<PAGE>
REGISTRATION NO.
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SECURITIES AND EXCHANGE COMMISSION
-----------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
PPG INDUSTRIES, INC.
(Exact name of registrant as specified in its charter)
PENNSYLVANIA 25-0730780
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
ONE PPG PLACE
PITTSBURGH, PENNSYLVANIA 15272
(412) 434-3131
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
---------------
WILLIAM H. HERNANDEZ
SENIOR VICE PRESIDENT, FINANCE
PPG INDUSTRIES, INC.
ONE PPG PLACE
PITTSBURGH, PENNSYLVANIA 15272
(412) 434-3131
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
WITH COPIES TO:
RICHARD R. HOWE, ESQ.
ANN BAILEN FISHER, ESQ.
SULLIVAN & CROMWELL
125 BROAD STREET
NEW YORK, NEW YORK 10004
(212) 558-4000
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
From time to time after the effective date of this Registration Statement.
-----------
IF THE ONLY SECURITIES BEING REGISTERED ON THIS FORM ARE BEING OFFERED
PURSUANT TO DIVIDEND OR INTEREST REINVESTMENT PLANS, PLEASE CHECK THE
FOLLOWING BOX. [_]
IF ANY OF THE SECURITIES BEING REGISTERED ON THIS FORM ARE TO BE OFFERED ON
A DELAYED OR CONTINUOUS BASIS PURSUANT TO RULE 415 UNDER THE SECURITIES ACT OF
1933, OTHER THAN SECURITIES OFFERED ONLY IN CONNECTION WITH DIVIDEND OR
INTEREST REINVESTMENT PLANS, PLEASE CHECK THE FOLLOWING BOX. [X]
IF THIS FORM IS FILED TO REGISTER ADDITIONAL SECURITIES FOR AN OFFERING
PURSUANT TO RULE 462(B) UNDER THE SECURITIES ACT, PLEASE CHECK THE FOLLOWING
BOX AND LIST THE SECURITIES ACT REGISTRATION STATEMENT NUMBER OF THE EARLIER
EFFECTIVE REGISTRATION STATEMENT FOR THE SAME OFFERING. [_]
IF THIS FORM IS A POST-EFFECTIVE AMENDMENT FILED PURSUANT TO RULE 462(C)
UNDER THE SECURITIES ACT, CHECK THE FOLLOWING BOX AND LIST THE SECURITIES ACT
REGISTRATION STATEMENT NUMBER OF THE EARLIER EFFECTIVE REGISTRATION STATEMENT
FOR THE SAME OFFERING. [_]
IF DELIVERY OF THE PROSPECTUS IS EXPECTED TO BE MADE PURSUANT TO RULE 434,
PLEASE CHECK THE FOLLOWING BOX. [_]
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CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
PROPOSED PROPOSED
TITLE OF EACH CLASS AMOUNT MAXIMUM MAXIMUM AMOUNT OF
OF SECURITIES TO TO BE OFFERING PRICE AGGREGATE REGISTRATION
BE REGISTERED REGISTERED PER UNIT OFFERING PRICE FEE
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<S> <C> <C> <C> <C>
Debt Securities ............ $500,000,000 100%* $500,000,000* $147,500
</TABLE>
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*Estimated solely for the purpose of calculating the registration fee.
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The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this
Registration Statement shall thereafter become effective in accordance with
Section 8(a) of the Securities Act of 1933 or until this Registration
Statement shall become effective on such date as the Commission, acting
pursuant to said Section 8(a), may determine.
<PAGE>
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A +
+REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE +
+SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY +
+OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT +
+BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR +
+THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE +
+SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE +
+UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF +
+SUCH STATE. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
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P R O S P E C T U S
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Subject to completion, dated January 16, 1998
PPG Industries, Inc.
Debt Securities
--------
PPG Industries, Inc. (the "Company") may, from time to time, offer up to
$500,000,000 aggregate principal amount of its debt securities (the "Debt
Securities") on terms to be determined at the time of sale. The terms of the
Debt Securities in respect of which this Prospectus is being delivered (the
"Offered Debt Securities"), including, where applicable, the aggregate
principal amount, denominations, currency of payment, maturity, premium, if
any, rate of interest (which may be fixed or variable), if any, time of payment
of any interest, purchase price, provisions for redemption or sinking fund, if
any, and other provisions, are set forth in the accompanying Prospectus
Supplement ("Prospectus Supplement"), together with the terms of offering of
the Offered Debt Securities. The Debt Securities may be sold by the Company
directly, through agents designated from time to time or to one or more
underwriters or dealers for public offering pursuant to terms of offering fixed
at the time of sale.
--------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
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The date of this Prospectus is , 1998
<PAGE>
NO DEALER, SALESMAN OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATION NOT CONTAINED OR INCORPORATED BY
REFERENCE IN THIS PROSPECTUS OR THE PROSPECTUS SUPPLEMENT AND, IF GIVEN OR
MADE, SUCH INFORMATION OR REPRESENTATION MUST NOT BE RELIED UPON AS HAVING
BEEN AUTHORIZED BY THE COMPANY OR ANY AGENT, UNDERWRITER, OR DEALER. THIS
PROSPECTUS AND THE PROSPECTUS SUPPLEMENT DO NOT CONSTITUTE AN OFFER TO SELL OR
A SOLICITATION OF AN OFFER TO BUY ANY OF THE SECURITIES OFFERED HEREBY IN ANY
JURISDICTION TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR
SOLICITATION IN SUCH JURISDICTION. THE DELIVERY OF THIS PROSPECTUS OR THE
PROSPECTUS SUPPLEMENT AT ANY TIME DOES NOT IMPLY THAT THE INFORMATION
CONTAINED OR INCORPORATED BY REFERENCE HEREIN OR THEREIN IS CORRECT AS OF ANY
TIME SUBSEQUENT TO ITS DATE.
------------
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934 (the "Exchange Act"), and in accordance therewith files
reports, proxy statements and other information with the Securities and
Exchange Commission (the "Commission"). Such reports, proxy statements and
other information can be inspected and copied at the public reference
facilities of the Commission at Room 1024, 450 Fifth Street, N.W., Washington,
D.C. 20549; and at its Midwest Regional Office, Citicorp Center, 500 West
Madison Street, Suite 1400, Chicago, Illinois 60661, and its Northeast
Regional Office, 7 World Trade Center, Suite 1300, New York, New York 10048.
Copies of such material can be obtained from the Public Reference Section of
the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549 at prescribed
rates. The Commission maintains a world wide web site that contains reports,
proxy and information statements and other information that is filed through
the Commission's Electronic Data Gathering Analysis and Retrieval System which
can be accessed at http://www.sec.gov. Such reports, proxy statements and
other information can be inspected also at the offices of the New York Stock
Exchange, the Pacific Stock Exchange and the Philadelphia Stock Exchange, the
national securities exchanges on which the Company's securities are listed.
This Prospectus, which forms a part of a registration statement filed with
the Commission on Form S-3 (together with all amendments and exhibits thereto,
the "Registration Statement"), does not contain all of the information set
forth in the Registration Statement and the exhibits and schedules thereto,
certain parts of which are omitted in accordance with the rules and
regulations of the Commission. For further information about the Company and
the Debt Securities, reference is hereby made to the Registration Statement
and to such exhibits and schedules. Statements contained herein concerning the
provisions of any document filed as an exhibit to the Registration Statement
or otherwise filed with the Commission are not necessarily complete, and in
each instance reference is made to the copy of such document so filed. Each
such statement is qualified in its entirety by such reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents, which have been filed with the Commission pursuant
to the Exchange Act, are incorporated herein by reference:
(1) The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1996;
(2) The Company's Quarterly Reports on Form 10-Q for the quarters ended
March 31, 1997, June 30, 1997 and September 30, 1997; and
(3) The Company's Current Reports on Form 8-K for the events dated
September 19, 1997, October 29, 1997 and January 15, 1998.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Securities Exchange Act after the date of this Prospectus and
prior to the termination of the offering of the Debt Securities shall be
deemed to be incorporated by reference herein and to be a part hereof from the
date of the filing of such documents.
Any statement contained in a document incorporated by reference herein or
deemed to be incorporated by reference shall be deemed to be modified or
superseded for purposes of this Prospectus to the extent that a statement
contained herein or in any other subsequently filed document which also is or
is deemed to be
2
<PAGE>
incorporated by reference herein or in the Prospectus Supplement modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of
this Prospectus or any Prospectus Supplement.
The Company will provide, without charge, to each person to whom this
Prospectus is delivered, on the written or oral request of any such person, a
copy of any or all of the documents which have been or may be incorporated
herein by reference (other than exhibits to such documents not specifically
incorporated therein). Such requests should be directed to PPG Industries,
Inc., One PPG Place, Pittsburgh, Pennsylvania 15272, Attention: Director,
Investor Relations; telephone (412) 434-2120.
THE COMPANY
The business of the Company, a Pennsylvania corporation, is concentrated in
three basic segments: glass, coatings and chemicals. The Company's principal
executive offices are located at One PPG Place, Pittsburgh, Pennsylvania 15272
and its telephone number is (412) 434-3131.
USE OF PROCEEDS
Except as otherwise provided in the Prospectus Supplement, the net proceeds
to the Company from the sale of the Debt Securities will be added to the
Company's general funds and will be used for general corporate purposes. The
Company expects that it may from time to time engage in additional public or
private financings of a character and in an amount to be determined as the
occasion arises.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the ratio of earnings to fixed charges for
the Company for the periods indicated.
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31, NINE MONTHS
------------------------- ENDED
1992 1993 1994 1995 1996 SEPTEMBER 30, 1997
---- ---- ---- ----- ---- ------------------
<S> <C> <C> <C> <C> <C> <C>
Ratio of earnings to fixed
charges.......................... 4.09 5.01 8.43 11.26 9.90 9.57
</TABLE>
- --------
For the purpose of this ratio, "earnings" consist of consolidated earnings
before income taxes, plus fixed charges exclusive of capitalized interest and
less undistributed income of unconsolidated affiliates carried on the equity
basis. Earnings for the periods indicated were affected by charges from
business divestitures and realignments as follows, in millions: $10.4, $126.4
and $85.0, respectively, for the years ended December 31, 1992, 1993 and 1994.
There were no charges from business divestitures and realignments for the
years ended December 31, 1995 and 1996 or for the nine months ended September
30, 1997. "Fixed charges" consist of interest, whether expensed or capitalized
(including amortization of debt discount and debt expense), and that portion
of rentals which is representative of interest.
DESCRIPTION OF THE DEBT SECURITIES
The Offered Debt Securities are to be issued under an indenture, dated as of
August 1, 1982 (the "Original Indenture") as amended and supplemented (such
Original Indenture, as so amended and supplemented, the "Indenture"), between
the Company and Harris Trust and Savings Bank, as Trustee (the "Trustee").
Copies of the Original Indenture and the amendments and supplements thereto
are filed as Exhibits to the Registration Statement of which this Prospectus
is a part. The following summaries of certain provisions of the Indenture do
not purport to be complete and are subject to, and are qualified in their
entirety by reference to, all provisions of the Indenture. Capitalized terms
are defined in the Indenture unless otherwise defined herein. Wherever
particular provisions or defined terms of the Indenture are referred to, such
provisions or defined terms are incorporated herein by reference.
GENERAL
The Indenture provides for the issuance, from time to time in one or more
series, of unsecured obligations of the Company which may be debentures, notes
or other evidences of indebtedness ("Debt Securities"). The Indenture does not
limit the amount of Debt Securities which may be authenticated and delivered
thereunder. Each series of Debt Securities may be established in or pursuant
to a resolution of the Company's Board of Directors or in one or more
indentures supplemental to the Indenture.
