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EXHIBIT 4.d
[CONFORMED COPY]
MASCO INDUSTRIES, INC.
AND
MORGAN GUARANTY TRUST COMPANY OF NEW YORK,
TRUSTEE
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INDENTURE
Dated as of November 1, 1986
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TIE-SHEET*
of provisions of Trust Indenture Act of 1939 with Indenture dated as of
November 1, 1986 between Masco Industries, Inc. and Morgan Guaranty Trust
Company of New York, Trustee:
Section of Act Section of Indenture
310(a)(1) and (2) 8.09
310(a)(3) and (4) Not applicable
310(b) 8.08 and 8.10 (a)(b)
and (d)
310(c) Not applicable
311(a) and (b) 8.13
311(c) Not applicable
312(a) 6.01 and 6.02(a)
312(b) and (c) 6.02(b) and (c)
313(a) 6.04(a)
313(b)(1) Not applicable
313(b)(2) 6.04(b)
313(c) 6.04(c)
313(d) 6.04(d)
314(a) 6.03
314(b) Not applicable
314(c)(1) and (2) 15.05
314(c)(3) Not applicable
314(d) Not applicable
314(e) 15.05
314(f) Not applicable
315(a)(c) and (d) 8.01
315(b) 7.08
315(e) 7.09
316(a)(1) 7.01 and 7.07
316(a)(2) Omitted
316(a) last sentence 9.04
316(b) 7.04
317(a) 7.02
317(b) 5.04(a)
318(a) 15.07
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*This tie-sheet is not part of the Indenture as executed.
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TABLE OF CONTENTS*
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Page
Parties 1
Recitals 1
Authorization of Indenture 1
Compliance with Legal Requirements 1
ARTICLE ONE.
Definitions.
SECTION 1.01. Definitions 1
Authenticating Agent 2
Board of Directors 2
Common Stock 2
Company 2
Consolidated Net Earnings 2
Convertible Security or
Convertible Securities 3
Event of Default 3
Indenture 3
Officers' Certificate 3
Opinion of Counsel 4
Original Issue Date 4
Person 4
Principal Office of the Trustee 4
Responsible Officer 4
Security or Securities; Outstanding 4
Securityholder 5
Senior Indebtedness 5
Subsidiary 6
Trustee 7
Trust Indenture Act of 1939 7
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*This table of contents shall not, for any purpose, be deemed to be part
of the Indenture.
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ARTICLE TWO.
SECURITIES.
Page
SECTION 2.01. Forms Generally 7
SECTION 2.02. Form of Trustee's Certificate
of Authentication 7
SECTION 2.03. Amount Unlimited; Issuable in Series 8
SECTION 2.04. Authentication and Delivery 9
SECTION 2.05. Date and Denomination of Securities 11
SECTION 2.06. Execution of Securities 12
SECTION 2.07. Exchange and Registration of Transfer
of Securities 12
SECTION 2.08. Mutilated, Destroyed, Lost or Stolen
Securities 13
SECTION 2.09. Temporary Securities 15
SECTION 2.10. Cancellation of Securities Paid, etc. 15
ARTICLE THREE.
CONVERSION OF SECURITIES.
SECTION 3.01. Conversion Privilege 16
SECTION 3.02. Manner of Exercise of Conversion Privilege 16
SECTION 3.03. Fractional Shares 17
SECTION 3.04. Conversion Price 18
SECTION 3.05. Adjustment of Conversion Price 18
SECTION 3.06. Merger, Consolidation, etc. 22
SECTION 3.07. Notices 22
SECTION 3.08. Taxes on Conversions 23
SECTION 3.09. Company to Provide Stock 24
SECTION 3.10. Disclaimer of Responsibility for Certain
Matters 24
SECTION 3.11. Return of Funds Deposited for Redemption of
Converted Securities 25
SECTION 3.12. Disposition of Converted Securities 25
ARTICLE FOUR.
SUBORDINATION OF SECURITIES.
SECTION 4.01. Agreement to Subordinate 25
SECTION 4.02. No Payment on Securities if Senior
Indebtedness in Default 26
SECTION 4.03. Priority of Senior Indebtedness 26
SECTION 4.04. Company to Give Notice of Certain Events;
Reliance by Trustee 28
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Page
SECTION 4.05. Subrogation of Securities 29
SECTION 4.06. Company Obligation to Pay Unconditional 29
SECTION 4.07. Authorization of Holders of Securities to
Trustee to Effect Subordination 30
SECTION 4.08. Notice to Trustee of Facts Prohibiting
Payments 30
SECTION 4.09. Trustee May Hold Senior Indebtedness 30
SECTION 4.10. All Indenture Provisions Subject to this
Article 30
ARTICLE FIVE.
PARTICULAR COVENANTS OF THE COMPANY
SECTION 5.01. Payment of Principal, Premium and Interest 31
SECTION 5.02. Offices for Notices and Payments, etc. 31
SECTION 5.03. Appointments to Fill Vacancies in Trustee's
Office 32
SECTION 5.04. Provision as to Paying Agent 32
SECTION 5.05. Certificate to Trustee 33
ARTICLE SIX.
SECURITYHOLDERS' LISTS AND REPORTS BY THE COMPANY AND
THE TRUSTEE.
SECTION 6.01. Securityholders' Lists 33
SECTION 6.02. Preservation and Disclosure of Lists 34
SECTION 6.03. Reports by Company 35
SECTION 6.04. Reports by Trustee 36
ARTICLE SEVEN.
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT.
SECTION 7.01. Events of Default 38
SECTION 7.02. Payment of Securities on Default;
Suit Therefor 41
SECTION 7.03. Application of Moneys Collected by Trustee 43
SECTION 7.04. Proceedings by Securityholders 44
SECTION 7.05. Proceedings by Trustee 45
SECTION 7.06. Remedies Cumulative and Continuing 45
SECTION 7.07. Direction of Proceedings and Waiver of
Defaults by Majority of Securityholders 46
SECTION 7.08. Notice of Defaults 47
SECTION 7.09. Undertaking to Pay Costs 47
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ARTICLE EIGHT.
CONCERNING THE TRUSTEE.
Page
SECTION 8.01. Duties and Responsibilities of Trustee 48
SECTION 8.02. Reliance on Documents, Opinions, etc. 49
SECTION 8.03. No Responsibility for Recitals, etc. 50
SECTION 8.04. Trustee, Authenticating Agent, Paying Agents,
Transfer Agents, Conversion Agents or
Registrar May Own Securities 51
SECTION 8.05. Moneys to Be Held in Trust 51
SECTION 8.06. Compensation and Expenses of Trustee 51
SECTION 8.07. Officers' Certificate as Evidence 52
SECTION 8.08. Conflicting Interest of Trustee 52
SECTION 8.09. Eligibility of Trustee 59
SECTION 8.10. Resignation or Removal of Trustee 59
SECTION 8.11. Acceptance by Successor Trustee 61
SECTION 8.12. Succession by Merger, etc. 62
SECTION 8.13. Limitation on Rights of Trustee as a Creditor 63
SECTION 8.14. Authenticating Agents 67
ARTICLE NINE.
CONCERNING THE SECURITYHOLDERS.
SECTION 9.01. Action by Securityholders 70
SECTION 9.02. Proof of Execution by Securityholders 70
SECTION 9.03. Who Are Deemed Absolute Owners 70
SECTION 9.04. Securities Owned by Company Deemed
Not Outstanding 71
SECTION 9.05 Revocation of Consents; Future Holders Bound 71
ARTICLE TEN.
SECURITYHOLDERS' MEETING.
SECTION 10.01. Purposes of Meetings 72
SECTION 10.02. Call of Meetings by Trustee 72
SECTION 10.03. Call of Meetings by Company or
Securityholders 73
SECTION 10.04. Qualifications for Voting 73
SECTION 10.05. Regulations 73
SECTION 10.06. Voting 74
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ARTICLE ELEVEN.
SUPPLEMENTAL INDENTURE.
Page
SECTION 11.01. Supplemental Indentures without Consent of
Securityholders 75
SECTION 11.02. Supplemental Indentures with Consent of
Securityholders 77
SECTION 11.03. Compliance with Trust Indenture Act; Effect
of Supplemental Indentures 78
SECTION 11.04. Notation on Securities 78
SECTION 11.05. Evidence of Compliance of Supplemental
Indenture to Be Furnished Trustee 79
SECTION 11.06. Effect on Senior Indebtedness 79
ARTICLE TWELVE.
CONSOLIDATION, MERGER AND SALE BY THE COMPANY.
SECTION 12.01. Consolidation, Merger or Sale of Assets
Permitted 79
SECTION 12.02. Successor Corporation to be Substituted
for Company 80
SECTION 12.03. Evidence to be Furnished Trustee 80
ARTICLE THIRTEEN.
SATISFACTION AND DISCHARGE OF INDENTURE.
SECTION 13.01. Discharge of Indenture 81
SECTION 13.02. Deposited Moneys to Be Held in Trust
by Trustee 82
SECTION 13.03. Paying Agent to Repay Moneys Held 83
SECTION 13.04. Return of Unclaimed Moneys 83
ARTICLE FOURTEEN.
IMMUNITY OF INCORPORATION, STOCKHOLDERS,
OFFICERS AND DIRECTORS.
SECTION 14.01. Indenture and Securities Solely Corporate
Obligations 83
ARTICLE FIFTEEN.
MISCELLANEOUS PROVISIONS.
SECTION 15.01. Successor 84
SECTION 15.02. Official Acts by Successor Corporation 84
SECTION 15.03. Addresses for Notices, Inc. 84
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Page
SECTION 15.04. New York Contract 84
SECTION 15.05. Evidence of Compliance with Conditions
Precedent 85
SECTION 15.06 Legal Holidays 85
SECTION 15.07. Trust Indenture Act to Control 85
SECTION 15.08. Table of Contents, Headings, etc. 85
SECTION 15.09. Execution in Counterparts 86
SECTION 15.10. No Security Interest Created 86
ARTICLE SIXTEEN.
REDEMPTION OF SECURITIES - MANDATORY AND
OPTIONAL SINKING FUND.
SECTION 16.01. Applicability of Article 86
SECTION 16.02. Notice of Redemption; Selection of Securities 86
SECTION 16.03. Payment of Securities Called for Redemption 87
SECTION 16.04. Mandatory and Optional Sinking Fund 88
TESTIMONIUM 91
SIGNATURES 91
ACKNOWLEDGEMENTS 92
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THIS INDENTURE, dated as of November 1, 1986, between MASCO INDUSTRIES,
INC., a Delaware corporation (hereinafter sometimes called the "Company"), and
MORGAN GUARANTY TRUST COMPANY OF NEW YORK, trustee (hereinafter sometimes called
the "Trustee").
WITNESSETH:
WHEREAS, for its lawful corporate purposes, the Company has duly
authorized the issue from time to time of its convertible and non-convertible
subordinated 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 means specified in this Section 1.01. all others 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 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.
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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
8.14.
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 for it hereunder.
Common Stock:
The term "Common Stock" shall mean the Common Stock of the Company, $1 par
value, at the date of this Indenture, as such Common Stock may be changed or
reclassified from time to time.
