible for any misconduct or
negligence on the part of any agent or attorney appointed with
due care by it hereunder;
(h) except as otherwise required by the Trust Indenture
Act, no provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or
in the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not
reasonably assured to it;
(i) except as otherwise required by the Trust Indenture
Act, the Trustee shall not be charged with knowledge of any
default or Event of Default with respect to the Securities of any
series for which it is acting as Trustee unless either (1) a
Responsible Officer shall have actual knowledge of such default
or Event of Default or (2) written notice of such default or
Event of Default shall have been given to the Trustee by the
Company or any other obligor on such Securities or by any Holder
of such Securities; and
(j) except as otherwise required by the Trust Indenture
Act, the Trustee shall not be liable for any action taken,
suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred
upon it by this Indenture.
Section 602. 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 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 the Coupons,
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 603. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any
Security Registrar or any other Person that may be an agent of the
Trustee or the Company, 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 with the same rights it would have if it were not
Trustee, Authenticating Agent, Paying Agent, Security Registrar or
such other Person.
Section 604. 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.
Section 605. Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Trustee from time to time reasonable
compensation 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 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.
All such payments and reimbursements shall be due 30 days
after receipt of an invoice therefor and, if not paid when due, shall
bear interest at the Trustee's prime lending rate, as such rate is
announced from time to time. As security for the performance of the
obligations of the Company under this Section, 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.
When the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 501(6) and
(7), the expenses and the compensation for the services are intended
to constitute expenses of administration under any bankruptcy law.
The Company's obligations under this Section 605 and any
lien arising hereunder shall survive the resignation or removal of any
Trustee, the discharge of the Company's obligations pursuant to
Article Four of this Indenture and/or the termination of this
Indenture.
Section 606. 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 of America, any state thereof or the District of Columbia,
permitted by 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. If at
any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner
and with the effect hereinafter specified in this Article.
Section 607. Resignation and Removal; Appointment of
Successor.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall
become effective until the acceptance of appointment by the successor
Trustee pursuant to Section 608.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to
the Company. If the instrument of acceptance by a successor Trustee
required by Section 608 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 such series.
(c) The Trustee may be removed at any time with respect to
the Securities of any series by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series,
delivered to the Trustee and the Company.
(d) If at any time:
(1) 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 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
(2) the Trustee shall cease to be eligible under
Section 606 and shall fail to resign after written request
therefor by the Company or any such Holder, or
(3) the Trustee shall become incapable of acting or
shall be adjudged a bankrupt or insolvent or a receiver of
the Trustee or of its property shall be appointed or any
public officer shall take charge or control of the Trustee
or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company, by 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.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of
Trustee for any cause, with respect to the Securities of one or more
series, the Company, by 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 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
608. 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 608, 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 608, 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.
(f) 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 such 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.
Section 608. Acceptance of Appointment by Successor.
(a) 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 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 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 605.
(b) Upon the appointment hereunder of any successor Trustee
with respect to the Securities of one or more (but not all) series,
the Company, 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 (1) 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, (2) 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
(3) 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 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 such 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 605.
(c) Upon request of any Person appointed hereunder as a
successor Trustee, the Company shall execute any and all instruments
for more fully and certainly vesting in and confirming to such
successor Trustee all such rights, powers and trusts referred to in
paragraph (a) or (b) of this Section, as the case may be.
(d) No 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.
Section 609. Merger, Conversion, Consolidation or
Succession to Business.
Any Corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any Corporation
resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any
Corporation succeeding to all or substantially all of the corporate
trust business of the Trustee, shall be the successor of the Trustee
hereunder, 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 610. 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 pursuant to Section 306, and Securities so authenticated shall be
entitled to the benefits of this Indenture and shall be valid and
obligatory for all purposes as if authenticated by the Trustee
hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the
Trustee's certificate of authentication, such reference shall be
deemed to include authentication and delivery on behalf of the Trustee
by an Authenticating Agent and a certificate of authentication
executed on behalf of the Trustee by an Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Company
and, 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 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.
