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EXHIBIT 4.b
[CONFORMED COPY]
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MASCO CORPORATION
AND
CITIBANK, N.A.,
Trustee
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INDENTURE
Dated as of December 1, 1982
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2
TIE-SHEET*
of provisions of Trust Indenture Act of 1939 with Indenture dated as of
December 1, 1982 between Masco Corporation and Citibank, N.A., Trustee:
Section of Act Section of Indenture
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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
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PARTIES 1
RECITALS 1
Authorization of Indenture 1
Compliance with Legal Requirements 1
Purpose of and Consideration for Indenture 1
ARTICLE ONE.
DEFINITIONS.
SECTION 1.01. Definitions 1
Authenticating Agent 2
Board of Directors 2
Common Stock 2
Company 2
Consolidated Net Earnings 2
Convertible Security or Convertible Securities 2
Event of Default 3
Indenture 3
Officers' Certificate 3
Opinion of Counsel 3
Original Issue Date 4
Person 4
Principal Office of the Trustee 4
Responsible Officer 4
Security or Securities; Outstanding 4
Securityholder 5
Senior Indebtedness 6
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 a part
of the Indenture.
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ARTICLE TWO.
SECURITIES
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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 10
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 18
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 23
SECTION 3.08. Taxes on Conversions 24
SECTION 3.09. Company to Provide Stock 24
SECTION 3.10. Disclaimer of Responsibility for Certain Matters 25
SECTION 3.11. Return of Funds Deposited for Redemption of Con-
verted Securities 26
SECTION 3.12. Disposition of Converted Securities 26
ARTICLE FOUR.
SUBORDINATION OF SECURITIES.
SECTION 4.01. Agreement to Subordinate 26
SECTION 4.02. No Payment on Securities if Senior Indebtedness in
Default 26
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PAGE
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SECTION 4.03. Priority of Senior Indebtedness 27
SECTION 4.04. Company to Give Notice of Certain Events; Reliance by
Trustee 28
SECTION 4.05. Subrogation of Securities 30
SECTION 4.06. Company Obligation to Pay Unconditional 30
SECTION 4.07. Authorization of Holders of Securities to Trustee to Effect
Subordination 31
SECTION 4.08. Notice to Trustee of Facts Prohibiting Payments 31
SECTION 4.09. Trustee May Hold Senior Indebtedness 31
SECTION 4.10. All Indenture Provisions Subject to this Article 31
ARTICLE FIVE.
PARTICULAR COVENANTS OF THE COMPANY.
SECTION 5.01. Payment of Principal, Premium and Interest 32
SECTION 5.02. Offices for Notices and Payments, etc. 32
SECTION 5.03. Appointments to Fill Vacancies in Trustee's Office 33
SECTION 5.04. Provision as to Paying Agent and Conversion Agent 33
SECTION 5.05. Certificate to Trustee 34
ARTICLE SIX
SECURITYHOLDERS' LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE.
SECTION 6.01. Securityholders' Lists 34
SECTION 6.02. Preservation and Disclosure of Lists 35
SECTION 6.03. Reports by Company 36
SECTION 6.04. Reports by the Trustee 37
ARTICLE SEVEN.
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT.
SECTION 7.01. Events of Default 39
SECTION 7.02. Payment of Securities on Default; Suit Therefor 42
SECTION 7.03. Application of Moneys Collected by Trustee 44
SECTION 7.04. Proceedings by Securityholders 45
SECTION 7.05. Proceedings by Trustee 46
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SECTION 7.06. Remedies Cumulative and Continuing 46
SECTION 7.07. Direction of Proceedings and Waiver of Defaults by
Majority of Securityholders 47
SECTION 7.08. Notice of Defaults 48
SECTION 7.09. Undertaking to Pay Costs 48
ARTICLE EIGHT.
CONCERNING THE TRUSTEE.
SECTION 8.01. Duties and Responsibilities of Trustee 49
SECTION 8.02. Reliance on Documents, Opinions, etc. 50
SECTION 8.03. No Responsibility for Recitals, etc. 51
SECTION 8.04. Trustee, Authenticating Agent, Paying Agents, Transfer
Agents, Conversion Agents or Registrar May Own
Securities 52
SECTION 8.05. Moneys to Be Held in Trust 52
SECTION 8.06. Compensation and Expenses of Trustee 52
SECTION 8.07. Officers' Certificate as Evidence 53
SECTION 8.08. Conflicting Interest of Trustee 53
SECTION 8.09. Eligibility of Trustee 60
SECTION 8.10. Resignation or Removal of Trustee 60
SECTION 8.11. Acceptance by Successor Trustee 62
SECTION 8.12. Succession by Merger, etc. 63
SECTION 8.13. Limitation on Rights of Trustee as a Creditor 64
SECTION 8.14. Authenticating Agents 68
ARTICLE NINE.
CONCERNING THE SECURITYHOLDERS.
SECTION 9.01. Action by Securityholders 71
SECTION 9.02. Proof of Execution by Securityholders 71
SECTION 9.03. Who Are Deemed Absolute Owners 71
SECTION 9.04. Securities Owned by Company Deemed Not Outstanding 72
SECTION 9.05. Revocation of Consents; Future Holders Bound 72
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ARTICLE TEN.
SECURITYHOLDERS' MEETINGS.
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SECTION 10.01. Purposes of Meetings 73
SECTION 10.02. Call of Meetings by Trustee 73
SECTION 10.03. Call of Meetings by Company or Securityholders 74
SECTION 10.04. Qualifications for Voting 74
SECTION 10.05. Regulations 74
SECTION 10.06. Voting 75
ARTICLE ELEVEN.
SUPPLEMENTAL INDENTURES.
SECTION 11.01. Supplemental Indentures without Consent of Security-
holders 76
SECTION 11.02. Supplemental Indentures with Consent of Securityholders 78
SECTION 11.03. Compliance with Trust Indenture Act; Effect of Sup-
plemental Indentures 79
SECTION 11.04. Notation on Securities 79
SECTION 11.05. Evidence of Compliance of Supplemental Indenture to
Be Furnished Trustee 80
SECTION 11.06. Effect on Senior Indebtedness 80
ARTICLE TWELVE.
CONSOLIDATION, MERGER AND SALE BY THE COMPANY.
SECTION 12.01. Consolidation, Merger or Sale of Assets Permitted 80
SECTION 12.02. Successor Corporation to Be Substituted for Company 81
SECTION 12.03. Evidence to Be Furnished Trustee 81
ARTICLE THIRTEEN.
SATISFACTION AND DISCHARGE OF INDENTURE.
SECTION 13.01. Discharge of Indenture 82
SECTION 13.02. Deposited Moneys to Be Held in Trust by Trustee 83
SECTION 13.03. Paying Agent to Repay Moneys Held 84
SECTION 13.04. Return of Unclaimed Moneys 84
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ARTICLE FOURTEEN.
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS.
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SECTION 14.01. Indenture and Securities Solely Corporate Obligations 84
ARTICLE FIFTEEN.
MISCELLANEOUS PROVISIONS.
SECTION 15.01. Successors 85
SECTION 15.02. Official Acts by Successor Corporation 85
SECTION 15.03. Addresses for Notices, etc. 85
SECTION 15.04. New York Contract 86
SECTION 15.05. Evidence of Compliance with Conditions Precedent 86
SECTION 15.06. Legal Holidays 86
SECTION 15.07. Trust Indenture Act to Control 86
SECTION 15.08. Table of Contents, Headings, etc. 87
SECTION 15.09. Execution in Counterparts 87
SECTION 15.10. No Security Interest Created 87
ARTICLE SIXTEEN.
REDEMPTION OF SECURITIES-MANDATORY AND
OPTIONAL SINKING FUND.
SECTION 16.01. Applicability of Article 87
SECTION 16.02. Notice of Redemption; Selection of Securities 87
SECTION 16.03. Payment of Securities Called for Redemption 88
SECTION 16.04. Mandatory and Optional Sinking Fund 89
TESTIMONIUM 92
SIGNATURES 92
ACKNOWLEDGEMENTS 93
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THIS INDENTURE, dated as of December 1, 1982, between MASCO CORPORATION, a
Delaware corporation (hereinafter sometimes called the "Company"), and CITIBANK,
N.A., trustee (hereinafter sometimes called the "Trustee").