Company:
The term "Company" shall mean Masco Industries, Inc., a Delaware
corporation, and, subject to the provisions of Article Twelve, shall include its
successors and assigns.
Consolidated Net Earnings:
The term "Consolidate Net Earnings" shall mean the consolidate net
earnings (or loss) of the Company and its consolidated Subsidiaries determined
on a consolidated basis in accordance with generally accepted accounting
principles, after deduction of all charges, including, without limitation,
operating expenses, interest amortization of deferred charges, depreciation and
taxes (including income and other profits taxes).
Convertible Security or Convertible Securities:
The terms "Convertible Security" or "Convertible Securities" shall mean
any series of Securities designated convertible by the resolutions or
supplemental indentures referred to in Section 2.03.
Event of Default:
The term "Event of Default" shall mean any event specified in Section
7.01, continued for the period of time, if any, and after the giving of the
notice, if any, therein designated.
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
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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 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.
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 of an Assistant Secretary of
the Company and delivered to the Trustee. Each such certificate shall include
the statements provided for in Section 15.05 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 15.05 if an 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.
Person:
The term "Person" shall mean any individual, corporation, partnership,
joint venture, association, joint-stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
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Principal Office of the Trustee:
The term "principal office of the Trustee", or other similar term, shall
mean the principal office of the Trustee at which at any particular time its
corporate trust business shall principally be administered, which office may be
in more than one location within the same city.
Responsible Officer:
The term "Responsible Officer", when used with respect to the Trustee,
means any officer of the Trustee authorized to administer its corporate trust
matters.
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, whether reconvertible or non-convertible into shares of Common Stock;
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, whether convertible or non-convertible into shares of Common Stock,
exclusive, however, of securities of any series as to which such Person is not
Trustee.
The term "outstanding" (except as otherwise provided in Section 8.08),
when used with reference to Securities, shall, subject to the provisions of
Section 9.04, 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 is 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 Sixteen provided or provisions satisfactory to the
Trustee shall have been made for giving such notice; and
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(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.
Securityholder:
The terms "Securityholder", "holder of Securities" or "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.
Senior Indebtedness:
The term "Senior Indebtedness" shall mean (a) all indebtedness of the
Company for money borrowed (including without limitation obligations of the
Company in respect of overdrafts, foreign exchange contracts, letters of credit,
bankers' acceptance, or any loan or advance from a bank whether or not evidenced
by promissory notes or other instruments) or incurred in connection with the
acquisition of property, whether outstanding on the date of execution of this
Indenture or thereafter created, assumed or incurred, except such indebtedness
as is by its terms expressly stated to be not superior in right of payment to
the Securities or to rank pari passu with the Securities and (b) any deferrals,
renewals or extensions of any such Senior Indebtedness, or debentures, notes or
other evidences of indebtedness issued in exchange for such Senior Indebtedness.
The term "indebtedness of the Company for money borrowed" as used in the
foregoing sentence shall mean any obligation of the Company (and any guaranty,
endorsement or other contingent obligation of the Company in respect of, or to
purchase or otherwise acquire, any obligation of another) for borrowed money
evidenced by notes or other written obligations, and any indebtedness of the
Company evidenced by bonds, notes or debentures or other similar instruments.
The term "indebtedness of the Company incurred in connection with the
acquisition of property" as used in the first sentence of this definition shall
mean any purchase money obligation (whether or not secured by any lien or other
security interest) created or assumed as all or part of the consideration for
the acquisition of property whether by purchase, merger, consolidation or
otherwise (but not including any account payable or any other obligation created
or assumed by the Company in the ordinary course of business in connection with
the obtaining materials or services).
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Subsidiary:
The term "Subsidiary" shall mean any corporation of which at least a
majority of the outstanding stock having by the terms thereof ordinary 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 directly or indirectly owned or
controlled by the Company, or by one or more Subsidiaries, or by the Company and
one or more Subsidiaries.
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 of
Act of 1939 as in force at the date of execution of this Indenture, except as
provided in Sections 2.03 and 11.03.
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.
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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
substantially 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.
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, 11.04 or 16.03);
(3) the date or dates on which the principal of an 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, 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;
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(5) the place or places where the principal of, and premium, if any, and
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 13.01(c) or to limit the Indenture
as to the Securities of the series pursuant to the last sentence of Section
13.01 (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 13.01(c) or the limitation of the Indenture
pursuant to the last sentence of Section 13.01);
(9) if other than denominations of $1,000 and any multiple thereof, the
denominations in which Securities of the series shall be issuable;
(10) any Events of Default with respect to the Securities of a particular
series, in addition to or in lieu of those set forth herein;
(11) any trustees, authenticating or paying agents, warrant agents,
transfer agents, conversion agents (if such Securities are Convertible
Securities) or registrar with respect to the Securities of such series;
(12) the applicable initial conversion price if such Securities are
Convertible Securities, the dates on or subsequent to which such Securities are
convertible and the date such Securities cease to be convertible; 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
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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, President, any Vice President, its Treasurer or
Assistant Treasurer or its Secretary or an Assistant Secretary without any
further action by the Company hereunder. In authenticating such Securities, the
Trustee shall be entitled to receive, and (subject to Sections 8.01 and 8.02)
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 15.05
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 15.05 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;
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(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,
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 the 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 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 payable on
such interest payment date notwithstanding the cancellation of such Security
upon any transfer, exchange or conversion 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
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day of a calendar month, the first day of such calendar month, whether or not
such record date is a business day.
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 5.02, 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 5.02, 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 any Security by the Trustee or by
any agent of the Company appointed pursuant to Section 5.02, and delivery of
such Security, shall be deemed to complete the registration or registration of
transfer of such Security.
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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 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
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to cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses connected therewith an in additional 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.
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 5.02,
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
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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 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 satisfaction of the
indebtedness represented by such Securities unless and until the same are
surrendered to the Trustee for cancellation.
ARTICLE THREE.
Conversion of Securities.
SECTION 3.01. Conversion Privilege. Subject to and upon compliance with
the provisions of this Article Three, the holder of any Convertible Security
shall have the right, at his option, at any date on or subsequent to which such
Convertible Security is convertible up to the date on which such Convertible
Security ceases to be convertible (or if such Convertible Security is called for
redemption prior to such date such Convertible Security ceases to be convertible
then, in respect of such Convertible Security, to and including but not after
the close of business on the last business day preceding the date fixed for such
redemption, unless the Company shall default in the payment due upon redemption
thereof) as set forth in the resolutions or supplemental indenture relating to
such series of Convertible Securities referred to in Section 2.03 to convert the
principal amount of such Convertible Security into the whole number of fully
paid and non-assessable shares of Common Stock obtained by dividing the
principal amount of the Convertible Security to be converted by the Conversion
Price for such series.
SECTION 3.02. Manner of Exercise of Conversion Privilege. In order to
exercise the conversion privilege, the holder of any Convertible Security to be
converted shall surrender such Convertible Security at the office or agency to
be maintained by
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the Company pursuant to Section 5.02 for the conversion of Convertible
Securities, and shall give written notice to the Company in the form provided on
the Security at such office or agency that the holder elects to convert such
Convertible Security and, if so required by the Company, accompanied by
instruments of transfer, in form satisfactory to the Company and to the Trustee,
duly executed by the Holder or his duly authorized attorney in writing.
Convertible Securities, of any series, surrendered for conversion during the
period from the close of business on any record date (as defined in Section
2.05) for the payment of interest on such series of Convertible Securities to
the opening of business on the interest payment date (as defined in Section
2.05) of such series for such interest shall (except in the case of Convertible
Securities which have been called for redemption on a redemption date within
such period) be accompanied by payment in New York Clearing House funds or other
funds acceptable to the Company of an amount equal to the interest payable on
such interest payment date on the principal amount of Convertible Securities
being surrendered for conversion. Said notice shall state the name or names
(with addresses) in which the certificate or certificates for shares of Common
Stock which shall be issuable on such conversion shall be issued. As promptly as
practicable after the surrender of such Convertible Security and the receipt of
such notice, as aforesaid, the Company shall, subject to the provisions of
Section 3.08, issue and deliver at such office or agency to such holder, or on
his written order, a certificate or certificates for the number of full shares
of Common Stock issuable on such conversion of Convertible Securities in
accordance with the provisions of this Article and cash, as provided in Section
3.03, in respect of any fraction of a share of Common Stock otherwise issuable
upon such conversion. Such conversion shall be deemed to have been effected
immediately prior to the close of business on the date (herein called the "Date
of Conversion") on which such notice shall have been received by the Company and
such Convertible Security shall have been surrendered as aforesaid, and the
person or persons in whose name or names any certificate or certificates for
shares of Common Stock shall be issuable upon such conversion shall be deemed to
have become on the Date of Conversion the holder or holders of record of the
shares represented thereby; provided, however, that any such surrender on any
date when the stock transfer books of the Company shall be closed shall
constitute the person or persons in whose name or names the certificate or
certificates for such shares are to be issued as the record holder or holders
thereof for all purposes at the opening of business on the next succeeding day
on which such stock transfer books are open but such conversion shall
nevertheless be at the conversion price in effect at the close of business on
the date when such Convertible Security shall have been so surrendered with the
conversion notice, and such Convertible Security shall cease to bear interest on
such date. Subject to the foregoing and to the last paragraph of Section 2.05,
no payment or adjustment shall be made upon conversion on account of any
interest accrued on any
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Convertible Security converted or for dividends or distributions on any shares
of Common Stock issued upon conversion of any Convertible Security.
SECTION 3.03. Fractional Shares. No fractional shares of Common Stock
shall be issued upon conversions of Convertible Securities. If more than one
Convertible Security shall be surrendered for conversion at one time by the same
holder, the number of full shares which shall be issuable upon conversion shall
be computed on the basis of the aggregate principal amount of the Convertible
Securities so surrendered. Instead of any fractional interest in a share of
Common Stock which would otherwise be issuable upon conversion of any
Convertible Security or Convertible Securities, the Company shall pay a cash
adjustment in respect of such fractional interest to the nearest one-hundredth
of a share in an amount equal to the market value of such fractional interest on
the Date of Conversion. In such event, the market value of a share of Common
Stock shall be (i) if the Common Stock is listed or admitted to trading on a
national securities exchange, the closing price on the NYSE-Consolidated Tape
(or any successor composite tape reporting transactions on national securities
exchanges) or, if such a composite tape shall not be in use or shall not report
transactions in the Common Stock, the last reported sales price regular way on
the principal national securities exchange on which the Common Stock is listed
or admitted to trading (which shall be the national securities exchange on which
the greatest number of shares of the Common Stock has been traded during the
preceding 30 consecutive trading days), or, if there is no transaction on any
such day in any such situation, the mean of the bid and asked prices on such day
or (ii), if the Common Stock is not listed or admitted to trading on any such
exchange, the last reported sale price, if reported, or, if no sale occurs on
such date or the last reported sale price is not available, the average of the
closing bid and asked prices as reported by the National Association of
Securities Dealers Automated Quotation System (NASDAQ) or a similar source
selected from time to time by the Company for the purpose.
SECTION 3.04. Conversion Price. The Conversion Price for such series of
Convertible Securities shall be as specified in the resolution or supplemental
indenture or indentures pursuant to which such series is created referred to in
Section 2.03, subject to adjustment as provided in this Article Three.