3
<PAGE>
The Prospectus Supplement relating to the Offered Debt Securities will
describe the following terms of the Offered Debt Securities: (1) the title of
the Offered Debt Securities; (2) any limit on the aggregate principal amount
of the Offered Debt Securities; (3) the date or dates on which the Offered
Debt Securities will mature; (4) the rate or rates (which may be fixed or
variable) at which the Offered Debt Securities will bear interest, if any, and
the date from which such interest will accrue; (5) the dates on which such
interest will be payable and the Regular Record Dates for such Interest
Payment Dates; (6) any mandatory or optional sinking fund or analogous
provisions; (7) the date, if any, after which, and the price or prices at
which, the Offered Debt Securities may be redeemed at the option of the
Company; (8) if applicable, the terms and conditions upon which the Offered
Debt Securities may be repayable prior to final maturity at the option of the
holder thereof or otherwise; (9) any additional restrictive covenants included
for the benefit of Holders of the Offered Debt Securities; (10) any additional
Events of Default provided with respect to the Offered Debt Securities; (11)
the currency of payment of principal of and premium, if any, and interest, if
any, on the Offered Debt Securities; (12) any index used to determine the
amount of payments of principal of and premium, if any, and interest, if any,
on the Offered Debt Securities; (13) whether such Offered Debt Securities are
to be issued in whole or in part in the form of one or more Global Securities
and, if so, the identity of the depositary for such Global Security or
Securities (the "Depositary") and the circumstances under which any such
Global Security may be exchanged for Securities registered in the name of, and
any transfer of such Global Security may be registered to, a Person other than
such Depositary or its nominee; and (14) any other terms of the Offered Debt
Securities. Unless otherwise indicated in the Prospectus Supplement, principal
of (and premium, if any) and interest (if any) on the Offered Debt Securities
will be payable, and transfers of the Offered Debt Securities will be
registrable, at the office of the Trustee or its designee, provided that at
the option of the Company payment of interest may be made by check mailed to
the address of the Person entitled thereto as it appears in the Security
Register. ((S)(S) 201, 301, 305 and 1002)
The Offered Debt Securities will be issued only in fully registered form
without coupons and, unless otherwise indicated in the applicable Prospectus
Supplement, in denominations of $1,000 or any integral multiple thereof.
((S)302) No service charge will be made for any registration of transfer or
exchange of Offered Debt Securities, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge payable in
connection therewith. ((S) 305)
Debt Securities may be issued under the Indenture as Original Issue Discount
Debt Securities to be sold at a substantial discount below their principal
amount. Special federal income tax and other considerations applicable thereto
will be described in the applicable Prospectus Supplement relating thereto.
GLOBAL SECURITIES
The Debt Securities of a series may be issued in whole or in part in the
form of one or more Global Securities that will be deposited with, or on
behalf of, a Depositary identified in the applicable Prospectus Supplement or
Prospectus Supplements. A Global Security will be issued in a denomination
equal to the aggregate principal amount of outstanding Debt Securities of the
series represented by such Global Security. Global Securities will be issued
in registered form and in either temporary or permanent global form. Unless
and until it is exchanged for Debt Securities in definitive form, a temporary
Global Security may not be transferred except as a whole by the Depositary for
such Global Security to a nominee of such Depositary or by a nominee of such
Depositary to such Depositary or another nominee of such Depositary or by such
Depositary or any such nominee to a successor of such Depositary or a nominee
of such successor. The specific terms of the depositary arrangement with
respect to a series of Debt Securities will be described in the applicable
Prospectus Supplement or Prospectus Supplements.
RESTRICTIVE COVENANTS
The following restrictive covenants are applicable so long as the Debt
Securities of any series are Outstanding except that one or more of such
covenants may be made inapplicable to Debt Securities of a particular series
at the time of establishment of such series. The Prospectus Supplement
relating to such series will state which covenants are inapplicable to such
series.
4
<PAGE>
The Company will not, and will not permit any Restricted Subsidiary to,
incur or guarantee any debt secured by a mortgage or lien on any of the
principal manufacturing or research properties, plants or facilities of the
Company or any Restricted Subsidiary, or on any shares of stock or
indebtedness of any Restricted Subsidiary, without making effective provision
for securing the Debt Securities of any series to which this covenant applies
(and, if the Company so elects, any indebtedness ranking equally with such
Debt Securities) equally and ratably with or prior to such secured debt. These
covenants will not apply to debt secured by (a) mortgages or liens on property
existing at the time acquired or on property of any corporation existing at
the time it becomes a subsidiary, (b) purchase money mortgages, (c) mortgages
or liens on property to finance the cost of exploration, development or
improvement of such property, (d) mortgages or liens on property in favor of
the United States or any state thereof, or any other country, or any political
subdivision of any of the foregoing, to secure payments pursuant to any
contract or statute or to secure any indebtedness incurred for the purpose of
financing all or any part of the purchase price or the cost of construction of
the property subject to such mortgages or liens, (e) mortgages or liens
securing indebtedness owing to the Company or a wholly-owned Restricted
Subsidiary by a Subsidiary, or (f) extensions, renewals or replacements of any
of the foregoing. Notwithstanding these covenants, the Company and its
Restricted Subsidiaries may incur or guarantee any secured debt which would
otherwise be subject to the foregoing restrictions, provided that after giving
effect thereto the sum of the aggregate amount of such debt then outstanding
(not including secured debt permitted under the foregoing exceptions) and the
aggregate "value" of sale and leaseback transactions (as defined) at such time
does not exceed 5% of the "shareholders' interest" (defined to include the
aggregate of capital and surplus, less treasury stock at cost, of the Company
and its Restricted Subsidiaries consolidated as of the end of the latest
fiscal year). ((S) 1004)
Sales and leasebacks of real property by the Company or a Restricted
Subsidiary (except those for a temporary period of not more than three years)
will be prohibited unless (a) the property involved could be mortgaged to the
extent of the "value" of the sale and leaseback transaction without equally
and ratably securing the Debt Securities of any series to which this covenant
applies or (b) an amount equal to the proceeds of sale or the fair value of
the property sold (whichever is higher) is applied to the retirement of Funded
Debt of the Company (with provision for a credit in certain cases for Debt
Securities otherwise acquired or retired). ((S) 1005)
Neither the Company nor any Restricted Subsidiary may transfer to an
Unrestricted Subsidiary any assets which in the opinion of the Board of
Directors constitute a major manufacturing or research property, plant or
facility of the Company and its Restricted Subsidiaries taken as a whole. ((S)
1005)
The term "Restricted Subsidiary" means any subsidiary other than foreign
subsidiaries or subsidiaries in territories or possessions of the United
States or leasing, real estate investment, or financing subsidiaries unless
such a subsidiary is designated as a Restricted Subsidiary by the Board of
Directors. Restricted Subsidiaries may become Unrestricted Subsidiaries by
designation of the Board of Directors but only if in the opinion of the Board
they do not own a major manufacturing or research property, plant or facility
of the Company and its Restricted Subsidiaries taken as a whole. Any newly
acquired or formed Subsidiary may be designated an Unrestricted Subsidiary by
action of the Board of Directors within 90 days of such acquisition or
formation. ((S) 101)
EVENTS OF DEFAULT
The following are Events of Default under the Indenture with respect to Debt
Securities of any series: (a) failure to pay principal of or premium, if any,
on any Debt Security of that series when due; (b) failure to pay any interest
on any Debt Security of that series when due, continued for 30 days; (c)
failure to deposit any sinking fund payment, when due, in respect of any Debt
Security of that series; (d) failure to perform, or breach of, any other
covenant or warranty of the Company in the Indenture (other than a covenant or
warranty included in the Indenture solely for the benefit of series of Debt
Securities other than that series), continued for 60 days after written notice
as provided in the Indenture; (e) acceleration of the maturity of more than
$10,000,000 principal amount of any indebtedness for money borrowed by the
Company under the terms of the instrument under which such indebtedness is
issued or secured, if such acceleration is not annulled within 10 days after
written notice as provided in the Indenture; (f) certain events in bankruptcy,
insolvency or reorganization; and (g) any other Event of Default provided with
respect to Debt Securities of that series. ((S) 501) If an Event of Default
with respect to Debt Securities of any series at the time Outstanding occurs
and is continuing, either the Trustee or the Holders of at least 25% in
principal amount of the Outstanding Debt Securities of that series may declare
the principal amount (or, if the Debt Securities of that series are Original
Issue Discount Debt Securities, such portion of the
5
<PAGE>
principal amount as may be specified in the terms of that series) of all the
Debt Securities of that series to be due and payable immediately. At any time
after such a declaration of acceleration with respect to Debt Securities of
any series has been made, but before a judgment or decree for payment of the
money due has been obtained, the Holders of a majority in principal amount of
the Outstanding Debt Securities of that series may, under certain
circumstances, rescind and annul such declaration and its consequences. ((S)
502)
The Indenture provides that the Trustee will be under no obligation, subject
to the duty of the Trustee during default to act with the required standard of
care, to exercise any of its rights or powers under the Indenture at the
request or direction of any of the Holders, unless such Holders shall have
offered to the Trustee reasonable security or indemnity. ((S) 603) Subject to
such provisions for indemnification of the Trustee, the Holders of a majority
in principal amount of the Outstanding Debt Securities of any series will have
the right to direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee, or exercising any trust or power
conferred on the Trustee, with respect to the Debt Securities of that series.
((S) 512)
The Company will be required to furnish to the Trustee annually a statement
as to the performance by the Company of certain of its obligations under the
Indenture and as to any default in such performance. ((S) 1009)
MODIFICATION AND WAIVER
Modifications and amendments of the Indenture may be made by the Company and
the Trustee with the consent of the Holders of 66 2/3% in principal amount of
the Outstanding Debt Securities of each series affected by such modification
or amendment provided that no such modification or amendment may, without the
consent of the Holder of each Outstanding Debt Security affected thereby, (a)
change the stated maturity date of the principal of, or any installment of
principal of or interest (if any) on, any Debt Security, (b) reduce the
principal amount of, or the premium (if any) or rate of interest (if any) on,
any Debt Security, (c) reduce the amount of principal of an Original Issue
Discount Debt Security payable upon acceleration of the Maturity thereof, (d)
change the place or currency of payment of principal of, or premium (if any)
or interest (if any) on, any Debt Security, (e) impair the right to institute
suit for the enforcement of any payment on or with respect to any Debt
Security or (f) reduce the percentage in principal amount of Outstanding Debt
Securities of any series, the consent of whose Holders is required for
modification or amendment of the Indenture or for waiver of compliance with
certain provisions of the Indenture or for waiver of certain defaults. ((S)
902)
The Holders of 66 2/3% in principal amount of the Outstanding Debt
Securities of any series may on behalf of the Holders of all Debt Securities
of that series waive, insofar as that series is concerned, compliance by the
Company with certain restrictive provisions of the Indenture. ((S) 1010) The
Holders of a majority in principal amount of the Outstanding Debt Securities
of any series may on behalf of the Holders of all Debt Securities of that
series waive any past default under the Indenture with respect to that series
and its consequences, except a default in the payment of the principal of (or
premium, if any) or interest (if any) on any Debt Security of that series or
in respect of a provision which under the Indenture cannot be modified or
amended without the consent of the Holder of each Outstanding Debt Security of
that series affected. ((S) 513)
CONSOLIDATION, MERGER AND SALE OF ASSETS
The Company, without the consent of any Holders of Outstanding Debt
Securities, may consolidate or merge with or into, or transfer or lease its
assets substantially as an entirety to, any corporation or may acquire or
lease the assets of any Person, provided that the corporation formed by such
consolidation or into which the Company is merged or which acquires or leases
the assets of the Company substantially as an entirety is organized under the
laws of any United States jurisdiction and assumes the Company's obligations
on the Debt Securities and under the Indenture, that after giving effect to
the transaction no Event of Default, and no event which, after notice or lapse
of time or both, would become an Event of Default, shall have happened and be
continuing, and that certain other conditions are met. (Article Eight)
PLAN OF DISTRIBUTION
The Company may sell the Debt Securities directly, through agents designated
from time to time or to one or more underwriters or dealers for public
offering pursuant to terms of offering fixed at the time of sale. The
6
<PAGE>
Prospectus Supplement describes the method of distribution of the Offered Debt
Securities. Unless otherwise indicated in the applicable Prospectus
Supplement, the obligations of the underwriters to purchase the Offered Debt
Securities will be subject to certain conditions precedent and the
underwriters will be obligated to purchase all of the Offered Debt Securities
if any are purchased.