W I T N E S S E T H :
WHEREAS, for its lawful corporate purposes, the Company has duly authorized
the issue from time to time of its 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 meanings specified in this Section 1.01. All other
terms used in this Indenture which are defined in the Trust Indenture Act of
1939, as amended, or which are by reference therein defined in the Securities
Act of 1933, as amended, shall (except as herein otherwise expressly provided or
unless the context otherwise requires) have the meanings assigned to such terms
in said Trust Indenture Act and in said 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
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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.
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 Corporation, a Delaware corporation,
and, subject to the provisions of Article Twelve, shall include its successors
and assigns.
Consolidated Net Earnings:
The term "Consolidated Net Earnings" shall mean the consolidated 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.
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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 terms of particular series of Securities
established as contemplated hereunder; provided, however, that if at any time
more than one Person is acting as Trustee under this instrument, "Indenture"
shall mean with respect to any one or more series of Securities for which such
Person is Trustee, this instrument as originally executed or as it may from time
to time be supplemented or amended by one or more indentures supplemental hereto
entered into pursuant to the applicable provisions hereof and shall include the
terms of particular series of Securities for which such Person is Trustee
established as contemplated by Section 2.03, exclusive, however, of any
provisions or terms which relate solely to other series of Securities for which
such Person is not Trustee, regardless of when such terms or provisions were
adopted, and exclusive of any provisions or terms adopted by means of one or
more indentures supplemental hereto executed and delivered after such Person had
become such Trustee but to which such Person, as such Trustee, was not a party.
Officers' Certificate:
The term "Officers' Certificate" shall mean a certificate signed by the
Chairman of the Board, the President or any Vice President, and by the
Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary of
the Company and delivered to the Trustee. Each such certificate shall include
the statements provided for in Section 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 and to the extent required by the
provisions of such Section.
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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 organi-
zation or government or any agency or political subdivision thereof.
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,
shall mean the chairman or any vice chairman of the board of directors, the
chairman or any vice-chairman of the executive committee of the board of
directors, the chairman of the trust committee, the president, any vice
president, the secretary, any assistant secretary, the treasurer, any assistant
treasurer, the cashier, any assistant cashier, any senior trust officer, any
trust officer or assistant trust officer, the controller or any assistant
controller or any other officer of the Trustee customarily performing functions
similar to those performed by any of the above designated officers and also
means, with respect to a particular corporate trust matter, any other employee
to whom such matter is referred because of his knowledge of and familiarity with
the particular subject.
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 convertible or non-convertible into shares of Common
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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 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
(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
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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' acceptances, 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 of materials or services).
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.
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Trustee:
The term "Trustee" shall mean the Person identified as "Trustee" in the
first paragraph of this instrument until a successor Trustee shall have
become such pursuant to the applicable provisions of this Indenture, and
thereafter "Trustee" shall mean or include each Person who is then a
Trustee hereunder; provided, however, that if at any time there is more than
one such Person, "Trustee" as used with respect to the Securities of any
series shall mean only the Trustee with respect to Securities of that series.
Trust Indenture Act of 1939:
The term "Trust Indenture Act of 1939" shall mean the Trust Indenture
Act of 1939 as in force at the date of execution of this Indenture, except as
provided in Sections 2.03 and 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.
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:
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This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
CITIBANK, N.A., 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 and premium, if
any, on the Securities of the series is payable;
(4) the rate or rates at which the Securities of the series
shall bear interest, or the method by which such interest may be
determined, the date or dates from which such interest shall
accrue, the interest payment dates on which such interest shall be
payable and the record dates for the determination of holders to whom
interest is payable;
(5) the place or places where the principal of, and premium, if
any, and 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;
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(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 registrars 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 provided in or pursuant
to such resolution of the Board of Directors or in any such indenture
supplemental hereto.
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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, and
accepting the additional responsibilities under this Indenture in
relation to 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;
(d) that all laws and requirements in respect of the
execution and delivery by the Company of the Securities have
been complied
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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
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"record date" as used in this Section with respect to any interest payment
date shall mean if such interest payment date is the first day of a calendar
month, the fifteenth day of the next preceding calendar month and shall
mean, if such interest payment date is the fifteenth day of a calendar
month, the first day of such calendar month, whether or not such record
date is a business day.
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.
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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.
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,
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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 to cover any tax or other govern-
mental charge that may be imposed in relation thereto and any other
expenses connected therewith and in addition a further sum not exceeding
two dollars for each Security so issued in substitution. In case any
Security which has matured or is about to mature or has been called for
redemption in full shall become mutilated or be destroyed, lost or stolen,
the Company may, instead of issuing a substitute Security, pay or
authorize the payment of the same (without surrender thereof except in the
case of a mutilated Security) if the applicant for such payment shall
furnish to the Company and the Trustee such security or indemnity as may
be required by them to save each of them harmless and, in case of
destruction, loss or theft, evidence satisfactory to the Company and to
the Trustee of the destruction, loss or theft of such Security and of the
ownership thereof.
Every substituted Security of any series issued pursuant to the provi-
sions 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
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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 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
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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 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 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
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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 Convertible Security converted or for
dividends or distributions on any shares of Common Stock issued upon
conversion of any Convertible Security.
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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 each
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:
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(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 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
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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.
(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 the 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
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(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.
(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 an increase or decrease of at least 1% in such price;
provided, however, that any adjustments which by 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.
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(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 or distribution of stock or issuance of rights or warrants
to purchase or subscribe for stock or from any event treated as such
for income tax purposes 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 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
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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 dis-
tribution) 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 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;
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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.
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 Convert-
ible Securities are presented for conversion.
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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 Certifi-
cate 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 con-
version 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 hereunder shall, to the extent and in the
manner hereinafter in this Article set forth, be subordinate and
junior in 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
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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, 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
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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.
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, and 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
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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 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. The Trustee does not have any
fiduciary duties to holders of Senior Indebtedness and shall not be liable
to any such holders if it shall mistakenly pay over or distribute to
holders of Securities or the Company or any other person, moneys or assets
to which any holder of Senior Indebtedness shall be entitled by virtue of
this Article or otherwise.
Nothing in this Section shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 8.06.
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SECTION 4.05. Subrogation of Securities. Subject to the payment in
full of all Senior Indebtedness, the holders of the Securities shall be
subrogated 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, and 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 provi-
sions 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 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.
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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 or 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 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 any, or interest on any
Security), the Trustee shall not have 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
and 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 instalment 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 Citibank, N.A. 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 the manner provided in this
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Indenture, and the Company may from time to time rescind such designa-
tion, as the Company may deem desirable or expedient; provided, however,
that no such designation or rescission shall in any manner relieve the
Company of its obligation to maintain such office or agency in the Borough
of Manhattan, The City of New York, for the purposes above mentioned. The
Company will give to the Trustee prompt written notice of any such
designation or rescission thereof.
SECTION 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 and Conversion 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
(3) that it will notify the Trustee promptly of such details as
the Trustee may require with respect to any conversions of Convertible
Securities at the office of such agent.
(b) If the Company shall act as its own paying agent, it will, on or
before each due date of the principal of and premium, if any, or interest
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
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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 a satisfaction and
discharge with respect to one or more or all series of Securities
hereunder, or for any other reason, pay or cause to be paid to the Trustee
all sums held in trust for any such series by the Trustee or any paying
agent hereunder, as required by this Section 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.
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, 1983),
so long as Securities of any series are outstanding hereunder, an Officers'
Certificate stating that in the course of the performance by the signers of
their duties as officers of the Company they would normally have knowledge
of any default by the Company in the performance of any covenants contained
in 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
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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 a form as is reasonably practicable, all
information as to the names and addresses of the holders of each series of
Securities (1) contained in the most recent list furnished to it as
provided in Section 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 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,
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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.
(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
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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 re-
quired 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, 1983,
and on or before June 15 in every year thereafter, so long as any
Securities are outstanding hereunder, the Trustee shall transmit to the
Securityholders of each series of Securities for which such Trustee is
appointed as hereinafter in this Section 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)
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made by the Trustee (as such) which remain unpaid on the date of such
report, and for the reimbursement of which it claims or may claim a lien or
charge, prior to that of the Securities, on any property or funds held or
collected by it as Trustee, except that the Trustee shall not be required
(but may elect) to state such advances if such advances so remaining unpaid
aggregate not more than 1/2 of 1% of the principal amount of the
Securities for any series outstanding on the date of such report;
(3) the amount, interest rate, and maturity date of all other
indebtedness owing by the Company (or by any other obligor on the
Securities) to the Trustee in its individual capacity, on the date of such
report, with a brief description of any property held as collateral
security therefor, except any indebtedness based upon a creditor
relationship arising in any manner described in paragraph (2), (3), (4) or
(6) of subsection (b) of Section 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
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
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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 of
(or premium, if any, on) any Securities of that series as and when the
same shall become due and payable either at maturity, upon redemption
(including redemption for the sinking fund), by declaration or other-
wise; 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
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90 days after there has been given, by registered or certified mail, to the
Company by the Trustee or to the Company and the Trustee by the holders of
at least 25% in principal amount of the outstanding Securities such default
or breach and requiring it to be remedied and a written notice specifying
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 or the holders of not
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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.
