EXHIBIT 4.a.i
[CONFORMED COPY]
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MASCO CORPORATION
AND
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK,
TRUSTEE
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INDENTURE
DATED AS OF DECEMBER 1, 1982
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TIE-SHEET
of provisions of Trust Indenture Act of 1939 with Indenture dated as of December
1, 1982 between Masco Corporation and Morgan Guaranty Trust Company of New
York, Trustee:
SECTION OF ACT SECTION OF INDENTURE
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310(a)(1) and (2) 6.09
310(a)(3) and (4) Not applicable
310(b) 6.08 and 6.10(a)(b)
and (d)
310(c) Not applicable
311(a) and (b) 6.13
311(c) Not applicable
312(a) 4.01 and 4.02(a)
312(b) and (c) 4.02(b) and (c)
313(a) 4.04(a)
313(b)(1) Not applicable
313(b)(2) 4.04(b)
313(c) 4.04(c)
313(d) 4.04(d)
314(a) 4.03
314(b) Not applicable
314(c)(1) and (2) 13.05
314(c)(3) Not applicable
314(d) Not applicable
314(e) 13.05
314(f) Not applicable
315(a)(c) and (d) 6.01
315(b) 5.08
315(e) 5.09
316(a)(1) 5.01 and 5.07
316(a)(2) Omitted
316(a) last sentence 7.04
316(b) 5.04
317(a) 5.02
317(b) 3.04(a)
318(a) 13.07
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This tie-sheet is not part of the Indenture as executed.
TABLE OF CONTENTS*
PAGE
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PARTIES 1
RECITALS 1
Authorization of Indenture 1
Compliance with Legal Requirements 1
Purpose of and Consideration for Indenture 1
ARTICLE ONE.
DEFINITIONS.
SECTION 1.01. Definitions 1
Attributable Debt 2
Authenticating Agent 3
Board of Directors 3
Company 3
Consolidated Net Tangible Assets 3
Event of Default 4
Funded Debt 4
Indenture 4
Interest 5
Officers' Certificate 5
Opinion of Counsel 5
Original Issue Date 5
Original Issue Discount Security 5
Person 5
Principal Office of the Trustee 6
Principal Property 6
Responsible Officer 6
Security or Securities; Outstanding 6
Securityholder 7
Subsidiary; Consolidated Subsidiary 7
Trustee 8
Trust Indenture Act of 1939 8
Yield to Maturity 9
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*This table of contents shall not, for any purpose, be deemed to be a part of
the Indenture.
ii
ARTICLE TWO.
SECURITIES.
PAGE
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SECTION 2.01. Forms Generally 9
SECTION 2.02. Form of Trustee's Certificate of Authentication 9
SECTION 2.03. Amount Unlimited; Issuable in Series 9
SECTION 2.04. Authentication and Delivery 11
SECTION 2.05. Date and Denomination of Securities 13
SECTION 2.06. Execution of Securities 14
SECTION 2.07. Exchange and Registration of Transfer of Securities 14
SECTION 2.08. Mutilated, Destroyed, Lost or Stolen Securities 15
SECTION 2.09. Temporary Securities 17
SECTION 2.10. Cancellation of Securities Paid, etc. 17
ARTICLE THREE.
PARTICULAR COVENANTS OF THE COMPANY.
SECTION 3.01. Payment of Principal, Premium and Interest 18
SECTION 3.02. Offices for Notices and Payments, etc. 18
SECTION 3.03. Appointments to Fill Vacancies in Trustee's Office 19
SECTION 3.04. Provision as to Paying Agent 19
SECTION 3.05. Limitation on Liens 20
SECTION 3.06. Limitation on Sale and Leaseback 22
SECTION 3.07. Certificate to Trustee 23
ARTICLE FOUR.
SECURITYHOLDERS' LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE.
SECTION 4.01. Securityholders' Lists 23
SECTION 4.02. Preservation and Disclosure of Lists 24
SECTION 4.03. Reports by Company 26
SECTION 4.04. Reports by the Trustee 26
iii
ARTICLE FIVE.
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT.
PAGE
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SECTION 5.01. Events of Default 28
SECTION 5.02. Payment of Securities on Default; Suit Therefor 31
SECTION 5.03. Application of Moneys Collected by Trustee 34
SECTION 5.04. Proceedings by Securityholders 35
SECTION 5.05. Proceedings by Trustee 35
SECTION 5.06. Remedies Cumulative and Continuing 36
SECTION 5.07. Direction of Proceedings and Waiver of Defaults by
Majority of Securityholders 36
SECTION 5.08. Notice of Defaults 37
SECTION 5.09. Undertaking to Pay Costs 38
ARTICLE SIX.
CONCERNING THE TRUSTEE.
SECTION 6.01. Duties and Responsibilities of Trustee 38
SECTION 6.02. Reliance on Documents, Opinions, etc. 40
SECTION 6.03. No Responsibility for Recitals, etc. 41
SECTION 6.04. Trustee, Authenticating Agent, Paying Agents, Transfer
Agents or Registrar May Own Securities 41
SECTION 6.05. Moneys to be Held in Trust 41
SECTION 6.06. Compensation and Expenses of Trustee 42
SECTION 6.07. Officers' Certificate as Evidence 43
SECTION 6.08. Conflicting Interest of Trustee 43
SECTION 6.09. Eligibility of Trustee 50
SECTION 6.10. Resignation or Removal of Trustee 50
SECTION 6.11. Acceptance by Successor Trustee 52
SECTION 6.12. Succession by Merger, etc. 53
SECTION 6.13. Limitation on Rights of Trustee as a Creditor 53
SECTION 6.14. Authenticating Agents 58
iv
ARTICLE SEVEN.
CONCERNING THE SECURITYHOLDERS.
PAGE
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SECTION 7.01. Action by Securityholders 60
SECTION 7.02. Proof of Execution by Securityholders 60
SECTION 7.03. Who Are Deemed Absolute Owners 60
SECTION 7.04. Securities Owned by Company Deemed Not Outstanding 61
SECTION 7.05. Revocation of Consents; Future Holders Bound 61
ARTICLE EIGHT.
SECURITYHOLDERS' MEETINGS.
SECTION 8.01. Purpose of Meetings 62
SECTION 8.02. Call of Meetings by Trustee 63
SECTION 8.03. Call of Meetings by Company or Securityholders 63
SECTION 8.04. Qualifications for Voting 63
SECTION 8.05. Regulations 63
SECTION 8.06. Voting 64
ARTICLE NINE.
SUPPLEMENTAL INDENTURES.
SECTION 9.01. Supplemental Indentures without Consent of
Securityholders 65
SECTION 9.02. Supplemental Indentures with Consent of Securityholders 67
SECTION 9.03. Compliance with Trust Indenture Act; Effect of
Supplemental Indentures 68
SECTION 9.04. Notation on Securities 69
SECTION 9.05. Evidence of Compliance of Supplemental Indenture to be
Furnished Trustee 69
ARTICLE TEN.
CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE BY THE COMPANY.
SECTION 10.01. Consolidations and Mergers of Company and Con-
veyances Permitted Subject to Certain Conditions 69
SECTION 10.02. Successor Corporation to be Substituted for Company 70
SECTION 10.03. Securities to be Secured in Certain Events 71
SECTION 10.04. Evidence to be Furnished Trustee 71
v
ARTICLE ELEVEN.
SATISFACTION AND DISCHARGE OF INDENTURE.
PAGE
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SECTION 11.01. Discharge of Indenture 71
SECTION 11.02. Deposited Moneys to be Held in Trust by Trustee 73
SECTION 11.03. Paying Agent to Repay Moneys Held 73
SECTION 11.04. Return of Unclaimed Moneys 74
ARTICLE TWELVE.
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS.
SECTION 12.01. Indenture and Securities Solely Corporate Obligations 74
ARTICLE THIRTEEN.
MISCELLANEOUS PROVISIONS.
SECTION 13.01. Successors 74
SECTION 13.02. Official Acts by Successor Corporation 75
SECTION 13.03. Addresses for Notices, etc. 75
SECTION 13.04. New York Contract 75
SECTION 13.05. Evidence of Compliance with Conditions Precedent 75
SECTION 13.06. Legal Holidays 76
SECTION 13.07. Trust Indenture Act to Control 76
SECTION 13.08. Table of Contents, Headings, etc. 76
SECTION 13.09. Execution in Counterparts 76
SECTION 13.10. No Security Interest Created 76
ARTICLE FOURTEEN.
REDEMPTION OF SECURITIES-MANDATORY AND
OPTIONAL SINKING FUND.
SECTION 14.01. Applicability of Article 77
SECTION 14.02. Notice of Redemption; Selection of Securities 77
SECTION 14.03. Payment of Securities Called for Redemption 78
SECTION 14.04. Mandatory and Optional Sinking Fund 78
TESTIMONIUM 82
SIGNATURES 82
ACKNOWLEDGEMENTS 83
THIS INDENTURE, dated as of December 1, 1982, between MASCO CORPORATION, a
Delaware corporation (hereinafter sometimes called the "Company"), and MORGAN
GUARANTY TRUST COMPANY OF NEW YORK, as trustee (hereinafter sometimes called the
"Trustee").
W I T N E S S E T H :
WHEREAS, for its lawful corporate purposes, the Company has duly authorized
the issue from time to time of its unsecured debentures, notes or other evidence
of indebtedness to be issued in one or more series (the "Securities") up to such
principal amount or amounts as may from time to time be authorized in accordance
with the terms of this Indenture and, to provide the terms and conditions upon
which the Securities are to be authenticated, issued and delivered, the Company
has duly authorized the execution of this Indenture; and
WHEREAS, all acts and things necessary to make this Indenture a valid
agreement according to its terms, have been done and performed;
Now, THEREFORE, THIS INDENTURE WITNESSETH:
In consideration of the premises, and the purchase of the Securities by the
holders thereof, the Company covenants and agrees with the Trustee for the equal
and proportionate benefit of the respective holders from time to time of the
Securities or of a series thereof, as follows:
ARTICLE ONE.
DEFINITIONS.
SECTION 1.01. Definitions. The terms defined in this Section 1.01 (except
as herein otherwise expressly provided or unless the context otherwise requires)
for all purposes of this Indenture and of any indenture supplemental hereto
shall have the respective meanings specified in this Section 1.01. All other
terms used in this Indenture which are defined in the Trust Indenture Act of
1939, as amended, or which are by reference therein defined in the Securities
Act of 1933, as amended, shall (except as herein otherwise expressly provided or
unless the context otherwise requires) have the meanings assigned to such terms
in said Trust Indenture Act and in said
2
Securities Act as in force at the date of this Indenture as originally executed.
All accounting terms used herein and not expressly defined shall have the
meanings assigned to such terms in accordance with generally accepted accounting
principles and the term "generally accepted accounting principles" means such
accounting principles as are generally accepted at the time of any computation.
The words "herein", "hereof" and "hereunder" and other words of similar import
refer to this Indenture as a whole and not to any particular Article, Section or
other subdivision.
Attributable Debt:
The term "Attributable Debt" in respect of a sale and leaseback
arrangement, shall mean, at the time of determination, the lesser of (x) the
fair value of the property subject to such arrangement (as determined by the
Board of Directors of the Company) or (y) the present value (discounted at the
rate per annum equal to the interest borne by fixed-rate Securities or the Yield
to Maturity at the time of issuance of any Original Issue Discount Securities
determined on a weighted average basis compounded semi-annually) of the total
obligations of the lessee for rental payments during the remaining term of the
lease included in such arrangement (including any period for which such lease
has been extended or may, at the option of the lessor, be extended) after
excluding all amounts required to be paid on account of maintenance and repairs,
insurance, taxes, assessments, water and utility rates and similar charges. In
the case of any such lease which may be terminated by the lessee upon the
payment of a penalty, such net amount shall also include the amount of such
penalty, but no rent shall be considered as required to be paid under such lease
subsequent to the first date upon which it may be so terminated.
Notwithstanding the foregoing, there shall not be deemed to be any Attributable
Debt in respect of a sale and leaseback arrangement if (i) such arrangement
involves property of a type to which Section 3.05 does not apply, (ii) the
Company or a Consolidated Subsidiary would be entitled pursuant to the
provisions of Section 3.05(a) to issue, assume or guarantee Debt (as defined in
said Section 3.05(a)) secured by a mortgage upon the property involved in such
arrangement without equally and ratably securing the Securities, or (iii) the
greater of the proceeds of such arrangement or the fair market value of the
property so leased has been applied or credited in accordance with clause (b) of
Section 3.06.
3
Authenticating Agent:
The term "Authenticating Agent" shall mean any agent or agents of the
Trustee which at the time shall be appointed and acting pursuant to Section
6.14.
Board of Directors:
The term "Board of Directors" shall mean the Board of Directors of the
Company or any committee of such Board duly authorized to act hereunder.
Company:
The term "Company" shall mean Masco Corporation, a Delaware corporation,
and, subject to the provisions of Article Ten, shall include its successors and
assigns.
Consolidated Net Tangible Assets:
The term "Consolidated Net Tangible Assets" shall mean the aggregate amount
of assets (less applicable reserves) of the Company and its Consolidated
Subsidiaries after deducting therefrom (a) all current liabilities (excluding
any such liabilities deemed to be Funded Debt), (b) all goodwill, trade names,
trademarks, patents, unamortized debt discount and expense and other like
intangibles, and (c) all investments in any Subsidiary other than a Consolidated
Subsidiary, in all cases computed in accordance with generally accepted
accounting principles and which under generally accepted accounting principles
would appear on a consolidated balance sheet of the Company and its Consolidated
Subsidiaries. For purposes of the foregoing, the term "investment in any
Subsidiary other than a Consolidated Subsidiary" shall mean all evidences of
indebtedness, capital stock, other securities, obligations or indebtedness of
any Subsidiary other than a Consolidated Subsidiary owned or held by or owed to
the Company or any Consolidated Subsidiary, except an evidence of indebtedness,
an account receivable or an obligation or indebtedness on open account resulting
directly from the sale of goods or merchandise or services for fair value in the
ordinary course of business by the Company or the Consolidated Subsidiary to a
Subsidiary other than a Consolidated Subsidiary.
4
Event of Default:
The term "Event of Default" shall mean any event specified in Section 5.01,
continued for the period of time, if any, and after the giving of the notice, if
any, therein designated.
Funded Debt:
The term "Funded Debt" shall mean all indebtedness having a maturity of
more than twelve months from the date of the determination thereof or having a
maturity of less than twelve months but by its terms being renewable or
extendible at the option of the borrower beyond twelve months from the date of
such determination (a) for money borrowed or (b) incurred in connection with the
acquisition of any real or personal property, stock, debt or other assets (to
the extent that any of the foregoing acquisition indebtedness is represented by
any notes, bonds, debentures or similar evidences of indebtedness), and for the
payment of which the Company or any Consolidated Subsidiary is directly or
contingently liable, or which is secured by any property of the Company or any
Consolidated Subsidiary.
Indenture:
The term "Indenture" shall mean this instrument as originally executed or,
if amended or supplemented as herein provided, as so amended or supplemented, or
both, and shall include the form and terms of particular series of Securities
established as contemplated hereunder; provided, however, that if at any time
more than one Person is acting as Trustee under this instrument, "Indenture"
shall mean with respect to any one or more series of Securities for which such
Person is Trustee, this instrument as originally executed or as it may from time
to time be supplemented or amended by one or more indentures supplemental hereto
entered into pursuant to the applicable provisions hereof and shall include the
terms of particular series of Securities for which such Person is Trustee
established as contemplated by Section 2.03, exclusive, however, of any
provisions or terms which relate solely to other series of Securities for which
such Person is not Trustee, regardless of when such terms or provisions were
adopted, and exclusive of any provisions or terms adopted by means of one or
more indentures supplemental hereto executed and delivered after such Person had
become such Trustee but to which such Person, as such Trustee, was not a party.
5
Interest:
The term "Interest" shall mean, when used with respect to non-interest
bearing Securities, interest payable after maturity.
Officers' Certificate:
The term "Officers' Certificate" shall mean a certificate signed by the
Chairman of the Board, the President or any Vice President, and by the
Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary of
the Company and delivered to the Trustee. Each such certificate shall include
the statements provided for in Section 13.05 if and to the extent required by
the provisions of such Section.
Opinion of Counsel:
The term "Opinion of Counsel" shall mean an opinion in writing signed by
legal counsel, who may be an employee of or counsel to the Company, or may be
other counsel acceptable to the Trustee. Each such opinion shall include the
statements provided for in Section 13.05 if and to the extent required by the
provisions of such Section.
Original Issue Date:
The term "Original Issue Date" or "original issue date" of any Security (or
any portion thereof) shall mean the earlier of (a) the date of such Security or
(b) the date of any Security (or portion thereof) for which such Security was
issued (directly or indirectly) on registration of transfer, exchange or
substitution.
Original Issue Discount Security:
The term "Original Issue Discount Security" shall mean any Security which
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the maturity thereof pursuant to
Section 5.01.
Person:
The term "Person" shall mean any individual, corporation, partnership,
joint venture, association, joint-stock company, trust, unincorporated organi-
zation or government or any agency or political subdivision thereof.
6
Principal Office of the Trustee:
The term "principal office of the Trustee", or other similar term, shall
mean the office of the Trustee at which at any particular time its corporate
trust business shall principally be administered.
Principal Property:
The term "Principal Property" shall mean any manufacturing plant, research
or engineering facility owned or leased by the Company or any Consolidated
Subsidiary which is located within the United States of America or Puerto Rico,
except any such plant or facility which, in the opinion of the Board of
Directors, is not of material importance to the total business conducted by the
Company and its Consolidated Subsidiaries as an entirety.
Responsible Officer:
The term "Responsible Officer", when used with respect to the Trustee,
shall mean the chairman or vice chairman of the board of directors, the
president, the secretary, the treasurer or any vice president, trust officer or
other officer or assistant officer of the Trustee performing its corporate trust
functions.
Security or Securities; Outstanding:
The terms "Security" or "Securities" shall have the meaning stated in the
first recital of this Indenture and more particularly means any security or
securities, 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 instrument, "Security" or "Securities" with respect
to the Indenture as to which such Person is Trustee shall have the meaning
stated in the first recital of this instrument and shall more particularly mean
any securities, as the case may be, authenticated and delivered under this
instrument, exclusive, however, of securities of any series as to which such
Person is not Trustee.
The term "outstanding" (except as otherwise provided in Section 6.08), when
used with reference to Securities, shall, subject to the provisions of
7
Section 7.04, mean, as of any particular time, all Securities authenticated and
delivered by the Trustee or the Authenticating Agent under this Indenture,
except
(a) Securities theretofore cancelled by the Trustee or the
Authenticating Agent or delivered to the Trustee for cancellation;
(b) Securities, or portions thereof, for the payment or redemption of
which moneys in the necessary amount shall have been deposited in trust
with the Trustee or with any paying agent (other than the Company) or shall
have been set aside and segregated in trust by the Company (if the Company
shall act as its own paying agent); provided that, if such Securities, or
portions thereof, are to be redeemed prior to maturity thereof, notice of
such redemption shall have been given as in Article Fourteen provided or
provisions satisfactory to the Trustee shall have been made for giving such
notice; and
(c) Securities paid or in lieu of or in substitution for which other
Securities shall have been authenticated and delivered pursuant to the
terms of Section 2.08, unless proof satisfactory to the Company and the
Trustee is presented that any such Securities are held by bona fide holders
in due course.
