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As filed with the Securities and Exchange Commission on April 14, 1994
Registration No. 33-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-------------------
FORM S-3
REGISTRATION STATEMENT
UNDER THE
SECURITIES ACT OF 1933
-------------
FRANKLIN RESOURCES, INC.
(Exact Name of Registrant as Specified in its Charter)
Delaware 13-2670991
(State or Other Jurisdiction (I.R.S. Employer Identification No.)
of Incorporation or
Organization)
777 Mariners Island Blvd.
San Mateo, California 94404
(415) 312-3000
(Address, Including Zip Code, and Telephone Number,
including Area Code, of Registrant's Principal Executive Offices)
Leslie M. Kratter
Vice President and
Assistant Secretary
Franklin Resources, Inc.
777 Mariners Island Blvd.
San Mateo, California 94404
(415) 312-3000
(Name and Address, Including Zip Code,
and Telephone Number, Including Area Code, of Agent For Service)
Copies to:
Jeffrey E. Tabak, Esq. Norman D. Slonaker, Esq.
Weil, Gotshal & Manges Brown & Wood
767 Fifth Avenue One World Trade Center
New York, New York 10153 New York, New York 10048
(212) 310-8000 (212) 839-5300
Approximate date of commencement of proposed sale of the securities to the
public: From time to time after this Registration Statement becomes effective.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box. [_]
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. [x]
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<CAPTION>
CALCULATION OF REGISTRATION FEE
Proposed Maximum Proposed Maximum
Title of Each Class of Securities to Amount to be Offering Price Per Aggregate Offering Amount of
be Registered Registered Unit* Price* Registration Fee
<S> <C> <C> <C> <C>
Debt Securities . . . . . . . . . . . $300,000,000** 100%* $300,000,000 $103,449
<FN>
* Estimated solely for the purpose of determining the registration fee. The registrant reserves the right to issue Debt
Securities in series having varying principal amounts and offering prices. Nevertheless, the maximum aggregate offering
price of the Debt Securities will not exceed the amount to be registered set forth above.
** Such amount shall be increased, if any Debt Securities are issued at an original issue discount, by an amount such that
the net proceeds to be received by the Registrant shall be equal to the above amount to be registered. Any offering of Debt
Securities denominated other than in U.S. dollars will be treated as the equivalent in U.S. dollars based on the official
exchange rate applicable to the purchase of such Debt Securities from the Registrant.
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(Cover Page continued on next page)<PAGE>
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The registrant hereby amends this registration statement on such date or
dates as may be necessary to delay its effective date until the registrant
shall file a further amendment which specifically states that this
registration statement shall thereafter become effective in accordance with
Section 8(a) of the Securities Act of 1933 or until the registration
statement shall become effective on such date as the Securities and
Exchange Commission, acting pursuant to said Section 8(a), may determine.
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INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED
WITH THE SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT
BE SOLD NOR MAY OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE
REGISTRATION STATEMENT BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT
CONSTITUTE AN OFFER TO SELL OR THE SOLICITATION OF AN OFFER TO BUY NOR
SHALL THERE BE ANY SALE OF THESE SECURITIES IN ANY STATE IN WHICH SUCH
OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR TO REGISTRATION OR
QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
SUBJECT TO COMPLETION, DATED April 14, 1994
PROSPECTUS
FRANKLIN RESOURCES, INC.
DEBT SECURITIES
Franklin Resources, Inc. (the "Company") may, from time to time,
offer or solicit offers to purchase its unsecured debt securities (the
"Debt Securities") in an aggregate principal amount (or net proceeds
in the case of securities issued at an original issue discount) not to
exceed $300,000,000 or, if applicable, the equivalent thereof in one
or more foreign or composite currencies. The Debt Securities may be
offered in one or more series with the same or various maturities on
terms to be determined at the time of sale.
The specific designation, aggregate principal amount, authorized
denominations, purchase price, maturity, rate or rates (which may be
fixed or variable), and time of payment of any interest, any terms for
mandatory or optional redemption (including any sinking fund), any
listing on a securities exchange and any other specific terms of the
Debt Securities in respect of which this Prospectus is being
delivered, together with the terms of offering of such Debt
Securities, will be set forth in one or more supplements to this
Prospectus (each, a "Prospectus Supplement") and one or more pricing
supplements (each, a "Pricing Supplement") accompanying this
Prospectus. The Prospectus Supplement will also contain information,
where applicable, about certain U.S. federal income tax, accounting
and other considerations relating to the Debt Securities covered by
it. As used herein, Debt Securities shall include debt securities
denominated in United States dollars or, if so specified in an
applicable Prospectus Supplement, in any other currency or in
composite currencies or in amounts determined by reference to an
index. See "Description of Debt Securities."
____________________
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED
BY THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE
SECURITIES COMMISSION NOR HAS THE SECURITIES AND EXCHANGE
COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS.
ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
The Debt Securities may be offered through underwriters, agents
or dealers, or directly to purchasers by the Company or subsidiaries
of the Company. Such underwriters, agents or dealers may include, and
may include a group of underwriters managed by one or both of, Merrill
Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated and
Goldman, Sachs & Co. If an underwriter, agent or dealer is involved
in the offering of any Debt Securities, the underwriter's discount,
agent's commission or dealer's purchase price will be described in an
applicable Prospectus Supplement, and the net proceeds to the Company
from such offering will be the public offering price of the offered
Debt Securities less such discount in the case of an underwriter, the
purchase price of the offered Debt Securities less such commission in
the case of an agent or the purchase price of the offered Debt
Securities in the case of a dealer, and less, in each case, the other
expenses of the Company associated with the issuance and distribution
of such Debt Securities. See "Plan of Distribution."
____________________
THIS PROSPECTUS MAY NOT BE USED TO CONSUMMATE SALES OF
DEBT SECURITIES UNLESS ACCOMPANIED BY A PROSPECTUS SUPPLEMENT
____________________
The date of this Prospectus is ______________, 1994.
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AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and,
in accordance therewith, files annual and quarterly reports, proxy
statements and other information with the Securities and Exchange
Commission (the "Commission"). Such reports, proxy statements and
other information may be inspected and copied at the public reference
facilities maintained by the Commission at Room 1024, 450 Fifth
Street, N.W., Judiciary Plaza, Washington, D.C. 20549, and at the
Commission's Regional Offices in New York (Seven World Trade Center,
13th Floor, New York, New York 10048), and Chicago (500 West Madison
Street, Suite 1400, Chicago, Illinois 60661-2511). Copies of these
materials may be obtained from the Public Reference Section of the
Commission, 450 Fifth Street, N.W., Washington, D.C. 20549, at
prescribed rates. In addition, reports, proxy statements and other
information concerning the Company may be inspected at the offices of
the New York Stock Exchange, Inc., 20 Broad Street, New York, New York
10005 and the Pacific Stock Exchange, Incorporated, 115 Sansome
Street, Suite 1104, San Francisco, California 94104.
This Prospectus constitutes a part of a Registration Statement
filed by the Company with the Commission under the Securities Act of
1933, as amended (the "Securities Act"). This Prospectus omits
certain of the information contained in the Registration Statement in
accordance with the rules and regulations of the Commission.
Reference is hereby made to the Registration Statement and related
exhibits for further information with respect to the Company and the
Debt Securities. Statements contained herein concerning the
provisions of any document are not necessarily complete and, in each
instance, reference is made to the copy of such document filed as an
exhibit to the Registration Statement or otherwise filed with the
Commission. Each such statement is qualified in its entirety by such
reference.
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INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents have been filed by the Company with the
Commission and are incorporated herein by reference: (i) the Company's
Annual Report on Form 10-K for the fiscal year ended September 30,
1993, (ii) the Company's Quarterly Report on Form 10-Q for the quarter
ended December 31, 1993 and (iii) a Current Report on Form 8-K filed
April 14, 1994.
All documents filed by the Company with the Commission pursuant
to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act after the
date hereof and prior to the termination of the offering of the Debt
Securities, shall be deemed to be incorporated by reference into this
Prospectus and to be a part hereof from the date of filing of such
documents. Any statement contained herein or in a document
incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for purposes of this Prospectus to
the extent that a statement contained herein or in any other
subsequently filed document which also is or is deemed to be
incorporated by reference herein, modifies or supersedes such
statement. Any statement or document so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute part
of this Prospectus.
The Company will furnish without charge to each person to whom
this Prospectus is delivered, upon request, a copy of any and all of
the documents described above other than exhibits to such documents
which are not specifically incorporated by reference in such
documents. Written or telephone requests should be directed to:
Harmon E. Burns, Executive Vice President, Legal and Administrative,
Franklin Resources, Inc., 777 Mariners Island Boulevard, San Mateo,
California 94404; telephone number (415) 312-3000.
THE COMPANY
The Company is a diversified financial services holding company
which, primarily through its various domestic and international
subsidiaries principally provides investment management, financial
advisory and related services to mutual funds, closed end investment
companies, private accounts, qualified retirement plans and private
trusts. The Company also provides advisory services to and sponsors
and manages public and private real estate programs, offers consumer
banking services, insured deposits and credit cards and provides
custodial, trustee and fiduciary services to IRA and Keogh plans and
to qualified retirement plans and private trusts.
The wide range of financial services offered by the Company gives
both domestic and international institutional and individual investors
a variety of investment alternatives designed to meet varying
investment objectives, affording customers the opportunity both to
allocate and to modify their investment resources among investment
products as changing economic and market conditions warrant.
The Company's principal office is located at 777 Mariners Island
Boulevard, San Mateo, California 94404 and its telephone number is
(415) 312-3000.
The Company was incorporated under the laws of the State of
Delaware in November 1969, and is the successor by merger to
businesses previously conducted since 1947.
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USE OF PROCEEDS
Unless otherwise specified in the applicable Prospectus
Supplement, the Company intends to use the net proceeds from the sale
of the Debt Securities to repay certain long-term indebtedness,
bearing interest at an effective rate of 4.04% per annum as of March
31, 1994, and maturing on June 28, 1998, and for general corporate
purposes, which may include additions to working capital, the repayment
of short-term indebtedness and investments in, or extensions of credit to,
subsidiaries.
RATIO OF EARNINGS TO FIXED CHARGES
The ratio of earnings to fixed charges was (i) 11.9, 48.9,
1,732.1, 1,979.4 and 676.7 for the fiscal years ended September 30,
1993, 1992, 1991, 1990 and 1989, respectively, and (ii) 12.1 for the
quarter ended December 31, 1993. These ratios were calculated by
dividing the sum of fixed charges into the sum of earnings before
taxes and fixed charges. Fixed charges for these purposes consist of
all interest expense, and certain other immaterial expenses.
DESCRIPTION OF DEBT SECURITIES
The Debt Securities are to be issued under an Indenture (the
"Indenture") to be entered into between the Company and Chemical Bank,
as Trustee (the "Trustee"), a copy of which is filed as an exhibit to
the Registration Statement. The following summaries of certain
provisions of the Indenture do not purport to be complete and are
subject to, and are qualified in their entirety by reference to, all
provisions of the Indenture, including the definitions therein of
certain terms. Wherever particular Sections or defined terms of the
Indenture are referred to, it is intended that such Sections or
defined terms (including, unless otherwise indicated herein,
definitions of terms capitalized in these summaries) shall be
incorporated herein by reference. The following sets forth certain
general terms and provisions of the Debt Securities to which any
Prospectus Supplement may relate. The particular terms of the Debt
Securities offered by any Prospectus Supplement and the extent, if
any, to which such general provisions may apply to the Debt Securities
so offered, will be described in the Prospectus Supplement relating to
such Debt Securities.
The Company's assets consist principally of the stock in its
subsidiaries. Therefore, its rights and the rights of its creditors,
including the holders of Debt Securities, to participate in the assets
of any subsidiary upon the latter's liquidation or recapitalization or
otherwise will be subject to the prior claims of the subsidiary's
creditors, except to the extent that claims of the Company itself as a
creditor of the subsidiary may be recognized. In addition, dividends,
loans and advances from certain subsidiaries to the Company may be
restricted by net capital requirements under the Exchange Act and
under rules of certain regulatory bodies.
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GENERAL
The Indenture does not limit the aggregate principal amount of
Debt Securities which may be issued thereunder and provides that Debt
Securities may be issued from time to time in one or more series. The
Debt Securities will be unsecured obligations of the Company. Neither
the Indenture nor the Debt Securities will limit or otherwise restrict
the amount of other indebtedness which may be incurred or other
securities which may be issued by the Company or any of its
subsidiaries. The Debt Securities will rank on a parity with all
other unsecured unsubordinated indebtedness of the Company.
Reference is made to the Prospectus Supplement relating to the
particular series of Debt Securities offered thereby for the following
terms: (1) the title of such Debt Securities; (2) any limit on the
aggregate principal amount of such Debt Securities; (3) the price or
prices (expressed as a percentage of the aggregate principal amount
thereof) at which such Debt Securities will be issued; (4) the date or
dates, or the method or methods, if any, by which such date or dates
shall be determined, on which such Debt Securities will mature; (5)
the rate or rates (which may be fixed or variable) per annum at which
such Debt Securities will bear interest, if any, or the method or
methods, if any, by which such rate or rates are to be determined; (6)
the date or dates from which such interest, if any, on such Debt
Securities will accrue or the method or methods, if any, by which such
date or dates are to be determined, the dates on which such interest,
if any, will be payable, the date on which payment of such interest,
if any, will commence and the Regular Record Dates for such Interest
Payment Dates, if any; (7) the dates, if any, on which and the price
or prices at which the Debt Securities will, pursuant to any mandatory
sinking fund provisions, or may, pursuant to any optional sinking fund
or to any purchase fund provisions, be redeemed by the Company, and
the other detailed terms and provisions of such sinking and/or
purchase funds; (8) the date, if any, after which and the price or
prices at which the Debt Securities may, pursuant to any optional
redemption provisions, be redeemed at the option of the Company or of
the holder thereof and the other detailed terms and provisions of such
optional redemption; (9) the extent to which any of the Debt
Securities will be issuable in temporary or permanent global form and,
if so, the identity of the depositary for such global Debt Security,
or the manner in which any interest payable on a temporary or
permanent global Debt Security will be paid; (10) the denomination or
denominations in which such Debt Securities are authorized to be
issued; (11) whether such Debt Securities will be issued in registered
or bearer form or both and, if in bearer form, the terms and
conditions relating thereto and any limitations on issuance of such
bearer Debt Securities (including exchange for registered Debt
Securities of the same series); (12) information with respect to book-
entry procedures; (13) whether any of the Debt Securities will be
issued as Original Issue Discount Securities; (14) each office or
agency where, subject to the terms of the Indenture, such Debt
Securities may be presented for registration of transfer or exchange:
(15) the currencies or currency units in which such Debt Securities
are issued and in which the principal of, interest on and additional
amounts, if any, in respect of such Debt Securities will be payable;
(16) whether the amount of payments of principal of, and interest and
additional amounts, if any, on such Debt Securities may be determined
with reference to an index, formula or other method or methods (which
index, formula or method or methods may, but need not be, based on one
or more currencies, currency units or composite currencies,
commodities, equity indices or other indices) and the manner in which
such amounts shall be determined; (17) whether the Company or a holder
may elect payment of the principal of or interest on such Debt
Securities in a currency, currencies, currency unit or units or
composite currency or
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currencies other than that in which such Debt Securities are
denominated or stated to be payable, the period or periods within
which, and the terms and conditions upon which, such election may be
made, and the time and manner of determining the exchange rate between
the currency, currencies, currency unit or units or composite currency
or currencies in which such Debt Securities are denominated or stated
to be payable and the currency, currencies, currency unit or units or
composite currency or currencies in which such Debt Securities are to
be so payable; (18) if other than the Trustee, the identity of each
Security Registrar, Paying Agent and Authenticating Agent; (19) if
applicable, the defeasance of certain obligations by the Company
pertaining to Debt Securities of the series; (20) the person to whom
any interest on any registered Debt Security of the series shall be
payable, if other than the person in whose name that Debt Security (or
one or more predecessor Debt Securities) is registered at the close of
business on the Regular Record Date for such interest, the manner in
which, or the person to whom, any interest on any bearer Debt Security
of the series shall be payable, if otherwise than upon presentation
and surrender of the coupons appertaining thereto as they severally
mature, and the extent to which, or the manner in which, any interest
payable on a temporary global Debt Security on an Interest Payment
Date will be paid if other than in the manner provided in the
Indenture; (21) whether and under what circumstances the Company will
pay additional amounts as contemplated by Section 1004 of the
Indenture (the term "interest," as used in this Prospectus, shall
include such additional amounts) on such Debt Securities to any holder
who is not a United States person (including any modification to the
definition of such term as contained in the Indenture as originally
executed) in respect of any tax, assessment or governmental charge
and, if so, whether the Company will have the option to redeem such
Debt Securities rather than pay such additional amounts (and the terms
of any such option); (22) any deletions from, modifications of or
additions to the Events of Default or covenants of the Company with
respect to any of such Debt Securities; and (23) any other terms of
the series (which will not be inconsistent with the provisions of the
Indenture).