SECTION 3.05. Adjustment of Conversion Price. The Conversion Price for
each series shall be adjusted from time to time as follows:
(a) In case the Company shall, while any of the Convertible
Securities are outstanding, (i) pay a dividend or make a distribution with
respect to its Common Stock in shares of its capital stock (whether shares
of Common Stock or of capital stock of any other class), (ii) subdivide
its
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outstanding shares of Common Stock, (iii) combine its outstanding shares
of Common Stock into a smaller number of shares, or (iv) issue by
reclassification of its shares of Common Stock any shares of capital stock
of the Company, the conversion privilege and the Conversion Price for each
series of Convertible Securities in effect immediately prior to such
action shall be adjusted so that the holder of any Convertible Security
thereafter surrendered for conversion shall be entitled to receive the
number of shares of capital stock of the Company which he would have owned
immediately following such action had such Convertible Security been
converted immediately prior thereto. An adjustment made pursuant to this
subsection (a) shall become effective immediately after the record date in
the case of a dividend and shall become effective immediately after the
effective date in the case of a subdivision, combination or
reclassification. If, as a result of an adjustment made pursuant to this
subsection (a), the holder of any Convertible Security thereafter
surrendered for conversion shall become entitled to receive shares of two
or more classes of capital stock of the Company, the Board of Directors
(whose determination shall be conclusive and shall be described in a
resolution filed with the Trustee) shall determine the allocation of the
adjusted Conversion Price for each series of Convertible Securities
between or among shares of such classes of capital stock.
(b) In case the Company shall, while any of the Convertible
Securities are outstanding, issue rights or warrants to all holders of its
Common Stock entitling them (for a period expiring within forty-five days
after the record date mentioned below) to subscribe for or purchase shares
of Common Stock at a price per share less than the current market price
per share (as determined pursuant to subsection (d) below) on the record
date mentioned below, the Conversion Price for each series of Convertible
Securities of the Common Stock shall be adjusted so that the same shall
equal the price determined by multiplying the Conversion Price for such
series in effect immediately prior to the date of issuance of such rights
or warrants by a fraction of which the numerator shall be the number of
shares of Common Stock outstanding on the date of issuance of such rights
or warrants plus the number of shares which the aggregate offering price
of the total number of shares so offered would purchase at such current
market price, and of which the denominator shall be the number of shares
of Common Stock outstanding on the date of issuance of such rights or
warrants plus the number of additional shares of Common Stock offered for
subscription or purchase. Such adjustment shall become effective
immediately after the record date for the determination of stockholders
entitled to receive such rights or warrants.
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(c) In case the Company shall, while any of the Convertible
Securities are outstanding, distribute to all holders of its Common Stock
evidences of its indebtedness or assets (excluding any cash dividends) or
rights to subscribe or warrants (excluding those referred to in subsection
(b) above), then in each such case the Conversion Price for each series of
Convertible Securities of the Common Stock shall be adjusted so that the
same shall equal the price determined by multiplying the Conversion Price
for such series in effect immediately prior to the date of such
distribution by a fraction of which the numerator shall be the current
market price per share (determined as provided in subsection (d) below) of
the Common Stock on he record date mentioned below less the then fair
market value (as determined by the Board of Directors of the Company,
whose determination shall be conclusive, and described in a resolution
filed with the Trustee) of the portion of the assets or evidences of
indebtedness so distributed or of such subscription rights or warrants
applicable to one share of Common Stock, and the denominator shall be such
current market price per share of the Common Stock. Such adjustment shall
become effective immediately after the record date for the determination
of stockholders entitled to receive such distribution.
(d) For the purpose of any computation under Subdivisions (b) and
(c) above, the current market price per share of Common Stock at any date
shall be deemed to be the average of the daily closing prices for the
thirty consecutive trading days commencing forty-five trading days before
the date in question. The closing price for each day shall be (i) if the
Common Stock is listed or admitted to trading on a national securities
exchange, the closing price on the NYSE-Consolidated Tape (or any
successor composite tape reporting transactions on national securities
exchanges) or, if such a composite tape shall not be in use or shall not
report transactions in the Common Stock, the last reported sales price
regular way on the principal national securities exchange on which the
Common Stock is listed or admitted to trading (which shall be the national
securities exchange on which the greatest number of shares of the Common
Stock has been traded during such 30 consecutive trading days), or, if
there is no transaction on any such day in any such situation, the mean of
the bid and asked prices on such day or (ii) if the Common Stock is not
listed or admitted to trading on any such exchange, the last reported sale
price, if reported, or, if no sale occurs on such date or the last
reported sale price is not available, the average of the closing bid and
asked prices as reported by the National Association of Securities Dealers
Automated Quotation System (NASDAQ) or a similar source selected from time
to time by the Company for the purpose.
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(e) In any case in which this Section 3.05 shall require that an
adjustment be made immediately following a record date, the Company may
elect to defer (but only until five business days following the filing by
the Company with the Trustee of the Officer's Certificate described in
subsection (g) below) issuing to the holder of any Convertible Security
converted after such record date the shares of Common Stock and other
capital stock of the Company issuable upon such conversion over and above
the shares of Common Stock and other capital stock of the Company issuable
upon such conversion only on the basis of the Conversion Price for the
series of Convertible Securities which such Convertible Security is a part
prior to such adjustment; and, in lieu of the shares the issuance of which
is so deferred, the Company shall issue or cause its transfer agents to
issue due bills or other appropriate evidence of the right to receive such
shares.
(f) No adjustment in the Conversion Price for any series of
Convertible Securities shall be required unless such adjustment would
require in increase or decrease of at least 1% in such price; provided,
however, that any adjustments which be reason of this subsection (f) are
not required to be made shall be carried forward and taken into account in
any subsequent adjustment. All calculations under this Section 3.05 shall
be made to the nearest cent or to the nearest one-hundredth of a share, as
the case may be.
(g) Whenever the Conversion Price for any series of Convertible
Securities is adjusted as herein provided, the Company shall promptly file
with the Trustee and each conversion agent an Officers' Certificate
setting forth the Conversion Price for such series after such adjustment
and setting forth a brief statement of the facts and calculation requiring
such adjustment, which certificate shall be conclusive evidence of the
correctness of such adjustment and cause a notice stating that such
adjustment has been effected and the adjusted Conversion Price to be
mailed to the holders of Convertible Securities of such series at their
last addresses as they shall appear on the Securities register.
(h) The Company may make such reductions in the Conversion Price, in
addition to those required by this Section 3.05, as it considers to be
advisable in order to avoid or diminish any income tax to any holder of
its Common Stock resulting from any dividend distribution of stock or
issuance or rights or warrants to purchase or subscribe for stock or from
any event treated as such for income tax purposes or for any other
reasons.
(i) In the event that at any time as a result of an adjustment made
pursuant to subsection (a) above, the holder of any Convertible Security
thereafter surrendered
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for conversion shall become entitled to receive any shares of capital
stock of the Company other than shares of its Common Stock, thereafter the
Conversion Price for such series of such other shares so receivable upon
conversion of any convertible Securities shall be subject to adjustment
from time to time in a manner and on terms as nearly equivalent as
practicable to the provisions with respect to Common Stock contained in
subsections (a) through (h) above, and the provisions of Sections 3.01
through 3.04 and of Sections 3.06 through 3.10 with respect to the Common
Stock shall apply on like terms to any such other shares.
SECTION 3.06. Merger, Consolidation, etc. If either of the following shall
occur, namely: (a) any consolidation or merger to which the Company is a party,
other than a consolidation or a merger in which the Company is the continuing
corporation and which does not result in any reclassification of, or change
(other than a change in par value or from par value to no par value or from no
par value to par value, or as a result of a subdivision or combination) in,
outstanding shares of the Common Stock, or (b) any sale or conveyance to another
corporation of the assets of the Company as an entirety or substantially as an
entirety, then the Company, or such successor or purchasing corporation, as the
case may be, shall execute and deliver to the Trustee a supplemental indenture
providing that the holder of each Convertible Security then outstanding shall
have the right to convert such Convertible Security into the kind and amount of
shares of stock and other securities and property (including cash) receivable
upon such reclassification, change, consolidation, merger, sale or conveyance by
a holder of the number of shares of Common Stock issuable upon conversion of
such Convertible Security immediately prior to such reclassification, change,
consolidation, merger, sale or conveyance. Such supplemental indenture shall
provide for adjustments which shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Article. The provisions of
this Section 3.06 shall similarly apply to successive consolidations, mergers,
sales or conveyances.
SECTION 3.07. Notices. In case, at any time while any of the
Convertible Securities are outstanding,
(a) the Company shall declare a dividend (or any other distribution)
on its Common Stock, excluding any cash dividends; or
(b) the Company shall authorize the issuance to all holders of its
Common Stock of rights or warrants to subscribe for or purchase shares of
its Common Stock or of any other subscription rights or warrants; or
(c) of any reclassification of Common Stock of the Company (other
than a subdivision or combination thereof) or
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of any consolidation or merger to which the Company is a party and for
which approval of any stockholders of the Company is required (except for
a merger of the Company into one of its Subsidiaries solely for the
purpose of changing the corporate domicile of the Company to another state
of the United States and in connection with which there is no substantive
change in the rights or privileges of any securities of the Company other
than changes resulting from differences in the corporate statutes of the
then existing and the new state of domicile), or of the sale or transfer
of all or substantially all of the assets of the Company; or
(d) of the voluntary or involuntary dissolution, liquidation or
winding up of the Company;
then the Company shall cause to be filed at each office or agency maintained for
the purpose of conversion of the Convertible Securities pursuant to Section
5.02, and shall cause to be mailed to the holders of Convertible Securities at
their last addresses as they shall appear on the Securities register, at least
10 days before the date hereinafter specified (or the earlier of the dates
hereinafter specified, in the event that more than one date is specified), a
notice stating (i) the date on which a record is to be taken for the purpose of
such dividend, distribution, rights or warrants, or, if a record is not to be
taken, the date as of which the holders of Common Stock of record to be entitled
to such dividend, distribution, rights or warrants are to be determined, or (ii)
the date on which any such reclassification, consolidation, merger, sale,
transfer, dissolution, liquidation or winding up is expected to become
effective, and the date as of which it is expected that holders of Common Stock
of record shall be entitled to exchange their Common Stock for securities or
other property (including cash), if any, deliverable upon such reclassification,
consolidation, merger, sale, transfer, dissolution, liquidation or winding up.
The failure to give or receive the notice required by this Section 3.07 or any
defect therein shall not affect the legality or validity of any such dividend,
distribution, right or warrant or other action.
SECTION 3.08. Taxes on Conversions. The Company will pay any and all
documentary, stamp or similar taxes payable to the United States of America or
any political subdivision or taxing authority thereof or therein in respect of
the issue or delivery of shares of Common Stock on conversion of Convertible
Securities pursuant hereto; provided, however, that the Company shall not be
required to pay any tax which may be payable in respect of any transfer involved
in the issue or delivery of shares of Common Stock in a name other than that of
the holder of the Convertible Securities to be converted and no such issue or
delivery shall be made unless and until the person requesting such issue or
delivery has paid to the Company the amount of any such tax or has established,
to the satisfaction of the Company, that such tax has been paid.