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 instalments 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 instalments 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.
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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 recission 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
instalment of interest upon any of the Securities of any series as and when the
same shall become due and payable, and such default shall have continued for a
period of 30 days, or (b) in case default shall be made in the payment of the
principal of or premium, if any, on any of the Securities of any series as and
when the same shall have become due and payable, whether at maturity of the
Securities of that series or upon redemption or by declaration or
otherwise--then, upon demand of the Trustee, the Company will pay to the
Trustee, for the benefit of the holders of the Securities of that series, the
whole amount that then shall have become due and payable on all such Securities
of that series for principal and premium, if any, or interest, or both, as the
case may be, with interest upon the overdue principal and premium, if any, and
(to the extent that payment of such interest is enforceable under applicable
law) upon the overdue instalments 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.
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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 Xxxxx 00, Xxxxxx Xxxxxx 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
provided 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 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.
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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.
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 instalments of such interest, with
interest (to the extent that such interest has been collected by the
Trustee) upon the overdue instalments of interest at the respective rates
borne by the Securities of each such series, such payments to be made
ratably to the persons entitled thereto;
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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 instalments 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 instalment of interest over any other instalment
of interest, or of any Security of each such series over any other Security
of each such series, ratably to the aggregate of such principal and
premium, if any, and accrued and unpaid interest.
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, 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 reasonable indemnity as it may require against
the costs, expenses and liabilities to be incurred therein or thereby, and the
Trustee for 60 days after its receipt of such notice, request and offer of
indemnity shall have failed to institute any such action, suit or proceeding,
it being understood and intended, and being expressly covenanted by the taker
and holder of every
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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 suit in equity or by action at law or by proceeding in
bankruptcy or otherwise, whether for the specific enforcement of any covenant or
agreement contained in this Indenture or in aid of the exercise of any power
granted in this Indenture, or to enforce any other legal or equitable right
vested in the Trustee by this Indenture or by law.
SECTION 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 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,
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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 of the Securities of such series waive any past default or
Event of Default including any default or Event of Default established pursuant
to Section 2.03 (or, in the case of an event specified in clause (c), (d) or (e)
of Section 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 be) and this Indenture be deemed to have been cured
and to be not continuing.
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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
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any Security against the Company on or after the same shall have become due and
payable.
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 truth of the statements and
the correctness of the opinions expressed therein, upon any certifi-
xxxxx or opinions furnished to the Trustee and conforming to the
requirements of this Indenture; but, in the case of any such
certificates or opinions which by any provision hereof are specific-
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ally required to be furnished to the Trustee, the Trustee shall
be under a duty to examine the same to determine whether or not
they conform to the requirements of this Indenture;
(b) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer or Officers of the
Trustee, unless it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts; and
(c) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith, in accordance with
the direction of the Securityholders pursuant to Section 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;
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(d) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request, order or
direction of any of the Securityholders, pursuant to the provisions of this
Indenture, unless such Securityholders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and
liabilities which may be incurred therein or thereby;
(e) the Trustee shall not be liable for any action taken or omitted by
it in good faith and believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Indenture;
(f) prior to the occurrence of an Event of Default hereunder and after
the curing or waiving of all Events of Default, the Trustee shall not be
bound to make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, approval, bond, debenture, coupon or other paper
or document, unless requested in writing to do so by the holders of not
less than a majority in principal amount of the Securities of all 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
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Authenticating Agent shall not be accountable for the use or application by the
Company of any Securities or the proceeds of any Securities authenticated and
delivered by the Trustee or the Authenticating Agent in conformity with the
provisions of this Indenture.
SECTION 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.
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
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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. The obligation of the Company under this
Section 8.06 shall survive the resignation of the Trustee hereunder and the
satisfaction and discharge of this Indenture.
SECTION 8.07. Officers' Certificate as Evidence. Except as otherwise
provided in Section 8.01 and 8.02, whenever in the administration of the
provisions of this Indenture the Trustee shall deem it necessary or desirable
that a matter be proved or established prior to taking or omitting any action
hereunder, such matter (unless other evidence in respect thereof be herein
specifically prescribed) may, in the absence of negligence or bad faith on the
part of the Trustee, be deemed to be conclusively proved and established by an
Officers' Certificate delivered to the Trustee, and such Certificate, in the
absence of negligence or bad faith on the part of the Trustee, shall be full
warrant to the Trustee for any action taken or omitted by it under the
provisions of this Indenture upon the faith thereof.
SECTION 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.
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(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 (A) the Indenture between the Company and Citibank, N.A.,
Trustee, dated as of February 1, 1973, pursuant to the provisions of
which the Company's 4 1/2% Convertible Subordinated Debentures Due
1988 are outstanding, and (B) 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 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
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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 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
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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 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
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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 para-
graph (3) or (7) of this subsection (c).
For the purposes of paragraphs (6), (7), (8), and (9) of this subsection
(c) only, (A) the terms "security" and "securities" shall include only such
securities as are generally known as corporate securities, but shall not include
any note or other evidence of indebtedness issued to evidence an obligation to
repay moneys lent to a person by one or more banks, trust companies or banking
firms, or any certificate of interest or participation in any such note or
evidence of indebtedness; (B) an obligation shall be deemed to be in default
when a default in payment of principal shall have continued for 30 days or more
and shall not have been cured; and (C) the Trustee shall not be deemed to be the
owner or holder of (i) any security which it holds as collateral security (as
trustee or otherwise) for an obligation which is not in default as defined in
clause (B) above, or (ii) any security which it holds as collateral security
under this Indenture, irrespective of any default hereunder, or (iii) any
security which it holds as agent for collection, or as custodian, escrow agent,
or depositary, or in any similar representative capacity.
Except as provided in the next preceding paragraph hereof, the word
"security" or "securities" as used in this Indenture shall mean any note, stock,
treasury stock, bond, debenture, evidence of indebtedness, certificate of
interest or participation in any profit-sharing agreement, collateral-trust
certificate, pre-organization certificate or subscription, transferable share,
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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 night 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 cashier, the secretary, and
the
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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 obligation evidenced
by such other class of securities is not in default as to principal or
interest or otherwise;
(iii) securities pledged by the issuer thereof as security for an
obligation of the issuer not in default as to principal or interest or
otherwise;
(iv) securities held in escrow if placed in escrow by the issuer
thereof;
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provided, however, that any voting securities of an issuer shall be
deemed outstanding if any person other than the issuer is entitled to
exercise the voting rights thereof.
(E) A security shall be deemed to be of the same class as another
security if both securities confer upon the holder or holders thereof
substantially the same rights and privileges; provided, however, that,
in the case of secured evidences of indebtedness, all of which are
issued under a single indenture, differences in the interest rates or
maturity dates of various series thereof shall not be deemed
sufficient to constitute such series different classes, and provided,
further, that, in the case of unsecured evidences of indebtedness,
differences in the interest rates or maturity dates thereof shall not
be deemed sufficient to constitute them securities of different
classes, whether or not they are issued under a single indenture.
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
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respect to the applicable series by written instrument, in duplicate,
executed by order of its Board of Directors, one copy of which instrument
shall be delivered to the resigning Trustee and one copy to the successor
trustee. If no successor trustee shall have been so appointed with respect
to any series of Securities and have accepted appointment within 60 days
after the mailing of such notice of resignation to the affected
Securityholders, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee, or any
Securityholder who has been a bona fide holder of a Security or Securities
of the applicable series for at least six months may, subject to the
provisions of Section 7.09, on behalf of himself and all others similarly
situated, petition any such court for the appointment of a successor
trustee. Such court may thereupon, after such notice, if any, as it may
deem proper and prescribe, appoint a successor trustee.
(b) In case at any time any of the following shall occur-
(1) the Trustee shall fail to comply with the provisions of
subsection (a) of Section 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 others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee with respect to all Securities
and the appointment of
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a successor trustee. Such court may thereupon, after such notice, if any,
as it may deem proper and prescribe, remove the Trustee and appoint a
successor trustee.