Debt Securities may be issued as Original Issue Discount
Securities to be sold at a substantial discount below their principal
amount. In the event of an acceleration of the maturity of any
Original Issue Discount Security, the amount payable to the holder of
such Original Issue Discount Security, upon such acceleration will be
determined in accordance with the applicable Prospectus Supplement,
the terms of such Debt Security and the Indenture, but will be an
amount less than the amount payable at the maturity of the principal
of such Original Issue Discount Security. Special federal income tax
and other considerations applicable thereto will be described in the
Prospectus Supplement relating thereto.
The Indenture does not contain any provisions that would limit
the ability of the Company to incur indebtedness or that would afford
holders of Debt Securities protection in the event of a highly
leveraged or similar transaction involving the Company. Reference is
made to the Prospectus Supplement relating to the particular series of
Debt Securities offered thereby for information with respect to any
deletions from, modifications of or additions to the Events of Default
described below or covenants of the Company contained in the
Indenture, including any addition of a covenant or other provision
providing event risk or similar protection.
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REGISTRATION, TRANSFER, PAYMENT AND PAYING AGENT
Unless otherwise indicated in the Prospectus Supplement, each
series of Debt Securities will be issued in registered form only,
without coupons. The Indenture, however, provides that the Company
may also issue Debt Securities in bearer form only, or in both
registered and bearer form. Debt Securities in bearer form shall not
be offered, sold, resold or delivered in connection with their
original issuance in the United States or to any United States person
(as defined below) other than offices located outside the United
States of certain United States financial institutions. As used
herein, "United States person" means any citizen or resident of the
United States, any corporation, partnership or other entity created or
organized in or under the laws of the United States, or any estate or
trust, the income of which is subject to United States federal income
taxation regardless of its source, and "United States" means the
United States of America (including the States and the District of
Columbia), its territories, its possessions and other areas subject to
its jurisdiction. Purchasers of Debt Securities in bearer form will
be subject to certification procedures and may be affected by certain
limitations under United States tax laws. Such procedures and
limitations will be described in the Prospectus Supplement relating to
the offering of the Debt Securities in bearer form.
Unless otherwise indicated in the applicable Prospectus
Supplement, registered Debt Securities will be issued in denominations
of $1,000 or any integral multiple thereof and bearer Debt Securities
will be issued in denominations of $5,000. No service charge will be
made for any transfer or exchange of the Debt Securities, but the
Company may require payment of a sum sufficient to cover any tax or
other governmental charge payable in connection therewith.
Unless otherwise described in the Prospectus Supplement relating
thereto, the principal, premium, if any, and interest, if any, of or
on the Debt Securities will be payable, and transfer of the Debt
Securities will be registrable, at the corporate trust office of
Chemical Bank, as Paying Agent and Security Registrar under the
Indenture, in The City of New York, New York, provided that payments
of interest may be made at the option of the Company by check mailed
to the address appearing in the Security Register of the person in
whose name such registered Debt Security is registered at the close of
business on the Regular Record Date (Sections 305, 307 and 1002).
Unless otherwise indicated in the applicable Prospectus
Supplement, payment of principal of, premium, if any, and interest, if
any, on Debt Securities in bearer form will be made payable, subject
to any applicable laws and regulations, at such office outside the
United States as specified in the Prospectus Supplement and as the
Company may designate from time to time, at the option of the holder,
by check or by transfer to an account maintained by the payee with a
bank located outside the United States. Unless otherwise indicated in
the applicable Prospectus Supplement, payment of interest and certain
additional amounts on Debt Securities in bearer form will be made only
against surrender of the coupon relating to such Interest Payment
Date. No payment with respect to any Debt Security in bearer form
will be made at any office or agency of the Company 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.
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GLOBAL SECURITIES
The Debt Securities of a series may be issued in whole or in part
in the form of one or more global securities ("Global Debt
Securities") that will be deposited with, or on behalf of, a
depositary (the "Depositary") identified in the Prospectus Supplement
relating to such series. Global Debt Securities may be issued in
either registered or bearer form and in either temporary or permanent
form. Unless and until it is exchanged in whole or in part for
individual certificates evidencing Debt Securities in definitive form
represented thereby, a Global Debt Security may not be transferred
except as a whole by the Depositary for such Global Debt Security to a
nominee of such Depositary or by a nominee of such Depositary to such
Depositary or another nominee of such Depositary or by such Depositary
or any such nominee to a successor of such Depositary or a nominee of
such successor.
The specific terms of the depositary arrangement with respect to
a series of Global Debt Securities and certain limitations and
restrictions relating to a series of bearer Global Debt Securities,
will be described in the Prospectus Supplement relating to such
series.
EVENTS OF DEFAULT
The following are Events of Default under the Indenture with
respect to Debt Securities of any series: (a) failure to pay principal
of or any premium on any Debt Security of that series when due; (b)
failure to pay any interest on any Debt Security of that series when
due, continued for 30 days; (c) failure to deposit any sinking fund
payment, when due, in respect of any Debt Security of that series; (d)
breach of any other covenant or warranty of the Company in the
Indenture (other than a covenant or warranty included in the Indenture
solely for the benefit of series of Debt Securities other than that
series), continued for 60 days after written notice as provided in the
Indenture; (e) certain events in bankruptcy, insolvency or
reorganization involving the Company or any Material Subsidiary (as
hereinafter defined); (f) acceleration of indebtedness in a principal
amount in excess of $10,000,000 for money borrowed by the Company or
any Material Subsidiary under the terms of the instrument under which
such indebtedness was issued or secured, if such acceleration is not
annulled within 30 days after written notice as provided in the
Indenture; and (g) any other Event of Default provided with respect to
Debt Securities of that series (Section 501). If an Event of Default
with respect to Debt Securities of any series at the time Outstanding
occurs and is continuing, either the Trustee or the holders of at
least 25% in aggregate principal amount of the Outstanding Debt
Securities of that series may declare the principal amount of all the
Debt Securities of that series to be due and payable immediately. At
any time after a declaration of acceleration with respect to Debt
Securities of any series has been made, but before a judgment or
decree based on acceleration has been obtained, the holders of a
majority in aggregate principal amount of Outstanding Debt Securities
of that series may rescind and annul such acceleration, provided that,
among other things, all Events of Default with respect to such series,
other than payment defaults caused by such acceleration, have been
cured or waived as provided in the Indenture (Section 502).
"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
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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.
ADDITIONAL PROVISIONS
The Indenture provides that, subject to the duty of the Trustee
during default to act with the required standard of care, the Trustee
will be under no obligation to exercise any of its rights or powers
under the Indenture at the request or direction of any of the holders,
unless such holders shall have offered to the Trustee reasonable
indemnity (Section 601). Subject to such provisions for the
indemnification of the Trustee and certain other conditions, the
holders of a majority in aggregate principal amount of the Outstanding
Debt Securities of any series will 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 Debt Securities of that series (Section
512).
No holder of any Debt Security of any series will have any right
to institute any proceeding with respect to the Indenture or for any
remedy thereunder, unless: (i) such holder shall have previously
given to the Trustee written notice of a continuing Event of Default
with respect to Debt Securities of that series; (ii) the holders of
not less than 25% in aggregate principal amount of the Outstanding
Debt Securities of that series shall have made written request, and
offered reasonable indemnity, to the Trustee to institute such
proceeding as trustee; (iii) the Trustee shall have failed to
institute such proceeding within 60 days after receipt of such written
request; and (iv) the Trustee shall not have received from the holders
of a majority in principal amount of the Outstanding Debt Securities
of that series a direction inconsistent with such request (Section
507). However, the holder of any Debt Security will have an absolute
right to receive payment of the principal of (and premium, if any) and
interest on such Debt Security on or after the due dates expressed in
such Debt Security and to institute suit for the enforcement of any
such payment (Section 508).
The Company is required to furnish to the Trustee annually a
statement as to performance by the Company of certain of its
obligations under the Indenture and as to any default in such
performance. The Company is also required to deliver to the Trustee,
within five days after the occurrence thereof, written notice of any
event which after notice or lapse of time or both would constitute an
Event or Default (Section 1009).
OUTSTANDING DEBT SECURITIES
In determining whether the holders of the requisite principal
amount of Outstanding Debt Securities have given any request, demand,
authorization, direction, notice, consent or waiver under the
Indenture, (i) the portion of the principal amount of an Original
Issue Discount Security that shall be deemed to be Outstanding for
such purposes shall be that portion of the principal amount thereof
that could be declared to be due and payable pursuant to the terms of
such Original Issue Discount Security as of the date of such
determination, (ii) the principal amount of any Indexed Security shall
be the principal face amount of such Indexed Security determined on
the date of its original issuance
<PAGE>
<PAGE>
and (iii) any Debt Security owned by the Company or any obligor on
such Debt Security or any Affiliate of the Company or such other
obligor, shall be deemed not to be Outstanding (Section 101).
MODIFICATION AND WAIVER
Modifications and amendments of the Indenture may be made by the
Company and the Trustee with the consent of the holders of 66 2/3% in
aggregate principal amount of the Outstanding Debt Securities of each
series affected by such modification or amendment: provided, however,
-------- -------
that no such modification or amendment may, without the consent of
the holder of each Outstanding Debt Security affected thereby: (a)
change the stated maturity date of the principal of, or any
installment of principal or interest on, any Debt Security; (b) reduce
the principal amount of, or any premium or interest on, any Debt
Security; (c) reduce the amount of principal of an Original Issue
Discount Security payable upon acceleration of the maturity thereof or
the amount thereof provable in bankruptcy; (d) adversely affect the
right of repayment at the option of any holder; (e) change the place
of payment of, currency of payment of principal of, or any premium or
interest on, any Debt Security; (f) impair the right to institute suit
for the enforcement of any payment on or with respect to any Debt
Security; or (g) reduce the percentage in principal amount of
Outstanding Debt Securities of any series the consent of whose holders
is required for modification or amendment of the Indenture or for
waiver of compliance with certain provisions of the Indenture or for
waiver of certain defaults (Section 902).
The holders of a majority in aggregate principal amount of the
Outstanding Debt Securities of each series may, on behalf of all
holders of Debt Securities of that series, waive, insofar as that
series is concerned, compliance by the Company with certain
restrictive provisions of the Indenture (Section 1008). The holders
of a majority in aggregate principal amount of the Outstanding Debt
Securities of each series may, on behalf of all holders of Debt
Securities of that series, waive any past default under the Indenture
with respect to Debt Securities of that series, except a default in
the payment of principal or any premium or interest, or a default in
respect of a provision which under the Indenture cannot be modified or
amended without the consent of the holder of each affected Outstanding
Debt Security of that series (Section 513).
Modification and amendment of the Indenture may be made by the
Company and the Trustee without the consent of any holder for any of
the following purposes: (i) to evidence the succession of another
corporation to the Company; (ii) to add to the covenants of the
Company for the benefit of the holders of all or any series of Debt
Securities; (iii) to add Events of Default; (iv) to add or change any
provisions of the Indenture to facilitate the issuance of bearer Debt
Securities; (v) 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 Debt Securities;
(vi) to establish the form or terms of Debt Securities of any series
and any related coupons; (vii) to provide for the acceptance of
appointment by a successor Trustee; (viii) to cure any ambiguity,
defect or inconsistency in the Indenture, provided such action does
not adversely affect the interests of holders of Debt Securities of
any series or any related coupons in any material respect; (ix) to
supplement any of the provisions of the Indenture to such extent as
shall be necessary to permit or facilitate the defeasance and
discharge of any series of Debt Securities, provided such action does
not adversely affect the interests of holders of Debt Securities of
such series or any related coupons in any material respect; (x) to
secure the Debt Securities; and (xi) to amend or supplement any
provision contained in the Indenture or in any
<PAGE>
<PAGE>
supplemental indenture, provided that such amendment or supplement
does not materially adversely affect the interests of the holders of
any Debt Securities then Outstanding (Section 901).
CONSOLIDATION, MERGER AND SALE OF ASSETS
The Company may consolidate or merge with or into, or transfer
its assets substantially as an entirety to, any corporation organized
under the laws of any domestic jurisdiction, provided that the
successor corporation assumes the Company's obligations on the Debt
Securities and under the Indenture, that after giving effect to the
transaction no Event of Default, and no event which, after notice or
lapse of time, would become an Event of Default, shall have occurred
and be continuing, and that certain other conditions are met (Section
801).
CONCERNING THE TRUSTEE
The Company and certain of its subsidiaries maintain banking
relationships with the Trustee in the ordinary course of their
businesses.
PLAN OF DISTRIBUTION
The Company may sell the Debt Securities being offered hereby:
(i) directly to purchasers; (ii) through agents; (iii) through
underwriters; (iv) through dealers; or (v ) through a combination of
any such methods of sale. Such underwriters, agents or dealers may
include, and may include a group of underwriters managed by one or
both of, Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith
Incorporated and Goldman, Sachs & Co. Only underwriters named in the
Prospectus Supplement are deemed to be underwriters in connection with
the Debt Securities offered hereby.
The distribution of the Debt Securities may be effected from time
to time in one or more transactions: (i) at a fixed price or prices,
which may be changed; (ii) at market prices prevailing at the time of
sale; (iii) at prices related to such prevailing market prices; or
(iv) at negotiated prices.
Offers to purchase Debt Securities may be solicited directly by
the Company or by agents designated by the Company from time to time.
Any such agent, which may be deemed to be an underwriter as that term
is defined in the Securities Act, involved in the offer or sale of the
Debt Securities in respect of which this Prospectus is delivered will
be named, and any commissions payable by the Company to such agent
will be set forth, in the Prospectus Supplement. Unless otherwise
indicated in the Prospectus Supplement, any such agent will be acting
on a reasonable efforts basis.
If an underwriter or underwriters are utilized in the sale, the
Company will execute an underwriting agreement with such underwriters
at the time of sale to them and the names of the underwriters and the
terms of the transaction will be set forth in the Prospectus
Supplement, which will be used by the underwriters to make resales of
the Debt Securities in respect of which this Prospectus is delivered
to the public.
<PAGE>
<PAGE>
If a dealer is utilized in the sale of the Debt Securities in
respect of which this Prospectus is delivered, the Company will sell
such Debt Securities to the dealer, as principal. The dealer may then
resell such Debt Securities to the public at varying prices to be
determined by such dealer at the time of resale.
Certain of the underwriters, dealers or agents may be customers
of, engage in transactions with, and perform services for, the Company
or one or more of its affiliates in the ordinary course of business.
Underwriters, dealers, agents and other persons may be entitled, under
agreements which may be entered into with the Company, to
indemnification against certain civil liabilities, including
liabilities under the Securities Act.