The Offered Debt Securities may be distributed from time to time in one or
more transactions at a fixed price or prices (which may be changed) or at
prices determined as specified in the applicable Prospectus Supplement. In
connection with the sale of the Offered Debt Securities, underwriters or
dealers may be deemed to have received compensation from the Company in the
form of underwriting discounts or commissions and may also receive commissions
from purchasers of the Offered Debt Securities for whom they may act as agent.
Underwriters may sell the Offered Debt Securities to or through dealers, and
such dealers may receive compensation in the form of discounts, concessions or
commissions from the underwriters and/or commissions from the purchasers for
whom they may act as agent. Certain of the underwriters, dealers or agents who
participate in the distribution of the Offered Debt Securities may engage in
other transactions with, and perform other services for, the Company in the
ordinary course of business.
Any underwriting compensation paid by the Company to underwriters or agents
in connection with the offering of the Offered Debt Securities, and any
discounts, concessions or commissions allowed by underwriters to dealers, are
set forth in the Prospectus Supplement. Underwriters, dealers and agents
participating in the distribution of the Offered Debt Securities may be deemed
to be underwriters, and any discounts and commissions received by them and any
profit realized by them on the resale of the Offered Debt Securities may be
deemed to be underwriting discounts and commissions under the Securities Act
of 1933. Underwriters and their controlling persons, dealers and agents may be
entitled, under agreements entered into with the Company, to indemnification
against and contribution toward certain civil liabilities, including
liabilities under the Securities Act of 1933.
In connection with an offering of Debt Securities, the underwriters may
purchase and sell such Debt Securities in the open market. These transactions
may include over-allotment and stabilizing transactions and purchases to cover
short positions created by the underwriters in connection with the offering.
Stabilizing transactions consist of certain bids or purchases for the purpose
of preventing or retarding a decline in the market price of the Debt
Securities; and short positions created by the underwriters involve the sale
by the underwriters of a greater number of Debt Securities than they are
required to purchase from the Company in the offering. The underwriters also
may impose a penalty bid, whereby selling concessions allowed to broker-
dealers in respect of the Debt Securities sold in the offering may be
reclaimed by the underwriters if such Debt Securities are repurchased by the
underwriters in stabilizing or covering transactions. These activities may
stabilize, maintain or otherwise affect the market price of the Debt
Securities, which may be higher than the price that might otherwise prevail in
the open market; and these activities, if commenced, may be discontinued at
any time.
The Debt Securities will be new issues of securities with no established
trading market. If so indicated in the applicable Prospectus Supplement, any
underwriters, dealers or agents to or through whom such Debt Securities are
sold by the Company for public offering and sale may make a market in such
Debt Securities, but such underwriters and agents will not be obligated to do
so and may discontinue any market-making at any time without notice. No
assurance can be given as to the liquidity of the trading market for any such
Debt Securities.
If so indicated in the applicable Prospectus Supplement, the Company will
authorize dealers or other persons acting as the Company's agent to solicit
offers by certain institutions to purchase Debt Securities from the Company
pursuant to contracts providing for payment and delivery on a future date.
EXPERTS
The consolidated financial statements and related financial statement
schedule as of December 31, 1996 and 1995 and for each of the three years in
the period ended December 31, 1996 incorporated in this Prospectus by
reference from the Company's Annual Report on Form 10-K for the year ended
December 31, 1996 have been audited by Deloitte & Touche LLP, independent
auditors, as stated in their reports, which are also incorporated herein by
reference, and have been so incorporated in reliance upon the reports of such
firm given upon their authority as experts in accounting and auditing.
7
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The expenses to be incurred in connection with the issuance and distribution
of the securities being registered, other than underwriting discounts and
commissions, are estimated (other than the Filing Fee for Registration
Statement) as follows:
<TABLE>
<S> <C>
Filing Fee for Registration Statement.............................. $147,500
Accounting Fees and Expenses....................................... $ 20,000
Trustee's Fees and Expenses........................................ $ 30,000
Blue Sky Fees and Expenses......................................... $ 5,000
Printing and Engraving Costs....................................... $ 40,000
Rating Agency Fees................................................. $200,000
Miscellaneous...................................................... $ 12,500
--------
Total............................................................ $455,000
========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Sections 1741-1750 of the Pennsylvania Business Corporation Law provide for
indemnification of the Registrant's directors and officers against certain
liabilities under certain circumstances.
Article VI of the bylaws of the Registrant provides that a director, officer
or employee shall be found to be entitled to indemnification for expenses
(including attorney's fees) and any liability (including judgments, fines or
penalties and amounts paid in settlement) actually and in good faith paid or
incurred by any such person in connection with any actual or threatened
proceeding (including any derivative lawsuits) by reason of the fact that such
person is or was serving as a director, officer or employee of the Registrant
or, at the request of the Registrant, was serving another corporation,
partnership, joint venture, trust, employee benefit plan or other entity,
unless a referee finds the conduct engaged in to have been such that, if so
found by a court, indemnification would be prohibited by Pennsylvania law. The
Registrant is also required to indemnify any such person (1) where there has
been a determination by a court as to the conduct of the person claiming
indemnification such that indemnification would not be prohibited by
Pennsylvania law and (2) where the person is otherwise entitled to
indemnification by Pennsylvania law. Expenses with respect to a proceeding
which are incurred in good faith are required to be advanced by the Registrant
prior to final disposition of the proceeding, subject to any obligation to
repay the Registrant which is imposed by law or by provision in the Articles,
bylaws, an agreement or otherwise. Under Pennsylvania law any such advancement
of expenses must be made subject to an undertaking to repay the Registrant in
the event that it is determined ultimately that the person receiving the
advancement is not entitled to indemnification. A written request for such
advancement of expense must be made to the Secretary of the Registrant.
The selection of the referee is to be made by the general counsel or, if the
general counsel is the person claiming indemnification or is otherwise
involved in the proceeding, by the senior officer who does not have such a
relationship to the proceeding. The referee is defined to be an attorney with
substantial expertise in corporate law, who is both independent of the parties
and unbiased. The person claiming indemnification may object, within 10 days
of the notice of selection of the referee, to the referee selected. If the
parties cannot agree on the selection of a referee, or if the Registrant fails
to propose a referee, within 45 days of the submission of the request for
indemnification, the referee will be selected by the American Arbitration
Association.
The determination of entitlement to indemnification is made by the referee;
however, the referee is required to find the person entitled to
indemnification unless the referee finds that the conduct of the person was
such that if so found by a court, indemnification would be prohibited by
Pennsylvania law. The determination of the referee is binding on the
Registrant but not on the person claiming indemnification.
To the extent that a person is entitled to indemnification for only a
portion of the expenses or liability resulting from a proceeding, the
Registrant is required to indemnify the person for such portion.
II-1
<PAGE>
The bylaws authorize the Registrant to purchase and maintain insurance, to
create a trust fund, to grant a security interest or to use other means
(including, without limitation, establishing a letter of credit) to ensure the
payment of indemnification.
The Registrant specifically is authorized to enter into agreements with any
director, officer or employee, which agreements may grant rights in furtherance
of, different from, or in addition to but not in limitation of, the rights to
indemnification granted in the bylaws, without further shareholder approval of
the terms and conditions of, or the form of, such agreements. Without
limitation of the foregoing, in such agreements the Registrant may agree (1) to
maintain insurance against certain expenses and liabilities and (2) to
contribute to expenses and liabilities incurred in accordance with the
application of relevant equitable considerations to the relative benefits to,
and the relevant fault of, the Registrant.
The bylaws provide (1) that the rights granted therein are contract rights,
(2) that it will cover acts and omissions occurring on or after January 27,
1987, and (3) that the rights granted will continue as to a person who has
ceased to be a director, officer or employee, with respect to a proceeding
which results from acts or failures to act while such person was a director,
officer or employee.
Sections 1741-1750 and the bylaws both also provide that the indemnification
provided for therein shall not be deemed exclusive of any other rights to which
those seeking indemnification may otherwise be entitled.
The Registrant also has policies of directors and officers liability
insurance to indemnify its directors and officers against certain liabilities
incurred in their capacities as such.
ITEM 16. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT
NO.
-------
<C> <S>
1 Form of Underwriting Agreement.
4.1 Indenture, dated as of August 1, 1982.
4.2 First Supplemental Indenture, dated as of April 1, 1986.
4.3 Second Supplemental Indenture, dated as of October 1, 1989.
4.4 Third Supplemental Indenture, dated as of November 1, 1995.
4.5 Forms of Debt Securities (included in Exhibit 4.1).
5 Opinion of James C. Diggs, Senior Vice President and General Counsel
of the Company.
12 Computation of Ratio of Earnings to Fixed Charges.
23.1 Consent of Independent Auditors.
23.2 Consent of James C. Diggs, Senior Vice President and General Counsel
of the Company (included in Exhibit 5).
24 Powers of Attorney.
25 Form T-1 Statement of Eligibility and Qualification Under the Trust
Indenture Act of 1939.
</TABLE>
The Indenture included as Exhibit 4.1 was qualified under the Trust Indenture
Act of 1939 in connection with the Registrant's Registration Statement No. 2-
78575 and is deemed to be qualified for purposes of this Registration
Statement.
ITEM 17. UNDERTAKINGS.
The Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933 (unless the information required to be included
in such post-effective amendment is contained in a periodic report filed
by the Registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 and incorporated herein by reference);
II-2
<PAGE>
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the Registration Statement (unless the information required to be
included in such post-effective amendment is contained in a periodic
report filed by the Registrant pursuant to Section 13 or Section 15(d)
of the Securities Exchange Act of 1934 and incorporated herein by
reference) Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any deviation
from the low or high and of the estimated maximum offering range may be
reflected in the form of prospectus filed with the Commission pursuant
to Rule 424(b) if, in the aggregate, the changes in volume and price
represent no more than 20 percent in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee" table in the
effective registration statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement or
any material change to such information in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to
be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of
the offering.
(4) That, for purposes of determining any liability under the Securities
Act of 1933, each filing of the Registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and,
where applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Securities and Exchange Act of 1934) that
is incorporated by reference in this Registration Statement shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to
be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the provisions described under Item 15 above (other than
pursuant to the policies of directors and officers liability insurance), or
otherwise, the Registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the Registrant of expenses incurred or paid by a director, officer
or controlling person of the Registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public policy as
expressed in the Act and will be governed by the final adjudication of such
issue.
II-3
<PAGE>
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT
CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL OF THE
REQUIREMENTS FOR FILING ON FORM S-3 AND HAS DULY CAUSED THIS REGISTRATION
STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY
AUTHORIZED, IN THE CITY OF PITTSBURGH, COMMONWEALTH OF PENNSYLVANIA, ON THE
16TH DAY OF JANUARY, 1998.
PPG INDUSTRIES, INC.
(Registrant)
/s/ William H. Hernandez
By...................................