(c) The holders of a majority in aggregate principal amount of the
Securities of one or more series (each series voting as a class) or all
series (voting as one class) at the time outstanding may at any time remove
the Trustee with respect to the applicable series of Securities or all
series, as the case may be, and nominate a successor trustee with respect
to the applicable series of Securities or all series, as the case may be,
which shall be deemed appointed as successor trustee with respect to the
applicable series unless within ten days after such nomination the Company
objects thereto, in which case the Trustee so removed or any Securityholder
of the applicable series, upon the terms and conditions and otherwise as in
subdivision (a) of this Section 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
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held or collected by such trustee to secure any amounts then due it pursuant to
the provisions of Section 8.06.
If a successor trustee is appointed with respect to the Securities of one
or more (but not all) series, the Company, the predecessor Trustee and each
successor trustee with respect to the Securities of any applicable series shall
execute and deliver an indenture supplemental hereto which shall contain such
provisions as shall be deemed necessary or desirable to confirm that all the
rights, powers, trusts and duties of the predecessor Trustee with respect to the
Securities of any series as to which the predecessor Trustee is not retiring
shall continue to be vested in the predecessor Trustee, and shall add to or
change any of the provisions of this Indenture as shall be necessary to provide
for or facilitate the administration of the trust hereunder by more provided
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.
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In case at the time such successor to the Trustee shall succeed to the
trusts created by this Indenture any of the Securities of any series shall have
been authenticated but not delivered, any such successor to the Trustee may
adopt the certificate of authentication of any predecessor trustee, and deliver
such Securities so authenticated; and in case at that time any of the Securities
of any series shall not have been authenticated, any successor to the Trustee
may authenticate such Securities either in the name of any predecessor hereunder
or in the name of the successor trustee; and in all such cases such certificates
shall have the full force which it is anywhere in the Securities of such series
or in this Indenture provided that the certificate of the Trustee shall have;
provided, however, that the right to adopt the certificate of authentication of
any predecessor Trustee or authenticate Securities of any series in the name of
any predecessor Trustee shall apply only to its successor or successors by
merger, conversion or consolidation.
SECTION 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
owing upon any claim as such creditor in respect of principal or interest,
effected after the beginning of such four-month period and valid as against
such Security party and its other creditors, except any such reduction
resulting from the receipt or disposition of any property described in
paragraph (2) of this subsection, or from the exercise of any right of
set-off which the Trustee could have exercised if a petition in bankruptcy
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 com-
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position thereof, or otherwise, after the beginning of such four-month
period, or an amount equal to the proceeds of any such property, if
disposed of, subject, however, to the rights, if any, of such Security
party and its other creditors in such property or such proceeds.
Nothing herein contained, however, shall affect the right of the Trustee:
(A) to retain for its own account (i) payments made on account of any
such claim by any person (other than such Security party) who is liable
thereon, and (ii) the proceeds of the bona fide sale of any such claim by
the Trustee to a third person, and (iii) distributions made in cash,
securities, or other property in respect of claims filed against such
Security party in bankruptcy or receivership or in proceedings for
reorganization pursuant to Xxxxx 00, Xxxxxx Xxxxxx 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.
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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
Xxxxx 00, Xxxxxx Xxxxxx 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 Xxxxx 00,
Xxxxxx Xxxxxx 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
Xxxxx 00, Xxxxxx Xxxxxx Code, or applicable state law, whether such
distribution is made in cash, securities, or other property, but shall not
include any such distribution with respect to the secured portion, if any, of
such claim. The court in which such bankruptcy, receivership, or proceeding for
reorganization is pending shall have jurisdiction (i) to apportion among the
Trustee, the Securityholders, and the holders of other indenture securities, in
accordance with the provisions of this paragraph, the funds and property held in
such special account and the proceeds thereof, or (ii) in lieu of such
apportionment, in whole or in part, to give to the provisions of this paragraph
due consideration in determining the fairness of the distributions to be made
to the Trustee, the Securityholders and the holders of other indenture
securities with respect to their respective claims, in which event it shall not
be necessary to liquidate or to appraise the value of any securities or other
property held in such special account or as security for any such claim, or to
make a specific allocation of such distributions as between the secured and
unsecured portions of such claims, or otherwise to apply the provisions of this
paragraph as a mathematical formula.
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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;
(2) advances authorized by a receivership or bankruptcy court of
competent jurisdiction, or by this Indenture, for the purpose of pre-
serving any property which shall at any time be subject to the lien of this
Indenture or of discharging tax liens or other prior liens or encumbrances
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
subsections (a) and (b) thereof, respectively;
(3) disbursements made in the ordinary course of business in the
capacity of trustee under an indenture, transfer agent, registrar, custo-
dian, paying agent, fiscal agent or depositary, or other similar capacity;
(4) an indebtedness created as a result of services rendered or
premises rented; or an indebtedness created as a result of goods or
securities sold in a cash transaction as defined in subsection (c) of this
Section 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
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(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;
(4) The term "self-liquidating paper" shall mean any draft, xxxx 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, xxxx 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
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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.
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
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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.
CITIBANK, N.A.,
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
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registrar shall be affected by any notice to the contrary. All such payments so
made to any holder for the time being or upon his order shall be valid, and, to
the extent of the sum or sums so paid, effectual to satisfy and discharge the
liability for moneys payable upon any such Security.
SECTION 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 the Trustee knows are so owned shall be so
disregarded. Securities so owned which have been pledged in good faith may be
regarded as outstanding for the purposes of this Section 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 persons; 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
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
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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.
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
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determine. Notice of every meeting of the Securityholders of any or all series,
setting forth the record date, time and the place of such meeting and in general
terms the action proposed to be taken at such meeting, shall be mailed to
holders of Securities of each series affected at their addresses as they shall
appear on the Securities register of each series affected. Such notice shall be
mailed not less than 20 nor more than 90 days prior to the date fixed for the
meeting.
SECTION 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 the action
proposed to be taken at the meeting, and the Trustee shall not have mailed the
notice of such meeting within 20 days after receipt of such request, then the
Company or such Securityholders may determine the time and the place in said
Borough of Manhattan for such meeting and may call such meeting to take any
action authorized in Section 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.
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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
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
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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 the
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 Security-
holders. 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 Com-
pany pursuant to Article Twelve hereof;
(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
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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.
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,
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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
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modifies the rights of Securityholders of such series with respect to such
covenant or provision, shall be deemed not to affect the rights under this
Indenture of the Securityholders of any other series.
Upon the request of the Company accompanied by a copy of a resolution of
the Board of Directors certified by its Secretary or Assistant Secretary
authorizing the execution of any such supplemental indenture, and upon the
filing with the Trustee of evidence of the consent of Securityholders as
aforesaid, the Trustee shall join with the Company in the execution of such
supplemental indenture unless such supplemental indenture affects the Trustee's
own rights, duties or immunities under this Indenture or otherwise, in which
case the Trustee may in its discretion, but shall not be obligated to, enter
into such supplemental indenture.
It shall not be necessary for the consent of the Securityholders under this
Section 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 and amendments and all
the terms and conditions of any such supplemental indenture shall be and be
deemed to be part of the terms and conditions of this Indenture for any and all
purposes.
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 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
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this Indenture contained in any such supplemental indenture may be prepared
and executed by the Company, authenticated by the Trustee or the
Authenticating Agent and delivered in exchange for the Securities of any
series then outstanding.
SECTION 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 In-
debtedness under Article Four without the consent of such holder.
ARTICLE TWELVE.
CONSOLIDATION, MERGER AND SALE BY THE COMPANY.
SECTION 12.01. Consolidation, Merger or 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.
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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 be dissolved,
wound up or liquidated. Such successor corporation thereupon may cause to
be signed, and may issue either in its own name or in the name of Masco
Corporation any or all of the Securities issuable hereunder which
theretofore shall not have been signed by the Company and delivered to the
Trustee or the Authenticating Agent; and, upon the order of such successor
corporation (instead of the Company) and subject to all the terms,
conditions and limitations in this Indenture prescribed, the Trustee or the
Authenticating Agent shall authenticate and deliver any Securities which
previously shall have been signed and delivered by the officers of the
Company to the Trustee or the Authenticating Agent for authentication, and
any Securities which such successor corporation thereafter shall cause to
be signed and delivered to the Trustee or the Authenticating Agent for that
purpose. All the Securities so issued shall in all respects have the same
legal rank and benefit under this Indenture as the Securities theretofore
or thereafter issued in accordance with the terms of this Indenture as
though all of such Securities had been issued at the date of the execution
hereof.