If so indicated in the Prospectus Supplement, the Company will
authorize agents and underwriters to solicit offers by certain
institutions to purchase Debt Securities from the Company at the
public offering price set forth in the Prospectus Supplement pursuant
to Delayed Delivery Contracts ("Contracts") providing for payment and
delivery on the date stated in the Prospectus Supplement. Each
Contract will be for an amount not less than, and, unless the Company
otherwise agrees, the aggregate principal amount of Debt Securities
sold pursuant to Contracts shall be not less nor more than, the
respective amounts stated in the Prospectus Supplement. Institutions
with whom Contracts, when authorized, may be made include commercial
and savings banks, insurance companies, pension funds, investment
companies, educational and charitable institutions and other
institutions, but shall in all cases be subject to the approval of the
Company. Contracts will not be subject to any conditions except that
the purchase by an institution of the Debt Securities covered by its
Contract shall not at the time of delivery be prohibited under the
laws of any jurisdiction in the United States to which such
institution is subject. A commission indicated in the Prospectus
Supplement will be paid to underwriters and agents soliciting
purchases of Debt Securities pursuant to Contracts accepted by the
Company.
LEGAL OPINIONS
The legality of the Debt Securities offered hereby will be passed
upon for the Company by Weil, Gotshal & Manges (a partnership
including professional corporations), New York, New York and for the
underwriters or agents by Brown & Wood, New York, New York.
EXPERTS
The audited consolidated financial statements and schedules of
the Company as of September 30, 1992 and 1993 and for each of the
three years in the period ended September 30, 1993, have been
incorporated herein by reference in reliance on the report of Coopers
& Lybrand, independent accountants, given the authority of that firm
as experts in accounting and auditing.
<PAGE>
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
-------------------------------------------
The following table sets forth the expenses in connection with
this Registration Statement. All such expenses are estimates, other
than the filing fee payable to the Securities and Exchange Commission.
Item Amount
---- ------
SEC registration fee $103,449
Trustee's fees and expenses $ 10,000
Printing and engraving expenses $ 25,000
Legal fees and expenses $100,000
Accounting fees and expenses $ 5,000
Rating agencies' fees $120,000
Blue Sky fees and expenses $ 15,000
Miscellaneous $ 21,551
------
Total $400,000
=======
Item 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
-----------------------------------------
Section 145 of the Delaware General Corporation Law (the "DGCL")
is applicable to the officers, directors, employees and agents of the
Company ("Covered Persons") and provides certain specific statutory
rights and limitations on indemnification to persons involved as
plaintiff or defendant in actual or threatened litigation or an
investigation by reason of the status of such person as an officer,
director, employee or agent of a corporation. Indemnification of
Covered Persons for judgments or amounts paid in settlement in civil
cases, including attorneys' fees and other expenses is permitted,
provided such action or civil case is not brought by or in the right
of the corporation. In such instance, a Covered Person seeking
indemnification must have acted in good faith and in a manner
reasonably believed to be in or not opposed to the best interests of
the corporation in respect of the claim; or, in addition, in the case
where a Covered Person is seeking indemnification for fines and costs
in a criminal action, such Covered Person did not have reasonable
cause to believe his conduct was unlawful.
Indemnification of a Covered Person for expenses, including
attorneys' fees, in connection with actions brought by or in the right
of the corporation is also permitted but only where such Covered
Person shall not have been adjudged to be liable to the Company unless
a court determines that despite such finding of liability,
indemnification for such expenses is proper in view of all the
circumstances of the matter.
The DGCL requires that a corporation indemnify a Covered Person
to the extent such Covered Person has been successful on the merits in
connection with any action described therein,
II-
<PAGE>
<PAGE>
provides procedures for determining the merits of indemnification by
the corporation and permits an unsecured advance of expenses prior to
such determination upon a repayment undertaking by the Covered Person
if such person is not entitled to be so indemnified.
The above provisions are non-exclusive and indemnification is
also permitted by law, agreement, vote of stockholders or
disinterested directors or otherwise. In addition, the DGCL permits
the procurement of officers and directors liability insurance by a
corporation to insure against various liabilities even if
indemnification of such liability may not otherwise be permitted.
In addition to the above described provisions, the Company's
certificate of incorporation eliminates liability for breach of
fiduciary duty, except: (i) for a breach of the duty of loyalty, (ii)
for failure to act in good faith, (iii) for intentional misconduct or
knowing violation of law, (iv) for violations of Section 174 of the
DGCL or (v) for any transaction from which the director derived an
improper personal benefit. Section 174 of the DGCL provides that
directors shall, under certain circumstances, be jointly and severally
liable for willful or negligent violations of Sections 160 and 173 of
the DGCL. Section 160 of the DGCL imposes certain requirements with
respect to stock repurchases and redemptions, and Section 174 imposes
certain requirements with respect to dividends.
The Company's by-laws also provide that directors and certain
other personnel of the Company shall be indemnified against expenses
and certain other liabilities arising out of legal actions brought or
threatened against them for their conduct on behalf of the Company
provided that each such person acted in good faith and in a manner he
reasonably believed was in the Company's best interests.
Indemnification by the Company under the by-laws is available in a
criminal action only if such person had no reasonable cause to believe
that his conduct was unlawful. Detailed procedures are set forth in
the by-laws for the implementation of any such indemnification.
The Company has also entered into indemnification agreements (the
"Indemnification Agreements") with its directors, some of whom are
also executive officers (the "Indemnified Persons") which provide for
the prompt indemnification "to the fullest extent permitted by law,"
and the prompt advancing, of attorneys' fees and all other costs,
expenses and obligations (collectively, "Expenses") paid or incurred
by the Indemnified Person in connection with the investigation,
defending, being a witness or otherwise participating in any
threatened, pending or completed action, suit or proceeding, or any
inquiry or investigation that the Indemnified Person in good faith
believes might lead to the institution of any such action, suit or
proceeding (any of the foregoing, a "Claim") related to the fact that
the Indemnified Person is or was a director, officer, employee, agent
or fiduciary of the Company or is or was serving at the request of the
Company as a director, officer, employee, trustee, agent or fiduciary
of another corporation, partnership, joint venture, employee benefit
plan, trust or other enterprise, or by reason of anything done or not
done by a director in any such capacity. However, the Indemnification
Agreements prohibit such indemnification (i) in connection with any
Claim initiated by the Indemnified Person against the Company or any
director or officer of the Company when the Company has joined in or
consented to such Claim, or (ii) if the Board of Directors or other
person or body appointed by the Board of Directors (the "Reviewing
Party") determines that such indemnification is not permitted under
applicable law (and, in the event of such determination, requires the
Indemnified Person to reimburse the Company for all amounts
theretofore paid in respect of such indemnification).
II-
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<PAGE>
The Indemnification Agreements also provide: (i) that the
Indemnified Person is entitled to indemnification for Expenses to the
extent he is successful in defending any Claim, whether on the merits
or otherwise, and to partial indemnification if he is entitled to
indemnification for some, but not all, of such Expenses, (ii) a
mechanism through which the Indemnified Person may seek court relief
if the Reviewing Party determines that the Indemnified Person would
not be permitted to be indemnified under applicable law (and therefore
is not entitled to indemnification under the Indemnification
Agreements), (iii) that the Indemnified Person is entitled to
indemnification against all Expenses incurred in seeking to collect an
indemnity claim from the Company or in seeking to recover under a
directors' and officers' liability insurance policy and (iv) that the
Company has the burden of proving that the Indemnified Person is not
entitled to indemnification in any particular case and that the
termination of any Claim by judgment, order, settlement or conviction
shall not create a presumption that the indemnification is not
permitted by applicable law.
The Indemnification Agreements provide that in the event of a
change in control of the Company, the Company will seek legal advice
from special, independent counsel selected by the Indemnified Person
and approved by the Company with respect to matters thereafter arising
concerning rights of the Indemnified Person under the Indemnification
Agreements. Additionally, such agreements provide that in the event
of a potential change in control, the Company will, upon written
request of the Indemnified Person, create and fund a trust to satisfy
expenses incurred in connection with a claim relating to an
indemnifiable event. The Company is not currently, nor does it expect
to be, subject to a change in control.
The rights of the Indemnified Persons under the Indemnification
Agreements will not be exclusive of any rights they may have under the
DGCL, directors' and officers' liability insurance, the Company's by-
laws, or otherwise; however, the Indemnification Agreements will not
permit double payment. The Indemnification Agreements, while not
requiring that the Company maintain directors' and officers' liability
insurance, do require that the Indemnified Person be provided with
full coverage under any policy or policies actually obtained.
Additionally, the Indemnification Agreements provide that if the
Company pays an Indemnified Person pursuant to the Indemnification
Agreements, the Company will be subrogated to the Indemnified Person's
rights to recover from their parties.
To the extent that the Board of Directors or the stockholders of
the Company may in the future wish to limit or repeal the ability of
the Company to indemnify directors or other persons, such repeal or
limitation will not affect the indemnification of the Indemnified
Persons under the Indemnification Agreements referred to above, since
their rights to full protection are contractually assured by the
Indemnification Agreements.
The Company has purchased an insurance policy indemnifying its
officers and directors and the officers and directors of its
subsidiaries against claims and liabilities (with stated exceptions)
to which they may become subject by reason of their positions with the
Company as directors and officers.
The Company has been advised that the Commission has taken the
position that, insofar as indemnification by a registrant for
liabilities arising under the Securities Act may be provided for
directors, officers and controlling persons of the Company pursuant to
the foregoing agreements or
II-
<PAGE>
<PAGE>
provisions, such indemnification is against public policy as expressed
in the Securities Act and, therefore, is unenforceable. If a claim
for indemnification for any liability arising under the Securities Act
is asserted against the Company by a director, officer or controlling
person, the Company, unless in the opinion of counsel for the Company
the question has theretofore been decided by controlling precedent
will, before making such indemnification, submit to a court of
competent jurisdiction the question whether such indemnification by it
is unenforceable as being against public policy as expressed in the
Securities Act, and will be governed by the final adjudication of such
issue.
Item 16. EXHIBITS
--------
1 Form of Distribution Agreement
4 Form of Indenture between the
Company and Chemical Bank
5 Opinion of Weil, Gotshal & Manges
12 Computation of Ratio of Earnings to Fixed Charges
23.1 Consent of Coopers & Lybrand
23.2 Consent of Weil, Gotshal & Manges (included in Exhibit 5)
24 Power of Attorney (included as part of the signature
page hereof)
25 Form T-1 Statement of Eligibility and Qualification
under the Trust Indenture Act of 1939 of Chemical Bank
(separately bound)
Item 17. UNDERTAKINGS
------------
The undersigned registrant hereby undertakes:
(a) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration
Statement:
(i) to include any prospectus required by Section
10(a)(3) of the Securities Act of 1933, as
amended (the "Securities Act");
(ii) to reflect in the Prospectus any facts or events
arising after the effective date of this
Registration Statement (or the most recent post-
effective amendment thereof) which, individually
or in the aggregate, represent a fundamental
change in the information set forth in this
Registration Statement;
(iii) to include any material information with respect
to the plan of distribution not previously
disclosed in this Registration Statement or any
material change to such information in this
Registration Statement;
II-
<PAGE>
<PAGE>
provided, however, that the undertakings set forth in paragraphs
-------- -------
(i) and (ii) above do not apply if the information required to be
included in a post-effective amendment by those paragraphs is
contained in periodic reports filed by the Registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of
1934, as amended (the "Exchange Act") that are incorporated by
reference in this Registration Statement.
(b) That, for the purpose of determining any liability
under the Securities Act, each such post-effective amendment
shall be deemed to be a new registration statement relating to
the Securities offered therein, and the offering of such
Securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) To remove from registration by means of a post-
effective amendment any of the Securities being registered hereby
which remain unsold at the termination of the offering.
(d) That, for purposes of determining any liability under
the Securities Act, each filing of the registrant's annual report
pursuant to Section 13(a) or 15(d) of the Exchange Act of 1934,
as amended, that is incorporated by reference in this
Registration Statement shall be deemed to be a new registration
statement relating to the securities offered herein and the
offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(e) Insofar as indemnification for liabilities arising
under the Securities Act may be permitted to directors, officers
and controlling persons of the registrant pursuant to the
provisions referred to in Item 15 of this Registration Statement,
or otherwise, the registrant has been advised that in the opinion
of the Securities and Exchange Commission such indemnification is
against public policy as expressed in such Act and is, therefore,
unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of
any action, suit or proceeding) is asserted by such director,
officer or controlling person in connection with the securities
being registered hereby, the registrant will, unless in the
opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public
policy as expressed in such Act and will be governed by the final
adjudication of such issue.
(f) That, for purposes of determining any liability under
the Securities Act, the information omitted from the form of
prospectus filed as part of this Registration Statement in
reliance upon Rule 430A and contained in a form of prospectus
filed by the registrant pursuant to Rule 424(b)(1) or (4) or
497(h) under the Securities Act shall be deemed to be part of
this Registration Statement as of the time it was declared
effective.
(g) That, for the purpose of determining any liability
under the Securities Act, each post-effective amendment that
contains a form of prospectus shall be deemed to be a new
registration statement relating to the securities offered
therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
II-
<PAGE>
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-3 and has duly
caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of San Mateo,
State of California, on the 13th day of April, 1994.
FRANKLIN RESOURCES, INC.
By: /s/ Leslie Kratter
---------------------------
Leslie Kratter
Vice President and Assistant
Secretary
POWER OF ATTORNEY
Each officer or director whose signature appears below hereby
appoints Leslie Kratter his true and lawful attorney-in-fact and
agent, with full power of substitution and resubstitution, to sign on
his behalf, as an individual and in the capacity stated below, any
amendment or post-effective amendment to this Registration Statement,
to file the same, with all Exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission,
granting unto said attorney-in-fact and agent full power and authority
to do and perform each and every act and thing which such attorney-in-
fact and agent may deem appropriate or necessary, as fully to all
intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorney-in-fact and agent, or
any substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons on the
13th day of April, 1994 in the capacities indicated.
Signature Title
--------- -----
/s/ Charles B. Johnson Chairman, President and Chief
--------------------------- Executive Officer,
Charles B. Johnson Principal Executive Officer and
Director
/s/ Harmon E. Burns Executive Vice President, Legal and
--------------------------- Administrative, Secretary and
Harmon E. Burns Director
/s/ Martin L. Flanagan Senior Vice President, Principal
--------------------------- Financial
Martin L. Flanagan Officer and Principal Accounting
Officer
II-
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<PAGE>
/s/ Rupert H. Johnson, Jr. Director
---------------------------
Rupert H. Johnson, Jr.
/s/ Judson R. Grosvenor Director
---------------------------
Judson R. Grosvenor
Director
---------------------------
Charles E. Johnson
/s/ Harry O. Kline Director
---------------------------
Harry O. Kline
/s/ Louis E. Woodworth Director
---------------------------
Louis E. Woodworth
/s/ F. Warren Hellman Director
---------------------------
F. Warren Hellman
/s/ Peter M. Sacerdote Director
---------------------------
Peter M. Sacerdote
II-
<PAGE>
<PAGE>
INDEX TO EXHIBITS
Exhibit
No. Description
------- -----------
1 Form of Distribution Agreement
4 Form of Indenture between the
Company and Chemical Bank
5 Opinion of Weil, Gotshal & Manges
12 Computation of Ratio of Earnings to Fixed Charges
23.1 Consent of Coopers & Lybrand
23.2 Consent of Weil, Gotshal & Manges (included in Exhibit 5)
24 Power of Attorney (included as part of the signature
page hereof)
25 Form T-1 Statement of Eligibility and Qualification
under the Trust Indenture Act of 1939 of Chemical Bank
(separately bound)
<PAGE>
FRANKLIN RESOURCES, INC.