William H. Hernandez
Senior Vice President, Finance
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE
CAPACITIES INDICATED AND ON THE 16TH DAY OF JANUARY, 1998:
Signature Capacity
--------- --------
/s/ Raymond W. LeBoeuf Director and Chairman
.......................... of the Board of Directors
RAYMOND W. LEBOEUF (Chief Executive Officer)
/s/ William H. Hernandez Senior Vice President,
.......................... Finance (Principal Financial
WILLIAM H. HERNANDEZ and Accounting Officer)
Director |
.......................... |
E. B. DAVIS, JR. |
|
Director |
.......................... |
M. J. HOOPER |
|
Director |
.......................... |
A. J. KROWE |
|
Director |
.......................... |
N. C. LAUTENBACH |
|
Director |
.......................... |
S. C. MASON |
|
Director | /s/ William H. Hernandez
.......................... | By...................................
H. A. MCINNES | William H. Hernandez
| (Attorney-in-fact)
|
Director |
.......................... |
R. MEHRABIAN |
|
Director |
.......................... |
V. A. SARNI |
|
Director |
.......................... |
T. J. USHER |
|
Director |
.......................... |
D. G. VICE |
|
Director |
.......................... |
D. R. WHITWAM |
|
II-4
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NO.
-------
<C> <S>
1 Form of Underwriting Agreement.
4.1 Indenture, dated as of August 1, 1982.
4.2 First Supplemental Indenture, dated as of April 1, 1986.
4.3 Second Supplemental Indenture, dated as of October 1, 1989.
4.4 Third Supplemental Indenture, dated as of November 1, 1995.
4.5 Forms of Debt Securities (included in Exhibit 4.1).
5 Opinion of James C. Diggs, Senior Vice President and General Counsel
of the Company.
12 Computation of Ratio of Earnings to Fixed Charges.
23.1 Consent of Independent Auditors.
23.3 Consent of James C. Diggs, Senior Vice President and General Counsel
of the Company (included in Exhibit 5).
24 Powers of Attorney.
25 Form T-1 Statement of Eligibility and Qualification Under the Trust
Indenture Act of 1939.
</TABLE>
II-5
<PAGE>
Exhibit 1
PPG INDUSTRIES, INC.
Debt Securities
UNDERWRITING AGREEMENT
----------------------
To the Underwriters listed
in the Terms Agreement
Referred to Herein.
1. Introductory. PPG Industries, Inc., a Pennsylvania corporation
("Company"), proposes to issue and sell from time to time certain of its
unsecured debt securities registered under the registration statement referred
to in Section 2(a) ("Registered Securities"). The Registered Securities will be
issued under an indenture, dated as of August 1, 1982, as amended and
supplemented ("Indenture"), between the Company and Harris Trust and Savings
Bank, as Trustee, in one or more series, which series may vary as to interest
rates, maturities, redemption provisions, selling prices and other terms, with
all such terms for any particular series of the Registered Securities being
determined at the time of sale. Particular series of the Registered Securities
will be sold pursuant to a Terms Agreement referred to in Section 3, for resale
in accordance with terms of offering determined at the time of sale.
The Registered Securities involved in any such offering are hereinafter
referred to as the "Offered Securities". The firm or firms which agree to
purchase the Offered Securities are hereinafter referred to as the
"Underwriters" of such Securities, and the representative or representatives of
the Underwriters, if any, specified in a Terms Agreement referred to in Section
3 are hereinafter referred to as the "Representatives"; provided, however, that
if the Terms Agreement does not specify any representative of the Underwriters,
the term "Representatives", as used in this Agreement (other than in Sections
2(b), 5(c) and 6 and the second sentence of Section 3), shall mean the
Underwriters.
2. Representations and Warranties of the Company. The Company, as of the
date of each Terms Agreement referred to in Section 3, represents and warrants
to, and agrees with, each Underwriter that:
(a) A registration statement (No. 33- ), including a
prospectus, relating to the Registered Securities has been filed with the
Securities and Exchange Commission ("Commission") and has become effective.
Such registration statement, as amended at the time of any Terms Agreement
referred to in Section 3, is hereinafter referred to as the "Registration
Statement", and the prospectus included in such Registration Statement, as
supplemented as contemplated by Section 3 to reflect the terms of the
Offered Securities and the terms of offering thereof, as first filed with
the Commission pursuant to and in accordance with Rule 424(b) ("Rule
424(b)") under the Securities Act of 1933 ("Act"), including all material
incorporated by reference therein, is hereinafter referred to as the
"Prospectus". No document has been or will be prepared or distributed in
reliance on Rule 434 under the Act.
(b) On the effective date of the registration statement relating to the
Registered Securities, such registration statement conformed in all respects
to the requirements of the Act, the Trust Indenture Act of 1939 ("Trust
Indenture Act") and the rules and regulations of the Commission ("Rules and
Regulations") and did not include any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary
to make the statements therein not misleading, and on the date of each Terms
Agreement referred to in Section 3, the Registration Statement and the
Prospectus will conform in all respects to the requirements of the Act, the
Trust
<PAGE>
Indenture Act and the Rules and Regulations, and neither of such documents
will include any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading, except that the foregoing does not apply
to statements in or omissions from any of such documents based upon written
information furnished to the Company by any Underwriter through the
Representatives, if any, specifically for use therein.
(c) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the Commonwealth of
Pennsylvania, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus; and the
Company is duly qualified to do business as a foreign corporation in good
standing in all other jurisdictions in which its ownership or lease of
property or the conduct of its business requires such qualification.
(d) Each subsidiary corporation of the Company has been duly
incorporated and is an existing corporation in good standing under the laws
of the jurisdiction of its incorporation, with power and authority
(corporate and other) to own its properties and conduct its business as
described in the Prospectus; and each subsidiary of the Company is duly
qualified to do business as a foreign corporation in good standing in all
other jurisdictions in which its ownership or lease of property or the
conduct of its business requires such qualification; all of the issued and
outstanding capital stock of each subsidiary owned by the Company has been
duly authorized and validly issued and is fully paid and nonassessable; and
the capital stock of each subsidiary owned by the Company, directly or
through subsidiaries, is owned free from liens, encumbrances and defects.
(e) The Indenture has been duly authorized, executed and delivered and
has been duly qualified under the Trust Indenture Act; the Offered
Securities have been duly authorized; and when the Offered Securities are
delivered and paid for pursuant to the Terms Agreement on the Closing Date
(as defined below) or pursuant to Delayed Delivery Contracts (as hereinafter
defined), such Offered Securities will have been duly executed,
authenticated, issued and delivered and will conform to the description
thereof contained in the Prospectus and the Indenture and such Offered
Securities will constitute valid and legally binding obligations of the
Company, enforceable in accordance with their terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar laws
of general applicability relating to or affecting creditors' rights and to
general equity principles.
(f) The Offered Securities have been approved for listing on the
exchange (if any) indicated in the Terms Agreement, subject to notice of
issuance.
(g) No consent, approval, authorization, or order of, or filing with,
any governmental agency or body or any court is required for the
consummation of the transactions contemplated by the Terms Agreement
(including the provisions of this Agreement) in connection with the issuance
and sale of the Offered Securities by the Company, except as required under
the Act and the Trust Indenture Act and such as may be required under state
securities laws.
(h) The execution, delivery and performance of the Indenture, the Terms
Agreement (including the provisions of this Agreement) and any Delayed
Delivery Contracts and the issuance and sale of the Offered Securities and
compliance with the terms and provisions thereof will not
2
<PAGE>
result in a breach or violation of any of the terms and provisions of, or
constitute a default under, any statute, any rule, regulation or order of
any governmental agency or body or any court, domestic or foreign, having
jurisdiction over the Company or any subsidiary of the Company or any of
their properties, or any agreement or instrument to which the Company or any
such subsidiary is a party or by which the Company or any such subsidiary is
bound or to which any of the properties of the Company or any such
subsidiary is subject, or the charter or by-laws of the Company or any such
subsidiary, and the Company has full power and authority to authorize, issue
and sell the Offered Securities as contemplated by the Terms Agreement
(including the provisions of this Agreement).
(i) The Terms Agreement (including the provisions of this Agreement)
and any Delayed Delivery Contracts have been duly authorized, executed and
delivered by the Company.
(j) Except as disclosed in the Prospectus, the Company and its
subsidiaries have good and marketable title to all real properties and all
other properties and assets owned by them, in each case free from liens,
encumbrances and defects that would materially affect the value thereof or
materially interfere with the use made or to be made thereof by them; and
except as disclosed in the Prospectus, the Company and its subsidiaries hold
any leased real or personal property under valid and enforceable leases with
no exceptions that would materially interfere with the use made or to be
made thereof by them.
(k) The Company and its subsidiaries possess adequate certificates,
authorities or permits issued by appropriate governmental agencies or bodies
necessary to conduct the business now operated by them and have not received
any notice of proceedings relating to the revocation or modification of any
such certificate, authority or permit that, if determined adversely to the
Company or any of its subsidiaries, would individually or in the aggregate
have a material adverse effect on the Company and its subsidiaries taken as
a whole.
(l) No labor dispute with the employees of the Company or any
subsidiary exists or, to the knowledge of the Company, is imminent that
might have a material adverse effect on the Company and its subsidiaries
taken as a whole.
(m) The Company and its subsidiaries own, possess or can acquire on
reasonable terms, adequate trademarks, trade names and other rights to
inventions, know-how, patents, copyrights, confidential information and
other intellectual property (collectively, "intellectual property rights")
necessary to conduct the business now operated by them, or presently
employed by them, and have not received any notice of infringement of or
conflict with asserted rights of others with respect to any intellectual
property rights that, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a material adverse
effect on the Company and its subsidiaries taken as a whole.
(n) Except as disclosed in the Prospectus, neither the Company nor any
of its subsidiaries is in violation of any statute, any rule, regulation,
decision or order of any governmental agency or body or any court, domestic
or foreign, relating to the use, disposal or release of hazardous or toxic
substances or relating to the protection or restoration of the environment
or human exposure to hazardous or toxic substances (collectively,
"environmental laws"), owns or operates any real property contaminated with
any substance that is subject to any environmental laws, is liable for any
off-site disposal or contamination pursuant to any environmental laws, or is
subject to any
3
<PAGE>
claim relating to any environmental laws, which violation, contamination,
liability or claim would individually or in the aggregate have a material
adverse effect on the Company and its subsidiaries taken as a whole; and the
Company is not aware of any pending investigation which might lead to such a
claim.
(o) Except as disclosed in the Prospectus, there are no pending
actions, suits or proceedings against or affecting the Company, any of its
subsidiaries or any of their respective properties that, if determined
adversely to the Company or any of its subsidiaries, would individually or
in the aggregate have a material adverse effect on the condition (financial
or other), business, prospects or results of operations of the Company and
its subsidiaries taken as a whole, or would materially and adversely affect
the ability of the Company to perform its obligations under the Indenture,
the Terms Agreement (including the provisions of this Agreement) or any
Delayed Delivery Contracts, or which are otherwise material in the context
of the sale of the Offered Securities; and no such actions, suits or
proceedings are threatened or, to the Company's knowledge, contemplated.
(p) The financial statements included in the Registration Statement and
Prospectus present fairly the financial position of the Company and its
consolidated subsidiaries as of the dates shown and their results of
operations and cash flows for the periods shown, and such financial
statements have been prepared in conformity with generally accepted
accounting principles in the United States applied on a consistent basis,
except as described therein, and any schedules included in the Registration
Statement present fairly the information required to be stated therein.
(q) Except as disclosed in the Prospectus, since the date of the latest
audited financial statements included in the Prospectus there has been no
material adverse change, nor any development or event involving a
prospective material adverse change, in the condition (financial or other),
business, properties or results of operations of the Company and its
subsidiaries taken as a whole.
(r) The Company is not and, after giving effect to the offering and
sale of the Offered Securities and the application of the proceeds thereof
as described in the Prospectus, will not be an "investment company" as
defined in the Investment Company Act of 1940.
(s) Neither the Company nor any of its affiliates does business with
the government of Cuba or with any person or affiliate located in Cuba
within the meaning of Section 517.075, Florida Statutes, and the Company
agrees to comply with such Section if prior to the completion of the
distribution of the Offered Securities it commences doing such business.