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SECTION 3.09. Company to Provide Stock. The Company covenants that there
shall be reserved, free from pre-emptive rights, out of authorized but unissued
shares of Common Stock, sufficient shares to provide for the conversion of the
Convertible Securities from time to time as such Convertible Securities are
presented for conversion.
If any shares of Common Stock to be reserved for the purpose of conversion
of Convertible Securities hereunder require registration with or approval of any
governmental authority under any Federal or state law before such shares may be
validly issued or delivered upon conversion, then the Company covenants that it
will in good faith and as expeditiously as possible endeavor to secure such
registration or approval, as the case may be.
Before any action which would cause an adjustment reducing the Conversion
Price for any series of Convertible Securities below the then par value, if any,
of the Common Stock, the Company covenants that there will be taken all
corporate action which may, in the opinion of its counsel, be necessary in order
that there may be validly and legally issued fully paid and non-assessable
shares of such Common Stock at such adjusted Conversion Price.
The Company covenants that all shares of Common Stock which may be issued
upon conversion of Convertible Securities will upon issue be validly issued,
fully paid and non-assessable and free from all liens and charges with respect
to the issue or delivery thereof.
SECTION 3.10. Disclaimer of Responsibility for Certain Matters. Neither
the Trustee nor any conversion agent shall at any time be under any duty or
responsibility to any holder of Convertible Securities to determine whether any
facts exist which may require any adjustment of the Conversion Price for any
series of Convertible Securities, or with respect to the Officer's Certificate
referred to in Section 3.05(g), or with respect to the nature or extent of any
such adjustment when made, or with respect to the method employed, or herein or
in any supplemental indenture provided to be employed, in making the same.
Neither the Trustee nor any conversion agent shall be accountable with respect
to the registration, validity or value (or the kind or amount) of any shares of
Common Stock, or of any securities or property, which may at any time be issued
or delivered upon the conversion of any Convertible Security; and neither the
Trustee nor any conversion agent makes any representation with respect thereto.
Neither the Trustee nor any conversion agent shall be responsible for any
failure of the Company to issue or deliver any shares of Common Stock or stock
certificates or other securities, cash or property upon the surrender of any
Convertible Security for the purpose of conversion, or, subject to Section 8.01,
to comply with any of the covenants of the Company contained in this Article
Three.
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SECTION 3.11. Return of Funds Deposited for Redemption of Converted
Securities. Any funds which at any time shall have been deposited by the Company
or on its behalf with the Trustee or any other paying agent for the purpose of
paying the principal of, premium, if any, and interest on any of the Convertible
Securities and which shall not be required for such purposes because of the
conversion of such Convertible Securities, as provided in this Article Three,
shall forthwith after such conversion be repaid to the Company by the Trustee or
such other paying agent.
SECTION 3.12. Disposition of Converted Securities. All Convertible
Securities delivered to the Company or any conversion agent upon conversion
pursuant to this Article Three shall be delivered to the Trustee for
cancellation.
ARTICLE FOUR.
Subordination of Securities.
SECTION 4.01. Agreement to Subordinate. The Company covenants and agrees,
and each holder of Securities issued hereunder by his acceptance thereof
likewise covenants and agrees, that all Securities issued hereunder shall be
issued subject to the provisions of this Article; and each person holding any
Security, whether upon original issue or upon transfer or assignment thereof,
accepts and agrees to be bound by such provisions. The provisions of this
Article are made for the benefit of the holders of Senior Indebtedness, and such
holders shall, at any time, be entitled to enforce such provisions against the
Company or any Securityholders.
All Securities issued hereafter shall, to the extent and in the manner
hereinafter in this Article set forth, be subordinate and junior in the right of
payment to the prior payment in full of all Senior Indebtedness.
SECTION 4.02. No Payment on Securities if Senior Indebtedness in Default.
No payment on account of principal, premium, if any, sinking funds or interest
on the Securities shall be made unless full payment of amounts then due for
principal, premium, if any, sinking funds and interest on all Senior
Indebtedness has been made or duly provided for. No payment (including the
making of any deposit in trust with the Trustee in accordance with Section
13.01) on account of principal, premium, if any, sinking funds or interest on
the Securities shall be made if, at the time of such payment or immediately
after giving effect thereto, (i) there shall exist a default in the payment of
principal, premium, if any, sinking funds or interest with respect to any Senior
Indebtedness, or (ii) there shall have occurred an event of default (other than
a default in the payment of principal, premium, if any, sinking funds or
interest) with respect to any Senior Indebtedness, as defined therein or in the
instrument under which the same is outstanding, permitting the holders thereof
to accelerate the maturity thereof,
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and such event of default shall not have been cured or waived or shall not have
ceased to exist. The foregoing provision shall not prevent the Trustee from
making payments on the Securities from monies or securities deposited with the
Trustee pursuant to the terms of Section 13.01 if at the time such deposit was
made or immediately after giving effect thereto the conditions in (i) or (ii) of
this Section did not exist.
SECTION 4.03. Priority of Senior Indebtedness. In the event of any
insolvency or bankruptcy proceedings, and any receivership, liquidation,
reorganization under the Federal Bankruptcy Code or any other similar applicable
Federal or state law, or other similar proceedings in connection therewith,
relative to the Company or to its creditors, as such, or to its property, and in
the event of any proceedings for voluntary liquidation, dissolution or other
winding up of the Company or assignment for the benefit of creditors or any
other marshalling of assets of the Company, whether or not involving insolvency
or bankruptcy, then the holders of Senior Indebtedness shall be entitled to
receive payment in full of all principal of and premium, if any, and interest on
all Senior Indebtedness including interest on such Senior Indebtedness after the
date of filing of a petition or other action commencing such proceeding before
the holders of the Securities are entitled to receive any payment on account of
the principal of or premium, if any, or interest on the Securities (except that
holders of Securities shall be entitled to receive such payments from monies or
securities deposited with the Trustee pursuant to the terms of Section 13.01 if
at the time such deposit was made or immediately after giving effect thereto the
conditions in (i) or (ii) of Section 4.02 did not exist), and any payment or
distribution of any kind or character which may be payable or deliverable in any
such proceedings in respect of the Securities, except securities which are
subordinate and junior in right of payment to the payment of all Senior
Indebtedness then outstanding, shall be paid by the person making such payment
or distribution directly to the holders of Senior Indebtedness to the extent
necessary to make payment in full of all Senior Indebtedness, after giving
effect to any concurrent payment or distribution to the holders of Senior
Indebtedness. In the event that any payment or distribution of cash, property or
securities shall be received by the Trustee or the holders of the Securities in
contravention of this Section before all Senior Indebtedness is paid in full, or
provision made for the payment thereof, such payment or distribution shall be
held in trust for the benefit of and shall be paid over to the holders of such
Senior Indebtedness or their representative or representatives, or to the
trustee or trustees under any indenture under which any instrument evidencing
any of such Senior Indebtedness may have been issued, as their respective
interests may appear, to the extent necessary to pay in full all Senior
Indebtedness remaining unpaid, after giving effect to any concurrent payment or
distribution to the holders of such Senior Indebtedness.
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In the event that any Security is declared due and payable before its
expressed maturity because of the occurrence of an Event of Default (under
circumstances when the provisions of the first paragraph of this Section shall
not be applicable), the holders of the Senior Indebtedness outstanding at the
time the Securities of such series so become due and payable because of such
occurrence of such an Event of Default shall be entitled to receive payment in
full of all principal of and premium, if any, interest on all Senior
Indebtedness before the holders of the Securities of such series are entitled to
receive any payment on account of the principal of or premium, if any, or
interest on the Securities of such series except that holders of Securities of
such series shall be entitled to receive payments from monies or securities
deposited with the Trustee pursuant to the terms of Section 13.01, if at the
time of such deposit no Security of such series had been declared due and
payable before its expressed maturity because of the occurrence of an Event of
Default.
Nothing in this Section shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 8.06.
SECTION 4.04. Company to Give Notice of Certain Events; Reliance by
Trustee. The Company shall give prompt written notice to the Trustee of any
insolvency or bankruptcy proceedings, any receivership, liquidation,
reorganization under the Federal Bankruptcy Code or any other similar applicable
Federal or state law, or similar proceedings and any proceedings for voluntary
liquidation, dissolution or winding up of the Company within the meaning of this
Article. The Trustee shall be entitled to assume that no such event has occurred
unless the Company or any one or more holders of Senior Indebtedness or any
trustee therefor has given such notice together with proof satisfactory to the
Trustee of such holding of Senior Indebtedness or the authority of such Trustee.
Upon any payment or distribution of assets of the Company referred to in this
Article, the Trustee, in the absence of its negligence or bad faith and any
holder of a Security shall be entitled to rely upon a certificate of the
receiver, trustee in bankruptcy, liquidating trustee, agent or other person
making such payment or distribution, delivered to the Trustee or to the holders
of Securities, for the purpose of ascertaining the persons entitled to
participate in such distribution, the holders of the Senior Indebtedness and
other indebtedness of the Company, the amount thereof or payable thereon, the
amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article. In the event that the Trustee determines, in good
faith, that further evidence is required with respect to the right of any person
as a holder of Senior Indebtedness to participate in any payment or distribution
pursuant to this Article, the Trustee may request such person to furnish
evidence to the reasonable satisfaction of the Trustee as to the amount of
Senior Indebtedness held by such person, as to the extent to which such person
is entitled to participate in such payment or distribution and as to
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other facts pertinent to the rights of such person under this Article, and if
such evidence is not furnished, the Trustee may defer any payment to such person
pending judicial determination as to the right of such person to receive such
payment.
With respect to the holders of Senior Indebtedness, the Trustee undertakes
to perform or to observe only such covenants and obligations as are specifically
set forth in this Indenture and no implied covenants or obligations with respect
to holders of Senior Indebtedness shall be read into this Indenture against the
Trustee.
Nothing in this Section shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 8.06.
SECTION 4.05. Subrogation of Securities. Subject to the payment in full of
all Senior Indebtedness, the holders of the Securities shall be subrogate to the
rights of the holders of Senior Indebtedness to receive payments or
distributions of assets of the Company made on the Senior Indebtedness until the
principal of and premium, if any, and interest on the Securities shall be paid
in full; and, for the purposes of such subrogation, no payments or distributions
to the holders of Senior Indebtedness of any cash, property or securities to
which the holders of the Securities or the Trustee would be entitled except for
the provisions of this Article, an no payment over pursuant to the provisions of
this Article to the holders of Senior Indebtedness by holders of the Securities
or by the Trustee, shall, as between the Company, its creditors other than the
holders of Senior Indebtedness, and the holders of Securities, be deemed to be a
payment by the Company to or on account of Senior Indebtedness, and no payments
or distributions to the Trustee or the holders of the Securities of cash,
property or securities payable or distributable to the holders of the Senior
Indebtedness to which the Trustee or the holders of the Securities shall become
entitled pursuant to the provisions of this Section, shall, as between the
Company, its creditors other than the holders of Senior Indebtedness, and the
holders of the Securities, be deemed to be a payment by the Company to the
holders of or on account of the Securities.