MEDIUM-TERM NOTES
DISTRIBUTION AGREEMENT
April __, 1994
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
World Financial Center
North Tower, 10th Floor
New York, New York 10281-1310
GOLDMAN, SACHS & CO.
85 Broad Street
New York, New York 10004
Dear Sirs:
Franklin Resources, Inc., a Delaware corporation (the "Company"),
confirms its agreement with Merrill Lynch & Co., Merrill Lynch,
Pierce, Fenner & Smith Incorporated, and Goldman, Sachs & Co. (each
referred to as an "Agent" and collectively referred to as the
"Agents") with respect to the issue and sale by the Company of its
Medium-Term Notes described herein (the "Notes"). The Notes are to be
issued pursuant to an indenture (the "Indenture") dated as of April
__, 1994 between the Company and Chemical Bank, as trustee (the
"Trustee"). As of the date hereof, the Company has authorized the
issuance and sale of up to U.S. $300,000,000 aggregate principal
amount (or its equivalent, based upon the applicable exchange rate at
the time of issuance, in such foreign or composite currencies as the
Company shall designate at the time of issuance) (the issue price of
any original issue discount obligations being treated as the principal
amount thereof) of Notes to or through the Agents pursuant to the
terms of this Agreement. It is understood, however, that the Company
may from time to time authorize the issuance of additional series of
Notes and that such additional Notes may be sold to or through the
Agents pursuant to the terms of this Agreement.
<PAGE>
<PAGE>
This Agreement provides both for the sale of Notes by the Company
to an Agent as principal for resale to investors and other purchasers
and for the sale of Notes by the Company directly to investors (as may
from time to time be agreed to by the Company and the applicable
Agent), in which case the applicable Agent will act as an agent of the
Company in soliciting Note purchases.
The Company has filed with the Securities and Exchange Commission
(the "SEC") a registration statement on Form S-3 (No. 33-_____) for
the registration of debt securities, including the Notes, under the
Securities Act of 1933, as amended (the "1933 Act"), and the offering
thereof from time to time in accordance with Rule 415 of the rules and
regulations of the SEC under the 1933 Act (the "1933 Act
Regulations"). Such registration statement has been declared
effective by the SEC and the Indenture has been qualified under the
Trust Indenture Act of 1939 (the "1939 Act"). Such registration
statement (and any further registration statements which may be filed
by the Company for the purpose of registering additional Notes and in
connection with which this Agreement is included or incorporated by
reference as an exhibit) and the prospectus constituting a part
thereof, and any prospectus supplements relating to the Notes,
including all documents incorporated therein by reference, as from
time to time amended or supplemented by the filing of documents
pursuant to the Securities Exchange Act of 1934, as amended (the "1934
Act"), or the 1933 Act or otherwise, are referred to herein as the
"Registration Statement" and the "Prospectus", respectively, except
that if any revised prospectus shall be provided to the Agents by the
Company for use in connection with the offering of the Notes, whether
or not such revised prospectus is required to be filed by the Company
pursuant to Rule 424(b) of the 1933 Act Regulations, the term
"Prospectus" shall refer to such revised prospectus from and after the
time it is first provided to each Agent for such use.
SECTION 1. Appointment as Agents.
---------------------
(a) Appointment. Subject to the terms and conditions stated
-----------
herein and subject to the reservation by the Company of the right to
sell Notes directly on its own behalf, the Company hereby agrees that
Notes will be sold to or through the Agents. Each Agent is authorized
to engage the services of any other broker or dealer in connection
with the offer or sale of the Notes purchased by such Agent as
principal for resale to others but is not authorized to appoint sub-
agents. In connection with sales by an Agent of Notes purchased by
such Agent as principal to other brokers or dealers, such Agent may
allow any portion of the discount it has received in connection with
such purchase from the Company to such brokers or dealers. Each Agent
is acting in connection with the Notes individually and not
collectively or jointly. The Company agrees that, during the period
the Agents are acting as the Company's agents hereunder, unless
otherwise agreed, the Company will not
2
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contact or solicit potential investors to purchase the Notes and will
not appoint other agents to act on its behalf, or to assist it, in the
placement of the Notes.
(b) Sale of Notes. The Company shall not sell or approve the
-------------
solicitation of purchases of Notes in excess of the amount which shall
be authorized by the Company from time to time or in excess of the
principal amount of Notes registered pursuant to the Registration
Statement. The Agents will have no responsibility for maintaining
records with respect to the aggregate principal amount of Notes sold,
or of otherwise monitoring the availability of Notes for sale, under
the Registration Statement.
(c) Purchases as Principal. The Agents shall not have any
----------------------
obligation to purchase Notes from the Company as principal, but each
Agent may agree from time to time to purchase Notes as principal. Any
such purchase of Notes by an Agent as principal shall be made in
accordance with Section 3(a) hereof.
(d) Solicitations as Agent. If agreed upon by the Agents and
----------------------
the Company, the Agents, acting solely as agents for the Company and not
as principal, will solicit purchases of the Notes. Each Agent will
communicate to the Company, orally, each offer to purchase Notes
solicited by such Agent on an agency basis, other than those offers
rejected by such Agent. Each Agent shall have the right, in its
discretion reasonably exercised, to reject any proposed purchase of
Notes, as a whole or in part, and any such rejection shall not be
deemed a breach of such Agent's agreement contained herein. The
Company may accept or reject any proposed purchase of the Notes, in
whole or in part. Each Agent shall make reasonable efforts to assist
the Company in obtaining performance by each purchaser whose offer to
purchase Notes has been solicited by such Agent and accepted by the
Company. The Agents shall not have any liability to the Company in
the event any such agency purchase is not consummated for any reason.
If the Company shall default on its obligation to deliver Notes to a
purchaser whose offer it has accepted, the Company shall (i) hold the
applicable Agent harmless against any loss, claim or damage arising
from or as a result of such default by the Company and (ii) notwith-
standing such default, pay to the applicable Agent any commission to
which it would be entitled in connection with such sale.
(e) Reliance. The Company and each Agent agree that any Notes
--------
purchased by such Agent shall be purchased, and any Notes the
placement of which such Agent arranges shall be placed by such Agent,
in reliance on the representations, warranties, covenants and
agreements of the Company contained herein and on the terms and
conditions and in the manner provided herein.
3
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SECTION 2. Representations and Warranties.
------------------------------
(a) The Company represents and warrants to each Agent as of the
date hereof, as of the date of each acceptance by the Company of an
offer for the purchase of Notes (whether to an Agent as principal or
through an Agent as agent), as of the date of each delivery of Notes
(whether to an Agent as principal or through an Agent as agent) (the
date of each such delivery to an Agent as principal being hereafter
referred to as a "Settlement Date"), and as of any time that the
Registration Statement or the Prospectus shall be amended or supple-
mented or there is filed with the SEC any document incorporated by
reference into the Prospectus (each of the times referenced above
being referred to herein as a "Representation Date") as follows:
(i) Due Incorporation and Qualification. The Company
------------------------------------
has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the state of
Delaware with all requisite power and authority to own, lease and
operate its properties and to conduct its business as described
in the Prospectus; and the Company is duly qualified as a foreign
corporation to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of
business, except where the failure to so qualify and be in good
standing would not have a material adverse effect on the
financial condition or the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one
enterprise.
(ii) Subsidiaries. Each subsidiary of the Company
------------
which is a significant subsidiary (each, a "Significant Subsidiary")
as defined in Rule 405 of Regulation C of the 1933 Act Regulations
has been duly incorporated and is validly existing as a corpora-
tion in good standing under the laws of the jurisdiction of its
incorporation, has all requisite power and authority to own,
lease and operate its properties and conduct its business as
described in the Prospectus and is duly qualified as a foreign
corporation to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of
business, except where the failure to so qualify and be in good
standing would not have a material adverse effect on the
financial condition or the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one
enterprise; and all of the issued and outstanding capital stock
of each Significant Subsidiary has been duly authorized and
validly issued, is fully paid and non-assessable and, except for
directors' qualifying shares, is owned by the Company, directly
or through subsidiaries, free and clear of any
4
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security interest, mortgage, pledge, lien, encumbrance, claim or
equity.
(iii) Registration Statement and Prospectus. At the time
-------------------------------------
the Registration Statement became effective, the Registration
Statement complied, and as of each applicable Representation Date
will comply, in all material respects with the requirements of
the 1933 Act and the 1933 Act Regulations and the 1939 Act and
the rules and regulations of the SEC promulgated thereunder.
The Registration Statement, at the time it became effective, did
not, and at each time thereafter at which any amendment to the
Registration Statement becomes effective or any Annual Report on
Form 10-K is filed by the Company with the SEC and as of each
Representation Date, will not, contain an untrue statement of a
material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading. The Prospectus, as of the date hereof does not, and
as of each Representation Date will not, include an untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading;
provided, however, that the representations and warranties
-------- -------
in this subsection shall not apply to statements in or omissions
from the Registration Statement or Prospectus made in reliance upon
and in conformity with information furnished to the Company in
writing by the Agents expressly for use in the Registration
Statement or Prospectus or to that part of the Registration
Statement which constitutes the Trustee's Statement of Eligibility
and Qualification under the 1939 Act (Form T-1).
(iv) Incorporated Documents. The documents incorporated
----------------------
by reference in the Prospectus pursuant to Item 12 of Form S-3,
at the time they were or hereafter are filed with the SEC,
complied or when so filed will comply, as the case may be, in all
material respects with the requirements of the 1934 Act and the
rules and regulations promulgated thereunder (the "1934 Act
Regulations"), and, when read together and with the other
information in the Prospectus, did not and will not include an
untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary in order to make
the statements therein, in the light of the circumstances under
which they were or are made, not misleading.
(v) Accountants. The accountants who certified the
-----------
financial statements included or incorporated by reference in the
Prospectus are independent public accountants within the meaning
of the 1933 Act and the 1933 Act Regulations.
5
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(vi) Financial Statements. The financial statements and
--------------------
any supporting schedules of the Company and its consolidated
subsidiaries included or incorporated by reference in the
Registration Statement and the Prospectus present fairly the
consolidated financial position of the Company and its con-
solidated subsidiaries as of the dates indicated and the
consolidated results of their operations for the periods
specified; and, except as stated therein, said financial
statements have been prepared in conformity with generally
accepted accounting principles in the United States applied on a
consistent basis; and the supporting schedules included in the
Registration Statement present fairly the information required to
be stated therein.
(vii) Authorization and Validity of this Agreement, the
-------------------------------------------------
Indenture and the Notes. This Agreement has been duly authorized,
-----------------------
executed and delivered by the Company and, upon due
authorization, execution and delivery by the Agents, will be a
valid and legally binding agreement of the Company; the Indenture
has been duly authorized, executed and delivered by the Company
and, upon due authorization, execution and delivery by the
Trustee, will be a valid and legally binding obligation of the
Company enforceable in accordance with its terms, except as
enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other laws relating to or affecting
enforcement of creditors' rights generally or by general equity
principles, and except further as enforcement thereof may be
limited by (i) requirements that a claim with respect to any
Notes denominated other than in U.S. dollars (or a foreign
currency or currency unit judgment in respect of such claim) be
converted into U.S. dollars at a rate of exchange prevailing on a
date determined pursuant to applicable law or (ii) governmental
authority to limit, delay or prohibit the making of payments
outside the United States; the Notes have been duly and validly
authorized for issuance, offer and sale pursuant to this
Agreement and, when issued, authenticated and delivered pursuant
to the provisions of this Agreement and the Indenture against
payment of the consideration therefor specified in the Prospectus
or agreed upon pursuant to the provisions of this Agreement, the
Notes will constitute valid and legally binding obligations of
the Company enforceable in accordance with their terms, except as
enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other laws relating to or affecting
enforcement of creditors' rights generally or by general equity
principles, and except further as enforcement thereof may be
limited by (i) requirements that a claim with respect to any
Notes denominated other than in U.S. dollars (or a foreign
currency or currency unit judgment in respect of such claim) be
converted into U.S. dollars at a rate or exchange prevailing on a
date determined pursuant to
6
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applicable law or (ii) governmental authority to limit, delay or
prohibit the making of payments outside the United States; the
Notes and the Indenture will be substantially in the form
heretofore delivered to the Agents and conform in all material
respects to all statements relating thereto contained in the
Prospectus; and each holder of Notes will be entitled to the
benefits of the Indenture.
(viii) Material Changes or Material Transactions. Since
-----------------------------------------
the respective dates as of which information is given in the
Registration Statement and the Prospectus, except as may
otherwise be stated therein or contemplated thereby, (a) there
has been no material adverse change in the condition, financial
or otherwise, or in the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of
business and (b) there have been no material transactions entered
into by the Company or any of its subsidiaries other than those
in the ordinary course of business.
(ix) No Defaults; Regulatory Approvals. Neither the
---------------------------------
Company nor any of its Significant Subsidiaries is in violation
of its charter or in default in the performance or observance of
any obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, loan agreement, note, lease or
other instrument to which it is a party or by which it or any of
them or their properties may be bound, which violation or default
would have a material adverse effect on the financial condition
or the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise; the
issuance and sale of the Notes and the compliance by the Company
with all the terms and provisions thereof and the execution and
delivery of this Agreement and the Indenture and the consummation
of the transactions contemplated herein and therein have been
duly authorized by all necessary corporate action and will not
conflict with or constitute a breach of, or default under, or
result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any of
its subsidiaries pursuant to, any contract, indenture, mortgage,
loan agreement, note, lease or other instrument to which the
Company or any of its subsidiaries is a party or by which it or
any of them may be bound or to which any of the property or
assets of the Company or any such subsidiary is subject, nor will
such action result in any violation of the provisions of the
charter or by-laws of the Company or any law, administrative
regulation or administrative or court order or decree; and no
consent, approval, authorization, order or decree of any court or
governmental agency or body is required for the consummation
7
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by the Company of the transactions contemplated by this Agreement
or in connection with the sale of Notes hereunder, except such as
have been obtained or rendered, as the case may be, or as may be
required under the securities laws of any state or other
jurisdiction of the United States (the "Blue Sky" laws).
(x) Regulatory Certificates, Authorities and Permits.
------------------------------------------------
The Company and its subsidiaries possess such certificates,
authorities or permits issued by the appropriate state, federal
or foreign regulatory agencies or bodies necessary to conduct the
business now operated by them, except where the failure to
possess such certificates, authorities or permits would not have
a material adverse effect on the financial condition or the
earnings, business affairs or business prospects of the Company
and its subsidiaries considered as one enterprise, and neither
the Company nor any of its subsidiaries has received any notice
of proceedings relating to the revocation or modification of any
such certificate, authority or permit which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or
finding, would materially and adversely affect the financial
condition or the earnings, business affairs or business prospects
of the Company and its subsidiaries considered as one enterprise.
(xi) Legal Proceedings; Contracts. Except as may be set
------------------------------
forth in the Registration Statement, there is no action, suit or
proceeding before or by any court or governmental agency or body,
domestic or foreign, now pending, or, to the knowledge of the
Company, threatened against or affecting, the Company or any of
its subsidiaries, which might, in the opinion of the Company,
result in any material adverse change in the financial condition
or in the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise, or
might materially and adversely affect the properties or assets
thereof or might materially and adversely affect the consummation
of this Agreement or the Indenture or any transaction
contemplated hereby or thereby; and there are no contracts or
documents of the Company or any of its subsidiaries which are
required to be filed as exhibits to the Registration Statement by
the 1933 Act or by the 1933 Act Regulations which have not been
so filed.
(xii) Advisers Act. Each subsidiary of the Company
------------
required to be registered under the Investment Advisers Act of
1940, as amended (the "Advisers Act"), is duly registered as an
investment adviser with the SEC under the Advisers Act, and in
each jurisdiction where the conduct of its business requires such
registration, and such subsidiary
8
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is not prohibited from acting as an investment adviser or
carrying on its business as now conducted or as contemplated in
the Registration Statement by any applicable laws, rules,
regulations, orders, by-laws or similar requirements.