An Authenticating Agent may resign at any time by giving
written notice thereof to the Trustee and the Company. The Trustee
may at any time terminate the agency of an Authenticating Agent by
giving written notice thereof to such Authenticating Agent and the
Company. Upon receiving such a notice of resignation or upon such a
termination, or in case at any time such Authenticating Agent shall
cease to be eligible in accordance with the provisions of this
Section, the Trustee may appoint a successor Authenticating Agent
which shall be acceptable to the Company and shall (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
605.
The provisions of Sections 308, 602 and 603 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 the following form:
This is one of the Securities of the series designated
herein referred to in the within-mentioned Indenture.
CHEMICAL BANK,
As Trustee
By
---------------------
As Authenticating Agent
By
---------------------
Authorized Officer
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 an Authenticating Agent having an office in a Place
of Payment designated by the Company with respect to such series of
Securities.
ARTICLE SEVEN
HOLDER'S LISTS AND REPORTS BY TRUSTEE, AND COMPANY
Section 701. Company to Furnish Trustee Names and
Addresses of Holders.
In accordance with Section 312(a) of the Trust Indenture
Act, the Company shall furnish or cause to be furnished to the
Trustee:
(a) semi-annually with respect to Securities of each
series on May 15 and November 15 of the year 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, in each case in such form
as the Trustee may reasonably require, of the names and
addresses of Holders as of the applicable date, and
(b) at such other times as the Trustee may request in
writing, within 30 days after the receipt by the Company of
any such request, a list of similar form and content as of a
date not more than 15 days prior to the time such list is
furnished,
provided, however, that so long as the Trustee is the Security
Registrar no such list shall be required to be furnished.
Section 702. Preservation of Information; Communications
to Holders.
The Trustee shall comply with the obligations imposed upon
it pursuant to Section 312 of the Trust Indenture Act.
Every Holder of Securities or Coupons, by receiving and
holding the same, agrees with the Company and the Trustee that neither
the Company, the Trustee, any Paying Agent or any Security Registrar
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 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.
(a) Within 60 days after May 15 of each year commencing
with the first May 15 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 May 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
May 15 and the date of this Indenture.
(b) The Trustee shall transmit the reports required by
Section 313(a) of the Trust Indenture Act at the times specified
therein.
(c) 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.
The Company, pursuant to Section 314(a) of the Trust
Indenture Act, shall:
(1) file with the Trustee, within 15 days after the
Company is required to file the same with the Commission,
copies of the annual reports and of the information,
documents and other reports (or copies of such portions of
any of the foregoing as the Commission may from time to time
by rules and regulations prescribe) which the Company may be
required to file with the Commission pursuant to Section 13
or Section 15(d) of the Securities Exchange Act of 1934; or,
if the Company is not required to file information,
documents or reports pursuant to either of said Sections,
then it 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 Securities Exchange
Act of 1934 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, as the case may be, 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 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 AND SALES
Section 801. Company May Consolidate, Etc., Only on
Certain Terms.
Nothing contained in this Indenture or in any of the
Securities shall prevent any consolidation or merger of the Company
with or into any other Person or Persons (whether or not affiliated
with the Company), or successive consolidations or mergers in which
the Company or its successor or successors shall be a party or
parties, or shall prevent any conveyance, transfer or lease of the
property of the Company as an entirety or substantially as an
entirety, to any other Person (whether or not affiliated with the
Company); provided, however, that:
(1) in case the Company shall consolidate with or
merge into another Person or convey, transfer or lease its
properties and assets substantially as an entirety to any
Person, the entity formed by such consolidation or into
which the Company is merged or the Person which acquires by
conveyance or transfer, or which leases, the properties and
assets of the Company substantially as an entirety shall be
a Corporation organized and existing under the laws of the
United States of America, any state thereof or the District
of Columbia and shall expressly assume, by an indenture (or
indentures, if at such time there is more than one Trustee)
supplemental hereto, executed by the successor Person and
delivered to the Trustee, in form satisfactory to the
Trustee, the due and punctual payment of the principal of,
any premium and interest on and any Additional Amounts with
respect to, all the Securities and the performance of every
other covenant of this Indenture on the part of the Company
to be performed or observed;
(2) immediately after giving effect to such
transaction, no event which, after notice or lapse of time,
would become an Event of Default, shall have occurred and be
continuing;
(3) either the Company or the successor Person shall
have delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that such consolidation,
merger, conveyance, transfer or lease and 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 Person Substituted for Company.