3. Purchase and Offering of Offered Securities. The obligation of the
Underwriters to purchase the Offered Securities will be evidenced by an
agreement or exchange of other written communications ("Terms Agreement") at the
time the Company determines to sell the Offered Securities. The Terms Agreement
will incorporate by reference the provisions of this Agreement, except as
otherwise provided therein, and will specify the firm or firms which will be
Underwriters, the names of any Representatives, the principal amount to be
purchased by each Underwriter, the purchase price to be paid by the Underwriters
and the terms of the Offered Securities not already specified in the Indenture,
including, but not limited to, interest rate, maturity, any redemption
provisions and any sinking fund requirements and whether any of the Offered
Securities may be sold to institutional investors pursuant to Delayed Delivery
Contracts (as defined below). The Terms Agreement will also specify the time
and date of delivery and payment (such time and date, or such other time not
later than seven full business days
4
<PAGE>
thereafter as the Underwriter first named in the Terms Agreement (the "Lead
Underwriter") and the Company agree as the time for payment and delivery, being
herein and in the Terms Agreement referred to as the "Closing Date"), the place
of delivery and payment and any details of the terms of offering that should be
reflected in the prospectus supplement relating to the offering of the Offered
Securities. For purposes of Rule 15c6-1 under the Securities Exchange Act of
1934, the Closing Date (if later than the otherwise applicable settlement date)
shall be the date for payment of funds and delivery of securities for all the
Offered Securities sold pursuant to the offering, other than Contract Securities
for which payment of funds and delivery of securities shall be as hereinafter
provided. The obligations of the Underwriters to purchase the Offered
Securities will be several and not joint. It is understood that the
Underwriters propose to offer the Securities for sale as set forth in the
Prospectus.
If the Terms Agreement provides for sales of Offered Securities pursuant to
delayed delivery contracts, the Company authorizes the Underwriters to solicit
offers to purchase Offered Securities pursuant to delayed delivery contracts
substantially in the form of Annex I attached hereto ("Delayed Delivery
Contracts") with such changes therein as the Company may authorize or approve.
Delayed Delivery Contracts are to be with institutional investors, including
commercial and savings banks, insurance companies, pension funds, investment
companies and educational and charitable institutions. On the Closing Date the
Company will pay, as compensation, to the Representatives for the accounts of
the Underwriters, the fee set forth in such Terms Agreement in respect of the
principal amount of Offered Securities to be sold pursuant to Delayed Delivery
Contracts ("Contract Securities"). The Underwriters will not have any
responsibility in respect of the validity or the performance of Delayed
Delivery Contracts. If the Company executes and delivers Delayed Delivery
Contracts, the Contract Securities will be deducted from the Offered Securities
to be purchased by the several Underwriters and the aggregate principal amount
of Offered Securities to be purchased by each Underwriter will be reduced pro
rata in proportion to the principal amount of Offered Securities set forth
opposite each Underwriter's name in such Terms Agreement, except to the extent
that the Lead Underwriter determines that such reduction shall be otherwise
than pro rata and so advise the Company. The Company will advise the Lead
Underwriter not later than the business day prior to the Closing Date of the
principal amount of Contract Securities.
The Offered Securities delivered to the Underwriters on the Closing Date
will be in definitive fully registered form in such denominations and registered
in such names as the Lead Underwriter requests.
If the Terms Agreement specifies "Book-Entry Only" settlement or otherwise
states that the provisions of this paragraph shall apply, the Company will
deliver against payment of the purchase price the Offered Securities in the form
of one or more permanent global Securities in definitive form (the "Global
Securities") deposited with the Trustee as custodian for The Depository Trust
Company ("DTC") and registered in the name of Cede & Co., as nominee for DTC.
Interests in any permanent global Securities will be held only in book-entry
form through DTC, except in the limited circumstances described in the
Prospectus. Payment for the Offered Securities shall be made by the Underwriters
(if the Terms Agreement specifies that the Offered Securities will not trade in
DTC's Settlement System) by certified or official bank check or checks in New
York Clearing House (next day) funds or (if the Terms Agreement specifies that
the Offered Securities will trade in DTC's Settlement System) in Federal (same
day) funds by official check or checks or wire transfer to an account in New
York previously designated to the Lead Underwriter by the Company at a bank
acceptable to the Lead Underwriter, in each case drawn to the order of PPG
Industries, Inc. at the place of payment specified in the Terms Agreement on the
Closing Date, against delivery to the Trustee as custodian for DTC of the Global
Securities representing all of the Offered Securities.
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4. Certain Agreements of the Company. The Company agrees with the several
Underwriters that it will furnish to Sullivan & Cromwell, counsel for the
Underwriters, one signed copy of the registration statement relating to the
Registered Securities, including all exhibits, in the form it became effective
and of all amendments thereto and that, in connection with each offering of
Offered Securities:
(a) The Company will file the Prospectus with the Commission pursuant
to and in accordance with Rule 424(b)(2) (or, if applicable and if consented
to by the Lead Underwriter, subparagraph (5)) not later than the second
business day following the execution and delivery of the Terms Agreement.
(b) The Company will advise the Lead Underwriter promptly of any
proposal to amend or supplement the Registration Statement or the Prospectus
and will afford the Lead Underwriter a reasonable opportunity to comment on
any such proposed amendment or supplement; and the Company will also advise
the Lead Underwriter promptly of the filing of any such amendment or
supplement and of the institution by the Commission of any stop order
proceedings in respect of the Registration Statement or of any part thereof
and will use its best efforts to prevent the issuance of any such stop order
and to obtain as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Offered
Securities is required to be delivered under the Act in connection with
sales by any Underwriter or dealer, any event occurs as a result of which
the Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact necessary to
make the statements therein, in the light of the circumstances under which
they were made, not misleading, or if it is necessary at any time to amend
the Prospectus to comply with the Act, the Company promptly will notify the
Lead Underwriter of such event and will promptly prepare and file with the
Commission, at its own expense, an amendment or supplement which will
correct such statement or omission or an amendment which will effect such
compliance. Neither the Lead Underwriter's consent to, nor the
Underwriters' delivery of, any such amendment or supplement shall constitute
a waiver of any of the conditions set forth in Section 5.
(d) As soon as practicable, but not later than 16 months, after the
date of each Terms Agreement, the Company will make generally available to
its securityholders an earnings statement covering a period of at least 12
months beginning after the later of (i) the effective date of the
registration statement relating to the Registered Securities, (ii) the
effective date of the most recent post-effective amendment to the
Registration Statement to become effective prior to the date of such Terms
Agreement and (iii) the date of the Company's most recent Annual Report on
Form 10-K filed with the Commission prior to the date of such Terms
Agreement, which will satisfy the provisions of Section 11(a) of the Act.
(e) The Company will furnish to the Representatives copies of the
Registration Statement, including all exhibits, any related preliminary
prospectus, any related preliminary prospectus supplement, the Prospectus
and all amendments and supplements to such documents, in each case as soon
as available and in such quantities as the Lead Underwriter reasonably
requests. The Company will pay the expenses of printing and distributing to
the Underwriters all such documents.
(f) The Company will arrange for the qualification of the Offered
Securities for sale and the determination of their eligibility for
investment under the laws of such jurisdictions as the Lead
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Underwriter designates and will continue such qualifications in effect so
long as required for the distribution.
(g) During the period of five years after the date of any Terms
Agreement, the Company will furnish to the Representatives and, upon
request, to each of the other Underwriters, if any, as soon as practicable
after the end of each fiscal year, a copy of its annual report to
stockholders for such year; and the Company will furnish to the
Representatives (i) as soon as available, a copy of each report and any
definitive proxy statement of the Company filed with the Commission under
the Securities Exchange Act of 1934 or mailed to stockholders, and (ii) from
time to time, such other information concerning the Company as the Lead
Underwriter may reasonably request.
(h) The Company will pay all expenses incident to the performance of
its obligations under the Terms Agreement (including the provisions of this
Agreement) and will reimburse the Underwriters (if and to the extent
incurred by them) for any filing fees or other expenses (including fees and
disbursements of counsel) incurred by them in connection with qualification
of the Registered Securities for sale and determination of their eligibility
for investment under the laws of such jurisdictions as the Lead Underwriter
may designate and the printing of memoranda relating thereto, for any fees
charged by investment rating agencies for the rating of the Offered
Securities for any applicable filing fee of the National Association of
Securities Dealers, Inc. relating to the Registered Securities, for any
travel expenses of the Company's officers and employees and any other
expenses of the Company in connection with attending or hosting meetings
with prospective purchasers of Registered Securities and for expenses
incurred in distributing the Prospectus, any preliminary prospectuses, any
preliminary prospectus supplements or any other amendments or supplements to
the Prospectus to the Underwriters.
(i) Except in connection with employee benefit or Director compensation
plans of the Company, the Company will not, without the prior written
consent of the Lead Underwriter, offer, sell, contract to sell, pledge or
otherwise dispose of, directly or indirectly, or file with the Commission a
registration statement under the Act relating to United States dollar-
denominated debt securities issued or guaranteed by the Company and having a
maturity of more than one year from the date of issue, or publicly disclose
the intention to make any such offer, sale, pledge, disposal or filing, for
a period beginning at the time of execution of the Terms Agreement and
ending the number of days after the Closing Date specified under "Blackout"
in the Terms Agreement.
5. Conditions of the Obligations of the Underwriters. The obligations of
the several Underwriters to purchase and pay for the Offered Securities will be
subject to the accuracy of the representations and warranties on the part of the
Company herein, to the accuracy of the statements of Company officers made
pursuant to the provisions hereof, to the performance by the Company of its
obligations hereunder and to the following additional conditions precedent:
(a) On or prior to the date of the Terms Agreement, the Representatives
shall have received a letter, dated the date of delivery thereof, of
Deloitte & Touche LLP or another independent certified public accounting
firm reasonably satisfactory to the Representatives confirming that they are
independent public accountants with respect to the Company within the
meaning of the Act and the applicable published Rules and Regulations
thereunder and stating in effect that:
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(i) in their opinion the financial statements and any schedules of
the Company examined by them and included in the Prospectus comply in
form in all material respects with the applicable accounting
requirements of the Act and the related published Rules and Regulations;
(ii) they have performed the procedures specified by the American
Institute of Certified Public Accountants for a review of interim
financial information as described in Statement on Auditing Standards
No. 71, Interim Financial Information, on any unaudited interim
financial statements of the Company included in the Registration
Statement;
(iii) on the basis of the review referred to in clause (ii) above,
a reading of the latest available interim financial statements of the
Company, inquiries of officials of the Company who have responsibility
for financial and accounting matters and other specified procedures,
nothing came to their attention that caused them to believe that:
(A) the unaudited financial statements of the Company included
in the Prospectus, if any, do not comply in form in all material
respects with the applicable accounting requirements of the Act and
the related published Rules and Regulations or any material
modifications should be made to such unaudited financial statements
for them to be in conformity with generally accepted accounting
principles applied on a basis substantially consistent with that of
the audited financial statements;
(B) if any unaudited "capsule" information is contained in the
Prospectus, the unaudited consolidated net sales, net operating
income, net income and net income per share amounts or other amounts
constituting such "capsule" information and described in such letter
do not agree with the corresponding amounts set forth in the
unaudited consolidated financial statements;
(C) at the date of the latest available balance sheet of the
Company read by such accountants, or at a subsequent specified date
not more than five days prior to the date of the Terms Agreement,
there was any change in the capital stock or any increase in short-
term indebtedness or long-term debt of the Company and its
consolidated subsidiaries or, at the date of the latest available
balance sheet of the Company read by such accountants, there was any
decrease in consolidated net current assets or net assets, as
compared with amounts shown on the latest balance sheet of the
Company included in the Prospectus; or
(D) for the period from the closing date of the latest income
statement of the Company included in the Prospectus to the closing
date of the latest available income statement read by such
accountants there were any decreases, as compared with the
corresponding period of the previous year and with the period of
corresponding length ended the date of the latest income statement
included in the Prospectus, in consolidated net sales or net
operating income, in the total or per share amounts of consolidated
income before extraordinary items or net income or in the ratio of
earnings to fixed charges;
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<PAGE>
except in all cases set forth in clauses (C) and (D) above for changes,
increases or decreases which the Prospectus discloses have occurred or
may occur or which are described in such letter; and
(iv) they have compared specified dollar amounts (or percentages
derived from such dollar amounts) and other financial information
contained in the Prospectus (in each case to the extent that such dollar
amounts, percentages and other financial information are derived from
the general accounting records of the Company and its subsidiaries
subject to the internal controls of the Company's accounting system or
are derived directly from such records by analysis or computation) with
the results obtained from inquiries, a reading of such general
accounting records and other procedures specified in such letter and
have found such dollar amounts, percentages and other financial
information to be in agreement with such results, except as otherwise
specified in such letter.