(xiii) Effect on Business. Consummation of the
------------------
transactions contemplated by this Agreement will not adversely
affect the ability of the Company or any of its subsidiaries to
conduct its business as described in the Registration Statement,
including, but not limited to, the rendering of investment
advisory services to clients, all of its mutual funds, money
market funds and closed-end funds, whether or not such funds are
registered under the Investment Company Act of 1940, as amended
(the "1940 Act"), and the rendering of distribution services to
any such entities.
(xiv) 1940 Act Registration. Each investment company
---------------------
or account for which the Company or any of its subsidiaries acts
as investment adviser and which is required to be registered with
the SEC as an investment company under the 1940 Act is duly
registered with the SEC as an investment company under the 1940
Act.
(xv) Broker-Dealer Registration. Each subsidiary of
--------------------------
the Company required to be registered as a broker-dealer with the
SEC under the 1934 Act is duly registered as a broker-dealer with
the SEC under the 1934 Act, and such subsidiary is not prohibited
from acting as broker-dealer or carrying on its business as now
conducted or as contemplated in the Registration Statement by any
applicable laws, rules, regulations, orders, by-laws or similar
requirements.
(xvi) Investment Company Status; Adviser and Broker-Dealer
----------------------------------------------------
Status. Neither the Company nor any of its subsidiaries is
------
required to register with the SEC as an investment company under
the 1940 Act. The Company is not required to register as an
investment adviser with the SEC under the Advisers Act and is not
required to register as a broker-dealer with the SEC under the
1934 Act.
(xvii) Commodity Exchange Act. The Notes, when issued,
----------------------
authenticated and delivered pursuant to the provisions of this
Agreement and the Indenture, will be excluded or exempted under
the provisions of the Commodity Exchange Act.
(xviii) Business in Cuba. The Company is in compliance
----------------
with all of the provisions of Section 517.075 of the Florida
statutes, and all rules and regulations promulgated thereunder
relating to issuers doing business in Cuba.
9
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(b) Additional Certifications. Any certificate signed by any
-------------------------
director or officer of the Company and delivered to the Agents or to
counsel for the Agents in connection with an offering of Notes through
an Agent as agent or the sale of Notes to an Agent as principal shall
be deemed a representation and warranty by the Company to such Agent
as to the matters covered thereby on the date of such certificate and
at each Representation Date subsequent thereto.
SECTION 3. Purchases as Principal; Solicitations as Agent.
----------------------------------------------
(a) Purchases as Principal. Unless otherwise agreed by an Agent
----------------------
and the Company, Notes shall be purchased by such Agent as principal.
Such purchases shall be made in accordance with terms agreed upon by
such Agent and the Company (which terms shall be agreed upon orally,
with written confirmation prepared by such Agent and mailed to the
Company). Each Agent's commitment to purchase Notes as principal
shall be deemed to have been made on the basis of the representations
and warranties of the Company herein contained and shall be subject to
the terms and conditions herein set forth. Each purchase of Notes,
unless otherwise agreed, shall be at a discount from the principal
amount of each such Note equivalent to the applicable commission set
forth in Schedule A hereto. The Agents may engage the services of any
other broker or dealer in connection with the resale of the Notes pur-
chased as principal and may allow any portion of the discount received
in connection with such purchases from the Company to such brokers and
dealers. At the time of each purchase of Notes by an Agent as
principal, such Agent shall specify the requirements for the stand-off
agreement, officer's certificate, opinion of counsel and comfort
letter pursuant to Sections 4(k), 7(b), 7(c) and 7(d) hereof.
(b) Solicitations as Agent. On the basis of the representations
----------------------
and warranties herein contained, but subject to the terms and
conditions herein set forth, when agreed by the Company and an Agent,
such Agent, as an agent of the Company, will use its reasonable
efforts to solicit offers to purchase the Notes upon the terms and
conditions set forth herein and in the Prospectus. All Notes sold
through an Agent as agent will be sold at 100% of their principal
amount unless otherwise agreed to by the Company and such Agent.
The Company reserves the right, in its sole discretion, to
suspend solicitation of purchases of the Notes through an Agent, as
agent, commencing at any time for any period of time or permanently.
Upon receipt of instructions from the Company, the Agents will
forthwith suspend solicitation of purchases from the Company until
such time as the Company has advised the Agents that such solicitation
may be resumed.
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The Company agrees to pay each Agent a commission, in the form of
a discount, equal to the applicable percentage of the principal amount
of each Note sold by the Company as a result of a solicitation made by
such Agent as set forth in Schedule A hereto.
(c) Administrative Procedures. The purchase price, interest rate
-------------------------
or formula, maturity date and other terms of the Notes (as applicable)
specified in Exhibit A hereto shall be agreed upon by the Company and
the applicable Agent and set forth in a pricing supplement to the
Prospectus to be prepared in connection with each sale of Notes.
Except as may be otherwise provided in such supplement to the Prospec-
tus, the Notes will be issued in denominations of U.S. $1,000 or any
larger amount that is an integral multiple of U.S. $1,000. Adminis-
trative procedures with respect to the sale of Notes shall be agreed
upon from time to time by the Agents, the Company and the Trustee (the
"Procedures"). The Agents and the Company agree to perform the
respective duties and obligations specifically provided to be
performed by them in the Procedures.
SECTION 4. Covenants of the Company.
------------------------
The Company covenants with each Agent as follows:
(a) Notice of Certain Events. The Company will notify the Agents
------------------------
promptly (i) of the effectiveness of any amendment to the Registration
Statement, (ii) of the transmittal to the SEC for filing of any
supplement to the Prospectus or any document to be filed pursuant to
the 1934 Act which will be incorporated by reference in the
Prospectus, (iii) of the receipt of any comments from the SEC with
respect to the Registration Statement or the Prospectus, (iv) of any
request by the SEC for any amendment to the Registration Statement or
any amendment or supplement to the Prospectus or for additional
information, and (v) of the issuance by the SEC of any stop order
suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose. The Company will make
every reasonable effort to prevent the issuance of any stop order and,
if any stop order is issued, to obtain the lifting thereof at the
earliest possible moment.
(b) Notice of Certain Proposed Filings. The Company will give the
----------------------------------
Agents advance notice of its intention to file or prepare any
additional registration statement with respect to the registration of
additional Notes, any amendment to the Registration Statement or any
amendment or supplement to the Prospectus (other than an amendment or
supplement providing solely for a change in the interest rates of
Notes), whether by the filing of documents pursuant to the 1934 Act,
the 1933 Act or otherwise, and will furnish the Agents with copies of
any such amendment or supplement or other documents proposed to be
filed or prepared a reasonable time in advance of such proposed filing
or preparation, as the case
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may be; provided that if the Company files any such amendment or
-------- ----
supplement or other documents in a form to which the Agents or counsel
for the Agents shall reasonably object, the Company shall give the
Agents and counsel for the Agents advance notice of its intention to
do so and the Agents shall have the right to suspend immediately any
obligation hereunder to solicit purchases of the Notes as agent or to
purchase any Notes as principal.
(c) Copies of the Registration Statement and the Prospectus. The
-------------------------------------------------------
Company will deliver to each Agent as many signed and as many con-
formed copies of the Registration Statement (as originally filed) and
of each amendment thereto (including exhibits filed therewith or
incorporated by reference therein and documents incorporated by
reference in the Prospectus) as the Agents may reasonably request.
The Company will furnish to each Agent as many copies of the
Prospectus (as amended or supplemented) as the Agents shall reasonably
request so long as the Agents are required to deliver a Prospectus in
connection with sales or solicitations of offers to purchase the
Notes.
(d) Preparation of Pricing Supplements. The Company will prepare,
----------------------------------
with respect to any Notes to be sold through or to the Agents pursuant
to this Agreement, a Pricing Supplement with respect to such Notes in
a form previously approved by the Agents and will file such Pricing
Supplement pursuant to Rule 424(b)(3) under the 1933 Act not later
than the close of business of the SEC on the fifth business day after
the date on which such Pricing Supplement is first used.
(e) Revisions of Prospectus -- Material Changes. Except as
-------------------------------------------
otherwise provided in subsection (l) of this Section, if at any time
during the term of this Agreement any event shall occur or condition
exist as a result of which it is necessary, in the reasonable opinion
of counsel for the Agents or counsel for the Company, to further amend
or supplement the Prospectus in order that the Prospectus will not
include an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein not
misleading in the light of the circumstances existing at the time the
Prospectus is delivered to a purchaser, or if it shall be necessary,
in the reasonable opinion of either such counsel, to amend or
supplement the Registration Statement or the Prospectus in order to
comply with the requirements of the 1933 Act or the 1933 Act
Regulations, immediate notice shall be given, and confirmed in
writing, to the Agents to cease the solicitation of offers to purchase
the Notes in the Agents' capacity as agent and to cease sales of any
Notes the Agents may then own as principal, and the Company will
promptly amend the Registration Statement and the Prospectus, whether
by filing documents pursuant to the 1934 Act, the 1933 Act or other-
wise, as may be necessary to correct such untrue statement or omission
or to
12
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make the Registration Statement and Prospectus comply with such
requirements.
(f) Prospectus Revisions -- Periodic Financial Information.
------------------------------------------------------
Except as otherwise provided in subsection (1) of this Section, on or
prior to the date on which there shall be released to the general
public interim financial statement information related to the Company
with respect to each of the first three quarters of any fiscal year or
preliminary financial statement information with respect to any fiscal
year, the Company shall furnish such information to the Agents,
confirmed in writing, and shall cause the Prospectus to be amended or
supplemented to include or incorporate by reference financial
information with respect thereto and corresponding information for the
comparable period of the preceding fiscal year, as well as such other
information and explanations as shall be necessary for an understand-
ing thereof or as shall be required by the 1933 Act or the 1933 Act
Regulations.
(g) Prospectus Revisions -- Audited Financial Information. Except
-----------------------------------------------------
as otherwise provided in subsection (1) of this Section, on or prior
to the date on which there shall be released to the general public
financial information included in or derived from the audited
financial statements of the Company for the preceding fiscal year, the
Company shall cause the Registration Statement and the Prospectus to
be amended, whether by the filing of documents pursuant to the 1934
Act, the 1933 Act or otherwise, to include or incorporate by reference
such audited financial statements and the report or reports, and
consent or consents to such inclusion or incorporation by reference,
of the independent accountants with respect thereto, as well as such
other information and explanations as shall be necessary for an
understanding of such financial statements or as shall be required by
the 1933 Act or the 1933 Act Regulations.
(h) Earnings Statements. The Company will make generally
-------------------
available to its security holders as soon as practicable, but not
later than 90 days, after the close of the period covered thereby, an
earnings statement (in form complying with the provisions of Rule 158
under the 1933 Act) covering each twelve month period (as contemplated
in such Rule 158) beginning, in each case, not later than the first
day of the Company's fiscal quarter next following the "effective
date" (as defined in such Rule 158) of the Registration Statement with
respect to each sale of Notes.
(i) Blue Sky Qualifications. The Company will endeavor, in
-----------------------
cooperation with the Agents, to qualify the Notes for offering and
sale under the applicable Blue Sky laws of such states and other
jurisdictions of the United States as the Agents may designate, and
will maintain such qualifications in effect for as long as may be
required for the distribution of the Notes; provided, however, that
the Company shall not be obligated to file any general consent to
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service of process or to qualify as a foreign corporation in any
jurisdiction in which it is not so qualified. The Company will file
such statements and reports as may be required by the laws of each
jurisdiction in which the Notes have been qualified as above provided.
The Company will promptly advise the Agents of the receipt by the
Company of any notification with respect to the suspension of the
qualification of the Notes for sale in any such state or jurisdiction
or the initiating or threatening of any proceeding for such purpose.
(j) 1934 Act Filings. The Company, during the period when the
----------------
Prospectus is required to be delivered under the 1933 Act, will file
promptly all documents required to be filed with the SEC pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the 1934 Act.
(k) Stand-Off Agreement. Unless otherwise specified by an Agent
-------------------
in connection with a purchase by it of Notes as principal, between the
date of the agreement to purchase such Notes and the Settlement Date
with respect to such purchase, the Company will not, without such
Agent's prior written consent, offer or sell, or enter into any
agreement to sell, any debt securities of the Company (other than the
Notes that are to be sold pursuant to such agreement and commercial
paper in the ordinary course of business).
(l) Suspension of Certain Obligations. The Company shall not be
---------------------------------
required to comply with the provisions of subsections (e), (f) or (g)
of this Section during any period from the time (i) the Agents shall
have suspended solicitation of purchases of the Notes in its capacity
as agent pursuant to a request from the Company and (ii) the Agents
shall not then hold any Notes purchased as principal pursuant hereto,
until the time the Company shall determine that solicitation of pur-
chases of the Notes should be resumed or the Agent shall subsequently
purchase Notes from the Company as principal.
SECTION 5. Conditions of Obligations.
-------------------------
The obligations of each Agent to purchase Notes as principal and
to solicit offers to purchase the Notes as agent of the Company, and
the obligations of any purchasers of the Notes sold through each Agent
as agent, will be subject to the accuracy of the representations and
warranties on the part of the Company herein and to the accuracy of
the statements of the Company's officers made in any certificate
furnished pursuant to the provisions hereof, to the performance and
observance by the Company of all its covenants and agreements herein
contained and to the following additional conditions precedent:
(a) Legal Opinions. On the date hereof, the Agents shall have
--------------
received the following legal opinions, dated as of the date hereof and
in form and substance satisfactory to the Agents:
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(1) Opinion of Company Counsel. The opinion of Weil, Gotshal
--------------------------
& Manges, special counsel to the Company or of Harmon E. Burns,
Esq., Executive Vice President, Legal and Administrative, of the
Company, to the effect that:
(i) The Company is a corporation duly incorporated,
validly existing and in good standing under the laws of the
State of Delaware.
(ii) The Company has all requisite corporate power and
authority to own, lease and operate its properties and to
carry on its business as described in the Registration
Statement.
(iii) The Company is duly qualified to transact business
and is in good standing as a foreign corporation in each
jurisdiction in which the character of its activities
requires such qualification, whether by reason of the
ownership or leasing of property or the conduct of business,
except where the failure of the Company to be so qualified
and be in good standing would not have a material adverse
effect on the financial condition or the earnings, business
affairs or business prospects of the Company and its
subsidiaries considered as one enterprise.
(iv) Each Significant Subsidiary of the Company is a
corporation duly incorporated, validly existing and in good
standing under the laws of the jurisdiction of its
incorporation, and has all requisite corporate power and
authority to own, lease and operate its properties and carry
on its business as described in the Registration Statement,
and is duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction in
which the character of its activities requires such
qualification, whether by reason of the ownership or leasing
of property or the conduct of business, except where the
failure of each such Significant Subsidiary to be so
qualified and be in good standing would not have a material
adverse effect on the financial condition or the earnings,
business affairs or business prospects of the Company and
its subsidiaries considered as one enterprise; all of the
issued and outstanding capital stock of each such
Significant Subsidiary has been duly authorized and validly
issued, is fully paid and non-assessable, and, except for
directors' qualifying shares, is owned by the Company, free
and clear of any mortgage, pledge, lien, encumbrance, claim
or equity.
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(v) The execution, delivery and performance of this
Agreement by the Company has been duly and validly
authorized by all necessary corporate action on the part of
the Company, and this Agreement has been duly and validly
executed and delivered by the Company.