In determining whether the holders of the requisite principal amount of
outstanding Securities have given any request, demand, authorization, direction,
notice, consent or waiver hereunder, the principal amount of an Original Issue
Discount Security that shall be deemed to be outstanding for such purposes shall
be the amount of the principal thereof that would be due and payable as of the
date of such determination upon a declaration of acceleration of the maturity
thereof pursuant to Section 5.01.
Securityholder:
The terms "Securityholder", "holder of Securities", "Holder", or other
similar terms, shall mean any person in whose name at the time a particular
Security is registered on the register kept by the Company or the Trustee for
that purpose in accordance with the terms hereof.
Subsidiary; Consolidated Subsidiary:
The term "Subsidiary" shall mean any corporation of which at least a
majority of the outstanding stock having by the terms thereof ordinary
8
voting power to elect a majority of the board of directors of such corporation
(excluding in the computation of such percentage stock of any class or classes
of such corporation which has or might have voting power by reason of the
happening of any contingency) is at the time owned by the Company, or by one or
more Subsidiaries, or by the Company and one or more Subsidiaries.
The term "Consolidated Subsidiary" shall mean each Subsidiary other than
any Subsidiary the accounts of which (i) are not required by generally accepted
accounting principles to be consolidated with those of the Company for
financial reporting purposes, (ii) were not consolidated with those of the
Company in the Company's then most recent annual report to stockholders and
(iii) are not intended by the Company to be consolidated with those of the
Company in its next annual report to stockholders; provided, however, that the
term "Consolidated Subsidiary" shall not include (a) any Subsidiary which is
principally engaged in (i) owning, leasing, dealing in or developing real
property, or (ii) purchasing or financing accounts receivable, making loans,
extending credit or other activities of a character conducted by a finance
company or (b) any Subsidiary, substantially all of the business, properties
or assets of which were acquired after December 1, 1982 (by way of merger,
consolidation, purchase or otherwise), unless the Board of Directors
thereafter designates such Subsidiary a Consolidated Subsidiary.
Trustee:
The term "Trustee" shall mean the Person identified as "Trustee" in the
first paragraph of this instrument until a successor Trustee shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder;
provided, however, that if at any time there is more than one such Person,
"Trustee" as used with respect to the Securities of any series shall mean only
the Trustee with respect to Securities of that series.
Trust Indenture Act of 1939:
The term "Trust Indenture Act of 1939" shall mean the Trust Indenture Act
of 1939 as in force at the date of execution of this Indenture, except as
provided in Sections 2.03 and 9.03.
9
Yield to Maturity:
The term "Yield to Maturity" shall mean the yield to maturity on a series
of Securities, calculated at the time of issuance of such series of Securities,
or if applicable, at the most recent redetermination of interest on such series
and calculated in accordance with accepted financial practice.
ARTICLE TWO.
SECURITIES.
SECTION 2.01. Forms Generally. The Securities of each series shall be in
substantially the form as shall be established by or pursuant to a resolution of
the Board of Directors or in one or more indentures supplemental hereto, in each
case with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture, and may have such
letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with any law or with
any rules made pursuant thereto or with any rules of any securities exchange or
all as may, consistently herewith, be determined by the officers executing such
Securities, as evidenced by their execution of the Securities.
The definitive Securities shall be printed, lithographed or engraved on
steel engraved borders or may be produced in any other manner, all as determined
by the officers executing such Securities, as evidenced by their execution of
such Securities.
SECTION 2.02 Form of Trustee's Certificate of Authentication. The
Trustee's certificate of authentication on all Securities shall be in substan-
tially the following form:
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, as Trustee
By ...........................
Authorized Officer
SECTION 2.03. Amount Unlimited; Issuable in Series. The aggregate
principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited.
10
The Securities shall rank equally and pari passu and may be issued in one
or more series. There shall be established in or pursuant to a resolution of
the Board of Directors or established in one or more indentures supplemental
hereto, prior to the issuance of Securities of any series:
(1) the title of the Securities of the series (which shall distinguish
the Securities of the series from all other Securities);
(2) any limit upon the aggregate principal amount of the Securities
of the series which may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 2.07, 2.08, 2.09, 9.04 or 14.03);
(3) the date or dates on which the principal of and premium, if any,
on the Securities of the series is payable;
(4) the rate or rates at which the Securities of the series shall bear
interest, if any, or the method by which such interest may be determined,
the date or dates from which such interest shall accrue, the interest
payment dates on which such interest shall be payable and the record dates
for the determination of holders to whom interest is payable;
(5) the place or places where the principal of, and premium, if any,
and any interest on Securities of the series shall be payable;
(6) the price or prices at which, the period or periods within which
and the terms and conditions upon which Securities of the series may be
redeemed, in whole or in part, at the option of the Company, pursuant to
any sinking fund or otherwise;
(7) the obligation, if any, of the Company to redeem, purchase or
repay Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a Securityholder thereof and the price or
prices at which and the period or periods within which and the terms and
conditions upon which Securities of the series shall be redeemed, purchased
or repaid, in whole or in part, pursuant to such obligation;
(8) the right, if any, of the Company to discharge the Indenture as to
the Securities of the series pursuant to Section 11.01 (c) or to limit
the
11
Indenture as to the Securities of the series pursuant to the last sentence
of Section 11.01 (and if any sinking fund is applicable to such series, the
obligations of such sinking fund shall survive and be provided for upon the
discharge of the Indenture pursuant to Section 11.01 (c) or the limitation
of the Indenture pursuant to the last sentence of Section 11.01);
(9) if other than denominations of $1,000 and any multiple thereof,
the denominations in which Securities of the series shall be issuable;
(10) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the maturity thereof pursuant to Section 5.01
or provable in bankruptcy pursuant to Section 5.02;
(11) any Events of Default with respect to the Securities of a
particular series, in addition to or in lieu of those set forth herein;
(12) any trustees, authenticating or paying agents, warrant agents,
transfer agents or registrars with respect to the Securities of such series;
and
(13) any other terms of the series (which terms shall conform to the
requirements of the Trust Indenture Act of 1939 as then in effect, shall not
adversely affect the rights of the Securityholders of any other Securities
then outstanding and shall not be inconsistent with the provisions of this
Indenture).
All Securities of any one series shall be substantially identical except as
to denomination and except as may otherwise be provided in or pursuant to such
resolution of the Board of Directors or in any such indenture supplemental
hereto.
SECTION 2.04. Authentication and Delivery. At any time and from time to
time after the execution and delivery of this Indenture, the Company may deliver
Securities of any series executed by the Company to the Trustee for
authentication, and the Trustee shall thereupon authenticate and deliver said
Securities to or upon the written order of the Company, signed by its Chairman
of the Board of Directors, its President or any Vice President and by its
Treasurer or Assistant Treasurer, its Secretary or an Assistant
12
Secretary without any further action by the Company hereunder.
In authenticating such Securities, and accepting the additional
responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive, and (subject to Section 6.01) shall
be fully protected in relying upon:
(1) a copy of any resolution or resolutions of the Board of
Directors relating thereto and, if applicable, an appropriate record
of any action taken pursuant to such resolution, in each case
certified by the Secretary or an Assistant Secretary of the Company;
(2) an executed supplemental indenture, if any;
(3) an Officers' Certificate prepared in accordance with Section
13.05 setting forth the form and terms of the Securities as required
pursuant to Sections 2.01 and 2.03, respectively; and
(4) an Opinion of Counsel prepared in accordance with Section
13.05 which shall also state
(a) that the form of such Securities has been established by
or pursuant to a resolution of the Board of Directors or by a
supplemental indenture as permitted by Section 2.01 in conformity
with the provisions of this Indenture;
(b) that the terms of such Securities have been established
by or pursuant to a resolution of the Board of Directors or by a
supplemental indenture as permitted by Section 2.03 in conformity
with the provisions of this Indenture;
(c) that such Securities, when authenticated and delivered
by the Trustee and issued by the Company in the manner and
subject to any conditions specified in such Opinion of Counsel,
will constitute valid and legally binding obligations of the
Company;
(d) that all laws and requirements in respect of the
execution and delivery by the Company of the Securities have been
complied with and that authentication and delivery of the
Securities by the Trustee will not violate the terms of this
Indenture; and
(e) such other matters as the Trustee may reasonably
request.
The Trustee shall have the right to decline to authenticate and
deliver any Securities under this Section if the Trustee, being advised by
counsel,
13
determines that such action may not lawfully be taken or if the Trustee in good
faith by its board of directors or trustees, executive committee, or a trust
committee of directors or trustees and/or vice presidents shall determine that
such action would expose the Trustee to personal liability to existing holders.
SECTION 2.05. Date and Denomination of Securities. The Securities shall be
issuable as registered Securities without coupons and in such denominations as
shall be specified as contemplated by Section 2.03. In the absence of any such
specification with respect to the Securities of any series, the Securities of
such series shall be issuable in denominations of $1,000 and any multiple
thereof. The Securities shall be numbered, lettered, or otherwise distinguished
in such manner or in accordance with such plans as the officers of the Company
executing the same may determine with the approval of the Trustee as evidenced
by the execution and authentication thereof.
Every Security shall be dated the date of its authentication, shall bear
interest, if any, from such date and shall be payable on such dates, in each
case, as contemplated by Section 2.03.
The person in whose name any Security of any series is registered at the
close of business on any record date (as hereinafter defined) with respect to
any interest payment date shall be entitled to receive the interest, if any,
payable on such interest payment date notwithstanding the cancellation of such
Security upon any transfer or exchange subsequent to the record date and prior
to such interest payment date; provided, however, that if and to the extent the
Company shall default in the payment of the interest due on such interest
payment date, such defaulted interest shall be paid to the persons in whose
names outstanding Securities are registered on a subsequent record date
established by notice given by mail by or on behalf of the Company to the
holders of Securities and the Trustee not less than 15 days preceding such
subsequent record date, such subsequent record date to be not less than ten days
preceding the date of payment of such defaulted interest. The term "record
date" as used in this Section with respect to any interest payment date shall
mean if such interest payment date is the first day of a calendar month, the
fifteenth day of the next preceding calendar month and shall mean, if such
interest payment date is the fifteenth day of a calendar month, the first day of
such calendar month, whether or not such record date is a business day.
14
SECTION 2.06. Execution of Securities. The Securities shall be signed in
the name and on behalf of the Company by the facsimile signature of its Chairman
of the Board or its President and imprinted with a facsimile of its corporate
seal and attested by the facsimile signature of its Secretary or an Assistant
Secretary. Each such signature upon the Securities may be in the form of a
facsimile signature of any such officer and may be imprinted or otherwise
reproduced on the Securities and for that purpose the Company may adopt and use
the facsimile signature of any person who has been or is such officer, and in
case any such officer of the Company signing any of the Securities shall cease
to be such officer before the Securities so signed shall have been authenticated
and delivered by the Trustee, or disposed of by the Company, such Securities
nevertheless may be authenticated and delivered or disposed of as though such
person had not ceased to be such officer of the Company. Only such Securities
as shall bear thereon a certificate of authentication substantially in the form
hereinbefore recited, executed by the Trustee or the Authenticating Agent,
shall be entitled to the benefits of this Indenture or be valid or obligatory
for any purpose. Such certificate by the Trustee or the Authenticating Agent
upon any Security executed by the Company shall be conclusive evidence that the
Security so authenticated has been duly authenticated and delivered hereunder
and that the holder is entitled to the benefits of this Indenture.
SECTION 2.07. Exchange and Registration of Transfer of Securities.
Securities of any series may be exchanged for a like aggregate principal amount
of Securities of the same series of other authorized denominations. Securities
to be exchanged may be surrendered at the principal office of the Trustee or at
any office or agency to be maintained by the Company for such purpose as
provided in Section 3.02, and the Company or the Trustee shall execute and
register and the Trustee or the Authenticating Agent shall authenticate and
deliver in exchange therefor the Security or Securities which the Securityholder
making the exchange shall be entitled to receive. Upon due presentment for
registration of transfer of any Security of any series at the principal office
of the Trustee or at any office or agency of the Company maintained for such
purpose as provided in Section 3.02, the Company or the Trustee shall execute
and register and the Trustee or the Authenticating Agent shall authenticate and
deliver in the name of the transferee or transferees a new Security or
Securities of the same series for a like aggregate principal amount.
Registration or registration of transfer of
15
any Security by the Trustee or by any agent of the Company appointed pursuant to
Section 3.02, and delivery of such Security, shall be deemed to complete the
registration or registration of transfer of such Security.
The Company or the Trustee shall keep, at the principal office of the
Trustee, a register for each series of Securities issued hereunder in which,
subject to such reasonable regulations as it may prescribe, the Company or the
Trustee shall register all Securities and shall register the transfer of all
Securities as in this Article Two provided. Such register shall be in written
form or in any other form capable of being converted into written form within a
reasonable time.
All Securities presented for registration of transfer or for exchange or
payment shall (if so required by the Company or the Trustee or the
Authenticating Agent) be duly endorsed by, or be accompanied by a written
instrument or instruments of transfer in form satisfactory to the Company and
the Trustee or the Authenticating Agent duly executed by, the holder or his
attorney duly authorized in writing.
No service charge shall be made for any exchange or registration of
transfer of Securities, but the Company or the Trustee may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection therewith.
The Company or the Trustee shall not be required to exchange or register a
transfer of (a) any Security of a series for a period of 15 days next preceding
the date of selection of Securities of such series for redemption, or (b) any
Securities of any series selected, called or being called for redemption in
whole or in part, except, in the case of any Securities of any series to be
redeemed in part, the portion thereof not so to be redeemed.
SECTION 2.08. Mutilated, Destroyed, Lost or Stolen Securities. In case any
temporary or definitive Security shall become mutilated or be destroyed, lost
or stolen, the Company in the case of a mutilated Security shall, and in the
case of a lost, stolen or destroyed Security may in its discretion, execute, and
upon its request the Trustee shall authenticate and deliver, a new Security of
the same series bearing a number not contemporaneously outstanding, in exchange
and substitution for the mutilated Security, or in lieu of and in substitution
for the Security so destroyed, lost or stolen. In every case the applicant for
a substituted Security shall furnish to the
16
Company and the Trustee such security or indemnity as may be required by them to
save each of them harmless, and, in every case of destruction, loss or theft,
the applicant shall also furnish to the Company and the Trustee evidence to
their satisfaction of the destruction, loss or theft of such Security and of the
ownership thereof.
The Trustee may authenticate any such substituted Security and deliver the
same upon the written request or authorization of any officer of the Company.
Upon the issuance of any substituted Security, 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 connected therewith
and in addition a further sum not exceeding two dollars for each Security so
issued in substitution. In case any Security which has matured or is about to
mature or has been called for redemption in full shall become mutilated or be
destroyed, lost or stolen, the Company may, instead of issuing a substitute
Security, pay or authorize the payment of the same (without surrender thereof
except in the case of a mutilated Security) if the applicant for such payment
shall furnish to the Company and the Trustee such security or indemnity as may
be required by them to save each of them harmless and, in case of destruction,
loss or theft, evidence satisfactory to the Company and to the Trustee of the
destruction, loss or theft of such Security and of the ownership thereof.
Every substituted Security of any series issued pursuant to the provisions
of this Section 2.08 by virtue of the fact that any such Security is destroyed,
lost or stolen shall constitute an additional contractual obligation of the
Company, whether or not the destroyed, lost or stolen Security shall be found at
any time, and shall be entitled to all the benefits of this Indenture equally
and proportionately with any and all other Securities of the same series duly
issued hereunder. All Securities shall be held and owned upon the express
condition that, to the extent permitted by applicable law, the foregoing
provisions are exclusive with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities and shall preclude any and all
other rights or remedies notwithstanding any law or statute existing or
hereafter enacted to the contrary with respect to the replacement or payment of
negotiable instruments or other securities without their surrender.
17
SECTION 2.09. Temporary Securities. Pending the preparation of
definitive Securities of any series the Company may execute and the Trustee
shall authenticate and deliver temporary Securities (printed or lithographed).
Temporary Securities shall be issuable in any authorized denomination, and
substantially in the form of the definitive Securities but with such omissions,
insertions and variations as may be appropriate for temporary Securities, all as
may be determined by the Company. Every such temporary Security shall be
executed by the Company and be authenticated by the Trustee upon the same
conditions and in substantially the same manner, and with the same effect, as
the definitive Securities. Without unreasonable delay the Company will execute
and deliver to the Trustee or the Authenticating Agent definitive Securities and
thereupon any or all temporary Securities of such series may be surrendered in
exchange therefor, at the principal office of the Trustee or at any office or
agency maintained by the Company for such purpose as provided in Section 3.02,
and the Trustee or the Authenticating Agent shall authenticate and deliver in
exchange for such temporary Securities a like aggregate principal amount of such
definitive Securities. Such exchange shall be made by the Company at its own
expense and without any charge therefor except that in case of any such exchange
involving a registration of transfer the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto. Until so exchanged, the temporary Securities of any series
shall in all respects be entitled to the same benefits under this Indenture as
definitive Securities of the same series authenticated and delivered hereunder.
SECTION 2.10. Cancellation of Securities Paid, etc. All Securities
surrendered for the purpose of payment, redemption, exchange or registration
of transfer or for credit in lieu of retiring Funded Debt pursuant to Section
3.06 shall, if surrendered to the Company or any paying agent, be surrendered to
the Trustee and promptly cancelled by it, or, if surrendered to the Trustee or
any Authenticating Agent, shall be promptly cancelled by it, and no Securities
shall be issued in lieu thereof except as expressly permitted by any of the
provisions of this Indenture. All Securities cancelled by any Authenticating
Agent shall be delivered to the Trustee. The Trustee shall destroy cancelled
Securities and shall deliver a certificate of such destruction to the Company.
If the Company shall acquire any of the Securities, however, such acquisition
shall not operate as a redemption or
18
satisfaction of the indebtedness represented by such Securities unless and until
the same are surrendered to the Trustee for cancellation.
ARTICLE THREE.
PARTICULAR COVENANTS OF THE COMPANY.
SECTION 3.01. Payment of Principal, Premium and Interest. The Company
covenants and agrees for the benefit of each series of Securities that it will
duly and punctually pay or cause to be paid the principal of and premium, if
any, and any interest on each of the Securities of that series at the place, at
the respective times and in the manner provided in such Securities. Each
installment of interest, if any, on the Securities of any series may be paid by
mailing checks for such interest payable to the order of the holders of
Securities entitled thereto as they appear on the registry books of the Company.
SECTION 3.02. Offices for Notices and Payments, etc. So long as any of the
Securities remains outstanding, the Company will maintain in the Borough of
Manhattan, The City of New York, an office or agency where the Securities of
each series may be presented for payment, an office or agency where the
Securities of that series may be presented for registration of transfer and for
exchange as in this Indenture provided and an office or agency where notices and
demands to or upon the Company in respect of the Securities of that series or of
this Indenture may be served. The Company will give to the Trustee written
notice of the location of any such office or agency and of any change of
location thereof. Until otherwise designated from time to time by the Company
in a notice to the Trustee, or specified as contemplated by Section 2.03, such
office or agency for all of the above purposes shall be the principal office of
the Trustee. In case the Company shall fail to maintain any such office or
agency in the Borough of Manhattan, The City of New York, or shall fail to give
such notice of the location or of any change in the location thereof,
presentations and demands may be made and notices may be served at the principal
office of the Trustee.