Upon any consolidation or merger or any conveyance, transfer
or lease of the properties and assets of the Company substantially as
an entirety to any Person in accordance with Section 801, the
successor Person formed by such consolidation or into which the
Company is merged or to which such conveyance, transfer or lease is
made shall succeed to, and be substituted for, and may exercise every
right and power of, the Company under this Indenture with the same
effect as if such successor Person had been named as the Company
herein; and thereafter, except in the case of a lease to another
Person, the predecessor Person shall be released from all obligations
and covenants under this Indenture, the Securities and the Coupons.
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) 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, and the assumption by any such successor of the
covenants of the Company herein and in the Securities; or
(2) to add to the covenants of the Company for the
benefit of the Holders of all or any series of Securities
(as shall be specified in such supplemental indenture or
indentures) or to surrender any right or power herein
conferred upon the Company; 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 Registered Securities to be exchanged
for Bearer Securities, to permit Bearer Securities to be
exchanged for Bearer Securities of other 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
(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 608; 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 or any
Coupons appertaining thereto in any material respect; or
(7) to add to, delete from or revise the conditions,
limitations and restrictions on the authorized amount, terms
or purposes of issue, authentication and delivery of
Securities, as herein set forth; or
(8) to add any additional Events of Default with
respect to all or any series of Securities (as shall be
specified in such supplemental indenture); or
(9) 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
(10) to secure the Securities pursuant to Section 1005
or otherwise; or
(11) to amend or supplement any provision contained
herein or in any supplemental indenture, provided that no
such amendment or supplement shall materially adversely
affect the interests of the Holders of any Securities then
Outstanding.
Section 902. Supplemental Indentures with Consent of
Holders.
With the consent of the Holders of not less than 66-2/3% in
principal amount of the Outstanding Securities of each series affected
by such supplemental indenture, by Act of said Holders delivered to
the Company and the Trustee, the Company (when authorized by or
pursuant to a Company's Board Resolution), and the Trustee may enter
into an Indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any
of the provisions of this indenture or of modifying in any manner the
rights of the Holders of Securities of such series under this
Indenture; provided, however, that no such supplemental indenture,
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 interest on or any Additional
Amounts with respect to, any Security, or reduce the
principal amount thereof or the 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 (except as contemplated by Section 801(1) and permitted
by Section 901(1)), or reduce the amount of the principal of
an Original Issue Discount Security that would be due and
payable upon a declaration of acceleration of the Maturity
thereof pursuant to Section 502 or the amount thereof
provable in bankruptcy pursuant to Section 504, or adversely
affect the right of repayment at the option of any Holder as
contemplated by Article Thirteen, or change the Place of
Payment, Currency in which the principal of, any premium or
interest on, or any Additional Amounts with respect to any
Security 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 date for
repayment), 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
1504 for a quorum or voting, or
(3) modify any of the provisions of this Section, or
Section 513 or Section 1008, 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.
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 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.
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 shall so determine, new
Securities of any series so modified as to conform, in the opinion of
the Trustee and the Company, to any such supplemental indenture may be
prepared and executed by the Company and authenticated and delivered
by the Trustee in exchange for Outstanding Securities of such series.
ARTICLE TEN
COVENANTS
Section 1001. Payment of Principal and any Premium,
Interest and Additional Amounts.