SECTION 4.06. Company Obligation to Pay Unconditional. The provisions of
this Article are solely for the purpose of defining the relative rights of the
holders of Senior Indebtedness on the one hand, and the holders of the
Securities on the other hand, and nothing herein shall impair, as between the
Company and the holders of the Securities, the obligation of the Company, which
is unconditional and absolute, to pay to the holders thereof the principal
thereof and premium, if any, and interest thereon in accordance with the terms
of the Securities and this Indenture nor shall anything herein prevent the
holders of the Securities or the Trustee from exercising all remedies otherwise
permitted by applicable law or under the Securities and this Indenture upon
default under the Securities and this Indenture, subject to the
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rights of holders of Senior Indebtedness under the provisions of this Article to
receive cash, property or securities otherwise payable or deliverable to the
holders of the Securities.
SECTION 4.07. Authorization of Holders of Securities to Trustee to Effect
Subordination. Each holder of Securities by his acceptance thereof authorizes
the Trustee in his behalf to take such action as may be necessary to appropriate
to effectuate the subordination as provided in this Article and appoints the
Trustee his attorney-in-fact for any and all such purposes.
SECTION 4.08. Notice to Trustee of Facts Prohibiting Payments.
Notwithstanding any of the provisions of this Article or any other provision of
this Indenture, the Trustee shall not at any time be charged with knowledge of
the existence of any facts which would prohibit the making of any payment of
moneys to or by the Trustee, unless and until the Principal Corporate Trust
Office of the Trustee shall have received written notice thereof from the
Company or from one or more holders of Senior Indebtedness or from any trustee
therefor, together with proof satisfactory to the Trustee of such holding of
Senior Indebtedness or the authority of such Trustee, and, prior to the receipt
of any such written notice, the Trustee, subject to the provisions of Section
8.01, shall be entitled in all respects to assume that no such facts exist;
provided, that, if prior to the second business day preceding the date upon
which by the terms hereof any such moneys may become payable for any purpose
(including, without limitation, the payment of the principal of or premium, if
an, or interest on any Security), the Trustee shall have not received with
respect to such moneys the notice provided for in this Section, then, anything
herein contained to the contrary notwithstanding, the Trustee and any paying
agent shall have full power and authority to receive such moneys and to apply
the same to the purpose for which they were received, and shall not be affected
by any notice to the contrary which may be received by it on or after such day,
and provided, further, that nothing contained herein shall prevent conversions
of the Securities in accordance with the provisions of this Indenture.
SECTION 4.09. Trustee May Hold Senior Indebtedness. The Trustee, shall be
entitled to all the rights set forth in this Article with respect to any Senior
Indebtedness at the time held by it, to the same extent as any other holder of
Senior Indebtedness, and nothing in this Indenture shall deprive the Trustee of
any of its rights as such holder.
SECTION 4.10. All Indenture Provisions Subject to this Article.
Notwithstanding anything herein contained to the contrary, all the provisions of
this Indenture shall be subject to the provisions of this Article, so far as the
same may be applicable thereto.
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ARTICLE FIVE.
PARTICULAR COVENANTS OF THE COMPANY.
SECTION 5.01. 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 an premium, if any,
and 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 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 5.02. 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, an office or agency where the Securities
of that series, if convertible, may be presented for conversion 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. The Company hereby initially appoints the
corporate trust office of MORGAN GUARANTY TRUST COMPANY OF NEW YORK in the
Borough of Manhattan, The City of New York as the Company's conversion agent.
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 for registration of
transfer and for exchange in 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 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.
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SECTION 5.03. 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 8.10, a Trustee, so that there
shall at all times be a Trustee hereunder.
SECTION 5.04. Provision as to Paying Agent. (a) If the Company shall
appoint a paying agent or conversion agent other than the Trustee with respect
to the Securities of any series, it will cause such paying agent or conversion
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 5.04:
(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 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;
(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 on the Securities of such
series when the same shall be due and payable; and
(b) If the Company shall act as its own paying agent, it will, on or not
more than seven days before each due date of the principal of and premium, if
any, or interest 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 on the
Securities of such series when the same shall become due and payable.
(c) Anything in this Section 5.04 to the contrary notwithstanding, the
Company may, at any time, for the purpose of obtaining 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 5.04, such sums to be held by the Trustee upon the
trusts herein contained.
(d) Anything in this Section 5.04 to the contrary notwithstanding, the
agreement to hold sums in trust as provided in this Section 5.04 is subject to
Sections 13.03 and 13.04.
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SECTION 5.05. Certificate to Trustee. The Company will deliver to the
Trustee on or before April 1 in each year (beginning with April 1, 1987), 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
Article Three and Section 12.01, 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 SIX.
SECURITYHOLDERS' LISTS AND REPORTS BY THE COMPANY
AND THE TRUSTEE.
SECTION 6.01. 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 reasonably
require, of the names and addresses of the Securityholders of such series of
Securities as of such record date; and
(b) at such other times as the Trustee may request in writing, within 30
days after the receipt by the Company, of any such request, a list of similar
form and content as of a date not more than 15 days prior to the time such list
is furnished, 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 6.02. Preservation and Disclosure of Lists. (a) The Trustee shall
preserve, in as current as 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 6.01 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 6.01 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
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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 6.02, 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 Trustee in accordance with the
provisions of subsection (a) of this Section 6.02, 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
6.02 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.
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(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 6.02, 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).
SECTION 6.03. 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 6.03 as may be
required by rules and regulations prescribed from time to time by the Securities
and Exchange Commission.
SECTION 6.04. Reports by the Trustee. (a) On or before June 15, 1987, and
on or before June 15 in every year thereafter, so long as any Securities are
outstanding for which the Trustee is appointed hereunder, the Trustee shall
transmit to the
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Securityholders of each series of Securities for which such Trustee is appointed
as hereinafter in this Section 6.04 provided, a brief report dated as of April
15 of the appropriate year with respect to:
(1) its eligibility under Section 8.09, and its qualification under
Section 8.08, 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 hold 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 obligator 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 8.13;
(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 7.08.
(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 (a) of this
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Section 6.04 (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 6.04 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 SEVEN.
Remedies of the Trustee and Securityholders
on Event of Default.
SECTION 7.01. Events of Default. "Event of Default", wherever 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 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 or
(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
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
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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 of all
the Securities of such series and the interest accrued thereon 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 of 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 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.
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The foregoing provisions, however, are subject to the condition that if,
at any time after the principal 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 upon all the Securities of any series (or 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 specified in the Securities of such series, or at the
respective rates of interest of 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, as provided in Section 8.06, and if
any and all Events of Default under this 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 7.02. 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
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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 borne by the Securities of that
series; and, in addition thereto, such further amount as shall be sufficient to
cover the costs and expenses of collection, including a reasonable compensation
to the Trustee, its agents, attorneys and counsel, as provided in Section 8.06.
In case the Company shall fail forthwith to pay such amounts upon such
demand, the Trustee, in its own name 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 7.02, 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
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, as
provide in Section 8.06) and of the Securityholders allowed in such judicial
proceedings relative to the Company or any other obligor on the Securities of
any series, or to the creditors
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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, as provided in Section 8.06.
Nothing herein contained shall be construed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Securityholder 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 on 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.
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Section 7.03 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
applicable to each such series and reasonable compensation to the Trustee,
its agents, attorneys and counsel, as provided in Section 8.06;
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 installments 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 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 installment of interest over
any other installment 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.
Any surplus then remaining shall be paid to the Company or to such other
person as shall be entitled to receive it.
Section 7.04. 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,
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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 hereinbefore 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 7.01, 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 reasonably
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, suite 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 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 7.05. Proceedings by Trustee. In case of an Event of Default
hereunder the Trustee may in its discretion proceed to protect and enforce 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 suite 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 7.06. Remedies Cumulative and Continuing. All powers and remedies
given by this Article Seven 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
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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 7.04, every power and remedy given by this Article Seven
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 7.07. 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 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 Section 8.01)
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 Sections 7.01 and 7.02, the holders of a majority in aggregate principal
amount of the Securities of that series at the time outstanding may on behalf of
the holders of all 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 7.01, 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 7.07, said default or Event of
Default shall for all purposes of the Securities of that series (or of all
Securities, as the case may
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be) and this Indenture be deemed to have been cured and to be not continuing.
Section 7.08. 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 7.08 being hereby defined to be the events specified in clauses (a),
(b), (c), (d) and (e) of Section 7.01, not including periods of grace, if any,
provided for therein, and irrespective of the giving of written notice specified
in clause (c) of Section 7.01); 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, the executive committee, or a
trust committee of directors 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 specified in Section 7.01(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 7.09. 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 7.09 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 7.01, 10% in aggregate principal amount of all Securities) outstanding,
or to any suit instituted by any Securityholder for the enforcement 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.
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ARTICLE EIGHT
Concerning the Trustee
Section 8.01. 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 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 trust of the statements
and the correctness of the opinions expressed therein, upon any
certificates 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
specifically 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
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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 7.07, 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.
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 8.02. Reliance on Documents, Opinions, etc. Except as otherwise
provided in Section 8.01
(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
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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 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; and
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents
(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.
SECTION 8.03. 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 an delivered by the Trustee or the Authenticating
Agent in conformity with the provisions of this Indenture.
SECTION 8.04. Trustee, Authenticating Agent, Paying Agents, Transfer
Agents, Conversion Agents or Registrar May Own Securities. The Trustee or any
Authenticating Agent or any paying agent or any transfer agent or any conversion
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,
conversion agent or Securities registrar.
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SECTION 8.05. Moneys to Be Held in Trust. Subject to the provisions of
Section 13.04, 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
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, if any, 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 8.06. 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 the Trustee upon its request for
all reasonable expenses, disbursements and advances incurred or made by the
Trustee 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 paid by the
Trustee to any Authenticating Agent pursuant to Section 8.14) except any such
expense, disbursement or advance as may arise from its 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 each of them
harmless against, any loss, liability or expense 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, except to the extent such loss,
liability or expense results from its own negligence or bad faith. The
obligations of the Company under this Section 8.06 to compensate the Trustee and
to pay or reimburse the 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.
SECTION 8.07 Officers' Certificate as Evidence. Except as otherwise
provided in Section 8.01 and 8.02, whenever in the
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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 8.08. Conflicting Interest of Trustee. (a) If the Trustee has or
shall acquire any conflicting interest, as defined in this Section 8.08 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 8.10.
(b) In the event that the Trustee shall fail to comply with the provisions
of subsection (a) of this Section 8.08 with respect to the Securities of any
series, the Trustee shall, within 10 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 8.08 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 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 (as defined in Section 8.13), 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
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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
is 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 or an underwriter for a Security
party;
(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
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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;
(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
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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
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
paragraph (3) or (7) of this subsection (c).
For the purposes of paragraphs (6), (7), 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 any 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 work
"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
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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 8.08:
(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 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
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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 8.08 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 8.08
(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.
(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
obligations 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
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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 holders 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.
SECTION 8.09. 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 8.09 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 8.09, the Trustee shall resign immediately
in the manner and with the effect specified in Section 8.10.