(vi) The Company has all requisite corporate power and
authority to execute and delivery the Indenture. The
execution, delivery and performance of the Indenture by the
Company has been duly and validly authorized by all
necessary corporate action on the part of the Company. The
Indenture has been duly and validly executed and delivered
by the Company and (assuming the Indenture has been duly
authorized, executed and delivered by the Trustee)
constitutes a legal, valid and binding agreement of the
Company, enforceable against the Company in accordance with
its terms, subject to applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and
similar laws affecting enforcement of creditors' rights and
remedies, and subject as to enforceability to general
principles of equity, including principles of commercial
reasonableness, good faith and fair dealing (regardless of
whether enforcement is sought in a proceeding at law or in
equity) and except as enforcement thereof may be limited by
(A) requirements that a claim with respect to any Notes
denominated other than in U.S. dollars (or a foreign
currency or foreign currency unit judgment in respect of
such claim) be converted into United States dollars at a
rate of exchange prevailing on a date determined pursuant to
applicable law or (B) governmental authority to limit, delay
or prohibit the making of payments in foreign currency or
currency units or payments outside the United States.
(vii) The Company has all requisite corporate power and
authority to execute and deliver the Notes; the Notes, in
the form(s) certified by the Company as of the date hereof,
have been duly and validly authorized by all necessary
corporate action on the part of the Company for issuance,
offer and sale pursuant to this Agreement and, when issued,
authenticated and delivered pursuant to the provisions of
this Agreement and the Indenture against payment of the
consideration therefor, will constitute valid and legally
binding obligations of the Company, enforceable against the
Company in accordance with their terms, subject to
applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and similar laws affecting
enforcement of creditors' rights and remedies, and subject
as to enforceability to general principles of equity,
including principles of commercial
16
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reasonableness, good faith and fair dealing (regardless of
whether enforcement is sought in a proceeding at law in
equity) and except as enforcement thereof may be limited by
(A) requirements that a claim with respect to any Notes
denominated other than in U.S. dollars (or a foreign
currency or foreign currency unit judgment in respect of
such claim) be converted into United States dollars at a
rate of exchange prevailing on a date determined pursuant to
applicable law or (B) governmental authority to limit, delay
or prohibit the making of payments in foreign currency or
currency units or payments outside the United States, and
each holder of the Notes will be entitled to the benefits of
the Indenture.
(viii) The statements in the Prospectus under the captions
"Description of the Notes" and "Description of Debt
Securities" insofar as they purport to summarize certain
provisions of documents specifically referred to therein,
are accurate summaries of such provisions in all material
respects.
(ix) The Indenture is qualified under the 1939 Act.
(x) The Registration Statement is effective under the
1933 Act and, to the best of such counsel's knowledge (which
may be based on telephonic confirmation from the
Commission), no stop order suspending the effectiveness of
the Registration Statement has been issued under the 1933
Act or proceedings therefor initiated or threatened by the
SEC.
(xi) At the time the Registration Statement became
effective, the Registration Statement complied as to
form in all material respects with the requirements of the
1933 Act, the 1939 Act and the regulations under each of
those Acts (except that no opinion is expressed with respect
to the financial statements and notes thereto, the financial
statement schedules and other statistical and accounting
data included or incorporated by reference therein).
(xii) The Notes, in the form(s) certified by the
Company as of the date hereof, when issued,
authenticated and delivered pursuant to the provisions of
this Agreement and the Indenture, will be excluded or
exempted from the provisions of the Commodity Exchange Act,
assuming the accuracy of any certifications of factual
matters furnished by the Agents or the Company in connection
with the issuance thereof.
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(xiii) To the best of such counsel's knowledge, there are no
legal or governmental proceedings pending or threatened
which are required to be disclosed in the Prospectus, other
than those disclosed therein, and all pending legal or
governmental proceedings to which the Company or any
subsidiary of the Company is a party or of which any of
their property is the subject which are not described in the
Registration Statement, including ordinary routine
litigation incidental to the business of the Company or any
such subsidiary, are, considered in the aggregate, not
material.
(xiv) Neither the Company nor any of its
Significant Subsidiaries is in violation of its charter or,
to the best of such counsel's knowledge, in default in the
performance or observance of any material obligation,
agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note or lease to which
it is a party or by which it or any of them or their
properties may be bound. The consummation by the Company of
the transactions contemplated herein and in the Indenture
have been duly authorized by all necessary corporate action
on the part of the Company, and the execution and delivery
of this Agreement or of the Indenture, or the consummation
by the Company of the transactions contemplated herein and
therein, will not conflict with or constitute a breach of,
or default under, or result in the creation or imposition of
any lien, charge or encumbrance upon any property or assets
of the Company or any of its Significant Subsidiaries
pursuant to, any contract, indenture, mortgage, loan agree-
ment, note, lease or other instrument known to such counsel
and to which the Company or any such subsidiary is a party
or by which it or any of them may be bound or to which any
of the property or assets of the Company or any such
subsidiary is subject, or any law, administrative regulation
or administrative or court decree known to such counsel to
be applicable to the Company of any court or governmental
agency, authority or body or any arbitrator having
jurisdiction over the Company; nor will such action result
in any violation of the provisions of the charter or by-laws
of the Company.
(xv) To the best of such counsel's knowledge, there are no
contracts, indentures, mortgages, loan agreements, notes,
leases or other instruments or documents required to be
described or referred to in the Registration Statement or to
be filed as exhibits thereto other than those described or
referred to therein or filed or incorporated by reference as
exhibits thereto, and the descriptions thereof or references
thereto are correct.
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(xvi) No consent, approval, authorization, order or decree
of any court or governmental agency or body (including the
SEC) is required for the consummation by the Company of the
transactions contemplated by this Agreement or in connection
with the sale of Notes hereunder, except such as have been
obtained or rendered, as the case may be, or as may be
required under Blue Sky laws.
(xvii) Each subsidiary of the Company required to be
registered under the Investment Advisers Act of 1940, as
amended (the "Advisers Act"), is duly registered as an
investment adviser with the SEC under the Advisers Act, and
in each jurisdiction where the conduct of its business
requires such registration, and such subsidiary is not
prohibited from acting as an investment adviser or carrying
on its business as now conducted or as contemplated in the
Registration Statement by any applicable laws, rules,
regulations, orders, by-laws or similar requirements.
(xviii) Each investment company or account for which the
Company or any of its subsidiaries acts as investment
adviser and which is required to be registered with the SEC
as an investment company under the 1940 Act is duly
registered with the SEC as an investment company under the
1940 Act.
(xix) Each subsidiary of the Company required to be
registered as a broker-dealer with the SEC under the 1934
Act is duly registered as a broker-dealer with the SEC under
the 1934 Act, and such subsidiary is not prohibited from
acting as broker-dealer or carrying on its business as now
conducted or as contemplated in the Registration Statement
by any applicable laws, rules, regulations, orders, by-laws
or similar requirements.
(xx) Neither the Company nor any of its subsidiaries is
required to register with the SEC as an investment company
under the 1940 Act. The Company is not required to register
as an investment adviser with the SEC under the Advisers Act
and is not required to register as a broker-dealer with the
SEC under the 1934 Act.
(xxi) Each document filed pursuant to the 1934 Act and
incorporated by reference in the Prospectus complied when
filed as to form in all material respects with the 1934 Act
and the 1934 Act Regulations thereunder.
(xxii) The information contained in the Prospectus under the
caption "Certain United States Federal Income Tax
19
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Considerations" to the extent that it constitutes matters of
law or legal conclusions, has been reviewed by such counsel
and is correct in all material respects.
(2) Opinion of Counsel to the Agents. The opinion of Brown
--------------------------------
& Wood, counsel to the Agents, covering the matters referred to
in subparagraph (1) under the subheadings (i) and (v) to (xi),
inclusive, above.
(3) In giving their opinions required by subsection (a)(1)
and (a)(2) of this Section, Weil, Gotshal & Manges and Brown &
Wood shall each additionally state that no facts have come to
their attention that would lead them to believe that the
Registration Statement, at the time it became effective or, if an
amendment to the Registration Statement or an Annual Report on
Form 10-K has been filed by the Company with the SEC subsequent
to the effectiveness of the Registration Statement, then at the
time such amendment became effective or at the time of the most
recent such filing, as the case may be, or at the date hereof,
contained or contains an untrue statement of a material fact or
omitted or omits to state a material fact required to be stated
therein or necessary in order to make the statements therein not
misleading or that the Prospectus, as amended or supplemented at
the date hereof, or (if such opinion is being delivered in
connection with the purchase of Notes by an Agent as principal
pursuant to Section 7(c) hereof) at the date of any agreement by
such Agent to purchase Notes as principal and at the Settlement
Date with respect thereto, as the case may be, included or
includes an untrue statement of a material fact or omitted or
omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading, except that no belief need be
expressed as to the financial statements and notes thereto, the
financial statement schedules and other financial, statistical
and accounting data included or incorporated by reference in the
Registration Statement or the Prospectus.
(b) Officers' Certificate. At the date hereof, the Agents shall
---------------------
have received a certificate of the President or any Vice President and
the chief financial or chief accounting officer of the Company, dated
as of the date hereof, to the effect that (i) since the respective
dates as of which information is given in the Registration Statement
and the Prospectus or since the date of any agreement by an Agent to
purchase Notes as principal, there has not been any material adverse
change in the condition, financial or otherwise, or in the earnings,
business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising in
the ordinary course of business, (ii) the other representations and
warranties of the Company contained in Section 2 hereof are true and
correct with the
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same force and effect as though expressly made at and as of the date
of such certificate, (iii) the Company has performed or complied in
all material respects with all agreements and satisfied all conditions
on its part to be performed or satisfied at or prior to the date of
such certificate, and (iv) that no stop order suspending the effec-
tiveness of the Registration Statement has been issued and no
proceedings for that purpose have been initiated or threatened by the
SEC.
(c) Comfort Letter. On the date hereof, the Agents shall have
--------------
received a letter from Coopers & Lybrand, dated as of the date hereof
and in form and substance satisfactory to the Agents to the effect
that:
(i) They are independent public accountants with respect
to the Company and its subsidiaries within the meaning of the
1933 Act and the 1933 Act Regulations.
(ii) In their opinion, the consolidated financial state-
ments and supporting schedule(s) of the Company and its
subsidiaries examined by them and included or incorporated by
reference in the Registration Statement comply as to form in all
material respects with the applicable accounting requirements of
the 1933 Act and the 1933 Act Regulations with respect to regis-
tration statements on Form S-3 and the 1934 Act and the 1934 Act
Regulations.
(iii) They have performed specified procedures, not
constituting an audit, including a reading of the latest
available interim financial statements of the Company and its
indicated subsidiaries, a reading of the minute books of the
Company and such subsidiaries since the end of the most recent
fiscal year with respect to which an audit report has been
issued, inquiries of and discussions with certain officials of
the Company and such subsidiaries responsible for financial and
accounting matters with respect to the unaudited consolidated
financial statements included or incorporated by reference in the
Registration Statement and Prospectus and the latest available
interim unaudited financial statements of the Company and its
subsidiaries, and such other inquiries and procedures as may be
specified in such letter, and on the basis of such inquiries and
procedures nothing came to their attention that caused them to
believe that: (A) the unaudited consolidated financial statements
of the Company and its subsidiaries included or incorporated by
reference in the Registration Statement and Prospectus do not
comply as to form in all material respects with the applicable
accounting requirements of the 1934 Act and the 1934 Act
Regulations or were not fairly presented in conformity with
generally accepted accounting principles in the United States
applied on a basis substantially consistent with that of the
audited
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financial statements included or incorporated by reference
therein, or (B) at a specified date not more than five days prior
to the date of such letter, there was any change in the
consolidated capital stock or any increase in consolidated
long-term debt of the Company and its subsidiaries or any
decrease in the consolidated net assets of the Company and its
subsidiaries, in each case as compared with the amounts shown on
the most recent consolidated balance sheet of the Company and its
subsidiaries included or incorporated by reference in the Regis-
tration Statement and Prospectus or, during the period from the
date of such balance sheet to a specified date not more than five
days prior to the date of such letter, there were any decreases,
as compared with the corresponding period in the preceding year,
in consolidated revenues or net income of the Company and its
subsidiaries, except in each such case as set forth in or
contemplated by the Registration Statement and Prospectus or
except for such exceptions enumerated in such letter as shall
have been agreed to by the Agents and the Company.
(iv) In addition to the examination referred to in their
report included or incorporated by reference in the Registration
Statement and the Prospectus, and the limited procedures referred
to in clause (iii) above, they have carried out certain other
specified procedures, not constituting an audit, with respect to
certain amounts, percentages and financial information which are
included or incorporated by reference in the Registration
Statement and Prospectus and which are specified by the Agents,
and have found such amounts, percentages and financial
information to be in agreement with the relevant accounting,
financial and other records of the Company and its subsidiaries
identified in such letter.
(d) Other Documents. On the date hereof and on each Settlement
---------------
Date, counsel to the Agents shall have been furnished with such docu-
ments and opinions as such counsel may reasonably require for the
purpose of enabling such counsel to pass upon the issuance and sale of
Notes as herein contemplated and related proceedings, or in order to
evidence the accuracy and completeness of any of the representations
and warranties, or the fulfillment in all material respects of any of
the conditions, herein contained; and all proceedings taken by the
Company in connection with the issuance and sale of Notes as herein
contemplated shall be satisfactory in form and substance to the Agents
and to counsel to the Agents.
If any condition specified in this Section 5 shall not have been
fulfilled when and as required to be fulfilled, this Agreement (or, at
the option of the applicable Agent, any applicable agreement by such
Agent to purchase Notes as principal) may be terminated by the Agents
by notice to the Company at any time and
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any such termination shall be without liability of any party to any
other party, except that the covenant regarding provision of an
earnings statement set forth in Section 4(h) hereof, the provisions
concerning payment of expenses under Section 10 hereof, the indemnity
and contribution agreement set forth in Sections 8 and 9 hereof, the
provisions concerning the representations, warranties and agreements
to survive delivery of Section 11 hereof, the provisions relating to
governing law set forth in Section 14 and the provisions set forth
under "Parties" of Section 15 hereof shall remain in effect.
SECTION 6. Delivery of and Payment for Notes Sold through the
--------------------------------------------------
Agents.
------
Delivery of Notes sold through an Agent as agent shall be made by
the Company to such Agent for the account of any purchaser only
against payment therefor in immediately available funds. If a
purchaser shall fail either to accept delivery of or to make payment
for a Note on the date fixed for settlement, the applicable Agent
shall promptly notify the Company and deliver the Note to the Company,
and, if such Agent has theretofore paid the Company for such Note, the
Company will promptly return such funds to such Agent. If such
failure occurred for any reason other than default by an Agent in the
performance of its obligations hereunder, the Company will reimburse
such Agent on an equitable basis for its loss of the use of the funds
for the period such funds were credited to the Company's account.
SECTION 7. Additional Covenants of the Company.
-----------------------------------
The Company covenants and agrees with each Agent that:
(a) Reaffirmation of Representations and Warranties. Each
-----------------------------------------------
acceptance by it of an offer for the purchase of Notes (whether to an
Agent as principal or through an Agent as agent), and each delivery of
Notes to an Agent (whether to an Agent as principal or through an
Agent as agent), shall be deemed to be an affirmation that the
representations and warranties of the Company contained in this
Agreement and in any certificate theretofore delivered to the Agents
pursuant hereto are true and correct at the time of such acceptance or
sale, as the case may be, and an undertaking that such representations
and warranties will be true and correct at the time of delivery to the
purchaser or its agent, or to such Agent, of the Note or Notes
relating to such acceptance or sale, as the case may be, as though
made at and as of each such time (and it is understood that such
representations and warranties shall relate to the Registration
Statement and Prospectus as amended and supplemented to each such
time).