The Company covenants and agrees for the benefit of the
Holders of the Securities of each series 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 such 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 shall maintain in each Place of Payment for any
series of Securities an Office or Agency where Securities of such
series (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 and
where notices and demands to or upon the Company 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 for such
series which is located outside the United States where Securities of
such series and any Coupons appertaining thereto may be presented and
surrendered for payment; provided, however, that if the Securities of
such series are listed on The Stock Exchange of the United Kingdom and
the Republic of Ireland 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
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 will give prompt
written notice to the Trustee of the location, and any change in the
location, of such Office or Agency. If at any time the Company shall
fail to maintain any such required Office or Agency
or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served
at the Corporate Trust Office of the Trustee, except that Bearer
Securities of such series and any Coupons appertaining thereto may be
presented and surrendered for payment at the place specified for the
purpose with respect to such Securities as provided in or pursuant to
this Indenture, and the Company hereby appoints the Trustee as its
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 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, 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 may be made 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 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.
The Company may also from time to time designate one or more
other Offices or Agencies where the Securities of one or more series
may be presented or surrendered for any or all such purposes and may
from time to time rescind such designations; provided, however, that
no such designation or rescission shall in any manner relieve the
Company of their obligation to maintain an Office or Agency in each
Place of Payment for Securities of any series for such purposes. The
Company 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 hereby designates as the Place of
Payment for each series the Borough of Manhattan, The City of New
York, and initially appoints the Office or Agency of the Corporate
Trust Office of the Trustee for such purpose. Pursuant to Section
301(9) of this Indenture, the Company may subsequently appoint a place
or places in the Borough of Manhattan, The City of New York where such
Securities may be payable.
Section 1003. Money for Securities Payments to Be Held in
Trust.
If the Company shall at any time act as its own Paying Agent
with respect to any series of Securities, it 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 of Money 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 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 of Money 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 will promptly
notify the Trustee of its action or failure so to act.
The Company 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 any other obligor upon the Securities of such
series) in the making of any payment of principal, any
premium or interest on or any Additional Amounts with
respect to the Securities of such series; and
(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.
The Company may at any time, for the purpose of obtaining
the satisfaction and discharge of this Indenture or for any other
purpose, pay, or by Company Order direct any Paying Agent to pay, to
the Trustee all sums held in trust by the Company or such Paying
Agent, such sums to be held by the Trustee upon the same terms as
those upon which such sums were held by the Company or such Paying
Agent; and, upon such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect
to such Money.
Except as otherwise provided herein or pursuant hereto, any
Money deposited with the Trustee or any Paying Agent, or then held by
the Company, in trust for the payment of the principal of, any premium
or interest on or any Additional Amounts with respect to, any Security
of any series 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
on Company Request, or (if then held by the Company) shall be
discharged from such trust; and the Holder of such Security or any
Coupon appertaining thereto shall thereafter, as an unsecured general
creditor, look only to the Company for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such
trust Money, and all liability of the Company as trustee thereof,
shall thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at
the expense of the Company cause to be published once, in 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 nor shall it be later than two years
after such principal and any premium or interest or Additional Amounts
shall have become due and payable, any unclaimed balance of such Money
then remaining will be repaid to the Company.
Section 1004. Additional Amounts.
If any Securities of a series provide for the payment of
Additional Amounts, the Company agrees to pay to the Holder of any
such Security or any Coupon appertaining thereto Additional Amounts as
provided therein. 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
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, 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 or interest on the Securities of such series shall be made to
Holders of Securities of such series or the Coupons appertaining
thereto who are United States Aliens without withholding for or on
account of any tax, assessment or other governmental charge 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 by the
terms of such Securities. The Company covenants to indemnify the
Trustee and any Paying Agent 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.
[Intentionally Omitted]
Section 1006.
[Intentionally Omitted]
Section 1007. Corporate Existence.
Subject to Article Eight, the Company shall do or cause to
be done all things necessary to preserve and keep in full force and
effect its corporate existence and that of each Material Subsidiary
and their respective rights (charter and statutory) and franchises;
provided, however, that the foregoing shall not obligate the Company
or any Material Subsidiary to preserve any such right or franchise if
the Company or any Material Subsidiary shall determine that the
preservation thereof is no longer desirable in the conduct of its
business or the business of such Material Subsidiary and that the loss
thereof is not disadvantageous in any material respect to any Holder.