All financial statements and schedules included in material incorporated by
reference into the Prospectus shall be deemed included in the Prospectus for
purposes of this subsection.
(b) The Prospectus shall have been filed with the Commission in
accordance with the Rules and Regulations and Section 4(a) of this
Agreement. No stop order suspending the effectiveness of the Registration
Statement or of any part thereof shall have been issued and no proceedings
for that purpose shall have been instituted or, to the knowledge of the
Company or any Underwriter, shall be contemplated by the Commission.
(c) Subsequent to the execution of the Terms Agreement, there shall not
have occurred (i) any change, or any development or event involving a
prospective change, in the condition (financial or other), business,
properties or results of operations of the Company or its subsidiaries
which, in the judgment of a majority in interest of the Underwriters
including any Representatives, is material and adverse and makes it
impractical or inadvisable to proceed with completion of the public offering
or the sale of and payment for the Offered Securities; (ii) any downgrading
in the rating of any debt securities of the Company by any "nationally
recognized statistical rating organization" (as defined for purposes of Rule
436(g) under the Act), or any public announcement that any such organization
has under surveillance or review its rating of any debt securities of the
Company (other than an announcement with positive implications of a possible
upgrading, and no implication of a possible downgrading, of such rating);
(iii) any suspension or limitation of trading in securities generally on the
New York Stock Exchange, or any setting of minimum prices for trading on
such exchange, or any suspension of trading of any securities of the Company
on any exchange or in the over-the-counter market for a period of more than
two hours; (iv) any banking moratorium declared by U.S. Federal or New York
authorities; or (v) any outbreak or escalation of major hostilities in which
the United States is involved, any declaration of war by Congress or any
other substantial national or international calamity or emergency if, in the
judgment of a majority in interest of the Underwriters including any
Representatives, the effect of any such outbreak, escalation, declaration,
calamity or emergency makes it impractical or inadvisable to proceed with
completion of the public offering or the sale of and payment for the Offered
Securities.
(d) The Representatives shall have received an opinion, dated the
Closing Date, of the General Counsel of the Company named in the Prospectus,
to the effect that:
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<PAGE>
(i) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the Commonwealth of
Pennsylvania, with corporate power and authority to own its properties
and conduct its business as described in the Prospectus; and the Company
is duly qualified to do business as a foreign corporation in good
standing in all other jurisdictions in which its ownership or lease of
property or the conduct of its business requires such qualification;
(ii) The Indenture has been duly authorized, executed and delivered
by the Company and has been duly qualified under the Trust Indenture
Act; the Offered Securities have been duly authorized; the Offered
Securities other than any Contract Securities have been duly executed,
authenticated, issued and delivered; the Indenture and the Offered
Securities other than any Contract Securities constitute, and any
Contract Securities, when executed, authenticated, issued and delivered
in the manner provided in the Indenture and sold pursuant to Delayed
Delivery Contracts, will constitute, valid and legally binding
obligations of the Company enforceable in accordance with their terms,
subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors' rights and to general equity principles; and the
Offered Securities other than any Contract Securities conform, and any
Contract Securities, when so issued and delivered and sold will conform,
to the description thereof contained in the Prospectus;
(iii) No consent, approval, authorization or order of, or filing
with, any governmental agency or body or any court is required for the
consummation of the transactions contemplated by the Terms Agreement
(including the provisions of this Agreement) in connection with the
issuance or sale of the Offered Securities by the Company, except such
as have been obtained and made under the Act and the Trust Indenture Act
and such as may be required under state securities laws (in rendering
his opinion with respect to this Section 5(d)(iii) the Company's General
Counsel may rely as to matters of New York law, upon the opinion of
Sullivan & Cromwell referred to below);
(iv) The execution, delivery and performance of the Indenture, the
Terms Agreement (including the provisions of this Agreement) and any
Delayed Delivery Contracts and the issuance and sale of the Offered
Securities and compliance with the terms and provisions thereof will not
result in a breach or violation of any of the terms and provisions of,
or constitute a default under, any statute, any rule, regulation or
order of any governmental agency or body or any court having
jurisdiction over the Company or any subsidiary of the Company or any of
their properties, or any agreement or instrument to which the Company or
any such subsidiary is a party or by which the Company or any such
subsidiary is bound or to which any of the properties of the Company or
any such subsidiary is subject, or the charter or by-laws of the Company
or any such subsidiary, and the Company has full power and authority to
authorize, issue and sell the Offered Securities as contemplated by the
Terms Agreement (including the provisions of this Agreement);
(v) The Registration Statement has become effective under the Act,
the Prospectus was filed with the Commission pursuant to the
subparagraph of Rule 424(b) specified in such opinion on the date
specified therein, and, to the best of the knowledge of such counsel, no
stop order suspending the effectiveness of the Registration Statement or
any part thereof has been issued and no proceedings for that purpose
have been instituted or are pending or
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<PAGE>
contemplated under the Act, and the registration statement relating to
the Registered Securities, as of its effective date, the Registration
Statement and the Prospectus, as of the date of the Terms Agreement, and
any amendment or supplement thereto, as of its date, complied as to form
in all material respects with the requirements of the Act, the Trust
Indenture Act and the Rules and Regulations; such counsel have no reason
to believe that such registration statement, as of its effective date,
the Registration Statement, as of the date of the Terms Agreement or as
of the Closing Date, or any amendment thereto, as of its date or as of
the Closing Date, contained any untrue statement of a material fact or
omitted to state any material fact required to be stated therein or
necessary to make the statements therein not misleading or that the
Prospectus, as of the date of the Terms Agreement or as of such Closing
Date, or any amendment or supplement thereto, as of its date or as of
the Closing Date, contained any untrue statement of a material fact or
omitted to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; the descriptions in the Registration
Statement and Prospectus of statutes, legal and governmental proceedings
and contracts and other documents are accurate and fairly present the
information required to be shown; and such counsel do not know of any
legal or governmental proceedings required to be described in the
Prospectus which are not described as required or of any contracts or
documents of a character required to be described in the Registration
Statement or Prospectus or to be filed as exhibits to the Registration
Statement which are not described and filed as required; it being
understood that such counsel need express no opinion as to the financial
statements or other financial data contained in the Registration
Statement or the Prospectus; and
(vi) The Terms Agreement (including the provisions of this
Agreement) and any Delayed Delivery Contracts have been duly authorized,
executed and delivered by the Company.
(e) The Representatives shall have received from Sullivan & Cromwell,
counsel for the Underwriters, such opinion or opinions, dated the Closing
Date, with respect to the incorporation of the Company, the validity of the
Offered Securities, the Registration Statement, the Prospectus and other
related matters as the Representatives may require, and the Company shall
have furnished to such counsel such documents as they request for the
purpose of enabling them to pass upon such matters. In rendering such
opinion, Sullivan & Cromwell may rely as to the incorporation of the Company
and all other matters governed by Pennsylvania law upon the opinion of the
Company's General Counsel referred to above.
(f) The Representatives shall have received a certificate, dated the
Closing Date, of the President or any Vice-President and a principal
financial or accounting officer of the Company in which such officers, to
the best of their knowledge after reasonable investigation, shall state that
the representations and warranties of the Company in this Agreement are true
and correct, that the Company has complied with all agreements and satisfied
all conditions on its part to be performed or satisfied hereunder at or
prior to the Closing Date, that no stop order suspending the effectiveness
of the Registration Statement or of any part thereof has been issued and no
proceedings for that purpose have been instituted or are contemplated by the
Commission and that, subsequent to the date of the most recent financial
statements in the Prospectus, there has been no material adverse change, nor
any development or event involving a prospective material adverse change, in
the condition (financial or other), business, properties or results of
operations of the
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Company and its subsidiaries taken as a whole except as set forth in or
contemplated by the Prospectus or as described in such certificate.
(g) The Representatives shall have received a letter, dated the Closing
Date, of Deloitte & Touche LLP or another independent certified public
accounting firm reasonably satisfactory to the Representatives which meets
the requirements of subsection (a) of this Section, except that the
specified date referred to in such subsection will be a date not more than
three days prior to the Closing Date for the purposes of this subsection.
The Company will furnish the Representatives with such conformed copies of such
opinions, certificates, letters and documents as the Representatives reasonably
request. The Lead Underwriter may in its sole discretion waive on behalf of the
Underwriters compliance with any conditions to the obligations of the
Underwriters under this Agreement and the Terms Agreement.
6. Indemnification and Contribution. (a) The Company will indemnify and
hold harmless each Underwriter against any losses, claims, damages or
liabilities, joint or several, to which such Underwriter may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
the Registration Statement, the Prospectus, or any amendment or supplement
thereto, or any related preliminary prospectus or preliminary prospectus
supplement, or arise out of or are based upon the omission or alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, and will reimburse each Underwriter
for any legal or other expenses reasonably incurred by such Underwriter in
connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred; provided, however, that the
Company will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement in or omission or alleged omission from any of such
documents in reliance upon and in conformity with written information furnished
to the Company by any Underwriter through the Representatives, if any,
specifically for use therein.
(b) Each Underwriter will severally and not jointly indemnify and hold
harmless the Company against any losses, claims, damages or liabilities to which
the Company may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement, the Prospectus, or any
amendment or supplement thereto, or any related preliminary prospectus or
preliminary prospectus supplement, or arise out of or are based upon the
omission or the alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, in
each case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information furnished to the Company by such
Underwriter through the Representatives, if any, specifically for use therein,
and will reimburse any legal or other expenses reasonably incurred by the
Company in connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under this Section of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
subsection (a) or (b) above, notify the indemnifying party of the commencement
thereof; but the omission so to notify the indemnifying party will not relieve
it from any
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<PAGE>
liability which it may have to any indemnified party otherwise than under
subsection (a) or (b) above. In case any such action is brought against any
indemnified party and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein and, to
the extent that it may wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to such
indemnified party (who shall not, except with the consent of the indemnified
party, be counsel to the indemnifying party), and after notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party will not be liable to such indemnified
party under this Section for any legal or other expenses subsequently incurred
by such indemnified party in connection with the defense thereof other than
reasonable costs of investigation. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement of any
pending or threatened action in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by such
indemnified party unless such settlement includes an unconditional release of
such indemnified party from all liability on any claims that are the subject
matter of such action.
(d) If the indemnification provided for in this Section is unavailable or
insufficient to hold harmless an indemnified party under subsection (a) or (b)
above, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages or
liabilities referred to in subsection (a) or (b) above (i) in such proportion as
is appropriate to reflect the relative benefits received by the Company on the
one hand and the Underwriters on the other from the offering of the Securities
or (ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Company on the one hand and the Underwriters on the other in connection with
the statements or omissions which resulted in such losses, claims, damages or
liabilities as well as any other relevant equitable considerations. The relative
benefits received by the Company on the one hand and the Underwriters on the
other shall be deemed to be in the same proportion as the total net proceeds
from the offering (before deducting expenses) received by the Company bear to
the total underwriting discounts and commissions received by the Underwriters.
The relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. The amount paid by an indemnified party as a
result of the losses, claims, damages or liabilities referred to in the first
sentence of this subsection (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any action or claim which is the subject of this
subsection (d). Notwithstanding the provisions of this subsection (d), no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations in
this subsection (d) to contribute are several in proportion to their respective
underwriting obligations and not joint.
(e) The obligations of the Company under this Section shall be in addition
to any liability which the Company may otherwise have and shall extend, upon the
same terms and conditions, to each person, if any, who controls any Underwriter
within the meaning of the Act; and the obligations of the
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Underwriters under this Section shall be in addition to any liability which the
respective Underwriters may otherwise have and shall extend, upon the same terms
and conditions, to each director of the Company, to each officer of the Company
who has signed the Registration Statement and to each person, if any, who
controls the Company within the meaning of the Act.
7. Default of Underwriters. If any Underwriter or Underwriters default in
their obligations to purchase Offered Securities under the Terms Agreement and
the aggregate principal amount of Offered Securities that such defaulting
Underwriter or Underwriters agreed but failed to purchase does not exceed 10% of
the total principal amount of Offered Securities, the Lead Underwriter may make
arrangements satisfactory to the Company for the purchase of such Offered
Securities by other persons, including any of the Underwriters, but if no such
arrangements are made by the Closing Date, the non-defaulting Underwriters shall
be obligated severally, in proportion to their respective commitments under the
Terms Agreement (including the provisions of this Agreement), to purchase the
Offered Securities that such defaulting Underwriters agreed but failed to
purchase. If any Underwriter or Underwriters so default and the aggregate
principal amount of Offered Securities with respect to which such default or
defaults occur exceeds 10% of the total principal amount of Offered Securities
and arrangements satisfactory to the Lead Underwriter and the Company for the
purchase of such Offered Securities by other persons are not made within 36
hours after such default, the Terms Agreement will terminate without liability
on the part of any non-defaulting Underwriter or the Company, except as provided
in Section 8. As used in this Agreement, the term "Underwriter" includes any
person substituted for an Underwriter under this Section. Nothing herein will
relieve a defaulting Underwriter from liability for its default. The respective
commitments of the several Underwriters for the purposes of this Section shall
be determined without regard to reduction in the respective Underwriters'
obligations to purchase the principal amounts of the Offered Securities set
forth opposite their names in the Terms Agreement as a result of Delayed
Delivery Contracts entered into by the Company.
8. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Company or its officers and of the several Underwriters set forth in or made
pursuant to the Terms Agreement (including the provisions of this Agreement)
will remain in full force and effect, regardless of any investigation, or
statement as to the results thereof, made by or on behalf of any Underwriter,
the Company or any of their respective representatives, officers or directors or
any controlling person, and will survive delivery of and payment for the Offered
Securities. If the Terms Agreement is terminated pursuant to Section 7 or if for
any reason the purchase of the Offered Securities by the Underwriters is not
consummated, the Company shall remain responsible for the expenses to be paid or
reimbursed by it pursuant to Section 4 and the respective obligations of the
Company and the Underwriters pursuant to Section 6 shall remain in effect. If
the purchase of the Offered Securities by the Underwriters is not consummated
for any reason other than solely because of the termination of the Terms
Agreement pursuant to Section 7 or the occurrence of any event specified in
clause (iii), (iv) or (v) of Section 5(c), the Company will reimburse the
Underwriters for all out-of-pocket expenses (including fees and disbursements of
counsel) reasonably incurred by them in connection with the offering of the
Offered Securities.
9. Notices. All communications hereunder will be in writing and, if sent to
the Underwriters, will be mailed, delivered or telegraphed and confirmed to them
at their addresses furnished to the Company in writing for the purpose of
communications hereunder or, if sent to the Company, will be mailed, delivered
or telegraphed and confirmed to it at One PPG Place, Pittsburgh, Pennsylvania
15272, Attention: Senior Vice President, Finance.
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10. Successors. The Terms Agreement (including the provisions of this
Agreement) will inure to the benefit of and be binding upon the Company and such
Underwriters as are identified in the Terms Agreement and their respective
successors and the officers and directors and controlling persons referred to in
Section 6, and no other person will have any right or obligation hereunder.
11. Representation of Underwriters. Any Representatives will act for the
several Underwriters in connection with the financing described in the Terms
Agreement, and any action under such Terms Agreement (including the provisions
of this Agreement) taken by the Representatives jointly or by the Lead
Underwriter will be binding upon all the Underwriters.
12. Counterparts. The Terms Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
13. Applicable Law. This Agreement and the Terms Agreement shall be
governed by, and construed in accordance with, the laws of the State of New
York, without regard to principles of conflicts of laws.
The Company hereby submits to the non-exclusive jurisdiction of the
Federal and state courts in the Borough of Manhattan in The City of New York in
any suit or proceeding arising out of or relating to the Terms Agreement
(including the provisions of this Agreement) or the transactions contemplated
thereby.
15
<PAGE>
ANNEX I
(Three copies of this Delayed Delivery Contract should be signed and returned
to the address shown below so as to arrive not later than 9:00 A.M.,
New York time, on ........................ ............, 19...*.)
DELAYED DELIVERY CONTRACT
-------------------------
[Insert date of initial public offering]
PPG Industries, Inc.
c/o [Insert Name and Address of Lead Underwriter]
Attention: [ ]
Gentlemen:
The undersigned hereby agrees to purchase from PPG Industries, Inc., a
Pennsylvania corporation ("Company"), and the Company agrees to sell to the
undersigned, [If one delayed closing, insert--as of the date hereof, for
delivery on , 19 ("Delivery Date"),]
$..............
principal amount of the Company's [Insert title of securities] ("Securities"),
offered by the Company's Prospectus dated , 19 and a Prospectus
Supplement dated , 19 relating thereto, receipt of copies
of which is hereby acknowledged, at % of the principal amount thereof plus
accrued interest, if any, and on the further terms and conditions set forth in
this Delayed Delivery Contract ("Contract").
[If two or more delayed closings, insert the following:
The undersigned will purchase from the Company as of the date hereof, for
delivery on the dates set forth below, Securities in the principal amounts set
forth below:
Delivery Date Principal Amount
------------- ----------------
.............................................. .............
.............................................. .............
Each of such delivery dates is hereinafter referred to as a Delivery Date.]
- -----------------------------
* Insert date which is third full business day prior to Closing Date under
the Terms Agreement.
<PAGE>
Payment for the Securities that the undersigned has agreed to purchase for
delivery on--the--each--Delivery Date shall be made to the Company or its order
by certified or official bank check in New York Clearing House (next day) funds
at the office of at .M. on--the--such--Delivery Date
upon delivery to the undersigned of the Securities to be purchased by the
undersigned for delivery on--the--such--Delivery Date in definitive fully
registered form and in such denominations and registered in such names as the
undersigned may designate by written or telegraphic communication addressed to
the Company not less than three full business days prior to--the--such--Delivery
Date.
It is expressly agreed that the provisions for delayed delivery and payment
are for the sole convenience of the undersigned; that the purchase hereunder of
Securities is to be regarded in all respects as a purchase as of the date of
this Contract; that the obligation of the Company to make delivery of and
accept payment for, and the obligation of the undersigned to take delivery of
and make payment for, Securities on--the--each--Delivery Date shall be subject
only to the conditions that (1) investment in the Securities shall not at--the--
such--Delivery Date be prohibited under the laws of any jurisdiction in the
United States to which the undersigned is subject and (2) the Company shall have
sold to the Underwriters the total principal amount of the Securities less the
principal amount thereof covered by this and other similar Contracts. The
undersigned represents that its investment in the Securities is not, as of the
date hereof, prohibited under the laws of any jurisdiction to which the
undersigned is subject and which governs such investment.
Promptly after completion of the sale to the Underwriters the Company will
mail or deliver to the undersigned at its address set forth below notice to such
effect, accompanied by--a copy--copies--of the opinion[s] of counsel for the
Company delivered to the Underwriters in connection therewith.
This Contract will inure to the benefit of and be binding upon the parties
hereto and their respective successors, but will not be assignable by either
party hereto without the written consent of the other.
It is understood that the acceptance of any such Contract is in the
Company's sole discretion and, without limiting the foregoing, need not be on a
first-come, first-served basis. If this Contract is acceptable to the Company,
it is requested that the Company sign the form of acceptance below and mail
2
<PAGE>
or deliver one of the counterparts hereof to the undersigned at its address set
forth below. This will become a binding contract between the Company and the
undersigned when such counterpart is so mailed or delivered.
Yours very truly,
.......................................
(Name of Purchaser)
By ....................................
.....................................
(Title of Signatory)
.....................................
.....................................
(Address of Purchaser)
Accepted, as of the above date.
PPG Industries, Inc.
By ..............................
[Insert Title]
3
<PAGE>
Draft of October 23, 1995
PPG INDUSTRIES, INC.
("Company")
Debt Securities
TERMS AGREEMENT
---------------
, 19
To: The [Representative[s] of the] Underwriters identified herein
Dear Sirs:
The undersigned agrees to sell to the several Underwriters named [in
Schedule A hereto] [below] for their respective accounts, on and subject to the
terms and conditions of the Underwriting Agreement filed as an exhibit to the
Company's registration statement on Form S-3 (No. 33- ) ("Underwriting
Agreement"), the following securities ("Offered Securities") on the following
terms:
Title: [ %] [Floating Rate]--Notes--Debentures--Bonds--Due
.
Principal Amount: $ .
Interest: [ % per annum, from , 19 , payable semiannually on
and , commencing , 19 , to holders of record on the
preceding or , as the case may be.] [Zero coupon.]
Maturity: , 19 .
Optional Redemption:
Sinking Fund:
Listing: [None.] [ Stock Exchange.] [The Nasdaq Stock Market.]
Delayed Delivery Contracts: [None.] [Delivery Date[s] shall be , 19 .
Underwriters' fee is % of the principal amount of the Contract Securities.]
Purchase Price: % of principal amount, plus accrued interest[, if any,]
from , 19 .
<PAGE>
Expected Reoffering Price: % of principal amount, subject to change by the
[Representative[s] [Underwriters].
Closing: A.M. on , 19 , at , in New York Clearing House
(next day) funds.
Settlement and Trading: [Physical certificated form.] [Book-Entry Only via
DTC. The Offered Securities [will] [will not] trade in DTC's Same Day Funds
Settlement System.]
Blackout: Until days after the Closing Date.
[Name[s] and Address[es] of [Representative[s]] [Underwriter[s]]:]
The respective principal amounts of the Offered Securities to be purchased
by each of the Underwriters are set forth opposite their names in Schedule A
hereto.
The provisions of the Underwriting Agreement are incorporated herein by
reference.
The Offered Securities will be made available for checking and packaging at
the office of at least 24 hours prior to the Closing
Date.
If the Offered Securities are denominated in a currency other than United
States dollars, make appropriate modifications to provisions of the Terms
Agreement (e.g., type of funds specified under "Closing") and consider
including in the Terms Agreement such changes and additions to the
Underwriting Agreement as may be appropriate in the circumstances, e.g.,
expanding the blackout provision in Section 4 to cover debt securities
denominated in the currency in which the Offered Securities are denominated,
expanding Section 5(c)(iv) to cover a banking moratorium declared by
authorities in the country of such currency, expanding Section 5(c)(v) to
cover a change or prospective change in, or governmental action affecting,
exchange controls applicable to such currency, and modifying Section 5(d) to
permit a statement to the effect that enforcement of the Indenture and the
Offered Securities is subject to provisions of law which may require that a
judgment for money damages rendered by a court in the United States be
expressed only in United States dollars and appropriate exceptions as to any
provisions requiring payment of additional amounts. Also consider requiring
an opinion of counsel for the Company confirming information as to United
States tax matters in the Prospectus and an opinion of foreign counsel for the
Company regarding such matters as foreign consents, approvals, authorizations,
licenses, waivers, withholding taxes, transfer or stamp taxes and any
information as to foreign laws in the Prospectus.