(b) Subsequent Delivery of Certificates. Each time that (i) the
-----------------------------------
Registration Statement or the Prospectus shall be amended or
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supplemented (other than by an amendment or supplement providing
solely for a change in the interest rates of Notes or similar changes,
and, unless the Agents shall otherwise specify, other than by an
amendment or supplement which relates exclusively to an offering of
debt securities other than the Notes), (ii) there is filed with the
SEC any document incorporated by reference into the Prospectus (other
than any Current Report on Form 8-K relating exclusively to the
issuance of debt securities under the Registration Statement, unless
the Agents shall otherwise specify), (iii) (if required in connection
with the purchase of Notes by an Agent as principal) the Company sells
Notes to an Agent as principal or (iv) the Company issues and sells
Notes in a form not previously certified to the Agents by the Company,
the Company shall furnish or cause to be furnished to the Agents
forthwith a certificate dated the date of filing with the SEC of such
supplement or document, the date of effectiveness of such amendment,
or the date of such sale, as the case may be, in form reasonably
satisfactory to the Agents and of the same tenor as the certificate
referred to in said Section 5(b), modified as necessary to relate to
the Registration Statement and the Prospectus as amended and supple-
mented to the time of delivery of such certificate.
(c) Subsequent Delivery of Legal Opinions. Each time that (i)
-------------------------------------
the Registration Statement or the Prospectus shall be amended or
supplemented (other than by an amendment or supplement providing
solely for a change in the interest rates of the Notes or similar
changes or solely for the inclusion of additional financial
information, and, unless the Agents shall otherwise specify, other
than by an amendment or supplement which relates exclusively to an
offering of debt securities other than the Notes), (ii) there is filed
with the SEC any document incorporated by reference into the Pro-
spectus (other than any Current Report on Form 8-K, unless the Agents
shall otherwise specify), or (iii) (if required in connection with the
purchase of Notes by an Agent as principal) the Company sells Notes to
an Agent as principal, the Company shall furnish or cause to be
furnished forthwith to the Agents and to counsel to the Agents a
written opinion of Harmon E. Burns, Esq., Executive Vice President,
Legal and Administrative, of the Company, or other counsel
satisfactory to the Agents dated the date of filing with the SEC of
such supplement or document, the date of effectiveness of such
amendment, or the date of such sale, as the case may be, in form and
substance reasonably satisfactory to the Agents, or, in lieu of such
opinion, counsel last furnishing such opinion to the Agents shall
furnish the Agents with a letter to the effect that the Agents may
rely on such last opinion to the same extent as though it was dated
the date of such letter authorizing reliance (except that statements
in such last opinion shall be deemed to relate to the Registration
Statement and the Prospectus as amended and supplemented to the time
of delivery of such letter authorizing reliance).
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(d) Subsequent Delivery of Comfort Letters. Each time that (i)
--------------------------------------
the Registration Statement or the Prospectus shall be amended or
supplemented to include additional financial information or there is
filed with the SEC any document incorporated by reference into the
Prospectus (other than any Current Report on Form 8-K, unless the
Agents shall otherwise specify) which contains additional financial
information, or (ii) (if required in connection with the purchase of
Notes by an Agent as principal) the Company sells Notes to an Agent as
principal, the Company shall cause Coopers & Lybrand forthwith to
furnish such Agent a letter, dated the date of effectiveness of such
amendment, supplement or document with the SEC, or the date of such
sale, as the case may be, in form reasonably satisfactory to such
Agent, of the same tenor as the letter referred to in Section 5(c)
hereof but modified to relate to the Registration Statement and
Prospectus, as amended and supplemented to the date of such letter,
and with such changes as may be necessary to reflect changes in the
financial statements and other information derived from the accounting
records of the Company; provided, however, that if the Registration
-------- -------
Statement or the Prospectus is amended or supplemented solely to include
financial information as of and for a fiscal quarter, Coopers & Lybrand
may limit the scope of such letter to the unaudited financial statements
included in such amendment or supplement unless any other information
included therein of an accounting, financial or statistical nature is
of such a nature that, in the reasonable judgment of the Agents, such
letter should cover such other information.
SECTION 8. Indemnification.
---------------
(a) Indemnification of the Agents. The Company agrees to
-----------------------------
indemnify and hold harmless each Agent and each person, if any, who
controls each Agent within the meaning of Section 15 of the 1933 Act
as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue
statement or alleged untrue statement of a material fact
contained in the Registration Statement (or any amendment
thereto), or the omission or alleged omission therefrom of a
material fact necessary to make the statements therein not
misleading or arising out of any untrue statement or alleged
untrue statement of a material fact included in the Prospectus
(or any amendment or supplement thereto) or the omission or
alleged omission therefrom of a material fact necessary to make
the statements therein, in the light of the circumstances under
which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate
amount paid in settlement of any litigation, or
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investigation or proceeding by any governmental agency or body,
commenced or threatened, or of any claim whatsoever based upon
any such untrue statement or omission, or any such alleged untrue
statement or omission, if such settlement is effected with the
written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred,
(including the fees and disbursements of counsel chosen by the
Agents) reasonably incurred in investigating, preparing or
defending against any litigation, or investigation or proceeding
by any governmental agency or body, commenced or threatened, or
any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, to
the extent that any such expense is not paid under (i) or (ii)
above;
provided, however, that this indemnity agreement shall not apply to
-------- -------
any loss, liability, claim, damage or expense to the extent
arising out of any untrue statement or omission or alleged untrue
statement or omission made in reliance upon and in conformity
with written information furnished to the Company by either of
the Agents expressly for use in the Registration Statement (or
any amendment thereto) or the Prospectus (or any amendment or
supplement thereto).
(b) Indemnification of Company. Each Agent severally agrees to
--------------------------
indemnify and hold harmless the Company, its directors, each of its
officers who signed the Registration Statement, and each person, if
any, who controls the Company within the meaning of Section 15 of the
1933 Act against any and all loss, liability, claim, damage and
expense described in the indemnity contained in subsection (a) of this
Section, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the
Registration Statement (or any amendment thereto) or the Prospectus
(or any amendment or supplement thereto) in reliance upon and in
conformity with written information furnished to the Company by the
Agents expressly for use in the Registration Statement (or any
amendment thereto) or the Prospectus (or any amendment or supplement
thereto).
(c) General. Each indemnified party shall give prompt notice in
-------
writing to each indemnifying party of any action commenced against it
in respect of which indemnity may be sought hereunder, but failure to
so notify an indemnifying party shall not relieve such indemnifying
party from any liability which it may have otherwise than on account
of this indemnity agreement. An indemnifying party may participate at
its own expense in the defense of such action. In no event shall the
indemnifying parties be liable for the fees and expenses of more than
one counsel (in addition to any local counsel of record) for all
indemnified parties in connection with any one action or separate but
similar
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or related actions in the same jurisdiction arising out of the same
general allegations or circumstances.
SECTION 9. Contribution.
------------
In order to provide for just and equitable contribution in
circumstances in which the indemnity agreement provided for in Section
8 hereof is for any reason held to be unenforceable by the indemnified
parties although applicable in accordance with its terms, the Company
and the Agents shall contribute to the aggregate losses, liabilities,
claims, damages and expenses of the nature contemplated by said
indemnity agreement incurred by the Company and the Agents, as
incurred, in such proportions that each Agent is responsible for that
portion represented by the percentage that the total commissions and
underwriting discounts received by such Agent to the date of such
liability bears to the total sales price from the sale of Notes sold
to or through such Agent to the date of such liability, and the
Company is responsible for the balance; provided, however, that no person
-------- -------
guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the 1933 Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. For purposes of
this Section, each person, if any, who controls each Agent within the
meaning of Section 15 of the 1933 Act shall have the same rights to
contribution as such Agent, and each director of the Company, each
officer of the Company who signed the Registration Statement, and
each person, if any, who controls the Company within the meaning of
Section 15 of the 1933 Act shall have the same rights to contribution
as the Company.
SECTION 10. Payment of Expenses.
-------------------
The Company will pay all expenses incident to the performance of
its obligations under this Agreement, including:
(a) The preparation and filing of the Registration Statement and
all amendments thereto and the Prospectus and any amendments or
supplements thereto;
(b) The preparation, filing and reproduction of this Agreement;
(c) The preparation, printing, issuance and delivery of the
Notes, including any fees and expenses relating to the use of
book-entry notes;
(d) The fees and disbursements of the Company's accountants and
counsel, of the Trustee and its counsel, and of any Calculation Agent
or Exchange Rate Agent;
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(e) The reasonable fees and disbursements of counsel to the
Agents incurred in connection with the establishment of the program
relating to the Notes and incurred from time to time in connection
with the transactions contemplated hereby;
(f) The qualification of the Notes under the Blue Sky laws in
accordance with the provisions of Section 4(i) hereof, including
filing fees and the reasonable fees and disbursements of counsel for
the Agents in connection therewith and in connection with the
preparation of any Blue Sky Survey;
(g) The printing and delivery to the Agents in quantities as
hereinabove stated of copies of the Registration Statement and any
amendments thereto, and of the Prospectus and any amendments or
supplements thereto, and the delivery by the Agents of the Prospectus
and any amendments or supplements thereto in connection with
solicitations or confirmations of sales of the Notes;
(h) The preparation, printing, reproducing and delivery to the
Agents of copies of the Indenture and all supplements and amendments
thereto;
(i) Any fees charged by rating agencies for the rating of the
Notes;
(j) The fees and expenses incurred in connection with the
listing of the Notes on any securities exchange;
(k) The fees and expenses, if any, incurred with respect to any
filing with the National Association of Securities Dealers, Inc.;
(l) Any advertising and other out-of-pocket expenses of the
Agents incurred with the prior written consent of the Company;
(m) The cost of providing any CUSIP or other identification
numbers for the Notes; and
(n) The fees and expenses of any Depositary (as defined in the
Indenture) and any nominees thereof in connection with the Notes.
SECTION 11. Representations, Warranties and Agreements to Survive
-----------------------------------------------------
Delivery.
--------
All representations, warranties and agreements contained in this
Agreement or in certificates of officers of the Company submitted
pursuant hereto or thereto, shall remain operative and in full force
and effect, regardless of any investigation made by or on behalf of
the Agents or any controlling person of the Agents, or
28
<PAGE>
<PAGE>
by or on behalf of the Company, and shall survive each delivery of and
payment for any of the Notes.
SECTION 12. Termination.
-----------
(a) Termination of this Agreement. This Agreement (excluding any
-----------------------------
agreement hereunder by an Agent to purchase Notes as principal) may be
terminated for any reason, at any time by either the Company or an
Agent (as to such Agent) upon the giving of 30 days' written notice of
such termination to the other party hereto.
(b) Termination of Agreement to Purchase Notes as Principal. Each
-------------------------------------------------------
Agent may terminate any agreement hereunder by such Agent to purchase
Notes as principal, immediately upon notice to the Company, at any
time prior to the Settlement Date relating thereto (i) if there has
been, since the date of such agreement or since the respective dates
as of which information is given in the Prospectus, any material
adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and
its subsidiaries considered as one enterprise, whether or not arising
in the ordinary course of business, or (ii) if there shall have
occurred any material adverse change in the financial markets in the
United States or any outbreak or escalation of hostilities or other
national or international calamity or crisis the effect of which is
such as to make it, in the judgment of such Agent, impracticable to
market the Notes or enforce contracts for the sale of the Notes, or
(iii) if trading in any securities of the Company has been suspended
by the SEC or a national securities exchange, or if trading generally
on either the American Stock Exchange or the New York Stock Exchange
shall have been suspended, or minimum or maximum prices for trading
have been fixed, or maximum ranges for prices for securities have been
required, by either of said exchanges or by order of the SEC or any
other governmental authority, or if a banking moratorium shall have
been declared by either Federal, New York or Delaware authorities or
if a banking moratorium shall have been declared by the relevant
authorities in the country or countries of origin of any foreign
currency or currencies in which the Notes are denominated or payable,
or (iv) if the rating assigned by any nationally recognized securities
rating agency to any debt securities of the Company as of the date of
any applicable principal purchase shall have been lowered since that
date or if any such rating agency shall have publicly announced that
it has placed any debt securities of the Company on what is commonly
termed a "watch list" for possible downgrading, or (v) if there shall
have come to such Agent's attention any facts that would cause such
Agent reasonably to believe that the Prospectus, at the time it was
required to be delivered to a purchaser of Notes, included an untrue
statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in light of the
circumstances existing at the time of such
29
<PAGE>
<PAGE>
delivery, not misleading, or (vi) if the Company shall have filed any
amendment or supplement or other documents in a form to which such
Agent or counsel to the Agents shall have reasonably objected in
accordance with Section 4(b) hereof. As used in this Section 12(b),
the term "Prospectus" means the Prospectus in the form first used to
confirm sales of the Notes.
(c) General. In the event of any such termination, neither party
-------
will have any liability to the other party hereto, except that (i) the
applicable Agent shall be entitled to any commission earned in
accordance with the third paragraph of Section 3(b) hereof, (ii) if at
the time of termination (a) the applicable Agent shall own any Notes
purchased by it as principal with the intention of reselling them or
(b) an offer to purchase any of the Notes has been accepted by the
Company but the time of delivery to the purchaser or his agent of the
Note or Notes relating thereto has not occurred, the covenants set
forth in Sections 4 and 7 hereof shall remain in effect until such
Notes are so resold or delivered, as the case may be, and (iii) the
covenant set forth in Section 4(h) hereof, the provisions of Section
10 hereof, the indemnity and contribution agreements set forth in
Sections 8 and 9 hereof, and the provisions of Sections 11, 14 and 15
hereof shall remain in effect.
SECTION 13. Notices.
-------
Unless otherwise provided herein, all notices required under the
terms and provisions hereof shall be in writing, either delivered by
hand, by mail or by telex, telecopier or telegram, and any such notice
shall be effective when received at the address specified below.
If to the Company:
Franklin Resources, Inc.
777 Mariners Island Blvd.
San Mateo, California 94404
Attention: Martin L. Flanagan
Fax: (415) 312-3528
With a copy to:
Harmon E. Burns
Fax: (415) 312-2804
30
<PAGE>
<PAGE>
If to Merrill Lynch:
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
North Tower - 10th Floor
World Financial Center
New York, New York 10281-1310
Attention: MTN Product Management
Fax: (212) 449-2234
If to Goldman, Sachs & Co.:
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Attention: Credit Department
Fax: (212) 363-7609
or at such other address as such party may designate from time to time
by notice duly given in accordance with the terms of this Section 13.
SECTION 14. Governing Law; Forum.
--------------------
This Agreement and all the rights and obligations of the parties
shall be governed by and construed in accordance with the laws of the
State of New York applicable to agreements made and to be performed in
such State. Any suit, action or proceeding brought by the Company
against the Agents in connection with or arising under this Agreement
shall be brought solely in the state or federal court of appropriate
jurisdiction located in the Borough of Manhattan, The City of New
York.
SECTION 15. Parties.
-------
This Agreement shall inure to the benefit of and be binding upon
the Agents and the Company and their respective successors. Nothing
expressed or mentioned in this Agreement is intended or shall be
construed to give any person, firm or corporation, other than the
parties hereto and their respective successors and the controlling
persons and officers and directors referred to in Sections 8 and 9 and
their heirs and legal representatives, any legal or equitable right,
remedy or claim under or in respect of this Agreement or any provision
herein contained. This Agreement and all conditions and provisions
hereof are intended to be for the sole and exclusive benefit of the
parties hereto and respective successors and said controlling persons
and officers and directors and their heirs and legal representatives,
and for the benefit of no other person, firm or corporation. No
purchaser of Notes shall be deemed to be a successor by reason merely
of such purchase.
31
<PAGE>
<PAGE>
If the foregoing is in accordance with the Agents' understanding
of our agreement, please sign and return to the Company a counterpart
hereof, whereupon this instrument along with all counterparts will
become a binding agreement between the Agents and the Company in
accordance with its terms.
Very truly yours,
FRANKLIN RESOURCES, INC.
By:
-------------------------------
Name:
Title:
Accepted:
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By:
--------------------------------
Name:
Title:
--------------------------------
GOLDMAN, SACHS & CO.