Section 1008. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply
with any term, provision or condition set forth in Section 1007 with
respect to the Securities of any series if before the time for such
compliance the Holders of at least a majority in principal amount of
the Outstanding Securities of such series, by Act of such Holders,
either shall waive such compliance in such instance or generally shall
have waived compliance with such term, provision or condition, but no
such waiver shall extend to or affect such term, provision or
condition except to the extent so expressly waived, and, until such
waiver shall become effective, the obligations of the Company and the
duties of the Trustee in respect of any such term, provision or
condition shall remain in full force and effect.
Section 1009. Company Statement as to Compliance; Notice of
Certain Defaults.
(a) The Company shall deliver to the Trustee, within 120
days after the end of each fiscal year, a written statement (which
need not be contained in or accompanied by an Officers' Certificate)
signed by the principal executive officer, the principal financial
officer or the principal accounting officer of the Company, stating
that
(1) a review of the activities of the Company during
such year and of its 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 has complied with all the conditions
and covenants imposed on it under this Indenture throughout
such year, or, if there has been a default in the
fulfillment of any such condition or covenant, 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 and the nature and status thereof.
(b) The Company shall deliver to the Trustee, within five
days after the occurrence thereof, written notice of any Event of
Default or any event which after notice or lapse of time or both would
become an Event of Default pursuant to clause (4) of Section 501.
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 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.
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, with the same issue date, interest rate, Stated Maturity and
other terms, the Company shall, at least 60 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.
Section 1103. Selection by Trustee of Securities to be
Redeemed.
If less than all the Securities of any series with the same
issue date, interest rate, Stated Maturity and other terms are to be
redeemed, the particular Securities to be redeemed shall be selected
not more than 60 days prior to the Redemption Date by the Trustee from
the Outstanding Securities of such series not previously called for
redemption, by such method as the Trustee shall deem fair and
appropriate 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 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 in the manner provided
in Section 106, not less than 30 nor more than 60 days prior to the
Redemption Date, unless a shorter period is specified in the
Securities to be redeemed, to the Holders of Securities to be
redeemed. 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 state:
(1) the Redemption Date,
(2) the Redemption Price,
(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) 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,
(7) that the redemption is for a sinking fund, if such
is the case,
(8) 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,
(9) 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
(10) the CUSIP 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).
A notice of redemption published as contemplated by Section
106 need not identify particular Registered Securities to be redeemed.
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 any Redemption Date, the Company shall
deposit with the Trustee or with a Paying Agent (or, if the Company is
acting as its own Paying Agent, segregate and hold in trust as
provided in Section 1003) an amount of money sufficient to pay the
Redemption Price of, and (except if the Redemption Date shall be an
Interest Payment Date) any accrued interest on and Additional Amounts
with respect thereto, all the Securities or portions thereof which are
to be redeemed on that date.
Section 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the
Securities so to be redeemed shall, on the Redemption Date, become due
and payable at the Redemption Price therein specified, and from and
after such date (unless the Company shall default in the payment of
the Redemption Price and accrued interest) such Securities shall cease
to bear interest 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 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 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 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.
Section 1107. Securities Redeemed in Part.
Any Registered Security which is to be redeemed only in part
shall be surrendered at any 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 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
SINKING FUNDS
Section 1201. Applicability of Article.
The provisions of this Article shall be applicable to any
sinking fund for the retirement of Securities of a series, except as
otherwise permitted or required by any form of 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 1202. Each sinking fund payment shall be applied to the
redemption of Securities of any series as provided for by the terms of
Securities of such series.
Section 1202. Satisfaction of Sinking Fund Payments with
Securities.
The Company 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 pursuant to the terms of such Securities, provided that
such series of 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 1202, 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 1203. 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 1202, 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 less than 30 days before each such sinking
fund payment date the Trustee shall select the Securities to be
redeemed upon such sinking fund payment date in the manner specified
in Section 1103 and cause notice of the redemption thereof to be given
in the name of and at the expense of the Company in the manner
provided in Section 1104. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the
manner stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
Section 1301. Applicability of Article.