SECTION 8.10. 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 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
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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 7.09, on behalf of himself and all other 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.
(b) In case at any time any of the following shall occur--
(1) the Trustee shall fail to comply with the provisions of
subjection (a) of Section 8.08 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 8.09 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 with respect to all
Securities 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 7.09, 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 other similarly situated,
petition any court of competent jurisdiction for the removal of the Trustee with
respect to all Securities and the appointment of a successor trustee. 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
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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 8.10 provided, may petition any court of competent jurisdiction for
an appointment of a successor trustee with respect to such series.
(d) Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to any of the provisions of this Section 8.10 shall
become effective upon acceptance of appointment by the successor trustee as
provided in Section 8.11.
SECTION 8.11. Acceptance by Successor Trustee. Any successor trustee
appointed as provided in Section 8.10 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 8.06, 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 8.06.
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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.
No successor trustee shall accept appointment as provided in this Section
8.11 unless at the time of such acceptance such successor trustee shall be
qualified under the provisions of Section 8.08 and eligible under the provisions
of Section 8.09.
Upon acceptance of appointment by a successor trustee as provided in this
Section 8.11, 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 8.12. 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 predecessorhereunder
or in the name of the successor trustee; and in all such cases such
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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 8.13. Limitation on Rights of Trustee as a Creditor. (a) Subject
to the provisions of subsection (b) of this Section 8.13, if the Trustee shall
be or shall become a creditor, directly or indirectly, secured or unsecured, of
the Company or of any other obligor on the Securities (each of which is
hereafter in this Section 8.13 called a "Security party") within four months
prior to a default, as defined in paragraph (1) of subsection (c) of this
Section 8.13, 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 8.13):
(1) an amount equal to any and all reductions in the amount due and
owning 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 had 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
case, securities, or other property in respect of claims filed
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against such Security party in bankruptcy or receivership or in
proceedings for reorganization pursuant to Title 11, 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;
(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 8.13, 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
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Title 11, United States Code or applicable state law, but after crediting
thereon receipts on account of the indebtedness represented 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 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 8.13 a creditor relationship arising from
(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;
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(2) advances authorized by a receivership or bankruptcy court of
competent jurisdiction, or by this Indenture, for the purpose of
preserving 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 thereon, 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 6.04 with respect to reports
pursuant to the 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,
custodian, 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 8.13;
(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 8.13.
(c) As used in this Section 8.13:
(1) The term "default" shall mean any failure to make payment in
full of the principal of or interest 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) under which the
Trustee is also trustee, (B) which contains provisions substantially
similar to the provisions of subsection (a) of this Section 8.13, 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;
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(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 8.14. 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 least annually pursuant to law or the requirements of
such authority, then for the purposes of this Section 8.14 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 provisions 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 8.14, without the execution or filing of any paper or any further act on
the part of the parties hereto or such Authenticating Agent.
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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 8.14, 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 8.14, 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 entitled to
be reimbursed for such payments, subject to Section 8.06. 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.
If an appointment with respect to one or more series is made pursuant to
this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternate
certificate of authentication in the following form.
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
MORGAN GUARANTY TRUST
COMPANY OF NEW YORK
as Trustee
By
as Authenticating Agent
for the Trustee
By
Authorized Officer
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ARTICLE NINE
Concerning the Securityholders
SECTION 9.01. 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 Ten, or (c) by a combination of such
instrument or instruments and any such record of such a meeting of such
Securityholders.
SECTION 9.02. Proof of Execution by Securityholders. Subject to the
provisions of Sections 8.01, 8.02 and 10.05, 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 10.06.
SECTION 9.03. Who Are Deemed Absolute Owners. The Company, the Trustee,
any Authenticating Agent, any paying agent, any transfer agent, any conversion
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
thereon) for the purposes of conversion and of receiving payment of or on
account of the principal of, premium, if any, and 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
conversion 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.
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SECTION 9.04. 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 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 9.04 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 person; and, subject to the provisions of Section 8.01, 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 9.05. Revocation of Consents; Future Holders Bound. At any time
prior to (but not after) the evidencing to the Trustee, as provided in Section
9.01, of the taking of any action by the holders of the percentage in aggregate
principal amount of the Securities specified in this Indenture in 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 9.02, 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 such Securities.
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ARTICLE TEN
Securityholders' Meetings
SECTION 10.01. Purposes 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 Ten 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
Seven;
(b) to remove the Trustee and nominate a successor trustee pursuant
to the provisions of Article Eight;
(c) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to the provisions of Section 11.02; 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.
SECTION 10.02. 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 10.01, 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 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 10.03. 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 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
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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 10.01, by mailing notice thereof as provided in Section
10.02.
SECTION 10.04. 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 10.05. 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 appointment of proxies, and in regard to the
appointment and duties of inspectors of votes, the submission and examination of
proxies, certificates and other evidence of the right to vote, and such other
matters concerning the conduct of the meeting as it shall 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 10.03, 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 9.04, 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 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
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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 10.02 or 10.03 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 10.06. 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 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 10.02. 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 ballots voted at the meeting.
Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
ARTICLE ELEVEN.
Supplemental Indentures.
SECTION 11.01. 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 successor
corporation of the covenants, agreements and obligations of the Company
pursuant to Article Twelve hereof;
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(b) to add to the covenants of the Company such further covenants,
restrictions or conditions for the protection of the holders of all or any
series of Securities (and if such covenants are to be for the benefit of
less than all series of Securities stating that such covenants are
expressly being included 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 establish the form or terms of Securities of any series as
permitted by Sections 2.01 and 2.03;
(e) to evidence and provide for the acceptance of appointment
hereunder by a successor trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one trustee, pursuant
to the requirements of Section 8.11;
(f) to make provision with respect to the conversion rights of
holders of Convertible Securities pursuant to the requirements of Section
3.06; and
(g) 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 such other provisions in regard to
matters or questions arising under this Indenture; provided that any such
action shall not materially adversely affect the interests of the holders
of the Securities.
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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 or immunities under
this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this Section
11.01 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 11.02.
SECTION 11.02. Supplemental Indentures with Consent of Securityholders.
With the consent (evidenced as provided in Section 9.01) 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 impair the right to convert Convertible Securities into Common
Stock on the terms set forth herein, or impair or affect the right of any
Securityholder to institute suit for payment thereof or the right of repayment,
if any, at the option of the holder, or modify any of the provisions of this
Indenture relating to the subordination of the Securities in a manner adverse to
the holders thereof 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 7.07 or to consent to any such
supplemental indenture, without the consent of the holders of each Security then
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
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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 11.02 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
SECTION 11.03. Compliance with Trust Indenture Act; Effect of Supplemental
Indentures. Any supplemental indenture executed pursuant to the provisions of
this Article Eleven 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 Eleven, 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 an 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.
SECTION 11.04. Notation on Securities. Securities of any series
authenticated and delivered after the execution of any supplemental indenture
affecting such series pursuant to the provisions of this Article Eleven may bear
a notation in the 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.
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SECTION 11.05. Evidence of Compliance of Supplemental Indenture to Be
Furnished Trustee. The Trustee, subject to the provisions of Sections 8.01 and
8.02, 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 Eleven.
SECTION 11.06. Effect on Senior Indebtedness. No supplemental indenture
shall adversely affect the rights of any holder of Senior Indebtedness under
Article Four without the consent of such holder.
ARTICLE TWELVE.
Consolidation, Merger and Sale by the Company.
SECTION 12.01. Consolidation, Merger and Sale of Assets Permitted. The
Company covenants and agrees that it will not consolidate with, merge into, or
sell or otherwise dispose of all or substantially all its property as an
entirety to, any person other than a corporation organized under the laws of the
United States of America or any State or Territory thereof or of the District of
Columbia, lawfully entitled to acquire the same. The Company will not so
consolidate or merge, or make any such sale or other disposition, unless, and
the Company covenants and agrees that any such consolidation, merger, sale or
other disposition shall be on the condition that, (1) the provisions of Section
3.06 are complied with and (2) 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 Trustee, executed and delivered to the Trustee by such corporation. The
Company covenants and agrees that it will not so consolidate or merge or make
any such sale or other disposition, or permit any corporation to merge into the
Company, if immediately thereafter the Company or such successor corporation, as
the case may be, shall be in default in the performance or observance of any of
the covenants or conditions of this Indenture.
SECTION 12.02. Successor Corporation to Be Substituted for Company. In
case of any such merger, consolidation, sale or conveyance 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, in case of such a sale or
conveyance other than a lease, the Company thereupon shall be relieved of any
further obligation or liability hereunder or upon the Securities, and may
thereupon or at any time thereafter
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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
Industries, Inc. 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
changes in phraseology and form (but not in substance) may be made in the
Securities thereafter to be issued as may be appropriate.
SECTION 12.03. Evidence to Be Furnished Trustee. The Trustee, subject to
the provisions of Sections 8.01 and 8.02, 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 Twelve.
ARTICLE THIRTEEN.
Satisfaction and Discharge of Indenture.
SECTION 13.01. 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 or converted) 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 redeemable at the option
of the holder thereof not later than the
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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 13.04, 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) any remaining rights of conversion of Convertible
Securities, (iv) the rights, obligations and immunities of the Trustee hereunder
and (v) 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 (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 Seven 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
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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 13.02. Deposited Moneys to Be Held in Trust by Trustee. Subject to
the provisions of Section 13.04, all moneys and obligations deposited with the
Trustee pursuant to Section 13.01 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; 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 13.01 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 sentence of Section 13.01. 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 13.03. 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.
SECTION 13.04. 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 on
Securities and not applied but remaining unclaimed by the holders of Securities
for three years after the date upon which the principal of, and premium, if any,
or interest 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 on
written demand; 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.
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ARTICLE FOURTEEN.
Immunity of Incorporators, Stockholders, Officers and Directors.
SECTION 14.01. Indenture and Securities Solely Corporate Obligations. No
recourse for the payment of the principal of or premium, if any, or interest 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 FIFTEEN.
Miscellaneous Provisions.
SECTION 15.01. 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.
SECTION 15.02. 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 15.03. 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 of
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 Industries Inc., 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, New York 10015, Attention:
Corporate Trust Administration.
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SECTION 15.04. 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 15.05. 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 5.05) 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 upon
which the statements or opinions contained in such certificate or opinion 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 15.06. 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 15.07. 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.
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SECTION 15.08. 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 no way modify or restrict any of the terms of provisions
hereof.
SECTION 15.09. 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 15.10. 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.
ARTICLE SIXTEEN.
Redemption of Securities--Mandatory and
Optional Sinking Fund.
SECTION 16.01. 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 16.02. 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
lease 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 address 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
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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.
Not more than seven days 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 16.03. Payment of Securities Called for Redemption. If notice of
redemption has been given as provided in Section 16.02 or Section 16.04, 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, 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.
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
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the Company, a new Security or Securities of such series of authorized
denominations, in principal amount equal to the unredeemed portion or the
Security so presented.
SECTION 16.04. Mandatory and Optional Sinking Fund. The minimum amount of
any sinking fund payment provided for by the terms of Securities of any series
determined pursuant to Section 2.03 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 converted or 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.