In case of any such consolidation, merger, sale or conveyance, such
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.
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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 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
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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 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
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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.
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
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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 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 or served by being deposited postage prepaid by registered or
certified mail in a post office letter box addressed (until another address
is filed by the Company with the Trustee for the purpose) to Masco
Corporation, 00000 Xxx Xxxx Xxxx, Xxxxxx, Xxxxxxxx 00000, 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, 0 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, 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
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Indenture by any of Sections 310 to 317, inclusive, of the Trust Indenture
Act of 1939, such required provision shall control.
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 in no way modify or restrict any of
the terms or 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 least 30 and not more than 60 days prior to the date
fixed for redemption to the holders of Securities of such series so to be
redeemed as a whole or in part at their last addresses as the same appear
on the Securities register. Such mailing shall be by first class mail.
The notice if mailed in the manner herein provided shall be conclusively
presumed to have been duly given, whether or not the holder receives such
notice. In any case, failure to
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give such notice by mail or any defect in the notice to the holder of any
Security of a series designated for redemption as a whole or in part shall
not affect the validity of the proceedings for the redemption of any other
Security of such series.
Each such notice of redemption shall specify the date fixed for
redemption, the redemption price at which Securities of such series are to
be redeemed, the place or places of payment, that payment will be made upon
presentation and surrender of such Securities, that interest accrued to the
date fixed for redemption will be paid as specified in said notice, and
that on and after said date interest thereon or on the portions thereof to
be redeemed will cease to accrue. If less than all the Securities of such
series are to be redeemed the notice of redemption shall specify the
numbers of the Securities of that series to be redeemed. In case any
Security of a series is to be redeemed in part only, the notice of
redemption shall state the portion of the principal amount thereof to be
redeemed and shall state that on and after the date fixed for redemption,
upon surrender of such Security, a new Security or Securities of that
series in principal amount equal to the unredeemed portion thereof will be
issued.
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,
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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 the Company, a new Security or
Securities of such series of authorized denominations, in principal amount
equal to the unredeemed portion of 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
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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 before each
sinking fund payment date for such series, any additional sum in cash as
specified by the terms of such series of Securities. If the Company
intends to exercise its right to make any such optional sinking fund
payment, it shall deliver to the Trustee at least 60 days prior to the next
succeeding sinking fund payment date for such Series a certificate signed
by the Treasurer or an Assistant Treasurer of the Company stating that the
Company intends to exercise such optional right and specifying the amount
which the Company intends to pay on such sinking fund payment date. If the
Company fails to deliver such certificate at or before the time provided
above, the Company shall not be permitted to make any optional sinking fund
payment with respect to such sinking fund payment date. To the extent that
such right is not exercised in any year it shall not be cumulative or
carried forward to any subsequent year.
If the sinking fund payment or payments (mandatory or optional) made
in cash plus any unused balance of any preceding sinking fund payments made
in cash shall exceed $50,000 (or a lesser sum if the Company shall so
request) with respect to the Securities of any particular series, it shall
be applied by the Trustee or one or more paying agents on the next
succeeding sinking fund payment date to the redemption of Securities of
such series at the sinking fund redemption price together with accrued
interest to the date fixed for redemption. The Trustee shall select, in
the
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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 before each sinking fund payment date, the Company shall pay to
the Trustee or to one or more paying agents in cash a sum equal to all
interest accrued to the date fixed for redemption on Securities to be
redeemed on the next following sinking fund payment date pursuant to this
Section.
Neither the Trustee nor any paying agent shall redeem any Securities
of a series with sinking fund moneys, and the Trustee shall not mail any
notice of redemption of Securities of such series by operation of the
sinking fund, during the continuance of a default in payment of interest on
such Securities or of any Event of Default (other than an Event of Default
occurring as a consequence of this paragraph) with respect to such
Securities, except that if the notice of redemption of any Securities shall
theretofore have been mailed in accordance with the provisions hereof, the
Trustee or any paying agent shall redeem such Securities if cash sufficient
for that purpose shall be deposited with the Trustee or such paying agent
for that purpose in accordance with the terms of this Article 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
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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.
CITIBANK, N.A. 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 CORPORATION
Company
By XXXXXXX X. XXXXXXXXX
---------------------------
Vice President
[CORPORATE SEAL]
Attest:
XXXX X. XXXXXXX
-------------------------------
Assistant Secretary
CITIBANK, N.A.
Trustee
By XXXXXX X. XXXXXX III
---------------------------
Senior Trust Officer
[CORPORATE SEAL]
Attest:
XXXXXXXX XXXXX
---------------------------
Trust Officer
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STATE OF MICHIGAN }
COUNTY OF XXXXX } SS.:
On the 19th day of February, 1987, before me personally came
XXXXXXX X. XXXXXXXXX, to me known, who, being by me duly sworn, did
depose and say that he resides at Dearborn, Michigan; that he is Vice
President of MASCO CORPORATION, the corporation described in and which
executed the above instrument; that he knows the corporate seal of
said corporation; that the seal affixed to the said instrument is such
corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation; and that he signed his name thereto by
like authority.
XXXX X. XXXXXX
--------------------------------------
Notary Public
XXXX X. XXXXXX
Notary Public, Xxxxx County, MI
My Commission Expires August 21, 1988
[NOTARIAL SEAL]
STATE OF NEW YORK }
COUNTY OF NEW YORK } SS.:
On the 20th day of February, 1987, before me personally came
XXXXXX X. XXXXXX III, to me known, who, being by me duly sworn, did
depose and say that he resides at Staten Island, New York; that he
is Senior Trust Officer of CITIBANK, N.A., 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.
XXXX X. XXXXXXXX
------------------------------------
Notary Public
XXXX X. XXXXXXXX
Notary Public, State of New York
No. 00-0000000
Qualified in Richmond County
Certificate Filed in New York County
Term Expires March 30, 1988
[NOTARIAL SEAL]
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RESOLUTIONS OF THE
PRICING COMMITTEE
OF THE
BOARD OF DIRECTORS OF
MASCO CORPORATION
WHEREAS, this Company has filed Registration Statements (Nos. 2-95488,
33-2374 and 33-7387) on Form S-3 with the Securities and Exchange Commission,
each of which currently remains in effect;
WHEREAS, this Company desires to create and make provision for a series of
securities under the Indenture dated as of December 1, 1982 (the "Indenture"),
with Citibank, N.A., as trustee (the "Trustee"), providing for the issuance
from time to time of convertible or non-convertible unsecured subordinated
debentures, notes or other evidences of indebtedness of this Corporation
("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 "5-1/4% Convertible Subordinated Debentures Due 2012" of this
Company.
2. The aggregate principal amount of Securities of such series which
may be authenticated and delivered under the Indenture is limited to Two
Hundred Fifty Million Dollars ($250,000,000), 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 February 15, 2012.
4. The Securities of such series shall bear interest from February
23, 1987, at the annual rate of 5-1/4%, payable semi-annually on February
15 and August 15 of each year commencing on August 15, 1987, (calculated
on a standard 360 day year of 12 thirty day months) until the principal
thereof is paid or made available for payment. The February 1 or August
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.
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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
this 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 this Company for such purpose
pursuant to the Indenture; provided, however, that, at the option of this
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
through the operation of a mandatory sinking fund on each February 15,
commencing on February 15, 1998 and continuing to and including February
15, 2011, at 100 percent of their principal amount together with accrued
interest to the date fixed for redemption (subject to the right of the
registered holder on the record date for an interest payment to receive
such interest). The sinking fund shall provide for the redemption on
each such date of five percent of the aggregate principal amount of the
Securities issued. The Company may, at its option, receive credit
against sinking fund payments for Securities acquired through purchase
(including under the procedures provided in paragraph 8 below), called
for redemption otherwise than through the mandatory sinking fund or which
have not been called for redemption through operation of the mandatory
sinking fund and have been surrendered for conversion. If the amount of
any sinking fund payment required to be satisfied in cash, plus any
balance of any preceding sinking fund payment, is $50,000 or less, the
Company shall have the right to carry over such payment to the next
sinking fund payment date.