32
<PAGE>
<PAGE>
EXHIBIT A
The following terms, if applicable, shall be agreed to by the
applicable Agent and the Company in connection with each sale of
Notes:
Principal Amount: $_______
(or principal amount of foreign currency)
Interest Rate:
If Fixed Rate Note, Interest Rate:
If Floating Rate Note:
Interest Rate Basis:
Initial Interest Rate:
Spread or Spread Multiplier, if any:
Interest Reset Date(s):
Interest Payment Date(s):
Index Maturity:
Maximum Interest Rate, if any:
Minimum Interest Rate, if any:
Interest Reset Period:
Interest Payment Period:
Calculation Agent:
If Redeemable:
Initial Redemption Date:
Initial Redemption Percentage:
Annual Redemption Percentage Reduction:
If Repayable:
Optional Repayment Date(s):
Date of Maturity:
Purchase Price: ___%
Settlement Date and Time:
Currency of Denomination:
Denominations (if currency is other than U.S. dollar):
Currency of Payment:
Additional Terms:
Also, in connection with the purchase of Notes by an Agent as
principal, agreement as to whether the following will be required:
Officer's Certificate pursuant to Section 7(b) of the
Distribution Agreement.
Legal Opinion pursuant to Section 7(c)of the Distribution Agree-
ment.
Comfort Letter pursuant to Section 7(d) of the Distribution
Agreement.
Stand-off Agreement pursuant to Section 4(k) of the Distribution
Agreement.
<PAGE>
<PAGE>
SCHEDULE A
As compensation for the services of the Agents hereunder, the
Company shall pay to the applicable Agent, on a discount basis, a
commission for the sale of each Note equal to the principal amount of
such Note multiplied by the appropriate percentage set forth below:
PERCENT OF
MATURITY RANGES PRINCIPAL AMOUNT
--------------- ----------------
From 9 months to less than 1 year . . . . .125%
From 1 year to less than 18 months . . . .150%
From 18 months to less than 2 years . . . .200%
From 2 years to less than 3 years . . . . .250%
From 3 years to less than 4 years . . . . .350%
From 4 years to less than 5 years . . . . .450%
From 5 years to less than 6 years . . . . .500%
From 6 years to less than 7 years . . . . .550%
From 7 years to less than 10 years . . . .600%
From 10 years to less than 15 years . . . .625%
From 15 years to less than 20 years . . . .700%
From 20 years to less than 30 years . . . .750%
From 30 years to 40 years . . . . . . . . .875%
<PAGE>
======================================================================
FRANKLIN RESOURCES, INC.,
Company
to
CHEMICAL BANK,
Trustee
_______________
INDENTURE
_______________
Dated as of April __, 1994
Debt Securities
======================================================================
<PAGE>
<PAGE>
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.
<PAGE>
<PAGE>
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
<PAGE>
<PAGE>
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
<PAGE>
<PAGE>
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
<PAGE>
<PAGE>
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
<PAGE>
<PAGE>
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
<PAGE>
<PAGE>
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
<PAGE>
<PAGE>
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:
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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.
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"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.
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"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.
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"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.
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"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
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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;
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(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
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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.
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"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
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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
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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.
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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
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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.
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(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
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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.
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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
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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.
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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.
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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:
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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.
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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.
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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
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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
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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.
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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
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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.
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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
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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
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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,
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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.
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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
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(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.
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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
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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
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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.
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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
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(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
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(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
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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
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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.
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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
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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.
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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.
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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.
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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
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(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
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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
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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
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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
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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.
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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
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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
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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
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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
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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
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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:
<PAGE>
<PAGE>
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
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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.
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(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
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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;
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(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
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(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
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<PAGE>
(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
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<PAGE>
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.
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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.
<PAGE>
<PAGE>
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
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<PAGE>
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.
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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,
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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
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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]
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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
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(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),
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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.
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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,
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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,
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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
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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.
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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
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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.
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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
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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.
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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
<PAGE>
<PAGE>
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.
<PAGE>
<PAGE>
(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.
* * * * *
<PAGE>
<PAGE>
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.
<PAGE>
<PAGE>
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:
<PAGE>
<PAGE>
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]
<PAGE>
<PAGE>
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]
<PAGE>
WEIL, GOTSHAL & MANGES
A Partnership Including Professional Corporations
767 Fifth Avenue New York, NY 10153-0119
(212) 310-8000
Fax: (212) 310-8007
Writer's Direct Line
April 13, 1994
Franklin Resources, Inc.
777 Mariners Island Blvd.
San Mateo, CA 94404
Gentlemen:
We have acted as counsel to Franklin Resources, Inc., a
Delaware corporation (the "Company"), in connection with the
preparation and filing by the Company with the Securities and Exchange
Commission of a Registration Statement on Form S-3 (the "Registration
Statement") under the Securities Act of 1933, as amended, with respect
to debt securities (the "Debt Securities") having a proposed aggregate
initial public offering price of up to $300,000,000. The Debt
Securities will be issued by the Company under the Indenture
(the "Indenture"), between the Company and Chemical Bank, as trustee
(the "Trustee"). The Debt Securities will be sold by the Company either
(i) directly on its own behalf or (ii) pursuant to the Distribution
Agreement substantially in the form of the draft filed as Exhibit 1 to
the Registration Statement (the "Distribution Agreement").
In so acting, we have examined originals or copies,
certified or otherwise identified to our satisfaction, of the
Registration Statement, the Prospectus that is a part of the
Registration Statement (the "Prospectus"), the Indenture, (in which is
set forth the proposed forms of the Debt Securities), the Distribution
Agreement and such corporate records, agreements, documents and other
instruments, and such certificates or comparable documents of officers
and representatives of the Company, and have made such inquiries of
such officers and representatives, as we have deemed relevant and
necessary as a basis for the opinions hereinafter set forth.
In such examination, we have assumed the genuineness of all
signatures, the authenticity of all documents submitted to us
<PAGE>
<PAGE>
Franklin Resources, Inc.
April 13, 1994
Page
as originals, the conformity to original documents of documents
submitted to us as certified or photostatic copies and the
authenticity of the originals of such latter documents. We have
further assumed that all documents examined by us in the form of
drafts will, when executed by the requisite signatories thereto,
conform in substance and form in all material respects to the drafts
that we have examined. As to all questions of fact material to this
opinion that have not been independently established, we have relied
upon certificates of officers and representatives of the Company.
Based on the foregoing, and subject to the qualifications
stated herein, we are of the opinion that the Debt Securities, when
duly authorized and executed on behalf of the Company, authenticated
by the Trustee pursuant to the terms of the Indenture and sold and
delivered by the Company as contemplated by the Prospectus, as the
same may be updated from time to time, will be legally issued and will
constitute valid and binding obligations of the Company entitled to
the benefits of the Indenture in accordance with its terms, subject to
applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and similar laws affecting creditors'
rights and remedies generally, and subject, as to enforceability, to
general principles of equity, including principles of commercial
reasonableness, good faith and fair dealing (regardless of whether
enforcement is sought in a proceeding at law or in equity).
This opinion is limited in all respects to the laws of the
State of New York, the corporate laws of the State of Delaware and the
federal laws of the United States, and we express no opinion as to the
effect on the matters covered by this opinion of the laws of any other
jurisdiction.
We consent to the use of this opinion as an exhibit to the
Registration Statement and to any and all references to our firm in
the Prospectus.
We further consent to the use of this opinion as an exhibit
to applications to the securities commissioners of various states of
the United States for registration or qualification of the Debt
Securities under the securities laws of such states.
<PAGE>
<PAGE>
Franklin Resources, Inc.
April 13, 1994
Page
This opinion is rendered solely for your benefit in
connection with the transactions described above. Except as noted
above, this opinion may not be used or relied upon by any other person
and may not be disclosed, quoted, filed with a governmental agency or
otherwise referred to without our prior written consent.
Very truly yours,
WEIL, GOTSHAL & MANGES
<PAGE>
<TABLE>
<CAPTION>
FRANKLIN RESOURCES, INC.
STATEMENT RE COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
(in thousands, except for ratio)
Three Months Ended Fiscal Year Ended
--------------------------- ---------------------------------------------------------------------------
Dec. 31, 1993 Dec. 31, 1992 Sept. 30, 1993 Sept. 30, 1992 Sept. 30, 1991 Sept. 30, 1990 Sept. 30, 1989
------------- ------------- -------------- -------------- -------------- -------------- --------------
<S> <C> <C> <C> <C> <C> <C> <C>
Earnings before
provision for
income taxes $89,135 $56,223 $274,398 $204,748 $162,719 $144,423 $129,733
------------ ------------- ------------- ------------- ------------- -------------- --------------
Add Fixed Charges:
Interest 8,055 5,486 25,221 2,137 94 73 192
------------ ------------- ------------- ------------- ------------- ------------- --------------
Total Fixed
Charges 8,055 5,486 25,221 4,274 94 73 192
------------ ------------- ------------- ------------- ------------- ------------- --------------
Earnings before
fixed charges and
provision for
income taxes $97,190 $61,709 $299,619 $209,022 $162,813 $144,496 $129,925
------------ ------------- ------------- ------------- ------------- ------------- --------------
Ratio of Earnings
to Fixed Charges - 12.1 11.2 11.9 48.9 1,732.1 1,979.4 676.7
------------ ------------- ------------- ------------- ------------- ------------- --------------
</TABLE>
<PAGE>
Coopers
& Lybrand
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Registration
Statement of Franklin Resources, Inc. on Form S-3 for the issuance of
debt securities of our report dated December 3, 1993, on our audits of
the consolidated financial statements and financial statement
schedules of Franklin Resources, Inc. We also consent to the
reference to our firm under the caption "Experts".
COOPERS & LYBRAND
San Francisco, California
April 8, 1994
<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-------------------
FORM T-1
STATEMENT OF ELIGIBILITY AND QUALIFICATION UNDER THE
TRUST INDENTURE ACT OF 1939 OF A CORPORATION
DESIGNATED TO ACT AS TRUSTEE
-------------
CHEMICAL BANK
- ---------------------------------------------------------------------------
(Exact name of trustee as specified in its charter)
New York 13-4994650
- --------------------------------------------- ----------------------
(State of incorporation if not a national (I.R.S. Employer
bank) Identification No.)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York
(212) 270-2611 10017
- --------------------------------------------- ----------------------
(Address and telephone number of principal (Zip Code)
executive offices)
FRANKLIN RESOURCES, INC.
- ---------------------------------------------------------------------------
(Exact name of obligor as specified in its charter)
Delaware 13-2670991
- --------------------------------------------- ----------------------
(State or other jurisdiction of incorporation (I.R.S. Employer
or organization) Identification No.)
777 Mariners Island Blvd.
San Mateo, CA 94404
- --------------------------------------------- ----------------------
(Address and telephone number of principal (Zip Code)
executive offices)
Debt Securities
- ---------------------------------------------------------------------------
(Title of the indenture securities)
<PAGE>
<PAGE>
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority
to which it is subject. New York State Banking Department, State
House, Albany, New York 12110.
Board of Governors of the Federal Reserve System, Washington,
D.C., 20551 and Federal Reserve Bank of New York, District No. 2,
33 Liberty Street, New York, N.Y.
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
<PAGE>
<PAGE>
16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of the Trustee as now
in effect, including the Organization Certificate and the
Certificates of Amendment dated February 17, 1969, August 31, 1977,
December 31, 1980, September 9, 1982, February 28, 1985 and December
2, 1991 (see Exhibit 1 to Form T-1 filed in connection with
Registration Statement No. 33-50010, which is incorporated by
reference).
2. A copy of the Certificate of Authority of the Trustee to
Commence Business (see Exhibit 2 to Form T-1 filed in connection with
Registration Statement No. 33-50010, which is incorporated by
reference).
3. None, authorization to exercise corporate trust powers being
contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4
to Form T-1 filed in connection with Registration Statement No. 33-
46892, which is incorporated by reference).
6. The consent of the Trustee required by Section 321(b) of the
Act (see Exhibit 6 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference).
7. A copy of the latest report of condition of the Trustee,
published pursuant to law or the requirements of its supervising or
examining authority.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939
the Trustee, Chemical Bank, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of
eligibility to be signed on its behalf by the undersigned, thereunto
duly authorized, all in the City of New York and State of New York, on
the 1ST day of APRIL, 1994.
CHEMICAL BANK
By /s/ Carolyn P. Baxter
------------------------
Carolyn P. Baxter
Assistant Vice President
<PAGE>
<PAGE>
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
Chemical Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business December 31, 1993, published in
accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
DOLLAR AMOUNTS
ASSETS IN MILLIONS
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin . . . . . . . . . . . . . . . . . . . $ 4,371
Interest-bearing balances . . . . . . . . . . . . . . . . 5,829
Securities 21,834
Federal Funds sold and securities purchased under
agreements to resell in domestic offices of the
bank and of its Edge and Agreement subsidiaries,
and in IBF's:
Federal funds sold . . . . . . . . . . . . . . . . . . . . 2,125
Securities purchased under agreements to resell . . . . . . 900
Loans and lease financing receivables:
Loans and leases, net of unearned income $60,826
Less: Allowance for loan and lease losses 2,326
Less: Allocated transfer risk reserve 121
------
Loans and leases, net of unearned income,
allowance, and reserve . . . . . . . . . . . . . . . . . . 58,379
Assets held in trading accounts . . . . . . . . . . . . . 8,556
Premises and fixed assets (including capitalized
leases) . . . . . . . . . . . . . . . . . . . . . . . . . 1,238
Other real estate owned . . . . . . . . . . . . . . . . . . 713
Investments in unconsolidated subsidiaries and
associated companies . . . . . . . . . . . . . . . . . . . . 112
Customer's liability to this bank on acceptance
outstanding . . . . . . . . . . . . . . . . . . . . . . . 1,063
Intangible assets . . . . . . . . . . . . . . . . . . . . . 526
Other assets . . . . . . . . . . . . . . . . . . . . . . . 9,864
-----
TOTAL ASSETS . . . . . . . . . . . . . . . . . . . . . . . . $115,510
========
<PAGE>
<PAGE>
LIABILITIES
Deposits
In domestic offices ................................ $51,611
Noninterest-bearing .........................$19,050
Interest-bearing ............................ 32,561
------
In foreign offices, Edge and Agreement subsidiaries,
and IBF's ......................................... 24,886
Noninterest-bearing .........................$ 136
Interest-bearing ............................ 24,750
------
Federal funds purchased and securities sold under agree-
ments to repurchase in domestic offices of the bank and
of its Edge and Agreement subsidiaries, and in IBF's
Federal funds purchased ............................ 8,496
Securities sold under agreements to repurchase ..... 514
Demand notes issued to the U.S. Treasury ................ 1,501
Other Borrowed money .................................... 8,538
Mortgage indebtedness and obligations under capitalized
leases ............................................. 20
Bank's liability on acceptances executed and outstanding 1,084
Subordinated notes and debentures ....................... 3,500
Other liabilities ....................................... 7,419
TOTAL LIABILITIES ....................................... 107,569
-------
EQUITY CAPITAL
Common stock ............................................ 620
Surplus ................................................. 4,501
Undivided profits and capital reserves .................. 2,663
Less: Net unrealized loss on marketable equity
securities.......................................... (159)
Cumulative foreign currency translation adjustments ..... (2)
TOTAL EQUITY CAPITAL .................................... 7,941
TOTAL LIABILITIES, LIMITED-LIFE PREFERRED
STOCK AND EQUITY CAPITAL ........................... $115,510
I, Joseph L. Sclafani, S.V.P. & Controller of the
above-named bank, do hereby declare that this Report of
Condition is true and correct to the best of my knowledge
and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness
of this statement of resources and liabilities. We
declare that it has been examined by us, and to the best
of our knowledge and belief has been prepared in confor-
mance with the instructions and is true and correct.
WALTER V. SHIPLEY )
EDWARD D. MILLER )DIRECTORS
WILLIAM B. HARRISON )