Securities of any series which are repayable at the option
of the Holders thereof before their Stated Maturity shall be repaid in
accordance with the terms of the Securities of such series. The
repayment of any principal amount of Securities pursuant to such
option of the Holder to require repayment of Securities before their
Stated Maturity, for purposes of Section 309, shall not operate as a
payment, redemption or satisfaction of the indebtedness represented by
such Securities unless and until the Company, at its option, shall
deliver or surrender the same to the Trustee with a directive that
such Securities be cancelled. Notwithstanding anything to the contrary
contained in this Section 1301, in connection with any repayment of
Securities, the Company may arrange for the purchase of any Securities
by an agreement with one or more investment bankers or other
purchasers to purchase such Securities by paying to the Holders of
such Securities on or before the close of business on the repayment
date an amount not less than the repayment price payable by the
Company on repayment of such Securities, and the obligation of the
Company to pay the repayment price of such Securities shall be
satisfied and discharged to the extent such payment is so paid by such
purchasers.
ARTICLE FOURTEEN
SECURITIES IN FOREIGN CURRENCIES
Section 1401. Applicability of Article.
Whenever this Indenture provides for (i) any action by, or
the determination of any of the rights of, Holders of Securities of
any series in which not all of such Securities are denominated in the
same Currency, or (ii) any distribution to Holders of Securities, in
the absence of any provision to the contrary in the form of Security
of any particular series, any amount in respect of any Security
denominated in a Currency other than Dollars shall be treated for any
such action or distribution as that amount of Dollars that could be
obtained for such amount on such reasonable basis of exchange and as
of the record date with respect to Registered Securities of such
series (if any) for such action, determination of rights or
distribution (or, if there shall be no applicable record date, such
other date reasonably proximate to the date of such action,
determination of rights or distribution) as the Company may specify in
a written notice to the Trustee or, in the absence of such written
notice, as the Trustee may determine.
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
Section 1501. 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 to
make, give or take any request, demand, authorization, direction,
notice, consent, waiver or other action provided by this Indenture to
be made, given or taken by Holders of Securities of such series.
Section 1502. Call, Notice and Place of Meetings.
(a) The Trustee may at any time call a meeting of Holders
of Securities of any series for any purpose specified in Section 1501,
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.
(b) 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 1501, by written request setting
forth in reasonable detail the action proposed to be taken at the
meeting, and the Trustee shall not have made the first publication of
the notice of such meeting within 21 days after receipt of such
request 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
subsection (a) of this Section.
Section 1503. 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 1504. 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 not less than 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 shall 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 1502(a), 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 not less than 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 action 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 1505. Determination of Voting Rights; Conduct and
Adjournment of Meetings.
(a) 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.
(b) The Trustee shall, by an instrument in writing, appoint
a temporary chairman of the meeting, unless the meeting shall have
been called by the Company or by Holders of Securities as provided in
Section 1502(b), in which case the Company 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.
(c) 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.
(d) Any meeting of Holders of Securities of any series duly
called pursuant to Section 1502 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 1506. 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 1502 and, if applicable,
Section 1504. 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, 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.
* * * * *
This instrument may be executed in any number of
counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but one
and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate seals to
be hereunto affixed, all as of the day and year first above written.
[SEAL] FRANKLIN RESOURCES, INC.
Attest:
By
----------------------------- ---------------------------------
Name:
Title:
[SEAL] CHEMICAL BANK,
as Trustee
Attest:
By
----------------------------- ---------------------------------
Name:
Title:
STATE OF _________)
: SS.:
COUNTY OF ________)
On the _____ day of , 1994, before me
----------------
personally came _______________, to me known, who, being by me duly
sworn, did depose and say that he is a _____________ of Franklin
Resources, Inc., a Delaware 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]
STATE OF _________)
: SS.:
COUNTY OF ________)
On the _____ day of , 1994, before me
----------------
personally came _______________, to me known, who, being by me duly
sworn, did depose and say that he is a _____________ of Chemical Bank,
a banking corporation organized and existing under the laws of the
State of New York, 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]