7. The Securities of such series shall be subject to redemption
otherwise than through the operation of the sinking fund described in
paragraph 6 above, in whole or in part, at the option of the Company, at
any time at a redemption price equal to the percentage of the principal
amount set forth below if redeemed during the twelve-month period
beginning February 15 in each of the following years:
YEAR PERCENTAGE YEAR PERCENTAGE
---- ---------- ----- ----------
1987 105.250% 1993 102.100%
1988 104.725 1994 101.575
1989 104.200 1995 101.050
1990 103.675 1996 100.525
1991 103.150 1997 and
1992 102.625 thereafter 100.000
together in each case with interest accrued to the date fixed for
redemption (subject to the right of the registered holder on the record
date for an interest payment to receive such interest), except that such
Securities may not be redeemed prior to February 15, 1989 unless the
closing price (as referred to in Section 3.05(d) of the Indenture) per
share of the Common Stock has equaled or exceeded 150 percent of the then
effective conversion price for at least twenty trading days within thirty
consecutive trading days ending not more than five trading days prior to
the date the notice of redemption is mailed.
104
8. (a) The holder of any Security of such series shall have the
right, at his option, upon the giving of notice of the occurrence of any
event described in clause (b) below, and subject to the terms and
provisions hereof, to tender any Security of such series, in whole or in
part, without regard to whether the Securities of such series are then
otherwise redeemable, for cash in an amount equal to the principal amount
of such Security plus accrued interest to the date fixed for redemption.
Such redemption shall occur on the sixty-fifth day after the date of the
notice provided pursuant to clause (c) below (the "Mandatory Redemption
Date"). The holder's right to tender shall continue up to the sixtieth
day after the date of such notice and shall be exercised by any surrender
of such Security to the office or agency to be maintained by the Company
pursuant to Section 5.02 of the Indenture, accompanied by written notice
that the holder elects to tender such Security and (if so required by the
Company or the Trustee) by a written instrument or instruments of
transfer in form satisfactory to the Company and the Trustee duly
executed by the holder or his duly authorized legal representative and
transfer tax stamps or funds therefor, if required. All Securities of
such series surrendered for redemption shall, if surrendered to the
Company or any redemption agent, be delivered to the Trustee for
cancellation and, if surrendered to the Trustee, shall be canceled by it.
(b) The holder's right to tender under clause (a) above shall be
triggered upon the occurrence of either of the following events:
(i) Any person or group (an "other entity"), within the
meaning of Section 13(d)(3) of the Securities Exchange Act of
1934, shall attain beneficial ownership, within the meaning
of Rule 13d-3 of the Securities Exchange Act of 1934, of at
least 50% of the voting power for election of the Directors
of the Company, unless approved in advance by a majority of
the Company's Continuing Directors (as hereinafter defined),
or
(ii) The Company, directly or indirectly, consolidates
or merges with any other entity or sells or leases its
properties and assets substantially as an entirety to any
other entity, unless approved in advance by a majority of the
Company's Continuing Directors.
A "Continuing Director" is a Director who is a member of the Board
of Directors of the Company elected by stockholders prior to the time the
other entity hereafter acquires in excess of 10% of the voting power for
the election of Directors of the Company or Masco Corporation, as the
case may be, or a person recommended to succeed a Continuing Director by
a majority of the Continuing Directors.
(c) The Company shall file with the Trustee and shall mail,
or cause the Trustee to mail, to each holder of Securities of such
series at his last address appearing on the registry books of the
Company, as promptly as possible but in any event not more than ten days
after learning of an occurrence specified in clause (i) above or not more
than ten days after an occurrence specified in clause (ii) above, a
notice stating that the event
105
specified in the notice has occurred and that each holder has the right
to tender his Securities of such series for cash pursuant to the terms
hereof. Upon demand to the Company at any time by the Trustee or any
holder of Securities of such series, such notice shall be filed with the
Trustee and mailed to each holder of Securities of such series, unless
the Company can demonstrate to the Trustee's satisfaction that no event
described in clause (b) has occurred. The Trustee shall not be deemed to
have any knowledge of such event or any corresponding obligation with
respect thereto until so notified in writing by the Company.
(d) On or before the sixty-second day after the date of the notice
provided pursuant to clause (c) above, the Company shall deposit with the
Trustee or with a paying agent an amount of money sufficient to pay the
principal of, and (except if the Mandatory Redemption Date shall be an
interest payment date) accrued interest on, all the Securities of such
series to be redeemed on the Mandatory Redemption Date.
(e) After giving the notice of redemption as provided above, the
Securities of such series to be redeemed shall, on the Mandatory
Redemption Date, become due and payable at a price equal to the principal
amount thereof plus accrued interest and from and after such date (unless
the Company shall default in the payment of principal and accrued
interest thereon) such Securities shall cease to bear interest. Upon
surrender of any such Security for redemption in accordance herewith,
such Security shall be paid on the Mandatory Redemption Date by the
Trustee or paying agent at a price equal to the principal amount thereof,
together with accrued interest to the Mandatory Redemption Date;
provided, however, that if the Mandatory Redemption Date is an interest
payment date, the interest accrued to such Mandatory Redemption Date
shall be payable to the holders of record of such Securities at the close
of business on the relevant record date according to the provisions of
the Indenture.
If any Security to be redeemed shall not be so paid on the Mandatory
Redemption Date, the principal shall, until paid, bear interest from the
Mandatory Redemption Date at the rate borne by the Security.
(f) Securities of such series may be redeemed in whole or in any
integral multiple of $1,000. Any Security which is to be redeemed only
in part shall be surrendered at an office or agency of the Company
designated for that purpose (with, if the Company or the Trustee so
requires, due endorsement by, or a written instrument to transfer inform
satisfactory to the Company and the Trustee duly exectued by, the holder
thereof or his attorney duly authorized in writing), and the Company
shall execute, and the Trustee shall authenticate and deliver to the
holder of such Security without service charge, a new Security or
Securities of such series, of any authorized denomination in aggregate
principal amount equal to and in exchange for the unredeemed portion of
the principal amount.
Unless the context otherwise requires, all provisions relating to
the mandatory redemption of the Securities hereunder shall relate, in the
case of Securities redeemed only in part, to the portion of the principal
amount of such Security which has been or is to be redeemed.
106
9. The Securities of such series shall be issuable in denominations
of One Thousand Dollars ($1,000) and any integral multiple thereof.
10. The Company shall receive 99% of the price of such Securities
sold to the public after discount of 1%.
11. The Securities of such series shall be convertible at any time
prior to maturity, unless previously redeemed, into an aggregate maximum
amount of 5,841,121 fully paid and non-assessable shares of Common Stock,
par value $1 per share of the Company, at a conversion price of $42.80
per share, such number of shares of Common Stock and conversion price
being subject to adjustment as provided in the Indenture.
12. 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).
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 or the President and the
Secretary or any Assistant Secretary of this Company are authorized, on behalf
of the Company and in its name and under its corporate seal (which may be in
the form of a facsimile of the seal of the Company) to execute $250,000,000
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 exhibits to the Company's Registration
Statements (Nos. 33-2374 and 33-7387) on Form S-3 filed with the Securities and
Exchange Commission, 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 evidence 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 this Company as provided in the Indenture;
FURTHER RESOLVED, that the signatures of the officers of this 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 Xxxxx Xxxxxx, Xxxxxx Xxxxx & Co. Incorporated and
Salomon Brothers Inc. are appointed as managing 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 this Company is authorized, in the name and
on behalf of this Company, to execute and deliver an
107
Underwriting Agreement, substantially in the form heretofore approved by the
Board of Directors of this Company, with such managing underwriters, as
representatives of such underwriters as may be selected by such managing
underwriters and listed in Schedule II to such Underwriting Agreement, 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 Citibank, N.A., the Trustee under the Indenture, is
appointed trustee for Securities of such series, and as Agent of this 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 Citibank, N.A., in the Borough of Manhattan, City
of New York is designated pursuant to the Indenture as the office or agency of
this Company where such Securities may be presented for registration, transfer,
exchange and conversion and where notices and demands to or upon this Company
in respect of the Securities of such series and of the Indenture may be served;
FURTHER RESOLVED, that Citibank, N.A., is appointed Paying Agent of this
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 Citibank,
N.A., is designated, pursuant to the Indenture, as the office or agency of this
Company where such Securities may be presented for payment; and
FURTHER RESOLVED, that each of the officers of this Company is authorized
and directed, on behalf of this Company and in its name, 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 and otherwise to carry out the obligations of this
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 and 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).