At its option the Company may pay into the sinking fund for the retirement
of Securities of any particular series, on or not more than seven days 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
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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 16.02,
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 16.02 and 16.03 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 16.04. 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 necessary,
to be deposited sufficient for the purpose, to the payment of the principal of
Securities at maturity.
On or not more than seven days before each sinking fund payment date, the
Company shall pay to the Trustee or to one or more paying agents in cash 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.
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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 Sixteen. 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 16.04
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.
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 INDUSTRIES, INC.
Company
By /s/JAMES J. SIGOUIN
Vice President
[CORPORATE SEAL]
Attest:
/s/TIMOTHY WADHAMS
Assistant Secretary
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MORGAN GUARANTY TRUST COMPANY
OF NEW YORK
Trustee
By /s/J. N. CREAN
Trust Officer
[CORPORATE SEAL]
Attest:
/s/G. J. CASTELLANO
Assistant Trust Officer
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State of Michigan)
) ss.:
County of Wayne )
On the 2nd of February, 1987, before me personally came JAMES J. SIGOUIN,
to me known, who, being by me duly sworn, did depose and say that he resides at
570 Oxford, Grosse Pointe Woods, MI; that he is Vice President of MASCO
INDUSTRIES, INC., 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.
/s/DIANE G. KIRKENDALL
Notary Public
DIANE G. KIRKENDALL
Notary Public, Wayne County, MI
My Commission Expires 7-15-90
[NOTARIAL SEAL]
State of New York)
) ss.:
County of Kings )
On the 4th day of February, 1987, before me personally came J. N. CREAN,
to me known, who, being by me duly sworn, did depose and say that he resides at
Allendale, N. J. 07401; that he is 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.
/s/WILLIAM P. MIFSUD, JR.
Notary Public
WILLIAM P. MIFSUD, JR.
Notary Public, State of New York
No. 4785483
Qualified in Kings County
Commission Expires Mar. 30, 1987
[NOTARIAL SEAL]
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RESOLUTIONS
OF THE
PRICING COMMITTEE
OF THE
BOARD OF DIRECTORS
OF MASCOTECH, INC.
January 13, 1994
WHEREAS, the Company has filed a Registration Statement on Form S-3 (file
no. 33-59222) with the Securities and Exchange Commission, which currently
remains in effect.
WHEREAS, the Company desires to create and make provision for a series of
securities under the Indenture dated as of November 1, 1986 (the "Indenture")
with Morgan Guaranty Trust Company of New York, as trustee (the "Trustee"),
which was filed as an exhibit to the Registration Statement, providing for the
issuance from time to time of convertible or non-convertible unsecured
subordinated debentures, notes or other evidences of indebtedness of the Company
("Securities") in one or more series under such Indenture; and
WHEREAS, capitalized terms used in these resolutions and not otherwise
defined are used with the same meaning ascribed to such terms in the Indenture;
NOW, THEREFORE, BE IT RESOLVED, that there hereby is approved and
established a series of Securities under the Indenture whose terms shall be as
follows:
1. The Securities of such series shall be known and designated as the
"4 1/2% Convertible Subordinated Debentures Due 2003" of the Company.
2. The aggregate principal amount of Securities of such series which
may be authenticated and delivered under the Indenture is limited to Three
Hundred Forty-Five Million Dollars ($345,000,000), except for Securities
of such series authenticated and delivered upon registration of, transfer
of, or in exchange for, or in lieu of, other Securities of such series
pursuant to Sections 2.07, 2.08, 2.09, 11.04 or 16.03 of the Indenture.
3. The date on which the principal of the Securities of such series
shall be payable is December 15, 2003.
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4. The Securities of such series shall bear interest from January 21,
1994, at the annual rate of 4? percent, payable semi-annually on June 15
and December 15 of each year commencing on June 15, 1994 (calculated on a
standard 360 day year of 12 thirty-day months) until the principal thereof
is paid or made available for payment. The June 1 or December 1 (whether
or not a Business Day), as the case may be, next preceding each such
interest payment date shall be the "record date" for the determination of
holders to whom interest is payable.
5. The principal of, and premium, if any, and interest on the
Securities of such series shall be payable at the office or agency of the
Company maintained for such purpose under Section 5.02 of the Indenture in
the Borough of Manhattan, The City of New York, or at any other office or
agency designated by the Company for such purpose pursuant to the
Indenture; provided, however, that, at the option of the Company, payment
of interest may be made by check mailed to the address of the person
entitled thereto as such address shall appear on the registry books of the
Company.
6. The Securities of such series shall be subject to redemption at any
time on or after December 22, 1996, in whole or in part, at the option of
the Company, at a redemption price equal to the percentage of the
principal amount set forth below if redeemed during the twelve-month
period beginning December 15 in each of the following years, in each case
together with interest accrued to the date fixed for redemption (subject
to the right, if any, of the registered holder on the record date for an
interest payment to receive such interest):
Year Percentage
1996. . . . . . . 103.00%
1997. . . . . . . 102.50%
1998. . . . . . . 102.00%
1999 . . . . . . . 101.50%
2000 . . . . . . . 101.00%
2001 . . . . . . . 100.50%
2002 . . . . . . . 100.00%
7. The Company shall have the right to discharge or limit the
Indenture as to the Securities of such series prior to maturity pursuant
to the provisions of Section 13.01 of the Indenture.
8. The Securities of such series shall be convertible at any time on
or after March 22, 1994 and prior to maturity, unless previously redeemed,
into an aggregate maximum amount
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of 11,129,032 fully paid and non-assessable shares of Company Common
Stock, par value $1.00 per share, at a conversion price of $31.00 per
share, such number of shares of Common Stock and conversion price being
subject to adjustment as provided in the Indenture.
9. The Securities of such series shall be subordinated in right of
payment to the prior payment in full of Senior Indebtedness (as defined in
the Indenture) and so long as the Securities of such series are
outstanding, the Company shall not create or incur "indebtedness of the
Company for money borrowed" or "indebtedness of the Company incurred in
connection with the acquisition of property" that is subordinate and
junior in right of payment to the prior payment of Senior Indebtedness,
except such indebtedness that ranks pari passu with, or is subordinate and
junior in right of payment to, the Securities of such series.
10. The Securities of such series shall be issuable in denominations
of One Thousand Dollars ($1,000) and any integral multiple thereof.
11. The Company shall receive 97.75 percent of the price of such
Securities sold to the public after discount of 2.25 percent.
FURTHER RESOLVED, that the Securities of such series are declared to be
issued under the Indenture and subject to the provisions thereof;
FURTHER RESOLVED, that the Chairman of the Board, the President or any
Vice President and the Secretary or any Assistant Secretary is authorized in the
name and on behalf of the Company and under its corporate seal (which may be in
the form of a facsimile of the seal of the Company) to execute $345,000,000
aggregate principal amount of the Securities of such series (and in addition
Securities to replace lost, stolen, mutilated or destroyed Securities and
Securities required for exchange, substitution or transfer, all as provided in
the Indenture) in fully registered form, substantially in the form of the
subordinated debenture filed as an exhibit to the Company's Registration
Statement, with such changes and insertions therein as are appropriate to
conform such debentures to the terms set forth herein or otherwise as the
respective officers executing such Securities shall approve and as are not
inconsistent with these resolutions, such approval to be conclusively evidenced
by such officer's execution and delivery of such Securities, and to deliver such
Securities to the Trustee for authentication and delivery in accordance with the
terms of the Indenture, and the Trustee is authorized and directed thereupon to
authenticate and deliver the same to or upon the written order of the Company as
provided in the Indenture;
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FURTHER RESOLVED, that the signatures of the officers of the Company so
authorized to execute the Securities of such series may be the manual or
facsimile signatures of the present or any future such authorized officers and
may be imprinted or otherwise reproduced thereon, the Company for such purpose
hereby adopting each such facsimile signature as binding upon it notwithstanding
the fact that at the time the respective Securities shall be authenticated and
delivered or disposed of, the officer so signing shall have ceased to be such
officer;
FURTHER RESOLVED, that Smith Barney Shearson Inc., PaineWebber
Incorporated, Prudential Securities Incorporated and Salomon Brothers Inc are
appointed as underwriters for the issuance and sale of the Securities of such
series, and the Chairman of the Board, the President or any Vice President of
the Company is authorized, in the name and on behalf of the Company, to execute
and deliver an Underwriting Agreement, substantially in the form heretofore
approved by the Board of Directors of the Company, with such underwriters and
with such changes and insertions therein as are appropriate to conform such
Underwriting Agreement to the terms set forth herein or otherwise as the
respective officers executing such Underwriting Agreement shall approve and as
are not inconsistent with these resolutions, such approval to be conclusively
evidenced by such officer's execution and delivery of such Underwriting
Agreement;
FURTHER RESOLVED, that Morgan Guaranty Trust Company of New York, the
Trustee under the Indenture, is appointed trustee for Securities of such series,
and as Agent of the Company for the purpose of effecting the registration,
transfer, exchange and conversion of the Securities of such series as provided
in the Indenture, and the corporate trust office of Morgan Guaranty Trust
Company of New York, in the Borough of Manhattan, The City of New York is
designated pursuant to the Indenture as the office or agency of the Company
where such Securities may be presented for registration, transfer, exchange and
conversion and where notices and demands to or upon the Company in respect of
the Securities of such series and of the Indenture may be served;
FURTHER RESOLVED, that Morgan Guaranty Trust Company of New York, is
appointed Paying Agent of the Company for the payment of principal of and
premium, if any, and interest on the Securities of such series, and the
corporate trust office of Morgan Guaranty Trust Company of New York, is
designated, pursuant to the Indenture, as the office or agency of the Company
where such Securities may be presented for payment; and
FURTHER RESOLVED, that each of the officers of the Company is authorized
and directed in the name and on behalf of the Company to do or cause to be done
all such acts and things as they or he may deem necessary or advisable, to
effect the sale and delivery of the Securities of such series pursuant to the
Underwriting Agreement
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96
and otherwise to carry out the obligations of the Company under the Underwriting
Agreement, and to do or cause to be done all such acts and things and to execute
and deliver all such documents as they or he deem necessary or advisable in
connection with the execution and delivery of the Underwriting Agreement, the
execution, authentication and delivery of such Securities (including, without
limiting the generality of the foregoing, delivery to the Trustee of such
Securities for authentication and of requests or orders for the authentication
and delivery of Securities) and the listing of the Securities on The New York
Stock Exchange.
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97
AGREEMENT OF APPOINTMENT
AND
ACCEPTANCE OF SUCCESSOR TRUSTEE
THIS AGREEMENT dated as of August 4, 1994 (the "Agreement"), is among
MascoTech, Inc. (the "Company"), Morgan Guaranty Trust Company of New York
("Morgan") and The First National Bank of Chicago ("First Chicago").
WHEREAS, Section 8.10 of the Indenture dated as of November 1, 1986
between the Company and Morgan (the "Indenture") provides that the Trustee
thereunder may resign at any time by giving written notice of such resignation
to the Company;
WHEREAS, Morgan gave such written notice, dated July 11, 1994, to the
Company;
WHEREAS, Section 8.10 of the Indenture provides that in case the Trustee
shall resign, the Company shall promptly appoint a successor Trustee thereunder;
WHEREAS, the Company's Board of Directors authorized the appointment of
First Chicago as successor Trustee under the Indenture; and
WHEREAS, Section 8.11 of the Indenture provides that any successor Trustee
appointed thereunder shall execute, acknowledge and deliver to the Company and
the resigning Trustee thereunder an instrument accepting such appointment, and
thereupon the resignation of such resigning Trustee shall become effective and
such successor Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts, immunities, duties and
obligations of the resigning Trustee thereunder, with like effect as if
originally named as Trustee therein.