In addition to such office or agency, the Company may from time to time
designate one or more offices or agencies outside the Borough of Manhattan, The
City of New York, where the Securities may be presented
19
for registration of transfer and for exchange in the manner provided in this
Indenture, and the Company may from time to time rescind such designation, as
the Company may deem desirable or expedient; provided, however, that no such
designation or rescission shall in any manner relieve the Company of its
obligation to maintain such office or agency in the Borough of Manhattan, The
City of New York, for the purposes above mentioned. The Company will give to the
Trustee prompt written notice of any such designation or rescission thereof.
SECTION 3.03. Appointments to Fill Vacancies in Trustee's Office. The
Company, whenever necessary to avoid or fill a vacancy in the office of Trustee,
will appoint, in the manner provided in Section 6.10, a Trustee, so that there
shall at all times be a Trustee hereunder.
SECTION 3.04. Provision as to Paying Agent. (a) If the Company shall
appoint a paying agent other than the Trustee with respect to the Securities of
any series, it will cause such paying agent to execute and deliver to the
Trustee an instrument in which such agent shall agree with the Trustee, subject
to the provisions of this Section 3.04:
(1) that it will hold all sums held by it as such agent for the
payment of the principal of and premium, if any, or interest, if any, on
the Securities of such series (whether such sums have been paid to it by
the Company or by any other obligor on the Securities of such series) in
trust for the benefit of the holders of the Securities of such series; and
(2) that it will give the Trustee notice of any failure by the
Company (or by any other obligor on the Securities of such series) to
make any payment of the principal of and premium, if any, or interest,
if any, on the Securities of such series when the same shall be due and
payable.
(b) If the Company shall act as its own paying agent, it will, on or before
each due date of the principal of and premium, if any, or interest, if any, on
the Securities of any series, set aside, segregate and hold in trust for the
benefit of the holders of the Securities of such series a sum sufficient to pay
such principal, premium or interest so becoming due and will notify the Trustee
of any failure to take such action and of any failure by the Company (or by any
other obligor under the Securities of such series) to make any payment of the
principal of and premium, if any, or interest, if any, on the Securities of such
series when the same shall become due and payable.
20
(c) Anything in this Section 3.04 to the contrary notwithstanding, the
Company may, at any time, for the purpose of obtaining a satisfaction and
discharge with respect to one or more or all series of Securities
hereunder, or for any other reason, pay or cause to be paid to the Trustee
all sums held in trust for any such series by the Trustee or any paying
agent hereunder, as required by this Section 3.04, such sums to be held by
the Trustee upon the trusts herein contained.
(d) Anything in this Section 3.04 to the contrary notwithstanding, the
agreement to hold sums in trust as provided in this Section 3.04 is subject
to Sections 11.03 and 11.04.
SECTION 3.05. Limitation on Liens. (a) The Company will not, nor will it
permit any Consolidated Subsidiary to, issue, assume or guarantee any debt for
money borrowed or any Funded Debt (hereinafter in this Article Three referred to
as "Debt"), secured by a mortgage, security interest, pledge, lien or other
encumbrance (mortgages, security interests, pledges, liens and other
encumbrances being hereinafter called a "mortgage" or "mortgages") upon any
Principal Property or upon any shares of stock or indebtedness of any
Consolidated Subsidiary which owns or leases a Principal Property (whether such
Principal Property, shares of stock or indebtedness are now owned or hereafter
acquired) without in any such case effectively providing concurrently with the
issuance, assumption or guaranty of any such Debt that the Securities (together
with, if the Company shall so determine, any other indebtedness of or guaranteed
by the Company or such Consolidated Subsidiary ranking equally with the
Securities and then existing or thereafter created) shall be secured equally and
ratably with such Debt; provided, however, that the foregoing restrictions shall
not apply to Debt secured by
(i) mortgages on property, shares of stock or indebtedness of any
corporation existing at the time such corporation becomes a Consolidated
Subsidiary;
(ii) mortgages on property existing at the time of acquisition of such
property by the Company or a Consolidated Subsidiary, or mortgages to
secure the payment of all or any part of the purchase price of such
property upon the acquisition of such property by the Company or a
Consolidated Subsidiary or to secure any Debt incurred by the
21
Company or a Consolidated Subsidiary prior to, at the time of, or
within 120 days after the later of the acquisition, the completion of
construction (including any improvements on an existing property) or
the commencement of commercial operation of such property, which Debt
is incurred for the purpose of financing all or any part of the
purchase price thereof or construction or improvements thereon; pro-
vided, however, that in the case of any such acquisition, construction
or improvement, the mortgage shall not apply to any property
theretofore owned by the Company or a Consolidated Subsidiary, other
than any property on which the property so constructed or the
improvement is located or to which the property so constructed or the
improvement is appurtenant;
(iii) mortgages securing Debt of a Consolidated Subsidiary owing
to the Company or to another Consolidated Subsidiary;
(iv) mortgages on property of a corporation existing at the time
such corporation is merged or consolidated with the Company or a
Consolidated Subsidiary or at the time of a sale, lease or other
disposition of the properties of a corporation or firm as an entirety
or substantially as an entirety to the Company or a Consolidated
Subsidiary; provided, however, that no such mortgage shall extend to
any other Principal Property of the Company or any Consolidated
Subsidiary or to any shares of capital stock or any indebtedness of
any Consolidated Subsidiary which owns or leases a Principal Property;
(v) mortgages on property of the Company or a Consolidated
Subsidiary in favor of the United States of America or any State
thereof, or any department, agency or instrumentality or political
subdivision of the United States of America or any State thereof, or
in favor of any other country, or any political subdivision thereof,
to secure partial, progress, advance or other payments pursuant to any
contract or statute (including Debt of the pollution control or
industrial revenue bond type) or to secure any indebtedness incurred
for the purpose of financing all or any part of the purchase price or
the cost of construction of the property subject to such mortgages; or
(vi) any extension, renewal or replacement (or successive exten-
sions, renewals or replacements) in whole or in part of mortgages
existing at the date of this Indenture, or any mortgage referred to in
the
22
foregoing clauses (i) through (v), inclusive, provided, however,
that the principal amount of Debt secured thereby shall not
exceed the principal amount of Debt so secured at the time of
such extension, renewal or replacement, and that such extension,
renewal or replacement shall be limited to all or a part of the
property which secured the mortgage so extended, renewed or
replaced (plus improvements on such property).
(b) Notwithstanding the foregoing provisions of this Section
3.05, the Company may, and may permit any Consolidated Subsidiary to,
issue, assume or guarantee Debt secured by a mortgage not excepted by
clauses (i) through (vi) of paragraph (a) above without equally and
ratably securing the Securities, provided, however, that the aggregate
principal amount of all such Debt then outstanding, plus the aggregate
principal amount of the Debt then being issued, assumed, or
guaranteed, and the aggregate amount of the Attributable Debt in
respect of sale and lease-back arrangements, shall not exceed 5% of
Consolidated Net Tangible Assets, determined as of a date not more
than 90 days prior thereto.
SECTION 3.06. Limitation on Sale and Leaseback. The Company will not, nor
will it permit any Consolidated Subsidiary to, enter into any arrangement with
any person providing for the leasing by the Company or any Consolidated
Subsidiary of any Principal Property (whether such Principal Property is now
owned or hereafter acquired) (except for leases for a term of not more than
three years and except for leases between the Company and a Consolidated
Subsidiary or between Consolidated Subsidiaries), which property has been or
is to be sold or transferred by the Company or such Consolidated Subsidiary to
such person, unless (a) the Company or such Subsidiary would be entitled,
pursuant to the provisions of Section 3.05, to issue, assume or guarantee Debt
secured by a mortgage upon such property at least equal in amount to the
Attributable Debt in respect of such arrangement without equally and ratably
securing the Securities or (b) the Company or a Consolidated Subsidiary, within
120 days of the effective date of any such arrangement, applies an amount equal
to the greater of the net proceeds of the sale of the Principal Property leased
pursuant to such arrangement or the fair market value of the Principal Property
so leased at the time of entering into such arrangement (as determined by the
Board of Directors of the Company) to the retirement (other than any mandatory
retirement or by way of payment at maturity) of
23
Funded Debt of the Company or any Consolidated Subsidiary (other than Funded
Debt owned by the Company or any Consolidated Subsidiary and other than Funded
Debt subordinated in the payment of principal or interest to the Securities and
except that no Security shall be retired if such retirement of Securities
pursuant to this provision would be prohibited by the resolutions or
supplemental indentures referred to in Section 2.03), provided, however, that in
lieu of applying all or any part of such net proceeds or fair market value to
such retirement, the Company may at its option (i) deliver to the Trustee
Securities theretofore purchased or otherwise acquired by the Company, or (ii)
receive credit for Securities theretofore redeemed pursuant to the resolutions
or supplemental indentures referred to in Section 2.03 hereof, which Securities
have not theretofore been made the basis for the reduction of a sinking fund
payment pursuant to Section 14.04 or applied in lieu of retiring Funded Debt
pursuant hereto. If the Company shall so deliver Securities to the Trustee (or
receive credit for Securities so delivered), the amount of cash which the
Company shall be required to apply to the retirement of Funded Debt pursuant to
this Section 3.06 shall be reduced by an amount equal to the aggregate principal
amount of such Securities.
SECTION 3.07. Certificate to Trustee. The Company will deliver to the
Trustee on or before April 1 in each year (beginning with April 1, 1983), so
long as Securities of any series are outstanding hereunder, an Officers'
Certificate stating that in the course of the performance by the signers of
their duties as officers of the Company they would normally have knowledge of
any default by the Company in the performance of any covenants contained in
Sections 3.05, 3.06 and 10.03, stating whether or not they have knowledge of any
such default and, if so, specifying each such default of which the signers have
knowledge and the nature thereof.
ARTICLE FOUR.
SECURITYHOLDERS' LISTS AND REPORTS BY THE COMPANY
AND THE TRUSTEE.
SECTION 4.01. Securityholders' Lists. The Company covenants and agrees
that it will furnish or cause to be furnished to the Trustee:
(a) semi-annually, not more than 15 days after each record date for
each series of Securities, a list, in such form as the Trustee may
24
reasonably require, of the names and addresses of the Securityholders
of such series of Securities as of such record date (and on dates to
be determined pursuant to Section 2.03 for non-interest bearing
Securities in each year); 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,
except that no such lists need be furnished so long as the Trustee is in
possession thereof by reason of its acting as Securities registrar for such
series.
SECTION 4.02. Preservation and Disclosure of Lists. (a) The Trustee shall
preserve, in as current a form as is reasonably practicable, all information as
to the names and addresses of the holders of each series of Securities (1)
contained in the most recent list furnished to it as provided in Section 4.01 or
(2) received by it in the capacity of Securities registrar (if so acting)
hereunder. The Trustee may destroy any list furnished to it as provided in
Section 4.01 upon receipt of a new list so furnished.
(b) In case three or more holders of Securities of any series (hereinafter
referred to as "applicants") apply in writing to the Trustee and furnish to the
Trustee reasonable proof that each such applicant has owned a Security of such
series for a period of at least six months preceding the date of such
application, and such application states that the applicants desire to
communicate with other holders of Securities of such series or with holders of
all Securities with respect to their rights under this Indenture or under such
Securities and is accompanied by a copy of the form of proxy or other
communication which such applicants propose to transmit, then the Trustee shall
within five business days after the receipt of such application, at its
election, either:
(1) afford such applicants access to the information preserved at the
time by the Trustee in accordance with the provisions of subsection (a) of
this Section 4.02, or
(2) inform such applicants as to the approximate number of holders of
such series or all Securities, as the case may be, whose names and
addresses appear in the information preserved at the time by the
25
Trustee in accordance with the provisions of subsection (a) of this Section
4.02, and as to the approximate cost of mailing to such Securityholders the
form of proxy or other communication, if any, specified in such
application.
If the Trustee shall elect not to afford such applicants access to such
information, the Trustee shall, upon the written request of such applicants,
mail to each Securityholder of such series or all Securities, as the case may
be, whose name and address appear in the information preserved at the time by
the Trustee in accordance with the provisions of subsection (a) of this Section
4.02 a copy of the form of proxy or other communication which is specified in
such request with reasonable promptness after a tender to the Trustee of the
material to be mailed and of payment, or provision for the payment, of the
reasonable expenses of mailing, unless within five days after such tender, the
Trustee shall mail to such applicants and file with the Securities and Exchange
Commission, together with a copy of the material to be mailed, a written
statement to the effect that, in the opinion of the Trustee, such mailing would
be contrary to the best interests of the holders of Securities of such series or
all Securities, as the case may be, or would be in violation of applicable law.
Such written statement shall specify the basis of such opinion. If said
Commission, after opportunity for a hearing upon the objections specified in the
written statement so filed, shall enter an order refusing to sustain any of such
objections or if, after the entry of an order sustaining one or more of such
objections, said Commission shall find, after notice and opportunity for
hearing, that all the objections so sustained have been met and shall enter an
order so declaring, the Trustee shall mail copies of such material to all such
Securityholders with reasonable promptness after the entry of such order and the
renewal of such tender; otherwise the Trustee shall be relieved of any
obligation or duty to such applicants respecting their application.
(c) Each and every holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the Trustee
nor any agent of either 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 the provisions of subsection (b) of this Section 4.02,
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 said subsection (b).
26
SECTION 4.03. Reports by Company. (a) The Company covenants and agrees to
file with the Trustee, within 15 days after the Company is required to file the
same with the Securities and Exchange 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 said Commission may from time to time by rules and
regulations prescribe) which the Company may be required to file with said
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 such sections, then to file with the Trustee
and said Commission, in accordance with rules and regulations prescribed from
time to time by said 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.
(b) The Company covenants and agrees to file with the Trustee and the
Securities and Exchange Commission, in accordance with the rules and regulations
prescribed from time to time by said Commission, such additional information,
documents and reports with respect to compliance by the Company with the
conditions and covenants provided for in this Indenture as may be required from
time to time by such rules and regulations.
(c) The Company covenants and agrees to transmit by mail to all holders of
Securities, as the names and addresses of such holders appear upon the
Securities register, within 30 days after the filing thereof with the Trustee,
such summaries of any information, documents and reports required to be filed
by the Company pursuant to subsections (a) and (b) of this Section 4.03 as may
be required by rules and regulations prescribed from time to time by the
Securities and Exchange Commission.
SECTION 4.04. Reports by the Trustee. (a) On or before June 15, 1983, and
on or before June 15 in every year thereafter, so long as any Securities are
outstanding hereunder, the Trustee shall transmit to the Securityholders of each
series of Securities for which such Trustee is appointed, as hereinafter in this
Section 4.04 provided, a brief report dated as of a date convenient to the
Trustee no more than 60 days prior thereto with respect to:
27
(1) its eligibility under Section 6.09, and its qualification under
Section 6.08, or in lieu thereof, if to the best of its knowledge it has
continued to be eligible and qualified under such Sections, a written
statement to such effect;
(2) the character and amount of any advances (and if the Trustee
elects so to state, the circumstances surrounding the making thereof) made
by the Trustee (as such) which remain unpaid on the date of such report,
and for the reimbursement of which it claims or may claim a lien or charge,
prior to that of the Securities, on any property or funds held or collected
by it as Trustee, except that the Trustee shall not be required (but may
elect) to state such advances if such advances so remaining unpaid
aggregate not more than 1/2 of 1% of the principal amount of the Securities
for any series outstanding on the date of such report;
(3) the amount, interest rate, and maturity date of all other
indebtedness owing by the Company (or by any other obligor on the
Securities) to the Trustee in its individual capacity, on the date of such
report, with a brief description of any property held as collateral
security therefor, except any indebtedness based upon a creditor
relationship arising in any manner described in paragraph (2), (3), (4) or
(6) of subsection (b) of Section 6.13;
(4) the property and funds, if any, physically in the possession of
the Trustee, as such, on the date of such report;
(5) any additional issue of Securities which the Trustee has not
previously reported; and
(6) any action taken by the Trustee in the performance of its duties
under this Indenture which it has not previously reported and which in its
opinion materially affects the Securities, except action in respect of a
default, notice of which has been or is to be withheld by it in accordance
with the provisions of Section 5.08.
(b) The Trustee shall transmit to the Securityholders for each series, as
hereinafter provided, a brief report with respect to the character and amount of
any advances (and if the Trustee elects so to state, the circumstances
surrounding the making thereof) made by the Trustee (as such), since the date of
the last report transmitted pursuant to the provisions of subsection
28
(a) of this Section 4.04 (or, if no such report has yet been so transmitted,
since the date of execution of this Indenture), for the reimbursement of which
it claims or may claim a lien or charge prior to that of the Securities of such
series on property or funds held or collected by it as Trustee, and which it has
not previously reported pursuant to this subsection, except that the Trustee
shall not be required (but may elect) to report such advances if such advances
remaining unpaid at any time aggregate 10% or less of the principal amount of
Securities for such series outstanding at such time, such report to be
transmitted within 90 days after such time.
(c) Reports pursuant to this Section 4.04 shall be transmitted by mail to
all holders of Securities as the names and addresses of such holders appear upon
the Securities register.
(d) A copy of each such report shall, at the time of such transmission to
Securityholders, be filed by the Trustee with each stock exchange upon which the
Securities of any applicable series are listed and also with the Securities and
Exchange Commission. The Company will notify the Trustee when and as the
Securities of any series become listed on or delisted by any stock exchange.
ARTICLE FIVE.
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT.
SECTION 5.01. Events of Default. "Event of Default", whenever used herein
with respect to Securities of any series, means any one of the following events
and such other events as may be established with respect to the Securities of
that series as contemplated by Section 2.03 hereof.
(a) default in the payment of any interest upon any Securities of that
series when it becomes due and payable, and continuance of such default for
a period of 30 days; or
(b) default in the payment of all or any part of the principal of (or
premium, if any, on) any Securities of that series as and when the same
shall become due and payable either at maturity, upon redemption (including
redemption for the sinking fund), by declaration or otherwise; or
(c) default in the performance, or breach, of any covenant of the
Company in this Indenture (other than a covenant a default in whose
29
performance or whose breach is elsewhere in this Section specifically dealt
with and other than those set forth exclusively in terms of any particular
series of Securities established as contemplated in this Indenture), and
continuance of such default or breach for a period of 90 days after there
has been given, by registered or certified mail, to the Company by the
Trustee or to the Company and the Trustee by the Holders of at least 25% in
principal amount of the outstanding Securities 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
(d) a court having jurisdiction in the premises shall enter a decree
or order for relief in respect of the Company in an involuntary case under
any applicable bankruptcy, insolvency or other similar law now or hereafter
in effect, or appointing a receiver, liquidator, assignee, custodian,
trustee, sequestrator (or similar official) of the Company or for any
substantial part of its property, or ordering the winding-up or liquidation
of its affairs and such decree or order shall remain unstayed and in effect
for a period of 90 consecutive days; or
(e) the Company shall commence a voluntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect,
shall consent to the entry of an order for relief in an involuntary case
under any such law, or shall consent to the appointment of or taking
possession by a receiver, liquidator, assignee, trustee, custodian,
sequestrator (or other similar official) of the Company or of any
substantial part of its property, or shall make any general assignment
for the benefit of creditors, or shall fail generally to pay its debts as
they become due.