108
REGISTERED
REGISTERED
R
MASCO CORPORATION CUSIP 574599 AG 1
5 1/4% CONVERTIBLE SUBORDINATED DEBENTURE DUE 2012
Masco Corporation, a corporation duly organized and existing under the
laws of the State of Delaware (herein referred to as the "Company"), for value
received, hereby promises to pay to SEE REVERSE FOR CERTAIN DEFINITIONS
5 1/4 % 5 1/4%
DUE DUE
2012 2012
or registered assigns, at the office or agency of the Company in the Borough of
Manhattan, The City of New York, the principal sum of
DOLLARS
on February 15, 2012, in such coin or currency of the United States of America
as at the time of payment shall be legal tender for the payment of public and
private debts, and to pay interest, semi-annually on February 15 and August 15
of each year, on said principal sum at said office or agency, in like coin or
currency, at the rate per annum specified in the title of this Debenture, from
February 15 or August 15, as the case may be, next preceding the date of this
Debenture to which interest has been paid or duly provided for, unless the date
hereof is a date to which interest has been paid or duly provided for, in which
case from the date of this Debenture, or unless no interest has been paid or
duly provided for on the Debentures since the original issue date (as defined
in the Indenture referred to on the reverse hereof) of this Debenture, in which
case from February 23, 1987, until payment of said principal sum has been made
or duly provided for. Notwithstanding the foregoing, if the date hereof is
after February 1 or August 1, as the case may be, and before the following
February 15 or August 15, this Debenture shall bear interest from such February
15 or August 15; provided, however, that if the Company shall default in the
payment of interest on such February 15 or August 15, then this Debenture shall
bear interest from the next preceding February 15 or August 15 to which
interest has been paid or duly provided for, or, if no interest has been paid
or duly provided for the Debentures since the original issue date (as defined
in such Indenture) of the Debenture, from February 23, 1987. The interest so
payable on any February 15 or August 15 will, subject to certain exceptions
provided in such Indenture, be paid to the person in whose name this Debenture
is registered at the close of business on the February 1 or August 1, as the
case may be, next preceding such February 15 or August 15, whether or not such
February 1 or August 1 is a business day, and may, at the option of the
Company, be paid by check mailed to the registered address of such person.
Reference is made to the further provisions of this Debenture set forth on
the reverse hereof. Such further provisions shall for all purposes have the
same effect as though fully set forth
at this place. This Debenture shall not be valid or become obligatory for
any purpose until the certificate of authentication hereon shall have been
signed by or on behalf of the Trustee
under such Indenture.
In Witness Whereof, Masco Corporation, has caused this instrument to be
executed in its corporate name by the facsimile signature of its Chairman of
the Board or its President and imprinted with a facsimile of its corporate
seal, attested by the facsimile signature of its Secretary or an Assistant
Secretary.
109
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture. Dated
Masco Corporation
CITIBANK, N.A. Attest:
By:
By as Trustee
Authorized Officer Secretary
Chairman of the Board
[Masco Corporation Corporate Seal Delaware]
MASCO CORPORATION
5 1/4% CONVERTIBLE SUBORDINATED DEBENTURE DUE 2012
This Debenture is one of a duly authorized issue of debentures, notes,
bonds or other evidences of indebtedness of the Company (hereinafter called the
"Securities") of the series hereinafter specified, all issued or to be issued
under and pursuant to an indenture dated as of December 1, 1982 (herein called
the "Indenture"), duly executed and delivered by the Company to Citibank, N.A.,
Trustee (herein called the "Trustee"), to which Indenture and all indentures
supplemental thereto reference is hereby made for a description of the rights,
limitations of rights, obligations, duties and immunities thereunder of the
Trustee, the Company and holders of the Securities. The Securities may be
issued in one or more series, which different series may be issued in various
aggregate principal amounts, may mature at different times, may bear interest
(if any) at different rates, may be subject to different redemption provisions
(if any), may be subject to different sinking, purchase or analogous funds (if
any), may be subject to different covenants and Events of Default and may
otherwise vary as in the Indenture provided. This Debenture is one of a series
designated as the 5 1/4% Convertible Subordinated Debentures Due 2012 of the
Company, limited in aggregate principal amount to $250,000,000.
Subject to the provisions of the Indenture, the Holder of this Debenture
is entitled, at his option, at any time on or before February 15, 2012
110
(except that, in case this Debenture or any portion hereof shall be called for
redemption, such right shall terminate with respect to this Debenture or
portion hereof, as the case may be, so called for redemption at the close of
business on the date fixed for redemption as provided in the Indenture, unless
the Company shall default in the payment due upon redemption thereof), to
convert the principal amount of this Debenture (or any portion hereof which is
$1,000 or an integral multiple thereof), into shares of the Common Stock of the
Company (calculated to the nearest 1/100th of a share), as said shares shall be
constituted at the Date of Conversion, at the Conversion Price of $42.80
principal amount of Debentures for each share of Common Stock, or at the
adjusted Conversion Price in effect at the Date of Conversion determined as
provided in the Indenture, upon surrender of this Debenture, together with the
conversion notice hereon duly executed, to the Company at the designated office
or agency of the Company in the Borough of Manhattan, The City of New York,
accompanied (if so required by the Company) by instruments of transfer, in form
satisfactory to the Company and to the Trustee, duly executed by the Holder or
by his duly authorized attorney in writing. Such surrender shall, if made
during any period beginning at the close of business on a record date and
ending at the opening of business on the interest payment date next following
such record date (unless this Debenture or the portion being converted shall
have been called for redemption on a redemption date during such period) also
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 this Debenture then being
surrendered for conversion. Except as aforesaid no adjustment is to be made on
conversion for interest accrued hereon or for dividends on shares of Common
Stock issued on conversion. The Company is not required to issue fractional
shares upon any such conversion, but shall make adjustment therefor in cash on
the basis of the market value of such fractional interest as provided in the
Indenture.
The indebtedness evidenced by the Debentures is, to the extent and in the
manner provided in the Indenture, subordinate and subject in right of payment
to the prior payment in full of the principal of (and premium, if any) and
interest on all Senior Indebtedness as defined in the Indenture, and this
Debenture is issued subject to such provisions and each Holder of this
Debenture, by accepting the same, agrees to and shall be bound by such
provisions, and authorizes the Trustee in his behalf to take such action as may
be necessary or appropriate to effectuate as between the Holders of the
Debentures and the holders of Senior Indebtedness the subordination as provided
in the Indenture and appoints the Trustee his attorney-in-fact for such
purpose.
In case an Event of Default with respect to the 5 1/4% Convetible
Subordinated Debentures Due 2012 shall have occurred and be continuing, the
principal hereof may be delcared, and upon such delcaration shall become, due
and payable, in the manner, with the effect and subject to the conditions
provided in the Indenture.
The Indenture contains provisions permitting the Company and the Trustee,
with the consent of the holders of not less than 66 2/3% in aggregate principal
amount of the Securities at the time outstanding of all series to be affected
(voting as a class), evidenced as in the Indenture provided, to execute
supplemental indentures adding any provisions to or changing in any manner or
eliminatingany of the provisions of the Indenture or of any supplemental
indenture or modifying in any manner the rights of the holder of the Securities
of each such series; 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 hereinbefore provided, or
impair the right to convert the 5 1/4% Convertible Subordinated Debentures Due
2012 into Common Stock on the terms defined in the Indenture, or impair or
affect the right of any Holder 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 the 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 principal amount of
Securities of all series to be affected, the holders of which are required to
consent to any such supplemental indenture, without the consent of the holders
of all Securities so affected then outstanding.
The Debentures are issuable in registered form without coupons in
denominations of $1,000 and any multiple of $1,000. In the manner and subject
to the limitations provided in the Indenture, but without the payment of any
charge (except for any tax or other governmental charge imposed in connection
therewith), Debentures may be exchanged for an equal aggregate principal amount
of Debentures of other authorized denominations at the office or agency of the
Company for such exchange in the Borough of Manhattan, The City of New York or
at such other location or locations as may be provided for pursuant to the
Indenture.
The Debentures may be redeemed at the option of the Company as a whole, or
from time to time in part, on any date prior to maturity, upon mailing a notice
of such redemption not less than thirty nor more than sixty days prior to the
date fixed for redemption to the Holders of Debentures at their last registered
addresses, all as provided in the Indenture, at the following optional
redemption prices (expressed in percentages of the principal amount to be
redeemed) together in each case with accrued interest to the date fixed for
redemption; provided, however, that id the date fixed for redemption of any
Debenture is an interest payment date, then the regular semi-annual payment of
interest becoming due on such date shall be payable to the registered Holder of
such Debenture at the close of business on the applicable record date.