NOW THEREFORE, KNOW ALL MEN BY THESE PRESENTS, that for and in
consideration of the premises and of other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Company, Morgan
and First Chicago hereby covenant and agree as follows:
1. The Company hereby accepts the resignation of Morgan as Trustee under
the Indenture, such resignation to become effective at the close of business on
the date hereof. From the close of business on the date hereof and except as
otherwise provided for herein, Morgan shall have no further responsibility for
the exercise of the rights and powers or for the performance of the trusts and
duties vested in the Trustee under the Indenture.
98
2. Pursuant to Section 8.10 of the Indenture, and in accordance with the
resolutions duly adopted by the Company's Board of Directors, the Company hereby
confirms its appointment of First Chicago as successor Trustee under the
Indenture, effective as of the close of business on the date hereof, and hereby
vests in First Chicago all the rights, powers, trusts, immunities, duties and
obligations which Morgan now holds under and by virtue of the Indenture with
like effect as if originally named as Trustee in the Indenture.
3. First Chicago hereby represents that it is qualified and eligible under
Article Eight of the Indenture and under the Trust Indenture Act of 1939, as
amended, to accept appointment as successor Trustee under the Indenture.
4. First Chicago hereby accepts, as of the close of business on the date
hereof, its appointment as successor Trustee under the Indenture and assumes the
rights, powers, trusts, immunities, duties and obligations which Morgan now
holds under and by virtue of the Indenture, upon the terms and conditions set
forth therein.
5. In accordance with Section 8.11 of the Indenture, Morgan hereby
confirms, assigns, transfers and sets over to First Chicago, as successor
Trustee under the Indenture, all rights, powers, trusts, immunities, duties and
obligations which Morgan now holds under and by virtue of the Indenture, and
does hereby assign, transfer and deliver to First Chicago, as such Trustee, all
property and money held by Morgan as Trustee under the Indenture.
6. In accordance with Section 8.11 of the Indenture, the Company and
Morgan, for the purpose of more fully and certainly vesting in and confirming to
First Chicago, as successor Trustee under the Indenture, the rights, powers,
trusts, immunities, duties and obligations of such Trustee with like effect as
if originally named as Trustee in the Indenture, agree upon reasonable request
of First Chicago to execute, acknowledge and deliver such further instruments of
conveyance and further assurance and to do such other things as may be
reasonably required for more fully and certainly vesting and confirming in First
Chicago all rights, powers, trusts, immunities, duties and obligations which
Morgan now holds under and by virtue of the Indenture.
7. Promptly after the execution hereof, Morgan shall mail the notice of
the resignation of Morgan and the succession of First Chicago as successor
Trustee in accordance with Sections 8.10 and 8.11 of the Indenture. Such notice
shall be in the form attached hereto as Exhibit A.
2
99
8. This Agreement may be executed in any number of counterparts all of
which taken together shall constitute one and the same Agreement, and any of the
parties hereto may execute this Agreement by signing any such counterpart.
9. This Agreement shall be governed by the laws of the State of New York,
both in interpretation and performance.
10. Unless otherwise defined, all terms used herein with initial capital
letters shall have the meaning given them in the Indenture.
11. Morgan hereby represents and warrants to First Chicago that: (a) no
covenant or condition contained in the Indenture has been waived by Morgan or,
to the best of the knowledge of the officers assigned to Morgan's Corporate
Trust Department, by the Holders of the percentage in aggregate principal amount
of the Securities required by the Indenture to effect any such waiver; (b) there
is no action, suit or proceeding pending or, to the best of the knowledge of the
officers assigned to Morgan's Corporate Trust Department, threatened against
Morgan before any court or any governmental authority arising out of any action
or omission by Morgan as Trustee under the Indenture; (c) to the best of the
knowledge of the officers assigned to Morgan's Corporate Trust Department, no
Event of Default, or event which, with the giving of notice or passage of time
or both, would become an Event of Default, has occurred and is continuing; and
(d) Morgan has furnished, or as promptly as practicable will furnish, to First
Chicago originals of all documents relating to the trust created by the
Indenture and all material information in its possession relating to the
administration and status thereof and will furnish to First Chicago any of such
documents or information First Chicago may reasonably request, provided that
First Chicago will make available to Morgan as promptly as practicable following
the request of Morgan any such original documents which Morgan may need to
defend against any action, suit or proceeding against Morgan as Trustee or which
Morgan may need for any other proper purpose.
12. The Company hereby represents and warrants to First Chicago and Morgan
that no Event of Default, or event which, with the giving of notice or passage
of time or both, would become an Event of Default, has occurred and is
continuing.
13. Except as hereinabove expressly set forth, all other terms and
provisions set forth in the Indenture shall remain in full force and effect and
without any change whatsoever being made hereby.
3
100
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and acknowledged as of the date first written above.
MASCOTECH, INC.
By:/s/ Timothy Wadhams
Name: Timothy Wadhams
Title: Vice President
[Seal]
Attest:
/s/ Eugene A. Gargaro, Jr.
Secretary
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, as resigning
Trustee
By:/s/ Michael Culhane
Name: Michael Culhane
Title: Vice President
[Seal]
Attest:
/s/ M. E. McNulty
Assistant Secretary
THE FIRST NATIONAL BANK OF
CHICAGO, as successor Trustee
By:/s/ R. D. Manella
Name: R. D. Manella
Title: Vice President
[Seal]
Attest:
/s/ T. Marshall
Trust Officer
4
101
State of Michigan)
) ss
County of Wayne)
On the 2nd day of August, 1994, before me personally came Timothy Wadhams,
to me known, who, being by me duly sworn, did depose and say that he is a Vice
President of MascoTech, Inc., 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.
/s/ Nancy S. Steinrock
Notary Public
Wayne County, Michigan
My Comm. Exp.: Nov. 9, 1994
[NOTARIAL SEAL]
State of New York)
) ss
County of New York)
On the 2nd day of August, 1994, before me personally came Michael Culhane,
to me known, who, being by me duly sworn, did depose and say that he is a Vice
President of Morgan Guaranty Trust Company of New York, 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.
/s/ Thomas J. Courtney
Notary Public
State of New York
No. 24-4996233
Qualified in Kings County
My Comm. Exp.: May 11, 1996
[NOTARIAL SEAL]
5
102
State of Illinois)
) ss
County of Cook )
On the 3rd day of August, 1994, before me personally came R. D. Manella,
to me known, who, being by me duly sworn, did depose and say that he is a Vice
President of First Chicago, 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.
/s/ Nancy Lopez
Notary Public
State of Illinois
My Comm. Exp.: May 21, 1997
[NOTARIAL SEAL]
6
103
EXHIBIT A
NOTICE OF RESIGNATION OF TRUSTEE
AND
APPOINTMENT OF SUCCESSOR TRUSTEE
To the Holders of the MascoTech, Inc. 4 1/2% Convertible Subordinated Debentures
Due 2003:
NOTICE IS HEREBY GIVEN THAT, pursuant to Sections 8.10 and 8.11 of the
Indenture (the "Indenture") dated as of November 1, 1986 between MascoTech, Inc.
(formerly Masco Industries, Inc.) (the "Company") and Morgan Guaranty Trust
Company of New York ("Morgan Guaranty"), under which the above-referenced
Securities were issued:
1. Morgan Guaranty has resigned as Trustee under the Indenture.
2. The Company has appointed The First National Bank of Chicago ("First
Chicago") as successor Trustee under the Indenture, and First Chicago has
accepted such appointment.
3. The following is the office or agency of the Company where securities
issued under the Indenture may be presented for payment, or presented for
registration of transfer and for exchange as provided in the Indenture and
where notices and demands to or upon the Company in respect of any of the
Securities issued under the Indenture or the Indenture may be served:
The First National Bank of Chicago
c/o First Chicago Trust Company of New York
14 Wall Street, 8th Floor
New York, New York 10005
Attention: Corporate Trust Administration
Dated: August 5, 1994
MASCOTECH, INC.
MORGAN GUARANTY TRUST COMPANY OF NEW YORK
104
SUPPLEMENTAL INDENTURE
THIS SUPPLEMENTAL INDENTURE, dated as of August 5, 1994, between MascoTech,
Inc., a Delaware corporation (the "Company"), and The First National Bank of
Chicago, as trustee (the "Trustee").
WHEREAS, the Company entered into an Indenture dated as of November 1, 1986
with Morgan Guaranty Trust Company (the "Indenture");
WHEREAS, the Trustee is the successor trustee under the Indenture; and
WHEREAS, Section 11.01(g) the Indenture provides for supplemental
indentures to make changes, provided such action does not adversely affect the
interests of the holders of the Securities.
NOW, THEREFORE, the parties agree as follows:
1. Section 8.10 of the Indenture shall be amended by inserting the
following as a new subparagraph (e):
"(e) Notwithstanding the provisions of Section 8.12, in connection
with any sale or proposed sale of all or any portion of the corporate trust
business of any Trustee hereunder or any other transaction that would
result in a change of control of such corporate trust business, and
provided that no Event of Default exists, 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. Any removal of the Trustee and appointment of a
successor trustee pursuant to the foregoing shall become effective upon
acceptance of appointment by the successor trustee as provided in Section
8.11."
2. Except as hereinabove expressly set forth, all other terms and
provisions set forth in the Indenture shall remain in full force and effect and
without any change whatsoever being made hereby.
105
IN WITNESS WHEREOF, the parties have caused this Supplemental Indenture to
be executed and acknowledged as of the date first written above.
MASCOTECH, INC.
By:/s/ Timothy Wadhams
---------------------
Timothy Wadhams
Vice President
[Seal]
Attest:
/s/ Eugene A. Gargaro, Jr.
- --------------------------
Secretary
THE FIRST NATIONAL BANK OF CHICAGO
By:/s/ R. D. Manella
-------------------
R. D. Manella
Vice President
[Seal]
Attest:
/s/ T. Marshall
- ---------------------
State of Michigan)
) ss
County of Wayne)
On the 2nd day of August, 1994, before me personally came Timothy Wadhams,
to me known, who, being by me duly sworn, did depose and say that he is a Vice
President of MascoTech, Inc., 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.
/s/ Nancy S. Steinrock
- --------------------------
Notary Public
Wayne County, Michigan
My Comm. Exp.: Nov. 9,1994
[NOTARIAL SEAL]
- 2 -
106
State of Illinois)
) ss
County of Cook )
On the 3rd day of August, 1994, before me personally came R. D. Manella, to
me known, who, being by me duly sworn, did depose and say that he is a Vice
President of The First National Bank of Chicago, 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.
/s/ Nancy Lopez
- ----------------------------
Notary Public
State of Illinois
My Comm. Exp.: May 21, 1997
[NOTARIAL SEAL]
-3-