If an Event of Default described in clause (a) or (b) or established
pursuant to Section 2.03 occurs and is continuing, then, and in each and every
such case, unless the principal of all of the Securities of such series shall
have already become due and payable, either the Trustee or the holders of not
less than 25% in aggregate principal amount of the Securities of such series
then outstanding hereunder, by notice in writing to the Company (and to the
Trustee if given by Securityholders), may declare the entire principal (or, if
the Securities of that series are Original Issue Discount Securities, such
portion of the principal amount as may be specified in the
30
terms of that series) of all the Securities of such series and the interest
accrued thereon, if any, to be due and payable immediately, and upon any such
declaration the same shall become immediately due and payable. If an Event of
Default described in clause (c), (d) or (e) occurs and is continuing, then and
in each and every such case, unless the principal of all the Securities shall
have already become due and payable, either the Trustee or the holders of not
less than 25% in aggregate principal amount of all the Securities then
outstanding hereunder (treated as one class), by notice in writing to the
Company (and to the Trustee if given by Securityholders), may declare the entire
principal (or, if any Securities are Original Issue Discount Securities, such
portion of the principal as may be specified in the terms thereof) of all the
Securities then outstanding and interest accrued thereon, if any, to be due and
payable immediately, and upon any such declaration the same shall become
immediately due and payable.
The foregoing provisions, however, are subject to the condition that if, at
any time after the principal (or, if the Securities are Original Issue Discount
Securities, such portion of the principal as may be specified in the terms
thereof) of the Securities of any series (or of all the Securities, as the case
may be) shall have been so declared due and payable, and before any judgment or
decree for the payment of the moneys due shall have been obtained or entered as
hereinafter provided, the Company shall pay or shall deposit with the Trustee a
sum sufficient to pay all matured installments of interest, if any, upon all the
Securities of any series (or of all the Securities, as the case may be) and the
principal of and premium, if any, on any and all Securities of such series (or
of all the Securities, as the case may be) which shall have become due otherwise
than by acceleration (with interest upon such principal and premium, if any,
and, to the extent that payment of such interest is enforceable under applicable
law, on overdue installments of interest, at the same rate as the rate of
interest or Yield to Maturity (in the case of Original Issue Discount
Securities) specified in the Securities of such series, or at the respective
rates of interest or Yields to Maturity of all the Securities, as the case may
be, to the date of such payment or deposit) and such amount as shall be
sufficient to cover reasonable compensation to the Trustee and each predecessor
Trustee, their respective agents, attorneys and counsel, and all other expenses
and liabilities incurred, and all advances made, by the Trustee and each
predecessor Trustee except as a result of negligence or bad faith, and if any
and all Events of Default under this
31
Indenture, other than the non-payment of the principal of or premium, if any, on
Securities which shall have become due by acceleration, shall have been cured,
waived or otherwise remedied as provided herein--then and in every such case the
holders of a majority in aggregate principal amount of the Securities of such
series (or of all the Securities, as the case may be) then outstanding, by
written notice to the Company and to the Trustee, may waive all defaults with
respect to that series (or with respect to all Securities, as the case may be,
in such case, treated as a single class) and rescind and annul such declaration
and its consequences, but no such waiver or rescission and annulment shall
extend to or shall affect any subsequent default or shall impair any right
consequent thereon.
In case the Trustee shall have proceeded to enforce any right under this
Indenture and such proceedings shall have been discontinued or abandoned because
of such rescission or annulment or for any other reason or shall have been
determined adversely to the Trustee, then and in every such case the Company,
the Trustee and the holders of the Securities shall be restored respectively to
their several positions and rights hereunder, and all rights, remedies and
powers of the Company, the Trustee and the holders of the Securities shall
continue as though no such proceeding had been taken.
SECTION 5.02. Payment of Securities on Default; Suit Therefor. The Company
covenants that (a) in case default shall be made in the payment of any
installment of interest upon any of the Securities of any series as and when the
same shall become due and payable, and such default shall have continued for a
period of 30 days, or (b) in case default shall be made in the payment of the
principal of or premium, if any, on any of the Securities of any series as and
when the same shall have become due and payable, whether at maturity of the
Securities of that series or upon redemption or by declaration or
otherwise--then, upon demand of the Trustee, the Company will pay to the
Trustee, for the benefit of the holders of the Securities of that series, the
whole amount that then shall have become due and payable on all such Securities
of that series for principal and premium, if any, or interest, or both, as the
case may be, with interest upon the overdue principal and premium, if any, and
(to the extent that payment of such interest is enforceable under applicable
law) upon the overdue installments of interest at the rate of interest or Yield
to Maturity (in the case of Original Issue Discount Securities) borne by the
Securities of that series, and, in addition thereto, such further amount as
shall be sufficient to cover the costs
32
and expenses of collection, including reasonable compensation to the Trustee,
its agents, attorneys and counsel, and any expenses or liabilities incurred by
the Trustee hereunder other than through its negligence or bad faith.
In case the Company shall fail forthwith to pay such amounts upon such
demand, the Trustee, in its own name and as trustee of an express trust, shall
be entitled and empowered to institute any actions or proceedings at law or in
equity for the collection of the sums so due and unpaid, and may prosecute any
such action or proceeding to judgment or final decree, and may enforce any such
judgment or final decree against the Company or any other obligor on such
Securities and collect in the manner provided by law out of the property of the
Company or any other obligor on such Securities wherever situated the moneys
adjudged or decreed to be payable.
In case there shall be pending proceedings for the bankruptcy or for the
reorganization of the Company or any other obligor on the Securities of any
series under Title 11, United States Code, or any other applicable law, or in
case a receiver or trustee (or similar official) shall have been appointed for
the property of the Company or such other obligor, or in the case of any other
similar judicial proceedings relative to the Company or other obligor upon the
Securities of any series, or to the creditors or property of the Company or such
other obligor, the Trustee, irrespective of whether the principal of the
Securities of any series 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 pursuant to the provisions of this Section 5.02, shall be
entitled and empowered, by intervention in such proceedings or otherwise, to
file and prove a claim or claims for the whole amount of principal and interest
(or, if the Securities of that series are Original Issue Discount Securities
such portion of the principal amount as may be specified by the terms of that
series) owing and unpaid in respect of the Securities of such series and, in
case of any judicial proceedings, to file such proofs of claim and other papers
or documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for reasonable compensation to the Trustee and each
predecessor Trustee, and their respective agents, attorneys and counsel, and for
reimbursement of all expenses and liabilities incurred, and all advances made,
by the Trustee and each predecessor Trustee, except as a result of negligence or
bad faith) and of the Securityholders allowed in such judicial proceedings
relative to the
33
Company or any other obligor on the Securities of any series or to the creditors
or property of the Company or such other obligor, unless prohibited by
applicable law and regulations, to vote on behalf of the holders of the
Securities of any series in any election of a trustee or a standby trustee in
arrangement, reorganization, liquidation or other bankruptcy or insolvency
proceedings or person performing similar functions in comparable proceedings,
and to collect and receive any moneys or other property payable or deliverable
on any such claims, and to distribute the same after the deduction of its
charges and expenses; and any receiver, assignee or trustee in bankruptcy or
reorganization is hereby authorized by each of the Securityholders 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 Securityholders, to pay to the Trustee
such amounts as shall be sufficient to cover reasonable compensation to the
Trustee, each predecessor Trustee and their respective agents, attorneys and
counsel, and all amounts owing to the Trustee and each predecessor Trustee under
Section 6.06.
Nothing herein contained shall be construed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Secunityholder any
plan of reorganization, arrangement, adjustment or composition affecting the
Securities of any series or the rights of any holder thereof or to authorize the
Trustee to vote in respect of the claim of any Securityholder in any such
proceeding.
All rights of action and of asserting claims under this Indenture, or under
any of the Securities, may be enforced by the Trustee without the possession of
any of the Securities, or the production thereof at any trial or other
proceeding relative thereto, and any such suit or proceeding instituted by the
Trustee shall be brought in its own name as trustee of an express trust, and any
recovery of judgment shall be for the ratable benefit of the holders of all the
Securities in respect of which such action was taken.
In any proceedings brought by the Trustee (and also any proceedings
involving the interpretation of any provision of this Indenture to which the
Trustee shall be a party) the Trustee shall be held to represent all the holders
of the Securities of the series affected thereby and it shall not be necessary
to make any such holders of the Securities parties to any such proceedings.
34
SECTION 5.03. Application of Moneys Collected by Trustee. Any moneys
collected by the Trustee shall be applied in the order following, at the date or
dates fixed by the Trustee for the distribution of such moneys, upon
presentation of the several Securities of any series in respect of which moneys
have been collected, and stamping thereon the payment, if only partially paid,
and upon surrender thereof if fully paid:
FIRST. To the payment of costs and expenses of collection appli-
cable to each such series and all other amounts owing to the Trustee or any
predecessor Trustee under Section 6.06;
SECOND: In case the principal of the outstanding Securities in respect
of which moneys have been collected shall not have become due and be
unpaid, to the payment of interest on the Securities of each such series,
in the order of the maturity of the installments of such interest, with
interest (to the extent that such interest has been collected by the
Trustee) upon the overdue instalments of interest at the respective rates
borne by the Securities of each such series, such payments to be made
ratably to the persons entitled thereto;
THIRD: In case the principal of the outstanding Securities in respect
of which moneys have been collected shall have become due, by declaration
or otherwise, to the payment of the whole amount then owing and unpaid upon
the Securities of each such series, for principal and premium, if any, and
interest, with interest on the overdue principal and premium, if any, and
(to the extent that such interest has been collected by the Trustee) upon
overdue installments of interest at the respective rates or Yield to
Maturity ( in the case of Original Issue Discount Securities) specified in
the Securities of each such series, and in case such moneys shall be
insufficient to pay in full the whole amount so due and unpaid upon the
Securities of each such series, then to the payment of such principal and
premium, if any, and interest without preference or priority of principal
and premium, if any, over interest, or of interest over principal and
premium, if any, or of any instalment of interest over any other instalment
of interest, or of any Security of each such series over any other Security
of each such series, ratably to the aggregate of such principal and
premium, if any, and accrued and unpaid interest.
35
Any surplus then remaining shall be paid to the Company or to such other
person as shall be entitled to receive it.
SECTION 5.04. Proceedings by Securityholders. No holder of any Security of
any series shall have any right by virtue of or by availing of any provision of
this Indenture to institute any suit, action or proceeding in equity or at law
upon or with respect to this Indenture or for the appointment of a receiver or
trustee, or for any other remedy hereunder, unless such holder previously shall
have given to the Trustee written notice of default and of the continuance
thereof, as herein before provided, and unless also the holders of not less than
25% in aggregate principal amount of the Securities of that series then
outstanding or, in the case of any Event of Default described in clause (c), (d)
or (e) of Section 5.10, 25% in aggregate principal amount of all Securities then
outstanding shall have made written request upon the Trustee to institute such
action, suit or proceeding in its own name as Trustee hereunder and shall have
offered to the Trustee such reasonable indemnity as it may require against the
costs, expenses and liabilities to be incurred therein or thereby, and the
Trustee for 60 days after its receipt of such notice, request and offer of
indemnity shall have failed to institute any such action, suit or proceeding, it
being understood and intended, and being expressly covenanted by the taker and
holder of every Security with every other taker and holder and the Trustee, that
no one or more holders of Securities of any series shall have any right in any
manner whatever by virtue of or by availing of any provision of this Indenture
to affect, disturb or prejudice the rights of any other holder of Securities, or
to obtain or seek to obtain priority over or preference to any other such
holder, or to enforce any right under this Indenture, except in the manner
herein provided and for the equal, ratable and common benefit of all holders of
Securities of the applicable series.
Notwithstanding any other provisions in this Indenture, however, the right
of any holder of any Security to receive payment of the principal of, premium,
if any, and interest, if any, on such Security, on or after the same shall have
become due and payable, or to institute suit for the enforcement of any such
payment, shall not be impaired or affected without the consent of such holder.
SECTION 5.05. Proceedings by Trustee. In case of an Event of Default
hereunder the Trustee may in its discretion proceed to protect and enforce
36
the rights vested in it by this Indenture by such appropriate judicial
proceedings as the Trustee shall deem most effectual to protect and enforce
any of such rights, either by suit in equity or by action at law or by
proceeding in bankruptcy or otherwise, whether for the specific enforcement
of any covenant or agreement contained in this Indenture or in aid of the
exercise of any power granted in this Indenture, or to enforce any other legal
or equitable right vested in the Trustee by this Indenture or by law.
SECTION 5.06. Remedies Cumulative and Continuing. All powers and
remedies given by this Article Five to the Trustee or to the Securityholders
shall, to the extent permitted by law, be deemed cumulative and not
exclusive of any thereof or of any other powers and remedies available to
the Trustee or the holders of the Securities, by judicial proceedings or
otherwise, to enforce the performance or observance of the covenants and
agreements contained in this Indenture, and no delay or omission of the
Trustee or of any holder of any of the Securities to exercise any right or
power accruing upon any default occurring and continuing as aforesaid shall
impair any such right or power, or shall be construed to be a waiver of any
such default or an acquiescence therein; and, subject to the provisions of
Section 5.04, every power and remedy given by this Article Five or by law to
the Trustee or to the Securityholders may be exercised from time to time,
and as often as shall be deemed expedient, by the Trustee or by the
Securityholders.
SECTION 5.07. Direction of Proceedings and Waiver of Defaults by
Majority of Securityholders. The holders of a majority in aggregate principal
amount of the Securities of any or all series affected at the time outstanding
shall have the right to direct the time, method, and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust
or power conferred on the Trustee; provided, however, that (subject to the
provisions of Sections 6.01 and 6.02) the Trustee shall have the right to
decline to follow any such direction if the Trustee shall determine that the
action so directed would be unjustly prejudicial to the holders not taking
part in such direction or if the Trustee being advised by counsel determines
that the action or proceeding so directed may not lawfully be taken or if the
Trustee in good faith by its board of directors or trustees, executive
committee, or a trust committee of directors or trustees and/or Responsible
Officers shall determine that the action or proceedings so directed would
involve the Trustee in personal liability. Subject to Section 5.01 the holders
37
of a majority in aggregate principal amount of the Securities of any such series
at the time outstanding may on behalf of the holders of all of the Securities of
such series waive any past default or Event of Default including any default or
Event of Default established pursuant to Section 2.03 (or, in the case of an
event specified in clause (c), (d) or (e) of Section 5.01, the holders of a
majority in aggregate principal amount of all the Securities then outstanding
(voting as one class)) may waive such default or Event of Default, and its
consequences, except a default (a) in the payment of principal of, premium, if
any, or interest on any of the Securities or (b) in respect of covenants or
provisions hereof which cannot be modified or amended without the consent of the
holder of each Security affected. Upon any such waiver the Company, the Trustee
and the holders of the Securities of that series (or of all Securities, as the
case may be) shall be restored to their former positions and rights hereunder,
respectively; but no such waiver shall extend to any subsequent or other default
or Event of Default or impair any right consequent thereon. Whenever any
default or Event of Default hereunder shall have been waived as permitted by
this Section 5.07, said default or Event of Default shall for all purposes of
the Securities of that series (or of all Securities, as the case may be) and
this Indenture be deemed to have been cured and to be not continuing.
SECTION 5.08. Notice of Defaults. The Trustee shall, within 90 days after
the occurrence of a default with respect to any of the Securities of any series,
mail to all Securityholders of that series, as the names and addresses of such
holders appear upon the Securities register, notice of all defaults with respect
to that series known to the Trustee, unless such defaults shall have been cured
before the giving of such notice (the term "defaults" for the purpose of this
Section 5.08 being hereby defined to be the events specified in clauses (a),
(b), (c), (d) and (e) of Section 5.01, not including periods of grace, if any,
provided for therein, and irrespective of the giving of written notice specified
in clause (c) of Section 5.01 ); and provided that, except in the case of
default in the payment of the principal of, premium, if any, or interest on any
of the Securities of such series, the Trustee shall be protected in withholding
such notice if and so long as the board of directors or trustees, the executive
committee, or a trust committee of directors or trustees and/or Responsible
Officers of the Trustee in good faith determines that the withholding of such
notice is in the interests of the Securityholders of such series, and provided
further, that in the case of any default of the character
38
specified in Section 5.01 (c) no such notice to Securityholders shall be given
until at least 90 days after the occurrence thereof but shall be given within
120 days after such occurrence.
SECTION 5.09. Undertaking to Pay Costs. All parties to this Indenture
agree, and each holder of any Security by his acceptance thereof shall be deemed
to have agreed, that any court may in its discretion require, in any suit for
the enforcement of any right or remedy under this Indenture, or in any suit
against the Trustee for any action taken or omitted by it as Trustee, the filing
by any party litigant in such suit of an undertaking to pay the costs of such
suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in such suit,
having due regard to the merits and good faith of the claims or defenses made by
such party litigant; but the provisions of this Section 5.09 shall not apply to
any suit instituted by the Trustee, to any suit instituted by any
Securityholder, or group of Securityholders of any series holding in the
aggregate more than 10% in principal amount of the Securities of that series
(or, in the case of any suit relating to or arising under clause (c), (d) or (e)
of Section 5.01, 10% in aggregate principal amount of all Securities)
outstanding, or to any suit instituted by any Securityholder for the enforce-
ment of the payment of the principal of or premium, if any, or interest on any
Security against the Company on or after the same shall have become due and
payable.
ARTICLE SIX.
CONCERNING THE TRUSTEE.
SECTION 6.01. Duties and Responsibilities of Trustee. With respect to any
series of Securities issued hereunder, the Trustee, prior to the occurrence of
an Event of Default with respect to Securities of that series and after the
curing or waiving of all Events of Default which may have occurred with respect
to Securities of that series, undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture with respect to such
series. In case an Event of Default with respect to the Securities of a series
has occurred (which has not been cured or waived) the Trustee shall exercise
such of the rights and powers vested in it by this Indenture with respect to
such series, and use the same degree of care and skill in their
39
exercise, as a prudent man would exercise or use under the circumstances in the
conduct of his own affairs.
No provision of this Indenture shall be construed to relieve the Trustee
from liability for its own negligent action, its own negligent failure to act or
its own willful misconduct, except that
(a) prior to the occurrence of an Event of Default with respect to the
Securities of a series and after the curing or waiving of all Events of
Default with respect to that series which may have occurred
(1) the duties and obligations of the Trustee with respect to
the Securities of a series shall be determined solely by the express
provisions of this Indenture, and the Trustee shall not be liable
except for the performance of such duties and obligations with respect
to such series as are specifically set forth in this Indenture, and no
implied covenants or obligations shall be read into this Indenture
against the Trustee; and
(2) in the absence of bad faith on the part of the Trustee, the
Trustee may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon any certifi-
cates or opinions furnished to the Trustee and conforming to the
requirements of this Indenture; but, in the case of any such
certificates or opinions which by any provision hereof are specific-
ally required to be furnished to the Trustee, the Trustee shall be
under a duty to examine the same to determine whether or not they
conform to the requirements of this Indenture;
(b) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer or Officers of the Trustee, unless it
shall be proved that the Trustee was negligent in ascertaining the
pertinent facts; and
(c) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith, in accordance with the
direction of the Securityholders pursuant to Section 5.07, relating to the
time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred upon
the Trustee, under this Indenture.
40
None of the provisions contained in this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur personal financial
liability in the performance of any of its duties or in the exercise of any of
its rights or powers, if there is reasonable ground for believing that the
repayment of such funds or liability is not reasonably assured to it.