If redeemed during the twelve-month period beginning February 15,
Year Percentage Year Percentage
1987.............. 105.250% 1993............ 102.100%
1988.............. 104.725 1994............ 101.575
1989.............. 104.200 1995............ 101.050
1990.............. 103.675 1996............ 100.525
1991.............. 103.150 1997 and thereafter 100.000
1992.............. 102.625
except that the Debentures may not be so redeemed prior to February 15, 1989,
unless for a period of twenty trading days within thirty consecutive trading
days ending not more than five trading days prior to the date the notice of
redemption is mailed, the closing price per share (as referred to in the
Indenture) of Common Stock of the Company shall have been at least 150% of the
Conversion Price in effect on each such day.
The Debentures are also subject to redemption in part, through the
operation of the sinking fund provided for in the Indenture, on each February
15, commencing on February 15, 1998 and continuing to and including February
15, 2011, on notice as set forth above and at 100% of the principal amount
thereof (the sinking fund redemption price), together with accrued interest to
the date fixed for redemption.
The Holder of this Debenture will have the option, upon the occurrence of
either of the events specified in clauses (i) or (ii) below, for a specified
period of sixty days, to require the Company to redeem the principal amount of
this Debenture (or any portion thereof which is $1,000 or an integral multiple
thereof), at a redemption price equal to the principal amount to be redeemed,
plus accrued interest to the date of redemption: (i) any person or group (an
"other entity"), within
111
the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, attains
beneficial ownership, within the meaning of Rule 13d-3 of the Securities
Exchange Act of 1934, of at least 50% of the voting power for election of the
Directors of the Company unless approved in advance by a majority of the
Company's Continuing Directors (as hereinafter defined), or (ii) the Company
consolidates or merges with or sells or leases its properties and assets
substantially as an entirety to any other entity unless approved in advance by a
majority of the Company's Continuing Directors. A "Continuing Director" is a
Director who is a member of the Board of Directors of the Company elected by
stockholders prior to the time the other entity hereafter acquires in excess of
10% of the voting power for the election of Directors of the Company, or a
person recommended to succeed a Con tinuing Director by a mojority purpose. In
case an Event of Default with respect to the 5 1/4% Convertible Subordinated
Debentures Due 2012 shall have occurred and be continuing, the principal hereof
may be declared, and upon such declaration shall become, due and payable, in the
manner, with the effect and subject to the conditions provided in the Indenture.
The Indenture contains provisions permitting the Company and the Trustee, with
the consent of the holders of not less than 66 2/3% in aggregate principal
amount of the Securities at the time outstanding of all series to be affected
(voting as a class), evidenced as in the Indenture provided, to execute
supplemental indentures adding any provisions to or changing in any manner or
eliminating any of the provisions of the Indenture or of any supplemental
indenture or modifying in any manner the rights of the holders of the Securities
of each such series; 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 hereinbefore provided, or impair
the right to convert the 5 1/4% Convertible Subordinated Debentures Due 2012
into Common Stock on the terms defined in the Indenture, or impair or affect the
right of any Holder to institute suit for payment thereof or the right of
repayment, if any, at the option of the Holder, or modify any provisions of the
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 principal amount of Securities of all
series to be affected, the holders of which are required to consent to any such
supplemental indenture, without the consent of the holders of all Securities so
affected then outstanding. It is also provided in the Indenture that, with
respect to certain defaults of Events of Default regarding the Securities of any
series, prior to any declaration accelerating the maturity of such Securities,
the holders of a majority in aggregate principal amount of the Securities of
such series at the time outstanding (or, in the case of certain defaults or
Events of Default, all the Securities) may on behalf of the holders of all of
the Securities of such series (or all the Securities, as the case may be) waive
any such past default or Event of Default under the Indenture and its
consequences except a default in the payment of principal of, premium, if any,
or interest, if any, on any of the Securities. Any such consent or waiver by
the Holder of this Debenture (unless revoked as provided in the Indenture) shall
be conclusive and binding upon such Holder and upon all future Holders and
owners of this Debenture and any Debentures which may be issued in exchange or
transfer hereof or in substitution herefor, irrespective of whether or not any
notation thereof is made upon this Debenture or such other Debentures. No
reference herein to the Indenture and no provision of this Debenture or of the
Indenture shall alter or impair the obligation of the Company, which is absolute
and unconditional, to pay the principal of and interest on this Debenture at the
place, at the respective times, at the rate and in the coin or currency herein
prescribed. Continuing Director by a majority of the Continuing Directors.
Upon due presentment for registration of transfer of this
Debenture at the office or agency of the Company for such registration in the
Borough of Manhattan, The City of New York, or any other location or locations
as may be provided for pursuant to the Indenture, a new Debenture or Debentures
of authorized denominations for an equal aggregate principal amount will be
issued to the transferee in exchange therefor, subject to the limitations
provided in the Indenture, without charge except for any tax or other
governmental charge imposed in connection therewith.
The Company, the Trustee and any agent of the Company or the Trustee may deem
and treat the Holder hereof as the absolute owner of this Debenture (whether or
not this Debenture shall be overdue and notwithstanding any notation of
ownership or other writing hereon), for the purpose of receiving payment of or
on account of the principal hereof and, subject to the provisions on the face
hereof, interest hereon, and for all other purposes, and neither the Company nor
the Trustee nor any such agent shall be affected by any notice to the contrary.
All payments made to or upon the order of such Holder shall, to the extent of
the sum or sums paid, effectually satisfy and discharge liability for moneys
payable on this Debenture.
No recourse for the payment of the principal of, or premium, if any, or
interest on this Debenture, or for any claim based hereon or otherwise in
respect hereof, and no recourse under or upon any obligation, covenant or
agreement of the Company in the Indenture or any indenture supplemental thereto
or in any Debenture, 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, either directly or through the Company or any successor
corporation, whether by virtue of any constitution, statute or rule of law or by
the enforcement of any assessment or penalty or otherwise, all such liability
being, by the acceptance hereof and as part of the consideration for the issue
hereof, expressly waived and released.
All terms used in this Debenture which are defined in the Indenture
shall have the respective meanings ascribed to them herein.
This Debenture shall be deemed to be a contract made under the laws of the
State of New York, and for all purposes shall be construed in accordance with
and governed by the laws of that State.
TO MASCO CORPORATION:
The undersigned owner of this Debenture hereby irrevocably exercises the
option to convert this Debenture into shares of Common Stock of the Company in
accordance with the terms of the Indenture referred to in this Debenture, and
directs that the shares issuable and deliverable upon the conversion, together
with any check in payment for fractional shares and any Debentures representing
any unconverted principal amount hereof, be issued and delivered to the
registered holder hereof unless a different name has been indicated below. If
shares are to be issued in the name of a person other than the undersigned, the
undersigned will pay all transfer taxes payable with respect hereto. Any
amount required to be paid by the undersigned on account of interest
accompanies this Debenture.
Dated____________________________________________
112
____________________________________________________ Signature
Fill in for registration of shares of Common Stock and Debentures if to be
issued otherwise than to the registered holder.
_________________________________________________________________
__________________________________________________
(Name) Social Security or other
Taxpayer Identifying Number
___________________________________________
(Address)
______________________________________________________________________________
Please print name and address (including zip code number)
The following abbreviations, where such abbreviations appear on this
certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM --as tenants in common UNIF GIFT MIN ACT--
.......................Custodian....................
TEN ENT --as tenants by the entireties
(Cust) (Minor)
JT TEN --as joint tenants with right of
under Uniform Gifts to Minors
survivorship and not as tenants
Act..................................
in common
(State)
Additional abbreviations may also be
used though not in the above list.
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
_______________________________________________________________________________
_______________________________________________________________________________
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS OF ASSIGNEE
_______________________________________________________________________________
the within Debenture of MASCO CORPORATION and hereby does irrevocably
constitute and appoint
Attorney
_______________________________________________________________________________
to transfer the said Debenture on the books of the within-named Company, with
full power of substitution in the premises.
_______________________________________________________________________________
Dated_______________________________________________
______________________________________________________________________
NOTICE: THE SIGNATURE TO THIS
ASSESSMENT MUST CORRESPOND WITH THE NAME
AS WRITTEN UPON THE FACE OF THE CERTIFICATE IN EVERY PARTICULAR WITHOUT
ALTERATION OR ENLARGEMENT
OR ANY CHANGE WHATEVER.