SECTION 6.02. Reliance on Documents, Opinions, etc. Except as otherwise
provided in Section 6.01
(a) the Trustee may rely and shall be protected in acting upon any
resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, bond, note, debenture or other paper or document
believed by it to be genuine and to have been signed or presented by the
proper party or parties;
(b) any request, direction, order or demand of the Company mentioned
herein shall be sufficiently evidenced by an Officers' Certificate
(unless other evidence in respect thereof be herein specifically
prescribed); and any resolution of the Board of Directors may be evidenced
to the Trustee by a copy thereof certified by the Secretary or an Assistant
Secretary of the Company;
(c) the Trustee may consult with counsel and any advice or Opinion of
Counsel shall be full and complete authorization and protection in respect
of any action taken or omitted by it hereunder in good faith and in
accordance with such advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request, order or
direction of any of the Securityholders, pursuant to the provisions of this
Indenture, unless such Securityholders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and
liabilities which may be incurred therein or thereby;
(e) the Trustee shall not be liable for any action taken 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;
(f) prior to the occurrence of an Event of Default hereunder and after
the curing or waiving of all Events of Default, 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, consent, order, approval, bond, debenture, coupon or other paper
or document, unless requested in writing to do so by the holders of not
less than a majority in principal amount of the Securities of all
41
series affected then outstanding; provided, however, that if the payment
within a reasonable time to the Trustee of the costs, expenses or
liabilities likely to be incurred by it in the making of such investigation
is, in the opinion of the Trustee, not reasonably assured to the Trustee
by the security afforded to it by the terms of this Indenture, the Trustee
may require reasonable indemnity against such expense or liability as a
condition to so proceeding;
(g) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents
(including any Authenticating Agent) or attorneys, and the Trustee
shall not be responsible for any misconduct or negligence on the part of
any such agent or attorney appointed by it with due care; and
(h) the Trustee shall not be deemed to have knowledge or notice
of any Event of Default or default with respect to any series of
Securities unless a Responsible Officer of the Trustee has actual
knowledge thereof or unless holders of not less than 25% in aggregate
principal amount of the outstanding Securities of that series shall have
notified the Trustee thereof.
SECTION 6.03. No Responsibility for Recitals, etc. The recitals contained
herein and in the Securities (except in the certificate of authentication of the
Trustee or the Authenticating Agent) shall be taken as the statements of the
Company, and the Trustee and the Authenticating Agent assume no responsibility
for the correctness of the same. The Trustee and the Authenticating Agent make
no representations as to the validity or sufficiency of this Indenture or of
the Securities. The Trustee and the Authenticating Agent shall not be
accountable for the use or application by the Company of any Securities or the
proceeds of any Securities authenticated and delivered by the Trustee or the
Authenticating Agent in conformity with the provisions of this Indenture.
SECTION 6.04. Trustee, Authenticating Agent, Paying Agents, Transfer Agents
or Registrar May Own Securities. The Trustee or any Authenticating Agent or any
paying agent or any transfer agent or any Securities registrar, in its
individual or any other capacity, may become the owner or pledgee of Securities
with the same rights it would have if it were not Trustee, Authenticating Agent,
paying agent, transfer agent or Securities registrar.
SECTION 6.05. Moneys to be Held in Trust. Subject to the provisions of
Section 11.04, all moneys received by the Trustee or any paying agent shall,
until used or applied as herein provided, be held in trust for the purpose for
42
which they were received, but need not be segregated from other funds except to
the extent required by law. The Trustee and any paying agent shall be under no
liability for interest on any money received by it hereunder except as otherwise
agreed with the Company. So long as no Event of Default shall have occurred and
be continuing, all interest allowed on any such moneys shall be paid from time
to time upon the written order of the Company, signed by the Chairman of the
Board of Directors, the President, any Vice President, the Treasurer or any
Assistant Treasurer of the Company.
SECTION 6.06. Compensation and Expenses of Trustee. The Company covenants
and agrees to pay to the Trustee from time to time, and the Trustee shall be
entitled to, reasonable compensation (which shall not be limited by any
provision of law in regard to the compensation of a trustee of an express
trust), and the Company will pay or reimburse each of the Trustee and any
predecessor Trustee upon its request for all its reasonable expenses,
disbursements and advances incurred or made in accordance with any of the
provisions of this Indenture (including the reasonable compensation and the
expenses and disbursements of its counsel and of all persons not regularly in
its employ and any amounts it paid to any Authenticating Agent pursuant to
Section 6.14) except any such expense, disbursement or advance as may arise from
its own negligence or bad faith. If any property other than cash shall at any
time be subject to the lien of this Indenture, the Trustee, if and to the extent
authorized by a receivership or bankruptcy court of competent jurisdiction or by
the supplemental instrument subjecting such property to such lien, shall be
entitled to make advances for the purpose of preserving such property or of
discharging tax liens or other prior liens or encumbrances thereon. The Company
also covenants to indemnify each of the Trustee and any predecessor Trustee for,
and to hold it harmless against, any loss, liability or expense incurred without
negligence or bad faith on its part and arising out of or in connection with the
acceptance or administration of this trust and the performance of its duties
hereunder, including the costs and expenses of defending itself against any
claim of liability in the premises. The obligations of the Company under this
Section 6.06 to compensate the Trustee and to pay or reimburse each of the
Trustee and any predecessor Trustee for expenses, disbursements and advances
shall constitute additional indebtedness hereunder. Such additional
indebtedness shall be secured by a claim prior to that of the Securities upon
all property and funds held or collected by the Trustee as such, except funds
held in trust for the benefit of the holders of particular Securities.
43
SECTION 6.07. Officers' Certificate as Evidence. Except as otherwise
provided in Section 6.01 and 6.02, whenever in the administration of the
provisions of this Indenture the Trustee shall deem it necessary or desirable
that a matter be proved or established prior to taking or omitting any action
hereunder, such matter (unless other evidence in respect thereof be herein
specifically prescribed) may, in the absence of negligence or bad faith on the
part of the Trustee, be deemed to be conclusively proved and established by an
Officers' Certificate delivered to the Trustee, and such Certificate, in the
absence of negligence or bad faith on the part of the Trustee, shall be full
warrant to the Trustee for any action taken or omitted by it under the
provisions of this Indenture upon the faith thereof.
SECTION 6.08. Conflicting Interest of Trustee. (a) If the Trustee has or
shall acquire any conflicting interest, as defined in this Section 6.08 with
respect to the Securities of any series, it shall, within 90 days after
ascertaining that it has such conflicting interest, either eliminate such
conflicting interest or resign with respect to the Securities of that series in
the manner and with the effect specified in Section 6.10.
(b) In the event that the Trustee shall fail to comply with the provisions
of subsection (a) of this Section 6.08 with respect to the Securities of any
series, the Trustee shall, within ten days after the expiration of such 90-day
period, transmit notice of such failure to all holders of Securities of that
series, as the names and addresses of such holders appear upon the Securities
register.
(c) For the purposes of this Section 6.08 the Trustee shall be deemed to
have a conflicting interest with respect to Securities of any series if
(1) the Trustee is trustee under this Indenture with respect to the
Securities of any other series or under another indenture under which any
other securities, or certificates of interest or participation in any other
securities, of the Company or other obligor on the Securities of such
series (each of which is hereafter in this Section called a "Security
party") are outstanding, unless such other indenture is a collateral trust
indenture under which the only collateral consists of Securities issued
under this Indenture; provided that there shall be excluded from the
operation of this paragraph (A) the Indenture between the Company and
Morgan Guaranty Trust Company of New York, Trustee, dated as of June 1,
1976, pursuant to the provisions of which the Company's
44
8 7/8% Debentures Due 2001 are outstanding, (B) the Indenture between the
Company and Morgan Guaranty Trust Company of New York, Trustee, dated as of May
1, 1980, pursuant to the provisions of which the Company's 12 1/4% Notes Due
1985 are outstanding, and (C) this Indenture with respect to the Securities of
any other series and any other indenture or indentures under which other
securities, or certificates of interest or participation in other securities, of
a Security party are outstanding if (i) this Indenture is and, if applicable,
this Indenture and such other indenture or indentures are wholly unsecured and
such other indenture or indentures are hereafter qualified under the Trust
Indenture Act of 1939, unless the Securities and Exchange Commission shall have
found and declared by order pursuant to subsection (b) of Section 305 or
subsection (c) of Section 307 of the Trust Indenture Act of 1939 that
differences exist between the provisions of this Indenture with respect to
Securities of such series and one or more other series or, if applicable, this
Indenture and the provisions of such other indenture or indentures which are so
likely to involve a material conflict of interest as to make it necessary in the
public interest or for the protection of investors to disqualify the Trustee
from acting as such under this Indenture and such other indenture or indentures,
or (ii) the Company shall have sustained the burden of proving, on application
to the Securities and Exchange Commission and after opportunity for hearing
thereon, that trusteeship under this Indenture with respect to Securities of
such series and one or more other series or, if applicable, this Indenture and
such other Indenture or indentures is not so likely to involve a material
conflict of interest as to make it necessary in the public interest or for the
protection of investors to disqualify the Trustee from acting as such under this
Indenture with respect to Securities of such series and one or more other series
or, if applicable, this Indenture and one of such indentures;
(2) the Trustee or any of its directors or executive officers if an obligor
upon the Securities of any series issued under this Indenture or an underwriter
for a Security party;
(3) the Trustee directly or indirectly controls or is directly or
indirectly controlled by or is under direct or indirect common control with a
Security party;
45
(4) the Trustee or any of its directors or executive officers is a
director, officer, partner, employee, appointee, or representative of a Security
party, or of an underwriter (other than the Trustee itself) for a Security party
who is currently engaged in the business of underwriting, except that (A) one
individual may be a director and/or an executive officer of the Trustee and a
director and/or an executive officer of a Security party, but may not be at the
same time an executive officer of both the Trustee and a Security party; (B) if
and so long as the number of directors of the Trustee in office is more than
nine, one additional individual may be a director and/or an executive officer of
the Trustee and a director of a Security party; and (C) the Trustee may be
designated by a Security party or by an underwriter for a Security party to act
in the capacity of transfer agent, registrar, custodian, paying agent, fiscal
agent, escrow agent, or depositary, or in any other similar capacity, or,
subject to the provisions of paragraph (1) of this subsection (c), to act as
trustee whether under an indenture or otherwise;
(5) 10% or more of the voting securities of the Trustee is beneficially
owned either by a Security party or by any director, partner, or executive
officer thereof, or 20% or more of such voting securities is beneficially owned,
collectively, by any two or more of such persons; or 10% or more of the voting
securities of the Trustee is beneficially owned either by an underwriter for a
Security party or by any director, partner, or executive officer thereof, or is
beneficially owned, collectively, by any two or more such persons;
(6) the Trustee is the beneficial owner of, or holds as collateral security
for an obligation which is in default, (A) 5% or more of the voting securities,
or 10% or more of any other class of security, of a Security party, not
including the Securities issued under this Indenture and securities issued under
any other indenture under which the Trustee is also trustee, or (B) 10% or more
of any class of security of an underwriter for a Security party;
(7) the Trustee is the beneficial owner of, or holds as collateral security
for an obligation which is in default, 5% or more of the voting securities of
any person who, to the knowledge of the Trustee, owns 10% or more of the voting
securities of, or controls directly or indirectly or is under direct or indirect
common control with, a Security party;
46
(8) the Trustee is the beneficial owner of, or holds as collateral
security for an obligation which is in default, 10% or more of any class of
security of any person who, to the knowledge of the Trustee, owns 50% or
more of the voting securities of a Security party; or
(9) the Trustee owns on May 15 in any calendar year, in the capacity
of executor, administrator, testamentary or inter vivos trustee, guardian,
committee or conservator, or in any other similar capacity, an aggregate of
25% or more of the voting securities, or of any class of security, of any
person, the beneficial ownership of a specified percentage of which would
have constituted a conflicting interest under paragraph (6), (7), or (8) of
this subsection (c). As to any such securities of which the Trustee
acquired ownership through becoming executor, administrator or testamentary
trustee of an estate which included them, the provisions of the preceding
sentence shall not apply, for a period of two years from the date of such
acquisition, to the extent that such securities included in such estate do
not exceed 25% of such voting securities or 25% of any such class of
security. Promptly after May 15, in each calendar year, the Trustee shall
make a check of its holdings of such securities in any of the
above-mentioned capacities as of such May 15. If the Company fails to make
payment in full of principal of or any interest on any of the Securities
when and as the same become due and payable, and such failure continues for
30 days thereafter, the Trustee shall make a prompt check of its holdings
of such securities in any of the above-mentioned capacities as of the date
of the expiration of such 30-day period and, after such date,
notwithstanding the foregoing provisions of this paragraph (9), all such
securities so held by the Trustee, with sole or joint control over such
securities vested in it, shall, but only so long as such failure shall
continue, be considered as though beneficially owned by the Trustee for the
purposes of paragraphs (6), (7), and (8) of this subsection (c).
The specifications of percentages in paragraphs (5) to (9), inclusive, of
this subsection (c) shall not be construed as indicating that the ownership of
such percentages of the securities of a person is or is not necessary or
sufficient to constitute direct or indirect control for the purposes of para-
graph (3) or (7) of this subsection (c).
47
For the purposes of paragraphs (6), (7), (8), and (9) of this subsection
(c) only, (A) the terms "security" and "securities" shall include only such
securities as are generally known as corporate securities, but shall not include
any note or other evidence of indebtedness issued to evidence an obligation to
repay moneys lent to a person by one or more banks, trust companies or banking
firms, or any certificate of interest or participation in any such note or
evidence of indebtedness; (B) an obligation shall be deemed to be in default
when a default in payment of principal shall have continued for 30 days or more
and shall not have been cured; and (C) the Trustee shall not be deemed to be the
owner or holder of (i) any security which it holds as collateral security (as
trustee or otherwise) for an obligation which is not in default as defined in
clause (B) above, or (ii) any security which it holds as collateral security
under this Indenture, irrespective of any default hereunder, or (iii) any
security which it holds as agent for collection, or as custodian, escrow agent,
or depositary, or in any similar representative capacity.
Except as provided in the next preceding paragraph hereof, the word
security" or "securities" as used in this Indenture shall mean any note, stock,
treasury stock, bond, debenture, evidence of indebtedness, certificate of
interest or participation in any profit-sharing agreement, collateral-Trust
certificate, pre-organization certificate or subscription, transferable share,
investment contract, voting trust certificate, certificate of deposit for a
security, fractional undivided interest in oil, gas or other mineral rights, or,
in general, any interest or instrument commonly known as a "security" or any
certificate of interest or participation in, temporary or interim certificate
for, receipt for, guarantee of, or warrant or right to subscribe to or purchase
any of the foregoing.
(d) For the purposes of this Section 6.08:
(1) The term "underwriter" when used with reference to a Security
party shall mean every person who, within three years prior to the time as
of which the determination is made, has purchased from such Security party
with a view to, or has offered or sold for such Security party in
connection with, the distribution of any security of such Security party
outstanding at such time, or has participated or has had a direct or
indirect participation in any such undertaking, or has participated or
has had a participation in the direct or indirect underwriting of
48
any such undertaking, but such term shall not include a person whose
interest was limited to a commission from an underwriter or dealer not in
excess of the usual and customary distributors' or sellers' commission.
(2) The term "director" shall mean any director of a corporation or
any individual performing similar functions with respect to any
organization whether incorporated or unincorporated.
(3) The term "person" shall mean an individual, a corporation, a
partnership, an association, a joint-stock company, a trust, an
unincorporated organization, or a government or political subdivision
thereof. As used in this paragraph, the term "trust" shall include only a
trust where the interest or interests of the beneficiary or beneficiaries
are evidenced by a security.
(4) The term "voting security" shall mean any security presently
entitling the owner or holder thereof to vote in the direction or
management of the affairs of a person, or any security issued under or
pursuant to any trust, agreement or arrangement whereby a trustee or
trustees or agent or agents for the owner or holder of such security are
presently entitled to vote in the direction or management of the affairs of
a person.
(5) The term "executive officer" shall mean the president, every vice
president, every trust officer, the cashier, the secretary, and the
treasurer of a corporation, and any individual customarily performing
similar functions with respect to any organization whether incorporated or
unincorporated, but shall not include the chairman of the board of
directors.
The percentages of voting securities and other securities specified in this
Section 6.08 shall be calculated in accordance with the following provisions:
(A) A specified percentage of the voting securities of the Trustee,
the Company or any other person referred to in this Section 6.08 (each of
whom is referred to as a "person" in this paragraph) means such amount of
the outstanding voting securities of such person as entitles the holder or
holders to cast such specified percentage of the aggregate votes which the
holders of all the outstanding voting securities of such person are
entitled to cast in the direction or management of the affairs of such
person.
49
(B) A specified percentage of a class of securities of a person means
such percentage of the aggregate amount of securities of the class
outstanding.
(C) The term "amount", when used in regard to securities, means the
principal amount if relating to evidences of indebtedness, the number of
shares if relating to capital shares, and the number of units if relating
to any other kind of security.
(D) The term "outstanding" means issued and not held by or for the
account of the issuer. The following securities shall not be deemed
outstanding within the meaning of this definition:
(i) securities of an issuer held in a sinking fund relating to
securities of the issuer of the same class;
(ii) securities of an issuer held in a sinking fund relating to
another class of securities of the issuer, if the obligation evidenced
by such other class of securities is not in default as to principal or
interest or otherwise;
(iii) securities pledged by the issuer thereof as security for an
obligation of the issuer not in default as to principal or interest or
otherwise;
(iv) securities held in escrow if placed in escrow by the issuer
thereof;
provided, however, that any voting securities of an issuer shall be
deemed outstanding if any person other than the issuer is entitled to
exercise the voting rights thereof.
(E) A security shall be deemed to be of the same class as another
security if both securities confer upon the holder or holders thereof
substantially the same rights and privileges; provided, however, that, in
the case of secured evidences of indebtedness, all of which are issued
under a single indenture, differences in the interest rates or maturity
dates of various series thereof shall not be deemed sufficient to
constitute such series different classes, and provided, further, that, in
the case of unsecured evidences of indebtedness, differences in the
interest rates or maturity dates thereof shall not be deemed sufficient to
constitute them securities of different classes, whether or not they are
issued under a single indenture.
50
SECTION 6.09. Eligibility of Trustee. The Trustee hereunder shall at all
times be a corporation organized and doing business under the laws of the United
States or any State or Territory thereof or of the District of Columbia
authorized under such laws to exercise corporate trust powers, having a combined
capital and surplus of at least $5,000,000, subject to supervision or
examination by Federal, State, Territorial, or District of Columbia authority.
If such corporation publishes reports of condition at least annually, pursuant
to law or to the requirements of the aforesaid supervising or examining
authority, then for the purposes of this Section 6.09 the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published.
In case at any time the Trustee shall cease to be eligible in accordance
with the provisions of this Section 6.09, the Trustee shall resign immediately
in the manner and with the effect specified in Section 6.10.
SECTION 6.10. Resignation or Removal of Trustee. (a) The Trustee, or any
trustee or trustees hereafter appointed, may at any time resign with respect to
one or more or all series of Securities by giving written notice of such
resignation to the Company and by mailing notice thereof to the holders of the
applicable series of Securities at their addresses as they shall appear on the
Securities register. Upon receiving such notice of resignation, the Company
shall promptly appoint a successor trustee or trustees with respect to the
applicable series by written instrument, in duplicate, executed by order of its
Board of Directors, one copy of which instrument shall be delivered to the
resigning Trustee and one copy to the successor trustee. If no successor
trustee shall have been so appointed with respect to any series of Securities
and have accepted appointment within 60 days after the mailing of such notice of
resignation to the affected Securityholders, the resigning Trustee may petition
any court of competent jurisdiction for the appointment of a successor trustee,
or any Securityholder who has been a bona fide holder of a Security or
Securities of the applicable series for at least six months may, subject to the
provisions of Section 5.09, on behalf of himself and all others similarly
situated, petition any such court for the appointment of a successor trustee.
Such court may thereupon, after such notice, if any, as it may deem proper and
prescribe, appoint a successor trustee.
51
(b) In case at any time any of the following shall occur--
(1) the Trustee shall fail to comply with the provisions of
subsection (a) of Section 6.08 after written request therefor by the
Company or by any Securityholder who has been a bona fide holder of a
Security or Securities for at least six months, or
(2) the Trustee shall cease to be eligible in accordance with the
provisions of Section 6.09 and shall fail to resign after written
request therefor by the Company or by any such Securityholder, 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, the Company may remove the Trustee and appoint a
successor trustee by written instrument, in duplicate, executed by order of
the Board of Directors, one copy of which instrument shall be delivered to
the Trustee so removed and one copy to the successor trustee, or, subject
to the provisions of Section 5.09, any Securityholder who has been a bona
fide holder of a Security or Securities of the applicable series for at
least six months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the removal of
the Trustee and the appointment of a successor trustee. Such court may
thereupon, after such notice, if any, as it may deem proper and prescribe,
remove the Trustee and appoint a successor trustee.
(c) The holders of a majority in aggregate principal amount of the
Securities of one or more series (each series voting as a class) or all
series (voting as one class) at the time outstanding may at any time remove
the Trustee with respect to the applicable series of Securities or all
series, as the case may be, and nominate a successor trustee with respect
to the applicable series of Securities or all series, as the case may be,
which shall be deemed appointed as successor trustee with respect to the
applicable series unless within ten days after such nomination the Company
objects thereto, in which case the Trustee so removed or any Securityholder
of the applicable series, upon the terms and conditions and otherwise as in
subdivision (a) of this Section 6.10 provided, may petition any court of
competent jurisdiction for an appointment of a successor trustee with
respect to such series.
52
(d) Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to any of the provisions of this Section 6.10 shall
become effective upon acceptance of appointment by the successor trustee as
provided in Section 6.11.
SECTION 6.11. Acceptance by Successor Trustee. Any successor trustee
appointed as provided in Section 6.10 shall execute, acknowledge and deliver to
the Company and to its predecessor Trustee an instrument accepting such
appointment hereunder, and thereupon the resignation or removal of the
predecessor Trustee with respect to all or any applicable series shall become
effective and such successor trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, duties and
obligations with respect to such series of its predecessor hereunder, with
like effect as if originally named as trustee herein; but, nevertheless, on the
written request of the Company or of the successor trustee, the Trustee ceasing
to act shall, upon payment of any amounts then due it pursuant to the provisions
of Section 6.06, execute and deliver an instrument transferring to such
successor trustee all the rights and powers of the Trustee so ceasing to act.
Upon request of any such successor trustee, the Company shall execute any and
all instruments in writing for more fully and certainly vesting in and
confirming to such successor trustee all such rights and powers. Any Trustee
ceasing to act shall, nevertheless, retain a claim upon all property or funds
held or collected by such Trustee to secure any amounts then due it pursuant to
the provisions of Section 6.06.
If a successor trustee is appointed with respect to the Securities of one
or more (but not all) series, the Company, the predecessor Trustee and each
successor trustee with respect to the Securities of any applicable series shall
execute and deliver an indenture supplemental hereto which shall contain such
provisions as shall be deemed necessary or desirable to confirm that all the
rights, powers, trusts and duties of the predecessor Trustee with respect to the
Securities of any series as to which the predecessor Trustee is not retiring
shall continue to be vested in the predecessor Trustee, and shall add to or
change any of the provisions of this Indenture as shall be necessary to provide
for or facilitate the administration of the trust 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 and that
each such trustee shall be trustee of a trust or trusts hereunder separate and
apart from any trust or trusts hereunder administered by any other such trustee.
53
No successor trustee shall accept appointment as provided in this Section
6.11 unless at the time of such acceptance such successor trustee shall be
qualified under the provisions of Section 6.08 and eligible under the provisions
of Section 6.09.
Upon acceptance of appointment by a successor trustee as provided in this
Section 6.11, the Company shall mail notice of the succession of such trustee
hereunder to the holders of Securities of any applicable series at their
addresses as they shall appear on the Securities register. If the Company fails
to mail such notice within ten days after the acceptance of appointment by the
successor trustee, the successor trustee shall cause such notice to be mailed at
the expense of the Company.
SECTION 6.12. Succession by Merger, etc. Any corporation into which the
Trustee may be merged or converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or consolidation to which the
Trustee shall be a party, or any corporation succeeding to all or substantially
all of the corporate trust business of the Trustee, shall be the successor of
the Trustee hereunder without the execution or filing of any paper or any
further act on the part of any of the parties hereto.
In case at the time such successor to the Trustee shall succeed to the
trusts created by this Indenture any of the Securities of any series shall have
been authenticated but not delivered, any such successor to the Trustee may
adopt the certificate of authentication of any predecessor Trustee, and deliver
such Securities so authenticated; and in case at that time any of the Securities
of any series shall not have been authenticated, any successor to the Trustee
may authenticate such Securities either in the name of any predecessor hereunder
or in the name of the successor trustee; and in all such cases such certificates
shall have the full force which it is anywhere in the Securities of such series
or in this Indenture provided that the certificate of the Trustee shall have;
provided, however, that the right to adopt the certificate of authentication of
any predecessor Trustee or authenticate Securities of any series in the name of
any predecessor Trustee shall apply only to its successor or successors by
merger, conversion or consolidation.
SECTION 6.13. Limitation on Rights of Trustee as a Creditor. (a) Subject to
the provisions of subsection (b) of this Section 6.13, if the Trustee shall be
or shall become a creditor, directly or indirectly, secured or
54
unsecured, of the Company or of any other obligor on the Securities (each
of which is hereafter in this Section 6.13 called a "Security party")
within four months prior to a default, as defined in paragraph (1) of
subsection (c) of this Section 6.13, or subsequent to such a default, then,
unless and until such default shall be cured, the Trustee shall set apart
and hold in a special account for the benefit of the Trustee individually,
the holders of the Securities, and the holders of other indenture
securities (as defined in paragraph (2) of subsection (c) of this Section
6.13),
(1) an amount equal to any and all reductions in the amount due
and owing upon any claim as such creditor in respect of principal or
interest, effected after the beginning of such four-month period and
valid as against such Security party and its other creditors, except
any such reduction resulting from the receipt or disposition of any
property described in paragraph (2) of this subsection, or from the
exercise of any right of set-off which the Trustee could have
exercised if a petition in bankruptcy has been filed by or against
such Security party upon the date of such default; and
(2) all property received by the Trustee in respect of any claim
as such creditor, either as security therefor, or in satisfaction or
composition thereof, or otherwise, after the beginning of such
four-month period, or an amount equal to the proceeds of any such
property, if disposed of, subject, however, to the rights, if any, of
such Security party and its other creditors in such property or such
proceeds.
Nothing herein contained, however, shall affect the right of the
Trustee:
(A) to retain for its own account (i) payments made on account of
any such claim by any person (other than such Security party) who is
liable thereon, and (ii) the proceeds of the bona fide sale of any
such claim by the Trustee to a third person, and (iii) distributions
made in cash, securities, or other property in respect of claims filed
against such Security party in bankruptcy or receivership or in
proceedings for reorganization pursuant to Title II, United States
Code or applicable state law;
(B) to realize, for its own account, upon any property held by it
as security for any such claim, if such property was so held prior to
the beginning of such four-month period;
55
(C) to realize, for its own account, but only to the extent of the
claim hereinafter mentioned, upon any property held by it as security for
any such claim, if such claim was created after the beginning of such
four-month period and such property was received as security therefor
simultaneously with the creation thereof, and if the Trustee shall sustain
the burden of proving that at the time such property was so received the
Trustee had no reasonable cause to believe that a default, as defined in
subsection (c) of this Section 6.13, would occur within four months; or
(D) to receive payment on any claim referred to in paragraph (B) or
(C), against the release of any property held as security for such claim as
provided in such paragraph (B) or (C), as the case may be, to the extent of
the fair value of such property.
For the purposes of paragraphs (B), (C), and (D), property substituted
after the beginning of such four-month period for property held as security at
the time of such substitution shall, to the extent of the fair value of the
property released, have the same status as the property released, and, to the
extent that any claim referred to in any of such paragraphs is created in
renewal of or in substitution for or for the purpose of repaying or refunding
any pre-existing claim of the Trustee as such creditor, such claim shall have
the same status as such pre-existing claim.
If the Trustee shall be required to account, the funds and property held in
such special account and the proceeds thereof shall be apportioned between the
Trustee, the Securityholders and the holders of other indenture securities in
such manner that the Trustee, the Securityholders and the holders of other
indenture securities realize, as a result of payments from such special account
and payments of dividends on claims filed against such Security party in
bankruptcy or receivership or in proceedings for reorganization pursuant to
Title 11, United States Code, or applicable state law, the same percentage of
their respective claims, figured before crediting to the claim of the Trustee
anything on account of the receipt by it from such Security party of the funds
and property in such special account and before crediting to the respective
claims of the Trustee, the Securityholders, and the holders of other indenture
securities dividends on claims filed against such Security party in bankruptcy
or receivership or in proceedings for reorganization pursuant to Title 11,
United States Code or applicable state law, but after crediting thereon receipts
on account of the indebtedness represented
56
by their respective claims from all sources other than from such dividends and
from the funds and property so held in such special account. As used in this
paragraph, with respect to any claim, the term "dividends" shall include any
distribution with respect to such claim, in bankruptcy or receivership or in
proceedings for reorganization pursuant to Title 11, United States Code, or
applicable state law, whether such distribution is made in cash, securities, or
other property, but shall not include any such distribution with respect to the
secured portion, if any, of such claim. The court in which such bankruptcy,
receivership, or proceeding for reorganization is pending shall have
jurisdiction (i) to apportion among the Trustee, the Securityholders, and the
holders of other indenture securities, in accordance with the provisions of this
paragraph, the funds and property held in such special account and the proceeds
thereof, or (ii) in lieu of such apportionment, in whole or in part, to give to
the provisions of this paragraph due consideration in determining the fairness
of the distributions to be made to the Trustee, the Securityholders and the
holders of other indenture securities with respect to their respective claims,
in which event it shall not be necessary to liquidate or to appraise the value
of any securities or other property held in such special account or as security
for any such claim, or to make a specific allocation of such distributions as
between the secured and unsecured portions of such claims, or otherwise to apply
the provisions of this paragraph as a mathematical formula.
Any Trustee who has resigned or been removed after the beginning of such
four-month period shall be subject to the provisions of this subsection (a) as
though such resignation or removal had not occurred. If any Trustee has
resigned or been removed prior to the beginning of such four-month period, it
shall be subject to the provisions of this subsection (a) if and only if the
following conditions exist:
(i) the receipt of property or reduction of claim which would
have given rise to the obligation to account, if such Trustee had continued
as trustee, occurred after the beginning of such four-month period; and
(ii) such receipt of property or reduction of claim occurred
within four months after such resignation or removal.
(b) There shall be excluded from the operation of subsection (a) of
this Section 6.13 a creditor relationship arising from
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(1) the ownership or acquisition of securities issued under any
indenture, or any security or securities having a maturity of one year or
more at the time of acquisition by the Trustee;
(2) advances authorized by a receivership or bankruptcy court of
competent jurisdiction, or by this Indenture, for the purpose of pre-
serving any property which shall at any time be subject to the lien of this
Indenture or of discharging tax liens or other prior liens or encumbrances
hereon, if notice of such advance and of the circumstances surrounding
the making thereof is given to the Securityholders at the time and in the
manner provided in Section 4.04 with respect to reports pursuant to
subsections (a) and (b) thereof, respectively;
(3) disbursements made in the ordinary course of business in the
capacity of trustee under an indenture, transfer agent, registrar, custo-
dian, paying agent, fiscal agent or depositary, or other similar capacity;
(4) an indebtedness created as a result of services rendered or
premises rented; or an indebtedness created as a result of goods or
securities sold in a cash transaction as defined in subsection (c) of this
Section 6.13;
(5) the ownership of stock or of other securities of a corporation
organized under the provisions of Section 25(a) of the Federal Reserve Act,
as amended, which is directly or indirectly a creditor of a Security
party; or
(6) the acquisition, ownership, acceptance or negotiation of any
drafts, bills of exchange, acceptances or obligations which fall within the
classification of self-liquidating paper as defined in subsection (c) of
this Section 6.13.
(c) As used in this Section 6.13:
(1) The term "default" shall mean any failure to make payment in full
of the principal of or interest, if any, upon any of the Securities or upon
the other indenture securities when and as such principal or interest
becomes due and payable;
(2) The term "other indenture securities" shall mean securities upon
which a Security party is an obligor (as defined in the Trust Indenture Act
of 1939) outstanding under any other indenture (A)
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under which the Trustee is also trustee, (B) which contains provisions
substantially similar to the provisions of subsection (a) of this Section
6.13, and (C) under which a default exists at the time of the apportionment
of the funds and property held in said special account;
(3) The term "cash transaction" shall mean any transaction in which
full payment for goods or securities sold is made within seven days after
delivery of the goods or securities in currency or in checks or other
orders drawn upon banks or bankers and payable upon demand;
(4) The term "self-liquidating paper" shall mean any draft, bill of
exchange, acceptance or obligation which is made, drawn, negotiated or
incurred by a Security party for the purpose of financing the purchase,
processing, manufacture, shipment, storage or sale of goods, wares or
merchandise and which is secured by documents evidencing title to,
possession of, or a lien upon, the goods, wares or merchandise or the
receivables or proceeds arising from the sale of the goods, wares or
merchandise previously constituting the security; provided that the
security is received by the Trustee simultaneously with the creation of the
creditor relationship with such Security party arising from the making,
drawing, negotiating or incurring of the draft, bill of exchange,
acceptance or obligation.
SECTION 6.14. Authenticating Agents. There may be one or more
Authenticating Agents appointed by the Trustee upon the request of the Company
with power to act on the Trustee's behalf and subject to its direction in the
authentication and delivery of Securities of any series issued upon exchange or
transfer thereof as fully to all intents and purposes as though any such
Authenticating Agent had been expressly authorized to authenticate and deliver
Securities of such series; provided, that the Trustee shall have no liability to
the Company for any acts or omissions of the Authenticating Agent with respect
to the authentication and delivery of Securities of any series. Any such
Authenticating Agent shall at all times be a corporation organized and doing
business under the laws of the United States or of any State or Territory
thereof or of the District of Columbia authorized under such laws to act as
Authenticating Agent, having a combined capital and surplus of at least
$5,000,000 and being subject to supervision or examination by Federal, State,
Territorial or District of Columbia authority. If such corporation publishes
reports of condition at
59
least annually pursuant to law or the requirements of such authority, then for
the purposes of this Section 6.14 the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the provision
of this Section, it shall resign immediately in the manner and with the effect
herein specified in this Section.
Any corporation into which any Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, consolidation or conversion to which any Authenticating Agent
shall be a party, or any corporation succeeding to the corporate trust business
of any Authenticating Agent, shall be the successor of such Authenticating Agent
hereunder, if such successor corporation is otherwise eligible under this
Section 6.14, without the execution or filing of any paper or any further act on
the part of the parties hereto or such Authenticating Agent.
Any Authenticating Agent may at any time resign with respect to one or more
or all series of Securities by giving written notice of resignation to the
Trustee and to the Company. The Trustee may at any time terminate the agency of
any Authenticating Agent with respect to one or more or all series of Securities
by giving written notice of termination to such Authenticating Agent and to the
Company. Upon receiving such a notice of resignation or upon such a
termination, or in case at any time any Authenticating Agent shall cease to be
eligible under this Section 6.14, the Trustee may, and upon the request of the
Company shall, promptly appoint a successor Authenticating Agent with respect
to the applicable series eligible under this Section 6.14, shall give written
notice of such appointment to the Company and shall mail notice of such
appointment to all holders of the applicable series of Securities as the names
and addresses of such holders appear on the Securities register. Any successor
Authenticating Agent with respect to all or any series upon acceptance of its
appointment hereunder shall become vested with all rights, powers, duties and
responsibilities with respect to such series of its predecessor hereunder, with
like effect as if originally named as Authenticating Agent herein.
The Trustee agrees to pay to any Authenticating Agent from time to time
reasonable compensation for its services, and the Trustee shall be
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entitled to be reimbursed for such payments. Any Authenticating Agent shall
have no responsibility or liability for any action taken by it as such in
accordance with the directions of the Trustee.
ARTICLE SEVEN.
CONCERNING THE SECURITYHOLDERS.
SECTION 7.01. Action by Securityholders. Whenever in this Indenture it is
provided that the holders of a specified percentage in aggregate principal
amount of the Securities of any or all series may take any action (including the
making of any demand or request, the giving of any notice, consent or waiver or
the taking of any other action) the fact that at the time of taking any such
action the holders of such specified percentage have joined therein may be
evidenced (a) by any instrument or any number of instruments of similar tenor
executed by such Securityholders in person or by agent or proxy appointed in
writing, or (b) by the record of such holders of Securities voting in favor
thereof at any meeting of such Securityholders duly called and held in
accordance with the provisions of Article Eight, or (c) by a combination of such
instrument or instruments and any such record of such a meeting of such
Securityholders.
SECTION 7.02. Proof of Execution by Securityholders. Subject to the
provisions of Section 6.01, 6.02 and 8.05, proof of the execution of any
instrument by a Securityholder or his agent or proxy shall be sufficient if made
in accordance with such reasonable rules and regulations as may be prescribed by
the Trustee or in such manner as shall be satisfactory to the Trustee. The
ownership of Securities shall be proved by the Securities register or by a
certificate of the Securities registrar.
The record of any Securityholders' meeting shall be proved in the manner
provided in Section 8.06.
SECTION 7.03. Who Are Deemed Absolute Owners. The Trustee, any
Authenticating Agent, any paying agent, any transfer agent and any Securities
registrar may deem the person in whose name such Security shall be registered
upon the Securities register to be, and may treat him as, the absolute owner of
such Security (whether or not such Security shall be overdue and notwithstanding
any notation of ownership or other writing
61
thereon) for the purpose of receiving payment of or on account of the principal
of, premium, if any, and any interest on such Security and for all other
purposes; and neither the Company nor the Trustee nor any Authenticating Agent
nor any paying agent nor any transfer agent nor any Securities registrar shall
be affected by any notice to the contrary. All such payments so made to any
holder for the time being or upon his order shall be valid, and, to the extent
of the sum or sums so paid, effectual to satisfy and discharge the liability for
moneys payable upon any such Security.
SECTION 7.04. Securities Owned by Company Deemed Not Outstanding. In
determining whether the holders of the requisite aggregate principal amount of
Securities have concurred in any direction, consent or waiver under this
Indenture, Securities which are owned by the Company or any other obligor on the
Securities or by any person directly or indirectly controlling or controlled by
or under direct or indirect common control with the Company or any other obligor
on the Securities shall be disregarded and deemed not to be outstanding for the
purpose of any such determination; provided that for the purposes of determining
whether the Trustee shall be protected in relying on any such direction, consent
or waiver, only Securities which a Responsible Officer of the Trustee knows are
so owned shall be so disregarded. Securities so owned which have been pledged
in good faith may be regarded as outstanding for the purposes of this Section
7.04 if the pledgee shall establish to the satisfaction of the Trustee the
pledgee's right to vote such Securities and that the pledgee is not the Company
or any such other obligor or person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company or any
such other obligor. Upon request of the Trustee, the Company shall furnish to
the Trustee promptly an Officers' Certificate listing and identifying all
Securities, if any, known by the Company to be owned or held by or for the
account of any of the above-described persons; and, subject to the provisions of
Section 6.01, the Trustee shall be entitled to accept such Officers' Certificate
as conclusive evidence of the facts therein set forth and of the fact that all
Securities not listed therein are outstanding for the purpose of any such
determination.
SECTION 7.05. Revocation of Consents; Future Holders Bound. At any time
prior to (but not after) the evidencing to the Trustee, as provided in Section
7.01, of the taking of any action by the holders of the percentage in aggregate
principal amount of the Securities specified in this Indenture in
62
connection with such action, any holder of a Security (or any Security issued in
whole or in part in exchange or substitution therefor) who consented to such
action may, by filing written notice with the Trustee at its principal office
and upon proof of holding as provided in Section 7.02, revoke such action so far
as concerns such Security (or so far as concerns the principal amount
represented by any exchanged or substituted Security). Except as aforesaid any
such action taken by the holder of any Security shall be conclusive and binding
upon such holder and upon all future holders and owners of such Security, and of
any Security issued in exchange or substitution therefor, irrespective of
whether or not any notation in regard thereto is made upon such Security or any
Security issued in exchange or substitution therefor. Any action taken by the
holders of the percentage in aggregate principal amount of the Securities
specified in this Indenture in connection with such action shall be conclusively
binding upon the Company, the Trustee and the holders of all the Securities.
ARTICLE EIGHT.
SECURITYHOLDERS' MEETINGS.
SECTION 8.01. Purpose of Meetings. A meeting of Securityholders, of any or
all series may be called at any time and from time to time pursuant to the
provisions of this Article Eight for any of the following purposes:
(a) to give any notice to the Company or to the Trustee, or to give
any directions to the Trustee, or to consent to the waiving of any default
hereunder and its consequences, or to take any other action authorized to
be taken by Securityholders pursuant to any of the provisions of Article
Five;
(b) to remove the Trustee and nominate a successor trustee pursuant to
the provisions of Article Six;
(c) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to the provisions of Section 9.02; or
(d) to take any other action authorized to be taken by or on behalf of
the holders of any specified aggregate principal amount of such Securities
under any other provisions of this Indenture or under applicable law.
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SECTION 8.02. Call of Meetings by Trustee. The Trustee may at any time
call a meeting of Securityholders of any or all series to take any action
specified in Section 8.01, to be held at such time and at such place in the
Borough of Manhattan, The City of New York, as the Trustee shall determine.
Notice of every meeting of the Securityholders of any or all series, setting
forth the record date, time and the place of such meeting and in general terms
the action proposed to be taken at such meeting, shall be mailed to holders of
Securities of each series affected at their addresses as they shall appear on
the Securities register of each series affected. Such notice shall be mailed
not less than 20 nor more than 90 days prior to the date fixed for the meeting.
SECTION 8.03. Call of Meetings by Company or Securityholders. In case at
any time the Company pursuant to a resolution of the Board of Directors, or the
holders of at least 10% in aggregate principal amount of the Securities of any
or all series, as the case may be, then outstanding, shall have requested the
Trustee to call a meeting of Securityholders of any or all series, as the case
may be, by written request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Trustee shall not have mailed the
notice of such meeting within 20 days after receipt of such request, then the
Company or such Securityholders may determine the time and the place in said
Borough of Manhattan for such meeting and may call such meeting to take any
action authorized in Section 8.01, by mailing notice thereof as provided in
Section 8.02.
SECTION 8.04. Qualifications for Voting. To be entitled to vote at any
meeting of Securityholders a Person shall (a) be a holder of one or more
Securities with respect to which the meeting is being held or (b) a Person
appointed by an instrument in writing as proxy by such a holder of one or more
such Securities. The only Persons who shall be entitled to be present or to
speak at any meeting of Securityholders shall be the Persons entitled to vote at
such meeting and their counsel and any representatives of the Trustee and its
counsel and any representatives of the Company and its counsel.
SECTION 8.05. Regulations. Notwithstanding any other provisions of this
Indenture, the Trustee may make such reasonable regulations as it may deem
advisable for any meeting of Securityholders, in regard to proof of the holding
of Securities and of the appointments of proxies, and in regard to
64
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 think
fit.
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 Securityholders as provided in Section 8.03, in which case the
Company or the Securityholders 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 majority vote of the meeting.
Subject to the provisions of Section 7.04, at any meeting each holder of
Securities with respect to which such meeting is being held or proxy therefor
shall be entitled to one vote for each $1,000 principal amount (in the case of
Original Issue Discount Securities, such principal amount to be determined as
provided in the definition "outstanding") of Securities held or represented by
him; provided, however, that no vote shall be cast or counted at any meeting in
respect of any Security challenged as not outstanding and ruled by the chairman
of the meeting to be not outstanding. The chairman of the meeting shall have no
right to vote other than by virtue of Securities held by him or instruments in
writing as aforesaid duly designating him as the person to vote on behalf of
other Securityholders. At any meeting of Securityholders, the presence of
Persons holding or representing Securities in an aggregate principal amount
sufficient to take action on the business for the transaction of which such
meeting was called shall constitute a quorum, but, if less than a quorum is
present, the Persons holding or representing a majority in aggregate principal
amount of the Securities represented at the meeting and entitled to vote may
adjourn such meeting with the same effect, for all intents and purposes, as
though a quorum had been present. Any meeting of Securityholders duly called
pursuant to the provisions of Section 8.02 or 8.03 may be adjourned from time to
time by a majority of those present, whether or not constituting a quorum, and
the meeting may be held as so adjourned without further notice.
SECTION 8.06. Voting. The vote upon any resolution submitted to any
meeting of holders of Securities with respect to which such meeting is being
held shall be by written ballots on which shall be subscribed the signatures
65
of such holders or of their representatives by proxy and the serial number or
numbers of the Securities held or represented by them. The permanent chairman
of the meeting shall appoint two inspectors of votes who shall count all votes
cast at the meeting for or against any resolution and who shall make and file
with the secretary of the meeting their verified written reports in triplicate
of all votes cast at the meeting. A record in duplicate of the proceedings of
each meeting of Securityholders 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 mailed as provided in Section 8.02.
The record shall show the serial numbers of the Securities voting in favor of or
against any resolution. The record shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one of the
duplicates shall be delivered to the Company and the other to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting.
Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
ARTICLE NINE.
SUPPLEMENTAL INDENTURES.
SECTION 9.01. Supplemental Indentures Without Consent of Securityholders.
The Company, when authorized by a resolution of the Board of Directors, and the
Trustee may from time to time and at any time enter into an indenture or
indentures supplemental hereto for one or more of the following purposes:
(a) to evidence the succession of another corporation to the Company,
or successive succession, and the assumption by the sucessor corporation of
the covenants, agreements and obligations of the Company pursuant to
Article Ten hereof;
(b) to add to the covenants of the Company such further covenants,
restrictions or conditions for the protection of the holders of
66
all or any series of Securities (and if such covenants are to be for
the benefit of less than all series of Securities stating that such
covenants are expressly being included for the benefit of such
series) as the Board of Directors and the Trustee shall consider
to be for the protection of the holders of such Securities, and to
make the occurrence, or the occurrence and continuance, of a default
in any of such additional covenants, restrictions or conditions a
default or an Event of Default permitting the enforcement of all or
any of the several remedies provided in this Indenture as herein set
forth; provided, however, that in respect of any such additional
covenant, restriction or condition such supplemental indenture may
provide for a particular period of grace after default (which period
may be shorter or longer than that allowed in the case of other
defaults) or may provide for an immediate enforcement upon such
default or may limit the remedies available to the Trustee upon such
default;
(c) to provide for the issuance under this Indenture of Securities in
coupon form (including Securities registrable as to principal only) and to
provide for exchangeability of such Securities with the Securities issued
hereunder in fully registered form and to make all appropriate changes for
such purpose;
(d) to convey, transfer, assign, mortgage or pledge to the Trustee as
security for the Securities any property or assets which the Company may
desire or may be required to convey, transfer, assign, mortgage or
pledge in accordance with the provisions of Section 3.05 or Section 10.03;
(e) to cure any ambiguity or to correct or supplement any provision
contained herein or in any supplemental indenture which may be defective
or inconsistent with any other provision contained herein or in any
supplemental indenture, or to make other provisions in regard to
matters or questions arising under this Indenture or to make any other
changes hereto; provided that any such action shall not adversely affect
the interests of the holders of the Securities;
(f) to establish the form or terms of Securities of any series as
permitted by Sections 2.01 and 2.03; and
(g) to evidence and provide for the acceptance of appointment
hereunder by a successor trustee with respect to the Securities of one or
67
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 6.11.
The Trustee is hereby authorized to join with the Company in the execution
of any such supplemental indenture, to make any further appropriate agreements
and stipulations which may be therein contained and to accept the conveyance,
transfer and assignment of any property thereunder, but the Trustee shall not be
obligated to, but may in its discretion, enter into any such supplemental
indenture which affects the Trustee's own rights, duties, obligations or
immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this Section
9.01 may be executed by the Company and the Trustee without the consent of the
holders of any of the Securities at the time outstanding, notwithstanding any
of the provisions of Section 9.02.
SECTION 9.02. Supplemental Indentures with Consent of Securityholders. With
the consent (evidenced as provided in Section 7.01) of the holders of not less
than 66 2/3% in aggregate principal amount of the Securities at the time
outstanding of all series affected by such supplemental indenture (voting as a
class), the Company, when authorized by a resolution of the Board of Directors,
and the Trustee may from time to time and at any time 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 any supplemental indenture or of modifying in any manner the rights of the
holders of the Securities of each series so affected; provided, however, that no
such supplemental indenture shall (i) extend the final maturity of any Security,
or reduce the rate or extend the time of payment of interest thereon, or reduce
the principal amount thereof or any premium thereon, or reduce any amount
payable on redemption thereof or make the principal thereof or any interest or
premium thereon payable in any coin or currency other than that provided in the
Securities, or reduce the amount of the principal of an Original Issue Discount
Security that would be due and payable upon an acceleration of the maturity
thereof pursuant to Section 5.01 or the amount thereof provable in bankruptcy
pursuant to Section 5.02, or impair or affect the right of any Securityholder to
institute suit for payment thereof or the right of repay-
68
ment, if any, at the option of the holder, without the consent of the holder of
each Security so affected, or (ii) reduce the aforesaid percentage of Securities
the holders of which are required to act pursuant to Section 5.07 or to consent
to any such supplemental indenture, without the consent of the holders of each
Security affected.
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of Securityholders of such series with respect to such covenant or
provision, shall be deemed not to affect the rights under this Indenture of the
Securityholders of any other series.
Upon the request of the Company accompanied by a copy of a resolution of
the Board of Directors certified by its Secretary or Assistant Secretary
authorizing the execution of any such supplemental indenture, and upon the
filing with the Trustee of evidence of the consent of Securityholders as
aforesaid, the Trustee shall join with the Company in the execution of such
supplemental indenture unless such supplemental indenture affects the Trustee's
own rights, duties or immunities under this Indenture or otherwise, in which
case the Trustee may in its discretion, but shall not be obligated to, enter
into such supplemental indenture.
It shall not be necessary for the consent of the Securityholders under this
Section 9.02 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance hereof.
SECTION 9.03. Compliance with Trust Indenture Act; Effect of Supplemental
Indentures. Any supplemental indenture executed pursuant to the provisions of
this Article Nine shall comply with the Trust Indenture Act of 1939, as then in
effect. Upon the execution of any supplemental indenture pursuant to the
provisions of this Article Nine, this Indenture shall be and be deemed to be
modified and amended in accordance therewith and the respective rights,
limitations of rights, obligations, duties and immunities under this Indenture
of the Trustee, the Company and the holders of Securities of each series
affected thereby shall thereafter be determined, exercised and enforced
hereunder subject in all respects to such modifications and amendments and all
the terms and conditions of any such supplemental indenture shall be and be
deemed to be part of the terms and conditions of this Indenture for any and all
purposes.
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SECTION 9.04. Notation on Securities. Securities of any series authenti-
cated and delivered after the execution of any supplemental indenture affecting
such series pursuant to the provisions of this Article Nine may bear a notation
in form approved by the Trustee as to any matter provided for in such
supplemental indenture. If the Company or the Trustee shall so determine, new
Securities of any series so modified as to conform, in the opinion of the
Trustee and the Board of Directors, to any modification of this Indenture
contained in any such supplemental indenture may be prepared and executed by the
Company, authenticated by the Trustee or the Authenticating Agent and delivered
in exchange for the Securities of any series then outstanding.
SECTION 9.05. Evidence of Compliance of Supplemental Indenture to be
Furnished Trustee. The Trustee, subject to the provisions of Sections 6.01 and
6.02, may receive an Officers' Certificate and an Opinion of Counsel as
conclusive evidence that any supplemental indenture executed pursuant hereto
complies with the requirements of this Article Nine.
ARTICLE TEN.
CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE BY THE COMPANY.
SECTION 10.01. Consolidations and Mergers of Company and Conveyances
Permitted Subject to Certain Conditions. Subject to the provisions of Section
10.03, 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
corporation or corporations, or successive consolidations or mergers in which
the Company or its successor or successors shall be a party or parties or shall
prevent any sale or conveyance of all or substantially all of the property of
the Company to any other corporation authorized to acquire and operate the same;
provided, that in any such case, (i) either the Company shall be the continuing
corporation, or the successor corporation (if other than the Company) shall be a
corporation organized and existing under the laws of the United States of
America or a State thereof and such corporation shall expressly assume the due
and punctual payment of the principal of, and premium, if any, and interest on
all the Securities, according to their tenor, and the due and punctual
performance and observance of all of the covenants and conditions of this
Indenture to be performed by the Company by supplemental indenture satisfactory
to the
70
Trustee, executed and delivered to the Trustee by such corporation, and (ii) the
Company or such successor corporation, as the case may be, shall not,
immediately after such merger or consolidation, or such sale or conveyance, be
in default in the performance of any such covenant or condition and shall not
immediately thereafter have outstanding any secured Debt (as defined in Section
3.05) not expressly permitted by the provisions of Section 3.05 unless the
provisions of Section 10.03 shall previously have been complied with.
SECTION 10.02. Successor Corporation to be Substituted for Company. In case
of any such consolidation, merger, sale or conveyance (other than a conveyance
by way of lease) and upon any such assumption by the successor corporation, such
successor corporation shall succeed to and be substituted for the Company, with
the same effect as if it had been named herein as the party of the first part,
and the Company thereupon shall be relieved of any further liability or
obligation hereunder or upon the Securities and may thereupon or at any time
thereafter be dissolved, wound up or liquidated. Such successor corporation
thereupon may cause to be signed, and may issue either in its own name or in the
name of Masco Corporation, any or all of the Securities issuable hereunder which
theretofore shall not have been signed by the Company and delivered to the
Trustee or the Authenticating Agent; and, upon the order of such successor
corporation (instead of the Company) and subject to all the terms, conditions
and limitations in this Indenture prescribed, the Trustee or the Authenticating
Agent shall authenticate and deliver any Securities which previously shall have
been signed and delivered by the officers of the Company to the Trustee or the
Authenticating Agent for authentication, and any Securities which such successor
corporation thereafter shall cause to be signed and delivered to the Trustee or
the Authenticating Agent for that purpose. All the Securities so issued shall
in all respects have the same legal rank and benefit under this Indenture as the
Securities theretofore or thereafter issued in accordance with the terms of this
Indenture as though all of such Securities had been issued at the date of the
execution hereof.
In case of any such consolidation, merger, sale or conveyance, such change
in phraseology and form (but not in substance) may be made in the Securities
thereafter to be issued as may be appropriate.
71
SECTION 10.03. Securities to be Secured in Certain Events. If, upon any
such consolidation or merger of the Company with or into any other corporation,
or upon any sale or conveyance of the property of the Company as an entirety or
substantially as an entirety to any other corporation, any Principal Property or
any shares of stock or indebtedness of any Consolidated Subsidiary owning any
Principal Property owned immediately prior thereto would thereupon become
subject to any mortgage (as defined in Section 3.05), unless the Company could
create such mortgage pursuant to Section 3.05 without equally and ratably
securing the Securities, the Company, prior to or simultaneously with such
consolidation, merger, sale or conveyance, will secure the Securities
outstanding hereunder, equally and ratably with any other obligation of the
Company or any such Subsidiary then entitled thereto, prior to the Debt (as
defined in Section 3.05) secured by such mortgage.
SECTION 10.04. Evidence to be Furnished Trustee. The Trustee, subject to
the provisions of Sections 6.01 and 6.02, may receive and rely upon an Officers'
Certificate and an Opinion of Counsel as conclusive evidence that any
consolidation, merger, sale or conveyance, and any such assumption complies with
the provisions of this Article Ten.
ARTICLE ELEVEN.
SATISFACTION AND DISCHARGE OF INDENTURE.
SECTION 11.01. Discharge of Indenture. When (a) the Company shall have
paid or caused to be paid the principal of and interest on all Securities of any
series outstanding hereunder, as and when the same shall have become due and
payable, (b) the Company shall deliver to the Trustee for cancellation all
Securities of any series theretofore authenticated (other than any Securities of
such series which shall have been destroyed, lost or stolen and which shall have
been replaced or paid as provided in Section 2.08) and not theretofore
cancelled, or (c) with respect to any series of Securities which, under the
terms specified in the resolution or supplemental indenture or indentures
referred to in Section 2.03, pursuant to which such series is created, can be
discharged prior to maturity, the Company shall deposit with the Trustee, in
trust, cash and/or a principal amount of obligations of or directly guaranteed
by the United States of America maturing or redeem-
72
able at the option of the holder thereof not later than the date fixed for
payment or redemption of all outstanding Securities of such series which,
together with the income to be earned on such obligations prior to such date,
equals the principal amount of (and any applicable premium on) all such
Securities of such series not theretofore cancelled or delivered to the Trustee
for cancellation, with interest to the date of their maturity or redemption, as
the case may be, but excluding, however, the amount of any moneys for the
payment of principal of, or premium, if any, or interest on the Securities of
such series (1) theretofore repaid to the Company in accordance with the
provisions of Section 11.04, or (2) paid to any State or to the District of
Columbia pursuant to its unclaimed property or similar laws, and if in any such
case the Company shall also pay or cause to be paid all other sums payable
hereunder by the Company, then (except in the case of (c) above as to (i) rights
of registration of transfer and exchange and any right of the Company of
optional redemption and to deliver Securities of such series to the Trustee for
cancellation, (ii) substitution of mutilated, defaced, destroyed, lost or
stolen Securities, (iii) the rights, obligations and immunities of the Trustee
hereunder and (iv) the rights of the Securityholders as beneficiaries hereof
with respect to the property so deposited with the Trustee, all of which shall
continue in full force and effect) all of the Company's liability with respect
to principal, premium, if any, and interest on the Securities of such series
shall be discharged, this Indenture shall cease to be of further effect as to
such series, and the Trustee, on demand of the Company accompanied by an
Officers' Certificate and an Opinion of Counsel and at the cost and expense of
the Company, shall execute proper instruments acknowledging satisfaction of and
discharging this Indenture as to such series, the Company, however, hereby
agreeing to reimburse the Trustee for any costs or expenses thereafter
reasonably and properly incurred by the Trustee in connection with this
Indenture or the Securities; provided, however, that the rights of
Securityholders to receive amounts in respect of principal of and interest on
the Securities held by them shall not be delayed longer than required by
then-applicable mandatory rules or policies of any securities exchange if the
Securities of such series continue to be listed. Notwithstanding the foregoing,
if the Company makes a deposit of cash and/or obligations described in clause
(c) above with respect to any series of Securities which, under the terms
specified in the resolution or supplemental indenture or indentures referred to
in Section 2.03, pursuant to which such series is created, is subject to the
provisions of this sentence
73
(whether or not such resolution or supplemental indenture provides that such
series can be discharged prior to maturity under clause (c) above), and,
concurrently with such deposit, notifies the Trustee that such series shall no
longer have the benefit of all or any portion of the provisions of Article Five,
Section 3.05 and Section 3.06 of this Indenture and such other provisions of
this Indenture or the resolution or supplemental indenture, pursuant to which
such series is created, as are specifically permitted in such resolution or
supplemental indenture to be made inapplicable under this sentence with respect
to such series, this Indenture and such supplemental indenture or resolution
shall thereupon be deemed amended with respect to such series solely by the
deletion in their entirety of such provisions and this Indenture and such
supplemental indenture or resolution shall in all other respects be unaffected
thereby.
SECTION 11.02. Deposited Moneys to be Held in Trust by Trustee. Subject to
the provisions of Section 11.04, all moneys and obligations deposited with the
Trustee pursuant to Section 11.01 shall be held in trust and applied by it to
the payment, either directly or through any paying agent (including the Company
if acting as its own paying agent), to the holders of the particular Securities
for the payment of which such moneys and obligations have been deposited with
the Trustee, of all sums due and to become due thereon for principal, premium,
if any, and interest, if any; provided, however, that the Company shall be
entitled from time to time to withdraw cash and/or obligations deposited under
clause (c) or the last sentence of Section 11.01 provided that the cash and
obligations thereafter on deposit and after giving effect to such withdrawal
would, if then deposited under such clause, satisfy in all respects the
requirements of such clause or the last last sentence of Section 11.01. At the
time of any such withdrawal, the Company shall deliver to the Trustee an
Officers' Certificate demonstrating compliance with the provisions of such
clause or sentence.
SECTION 11.03. Paying Agent to Repay Moneys Held. Upon the satisfaction
and discharge-of this Indenture all moneys then held by any paying agent of the
Securities (other than the Trustee) shall, upon demand of the Company, be repaid
to it or paid to the Trustee, and thereupon such paying agent shall be released
from all further liability with respect to such moneys.
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SECTION 11.04. Return of Unclaimed Moneys. Except as may be required under
applicable law, any moneys deposited with or paid to the Trustee or any paying
agent for payment of the principal of, and premium, if any, or interest, if any,
on Securities and not applied but remaining unclaimed by the holders of
Securities for two years after the date upon which the principal of, and
premium, if any, or interest, if any, on such Securities, as the case may be,
shall have become due and payable, shall be repaid to the Company by the Trustee
or such paying agent; and the holder of any of the Securities shall thereafter
look only to the Company for any payment which such holder may be entitled to
collect and all liability of the Trustee or such paying agent with respect to
such moneys shall thereupon cease.
ARTICLE TWELVE.
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS.
SECTION 12.01. Indenture and Securities Solely Corporate Obligations. No
recourse for the payment of the principal of or premium, if any, or interest, if
any, on any Security, or for any claim based thereon or otherwise in respect
thereof, and no recourse under or upon any obligation, covenant or agreement of
the Company in this Indenture or in any supplemental indenture, or in any
Security, or because of the creation of any indebtedness represented thereby,
shall be had against any incorporator, stockholder, officer or director, as
such, past, present or future, of the Company or of any successor corporation of
the Company, either directly or through the Company or any successor corporation
of the Company, whether by virtue of any constitution, statute or rule of law,
or by the enforcement of any assessment or penalty or otherwise; it being
expressly understood that all such liability is hereby expressly waived and
released as a condition of, and as a consideration for, the execution of this
Indenture and the issue of the Securities.
ARTICLE THIRTEEN.
MISCELLANEOUS PROVISIONS.
SECTION 13.01. Successors. All the covenants, stipulations, promises and
agreements in this Indenture contained by the Company shall bind its successors
and assigns whether so expressed or not.
75
SECTION 13.02. Official Acts by Successor Corporation. Any act or
proceeding by any provision of this Indenture authorized or required to be done
or performed by any board, committee or officer of the Company shall and may be
done and performed with like force and effect by the like board, committee or
officer of any corporation that shall at the time be the lawful sole successor
of the Company.
SECTION 13.03. Addresses for Notices, etc. Any notice or demand which by
any provision of this Indenture is required or permitted to be given or served
by the Trustee or by the holders of Securities on the Company may be given or
served by being deposited postage prepaid by registered or certified mail in a
post office letter box addressed (until another address is filed by the Company
with the Trustee for the purpose) to Masco Corporation, 21001 Van Born Road,
Taylor, Michigan 48180, Attention: President. Any notice, direction, request or
demand by any Securityholder to or upon the Trustee shall be deemed to have been
sufficiently given or made, for all purposes, if given or made in writing at the
office of the Trustee, 30 West Broadway, New York, N. Y. 10015, addressed to the
attention of the Corporate Trust Department.
SECTION 13.04. New York Contract. This Indenture and each Security shall
be deemed to be a contract made under the laws of the State of New York, and for
all purposes shall be governed by and construed in accordance with the laws of
said State.
SECTION 13.05. Evidence of Compliance with Conditions Precedent. Upon any
application or demand by the Company to the Trustee to take any action under any
of the provisions of this Indenture, the Company shall furnish to the Trustee an
Officers' Certificate stating that in the opinion of the signers 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 have been complied with.
Each certificate or opinion provided for in this Indenture and delivered to
the Trustee with respect to compliance with a condition or covenant provided for
in this Indenture (other than the Officers' Certificate called for by Section
3.07) shall include (1) a statement that the person making such certificate or
opinion has read such covenant or condition; (2) a brief statement as to the
nature and scope of the examination or investigation
76
upon which the statements or opinions contained in such certificate or opinions
are based; (3) a statement that, in the opinion of such person, 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 (4) a statement as to whether or not, in the opinion of such
person, such condition or covenant has been complied with.
SECTION 13.06. Legal Holidays. In any case where the date of payment of
interest on or principal of or premium, if any, on the Securities will be in The
City of New York, New York a legal holiday or a day on which banking
institutions are authorized by law to close, the payment of such interest on or
principal of or premium, if any, on the Securities need not be made on such date
but may be made on the next succeeding day not in such City a legal holiday or a
day on which banking institutions are authorized by law to close, with the same
force and effect as if made on the date of payment and no interest shall accrue
for the period from and after such date.
SECTION 13.07. Trust Indenture Act to Control. If and to the extent that
any provision of this Indenture limits, qualifies or conflicts with another
provision included in this Indenture which is required to be included in this
Indenture by any of Sections 310 to 317, inclusive, of the Trust Indenture Act
of 1939, such required provision shall control.
SECTION 13.08. Table Of Contents, Headings, etc. The table of contents and
the titles and headings of the articles and sections of this Indenture have been
inserted for convenience of reference only, are not to be considered a part
hereof, and shall in no way modify or restrict any of the terms or provisions
hereof.
SECTION 13.09. Execution in Counterparts. This Indenture may be executed
in any number of counterparts, each of which shall be an original, but such
counterparts shall together constitute but one and the same instrument.
SECTION 13.10. No Security Interest Created. Nothing in this Indenture
or in the Securities, expressed or implied, shall be construed to constitute a
security interest under the Uniform Commercial Code or similar legislation, as
now or hereafter enacted and in effect, in any jurisdiction where property of
the Company or its Subsidiaries is located.
77
ARTICLE FOURTEEN.
REDEMPTION OF SECURITIES-MANDATORY AND
OPTIONAL SINKING FUND.
SECTION 14.01. Applicability of Article. The provisions of this Article
shall be applicable to the Securities of any series which are redeemable at the
option of the Company before their maturity or to any sinking fund for the
retirement of Securities of a series except as otherwise specified as
contemplated by Section 2.03 for Securities of such series.
SECTION 14.02. Notice of Redemption; Selection of Securities. In case the
Company shall desire to exercise the right to redeem all, or, as the case may
be, any part of the Securities of any series in accordance with their terms, it
shall fix a date for redemption and shall mail a notice of such redemption at
least 30 and not more than 60 days prior to the date fixed for redemption to the
holders of Securities of such series so to be redeemed as a whole or in part at
their last addresses as the same appear on the Securities register. Such
mailing shall be by first class mail. The notice if mailed in the manner herein
provided shall be conclusively presumed to have been duly given, whether or not
the holder receives such notice. In any case, failure to give such notice by
mail or any defect in the notice to the holder of any Security of a series
designated for redemption as a whole or in part shall not affect the validity of
the proceedings for the redemption of any other Security of such series.
Each such notice of redemption shall specify the date fixed for redemption,
the redemption price at which Securities of such series are to be redeemed, the
place or places of payment, that payment will be made upon presentation and
surrender of such Securities, that interest accrued to the date fixed for
redemption will be paid as specified in said notice, and that on and after said
date interest thereon or on the portions thereof to be redeemed will cease to
accrue. If less than all the Securities of such series are to be redeemed the
notice of redemption shall specify the numbers of the Securities of that series
to be redeemed. In case any Security of a series is to be redeemed in part
only, the notice of redemption shall state the portion of the principal amount
thereof to be redeemed and shall state that on and after the date fixed for
redemption, upon surrender of such Security, a new Security or Securities of
that series in principal amount equal to the unredeemed portion thereof will be
issued.
78
Prior to the redemption date specified in the notice of redemption given as
provided in this Section, the Company will deposit with the Trustee or with one
or more paying agents an amount of money sufficient to redeem on the redemption
date all the Securities so called for redemption at the appropriate redemption
price, together with accrued interest to the date fixed for redemption.
If less than all the Securities of a series are to be redeemed the Company
will give the Trustee notice not less than 60 days prior to the redemption date
as to the aggregate principal amount of Securities of that series to be redeemed
and the Trustee shall select, in such manner as in its sole discretion it shall
deem appropriate and fair, the Securities of that series or portions thereof (in
integral multiples of $1,000, except as otherwise set forth in the applicable
form of Security) to be redeemed.
SECTION 14.03. Payment of Securities Called for Redemption. If notice of
redemption has been given as provided in Section 14.02 or Section 14.04, the
Securities or portions of Securities of the series with respect to which such
notice has been given shall become due and payable on the date and at the place
or places stated in such notice at the applicable redemption price, together
with interest accrued to the date fixed for redemption (unless such date is an
interest payment date, in which case such accrued interest shall be paid to the
holders of record on the relevant record date, and no such accrued interest
shall be paid with the redemption price), and on and after said date (unless the
Company shall default in the payment of such Securities at the redemption price,
together with interest accrued to said date) interest on the Securities or
portions of Securities of any series so called for redemption shall cease to
accrue. On presentation and surrender of such Securities at a place of payment
specified in said notice, the said Securities or the specified portions thereof
shall be paid and redeemed by the Company at the applicable redemption price,
together with interest accrued thereon to the date fixed for redemption (unless
such date is an interest payment date, in which case such accrued interest shall
be paid to the holders of record on the relevant record date, and no such
accrued interest shall be paid with the redemption price).
Upon presentation of any Security of any series redeemed in part only, the
Company shall execute and the Trustee shall authenticate and deliver to the
holder thereof, at the expense of the Company, a new Security or
79
Securities of such series of authorized denominations, in principal amount
equal to the unredeemed portion of the Security so presented.
SECTION 14.04. Mandatory and Optional Sinking Fund. The minimum amount of
any sinking fund payment provided for by the terms of Securities of any series
is herein referred to as a "mandatory sinking fund payment", and any payment in
excess of such minimum amount provided for by the terms of Securities of any
series is herein referred to as an "optional sinking fund payment". The last
date on which any such payment may be made is herein referred to as a "sinking
fund payment date".
In lieu of making all or any part of any mandatory sinking fund payment
with respect to any Securities of a series in cash, the Company may at its
option (a) deliver to the Trustee Securities of that series (other than any
previously called for redemption) theretofore purchased or otherwise acquired by
the Company and (b) may apply as a credit Securities of that series which have
been previously delivered to the Trustee by the Company or Securities of that
series which have been redeemed either at the election of the Company pursuant
to the terms of such Securities or through the application of optional sinking
fund payments pursuant to the next succeeding paragraph, in each case in
satisfaction of all or any part of any mandatory sinking fund payment, provided
that such Securities have not been previously so credited. Each such Security
so delivered or applied as a credit shall be credited at the sinking fund
redemption price for such Securities and the amount of any mandatory sinking
fund shall be reduced accordingly. If the Company intends so to deliver or
credit such Securities with respect to any mandatory sinking fund payment it
shall deliver to the Trustee at least 60 days prior to the next succeeding
sinking fund payment date for such series (a) a certificate signed by the
Treasurer or an Assistant Treasurer of the Company specifying the portion of
such sinking fund payment, if any, to be satisfied by payment of cash and the
portion of such sinking fund payment, if any, which is to be satisfied by
delivering and crediting such Securities and (b) any Securities to be so
delivered if not previously delivered. All Securities so delivered to the
Trustee shall be cancelled by the Trustee and no Securities shall be
authenticated in lieu thereof. If the Company fails to deliver such certificate
and Securities at or before the time provided above, the Company shall not be
permitted to satisfy any portion of such mandatory sinking fund payment by
delivery or credit of Securities.
80
At its option the Company may pay into the sinking fund for the retirement
of Securities of any particular series, on or before each sinking fund payment
date for such series, any additional sum in cash as specified by the terms of
such series of Securities. If the Company intends to exercise its right to make
any such optional sinking fund payment, it shall deliver to the Trustee at least
60 days prior to the next succeeding sinking fund payment date for such Series a
certificate signed by the Treasurer or an Assistant Treasurer of the Company
stating that the Company intends to exercise such optional right and specifying
the amount which the Company intends to pay on such sinking fund payment date.
If the Company fails to deliver such certificate at or before the time provided
above, the Company shall not be permitted to make any optional sinking fund
payment with respect to such sinking fund payment date. To the extent that such
right is not exercised in any year it shall not be cumulative or carried forward
to any subsequent year.
If the sinking fund payment or payments (mandatory or optional) made in
cash plus any unused balance of any preceding sinking fund payments made in cash
shall exceed $50,000 (or a lesser sum if the Company shall so request) with
respect to the Securities of any particular series, it shall be applied by the
Trustee or one or more paying agents on the next succeeding sinking fund payment
date to the redemption of Securities of such series at the sinking fund
redemption price together with accrued interest to the date fixed for
redemption. The Trustee shall select, in the manner provided in Section 14.02,
for redemption on such sinking fund payment date a sufficient principal amount
of Securities of such series to absorb said cash, as nearly as may be, and the
Trustee shall, at the expense and in the name of the Company, thereupon cause
notice of redemption of Securities of such series to be given in substantially
the manner and with the effect provided in Sections 14.02 and 14.03 for the
redemption of Securities of that series in part at the option of the Company,
except that the notice of redemption shall also state that the Securities of
such series are being redeemed for the sinking fund. Any sinking fund moneys
not so applied or allocated by the Trustee or any paying agent to the redemption
of Securities of that series shall be added to the next cash sinking fund
payment received by the Trustee or such paying agent and, together with such
payment, shall be applied in accordance with the provisions of this Section
14.04. Any and all sinking fund moneys held by the Trustee or any paying agent
on the maturity date of the securities of any particular series, and not held
for the payment or redemption of particular Securities of such series, shall be
applied by the Trustee or such paying agent, together with other moneys, if
81
necessary, to be deposited sufficient for the purpose, to the payment of the
principal of the Securities of that series at maturity.
On or before each sinking fund payment date, the Company shall pay to the
Trustee or to one or more paying agents in cash a sum equal to all interest
accrued to the date fixed for redemption on Securities to be redeemed on the
next following sinking fund payment date pursuant to this Section.
Neither the Trustee nor any paying agent shall redeem any Securities of a
series with sinking fund moneys, and the Trustee shall not mail any notice of
redemption of Securities of such series by operation of the sinking fund, during
the continuance of a default in payment of interest on such Securities or of any
Event of Default (other than an Event of Default occurring as a consequence of
this paragraph) with respect to such Securities, except that if the notice of
redemption of any Securities shall theretofore have been mailed in accordance
with the provisions hereof, the Trustee or any paying agent shall redeem such
Securities if cash sufficient for that purpose shall be deposited with the
Trustee or such paying agent for that purpose in accordance with the terms of
this Article Fourteen. Except as aforesaid, any moneys in the sinking fund for
such series at the time when any such default or Event of Default shall occur
and any moneys thereafter paid into the sinking fund shall, during the
continuance of such default or Event of Default, be held as security for the
payment of all Securities of such series; provided, however, that in case such
Event of Default or default shall have been cured or waived as provided herein,
such moneys shall thereafter be applied on the next succeeding sinking fund
payment date on which such moneys may be applied pursuant to the provisions of
this Section 14.04.
MORGAN GUARANTY TRUST COMPANY OF NEW YORK hereby accepts the trusts in this
Indenture declared and provided, upon the terms and conditions hereinabove set
forth.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed by their respective officers thereunto duly authorized and
their respective corporate seals to be hereunto duly affixed and attested,
all as of the day and year first above written.
MASCO CORPORATION
Company
By RICHARD G. MOSTELLER
--------------------------
Senior Vice President-Finance
[CORPORATE SEAL]
Attest:
JOHN R. LEEKLEY
-------------------------------
Assistant Secretary
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK
Trustee
By J. N. CREAN
------------------------
Trust Officer
J. N. Crean
[CORPORATE SEAL]
Attest:
G. J. CASTELLANO
--------------------------------
Assistant Trust Officer
G. J. Castellano
83
STATE OF MICHIGAN ) SS.:
COUNTY OF WAYNE )
On the 20th day of November, 1985, before me personally came
Richard G. Mosteller, to me known, who, being by me duly sworn, did
depose and say that he resides at 531 Brentwood Dr., Dearborn, Mi.;
that he is Senior Vice President-Finance of MASCO CORPORATION, the
corporation described in and which executed the above instrument;
that he knows the corporate seal of said corporation; that the seal
affixed to the said instrument is such corporate 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.
DIANE G. SALESKI
----------------------------
Notary Public
DIANE G. SALESKI
Notary Public, Wayne County, Mi.
My Commission Expires May 18, 1986
[NOTARIAL SEAL]
STATE OF NEW YORK ) SS.:
COUNTY OF NEW YORK )
On the 21st day of November, 1985, before me personally came J. N.
Crean, to me known, who, being by me duly sworn, did depose and say
that he resides at 837 Franklin Turnpike, Allendale, N.J. 07401; that
he is a Trust Officer of MORGAN GUARANTY TRUST COMPANY OF NEW YORK,
one of the corporations described in and which executed the above
instrument; that he knows the corporate seal of said corporation;
that the seal affixed to the said instrument is such corporate 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.
KAM LAW
----------------------------
Notary Public
KAM LAW
Notary Public, State of New York
No. 4823386
Qualified in New York County
My Commission Expires March 30, 1987
[NOTARIAL SEAL]