2
<PAGE>
If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to the Company one of the counterparts
hereof, whereupon it will become a binding agreement between the Company and
the several Underwriters in accordance with its terms.
Very truly yours,
PPG Industries, Inc.
By...............................
[Insert title]
The foregoing Terms Agreement is hereby confirmed
and accepted as of the date first above written.
[Underwriters' signatures]
3
<PAGE>
SCHEDULE A
Principal
Underwriter Amount
- ----------- ------
- ---------------------------- $
---------
Total........................................... $
=========
4
<PAGE>
Exhibit 4.1
[Conformed Copy]
================================================================================
PPG INDUSTRIES, INC.
TO
Harris Trust and Savings Bank
Trustee
----------------------
Indenture
Dated as of August 1, 1982
----------------------
================================================================================
<PAGE>
PPG INDUSTRIES, INC.
Reconciliation and tie between Trust Indenture Act of 1939 and
Indenture, dated as of August 1, 1982
Trust Indenture
Act Section Indenture Section
(S) 310 (a)(1)....................................... 609
(a)(2)....................................... 609
(a)(3)....................................... Not Applicable
(a)(4)....................................... Not Applicable
(b).......................................... 608
610
(S) 311 (a).......................................... 613(a)
(b).......................................... 613(b)
(b)(2)....................................... 703(a)(2)
703(b)
(S) 312 (a).......................................... 701
702(a)
(b).......................................... 702(b)
(c).......................................... 702(c)
(S) 313 (a).......................................... 703(a)
(b).......................................... 703(b)
(c).......................................... 703(a), 703(b)
(d).......................................... 703(c)
(S) 314 (a).......................................... 704
(b).......................................... Not Applicable
(c)(1)....................................... 102
(c)(2)....................................... 102
(c)(3)....................................... Not Applicable
(d).......................................... Not Applicable
(e).......................................... 102
(S) 315 (a).......................................... 601(a)
(b).......................................... 602
703(a)(6)
(c).......................................... 601(b)
(d).......................................... 601(c)
(d)(1)....................................... 601(a)(1)
(d)(2)....................................... 601(c)(2)
(d)(3)....................................... 601(c)(3)
(e).......................................... 514
<PAGE>
Trust Indenture
Act Section Indenture Section
(S) 316 (a).......................................... 101
(a)(1)(A).................................... 502
512
(a)(1)(B).................................... 513
(a)(2)....................................... Not Applicable
(b).......................................... 508
(S) 317 (a)(1)....................................... 503
(a)(2)....................................... 504
(b).......................................... 1003
(S) 318 (a).......................................... 107
- -------------------
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
<PAGE>
TABLE OF CONTENTS
-------------------
PAGE
PARTIES..................................................................... 1
RECITALS OF THE COMPANY..................................................... 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions:
Act............................................................ 1
Affiliate; control............................................. 2
Board of Directors............................................. 2
Board Resolution............................................... 2
Business Day................................................... 2
Commission..................................................... 2
Company........................................................ 2
Company Request; Company Order................................. 2
Corporate Trust Office......................................... 3
corporation.................................................... 3
Defaulted Interest............................................. 3
Event of Default............................................... 3
Funded Debt.................................................... 3
Holder......................................................... 3
Indenture...................................................... 3
interest....................................................... 3
Interest Payment Date.......................................... 3
Maturity....................................................... 3
Officers' Certificate.......................................... 3
Opinion of Counsel............................................. 3
Original Issue Discount Security and Original Issue
Discount Debt Security......................................... 4
Outstanding.................................................... 4
Paying Agent................................................... 5
Person......................................................... 5
Place of Payment............................................... 5
Predecessor Security........................................... 5
Redemption Date................................................ 5
Redemption Price............................................... 5
Regular Record Date............................................ 5
Repayment Date................................................. 5
Repayment Price................................................ 5
- -------------------
Note: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
<PAGE>
Page
Responsible Officer............................................ 5
Restricted Subsidiary.......................................... 6
Secured Debt................................................... 6
Securities..................................................... 7
Security Register and Security Registrar....................... 7
Shareholders' Interest......................................... 7
Special Record Date............................................ 7
Stated Maturity................................................ 7
Subsidiary..................................................... 7
Trustee........................................................ 7
Trust Indenture Act............................................ 8
Unrestricted Subsidiary........................................ 8
Vice President................................................. 8
Wholly-owned Restricted Subsidiary............................. 8
SECTION 102. Compliance Certificates and Opinions........................... 8
SECTION 103. Form of Documents Delivered to Trustee......................... 9
SECTION 104. Acts of Holders................................................ 9
SECTION 105. Notices, Etc., to Trustee and Company.......................... 10
SECTION 106. Notice to Holders; Waiver...................................... 11
SECTION 107. Conflict with Trust Indenture Act.............................. 11
SECTION 108. Effect of Headings and Table of Contents....................... 11
SECTION 109. Successors and Assigns......................................... 11
SECTION 110. Separability Clause............................................ 11
SECTION 111. Benefits of Indenture.......................................... 12
SECTION 112. Governing Law.................................................. 12
SECTION 113. Legal Holidays................................................. 12
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally................................................ 12
SECTION 202. Form of Face of Security....................................... 13
SECTION 203. Form of Reverse of Security.................................... 15
SECTION 204. Form of Trustee's Certificate of Authentication................ 21
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series........................... 22
SECTION 302. Denominations.................................................. 23
SECTION 303. Execution, Authentication, Delivery and Dating................. 23
SECTION 304. Temporary Securities........................................... 25
ii
<PAGE>
Page
SECTION 305. Registration, Registration of Transfer and Exchange............ 25
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities............... 26
SECTION 307. Payment of Interest; Interest Rights Preserved................. 27
SECTION 308. Persons Deemed Owners.......................................... 28
SECTION 309. Cancellation................................................... 29
SECTION 310. Computation of Interest........................................ 29
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture........................ 29
SECTION 402. Application of Trust Money..................................... 30
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.............................................. 31
SECTION 502. Acceleration of Maturity; Rescission and Annulment............. 33
SECTION 503. Collection of Indebtedness and Suits for Enforcement by
Trustee...................................................... 34
SECTION 504. Trustee May File Proofs of Claim............................... 34
SECTION 505. Trustee May Enforce Claims Without Possession of
Securities................................................... 35
SECTION 506. Application of Money Collected................................. 36
SECTION 507. Limitation on Suits............................................ 36
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest......................................... 37
SECTION 509. Restoration of Rights and Remedies............................. 37
SECTION 510. Rights and Remedies Cumulative................................. 37
SECTION 511. Delay or Omission Not Waiver................................... 38
SECTION 512. Control by Holders............................................. 38
SECTION 513. Waiver of Past Defaults........................................ 38
SECTION 514. Undertaking for Costs.......................................... 38
SECTION 515. Waiver of Stay or Extension Laws............................... 39
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities............................ 39
SECTION 602. Notice of Defaults............................................. 40
SECTION 603. Certain Rights of Trustee...................................... 41
SECTION 604. Not Responsible for Recitals or Issuance of Securities......... 42
SECTION 605. May Hold Securities............................................ 42
iii
<PAGE>
Page
SECTION 606. Money Held in Trust............................................ 42
SECTION 607. Compensation and Reimbursement................................. 42
SECTION 608. Disqualification; Conflicting Interests........................ 43
(a) Elimination of Conflicting Interest or Resignation....... 43
(b) Notice of Failure to Eliminate Conflicting Interest
or Resign................................................ 43
(c) "Conflicting Interest" Defined........................... 43
(d) Definitions of Certain Terms Used in This Section........ 47
(e) Calculation of Percentages of Securities................. 47
SECTION 609. Corporate Trustee Required; Eligibility........................ 49
SECTION 610. Resignation and Removal; Appointment of Successor.............. 49
SECTION 611. Acceptance of Appointment by Successor......................... 51
SECTION 612. Merger, Conversion, Consolidation or Succession to
Business..................................................... 52
SECTION 613. Preferential Collection of Claims Against Company.............. 52
(a) Segregation and Apportionment of Certain
Collections by Trustee, Certain Exceptions............... 52
(b) Certain Creditor Relationships Excluded from
Segregation and Apportionment............................ 55
(c) Definitions of Certain Terms Used in This Section........ 56
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of
Holders...................................................... 57
SECTION 702. Preservation of Information; Communications to
Holders...................................................... 57
SECTION 703. Reports by Trustee............................................. 58
SECTION 704. Reports by Company............................................. 60
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms........... 61
SECTION 802. Successor Corporation Substituted.............................. 62
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders............. 62
SECTION 902. Supplemental Indentures with Consent of Holders................ 63
iv
<PAGE>
Page
SECTION 903. Execution of Supplemental Indentures........................... 64
SECTION 904. Effect of Supplemental Indentures.............................. 65
SECTION 905. Conformity with Trust Indenture Act............................ 65
SECTION 906. Reference in Securities to Supplemental Indentures............. 65
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest.................... 65
SECTION 1002. Maintenance of Office or Agency............................... 65
SECTION 1003. Money for Securities Payments to Be Held in Trust............. 66
SECTION 1004. Limitation on Secured Debt.................................... 67
SECTION 1005. Limitation on Sales and Leasebacks and Transfers of
Assets to Unrestricted Subsidiaries......................... 69
SECTION 1006. Corporate Existence........................................... 70
SECTION 1007. Maintenance of Properties..................................... 71
SECTION 1008. Payment of Taxes and Other Claims............................. 71
SECTION 1009. Statement by Officers as to Default........................... 71
SECTION 1010. Waiver of Certain Convenants.................................. 71
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article...................................... 72
SECTION 1102. Election to Redeem; Notice to Trustee......................... 72
SECTION 1103. Selection by Trustee of Securities to Be Redeemed............. 72
SECTION 1104. Notice of Redemption.......................................... 73
SECTION 1105. Deposit of Redemption Price................................... 73
SECTION 1106. Securities Payable on Redemption Date......................... 74
SECTION 1107. Securities Redeemed in Part................................... 74
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article...................................... 74
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities......... 75
SECTION 1203. Redemption of Securities for Sinking Fund..................... 75
TESTIMONIUM................................................................. 76
SIGNATURES AND SEALS........................................................ 77
ACKNOWLEDGMENTS............................................................. 77
v
<PAGE>
INDENTURE, dated as of August 1, 1982, between PPG INDUSTRIES, INC., a
corporation duly organized and existing under the laws of the Commonwealth of
Pennsylvania (herein called the "Company"), having its principal office at One
Gateway Center, Pittsburgh, Pennsylvania 15222, and Harris Trust and Savings
Bank, a corporation duly organized and existing under the laws of the State of
Illinois, as Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this Indenture
to provide for the issuance from time to time of its unsecured debentures, notes
or other evidences of indebtedness (herein called the "Securities"), to be
issued in one or more series as in this Indenture provided.
All things necessary to make this Indenture a valid agreement of the Company,
in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities
by the Holders thereof, it is mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders of the Securities or of series thereof, as
follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly provided or
unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to them
in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust Indenture
Act, either directly or by reference therein, have the meanings assigned to
them therein;
(3) all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting principles;
and
1
<PAGE>
101
(4) 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.
Certain terms, used principally in Article Six, are defined in that Article.
"Act", when used with respect to any Holder, has the meaning specified in
Section 104.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of Voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Board of Directors" means either the board of directors of the Company or
any duly authorized committee appointed by the Board of Directors.
"Board Resolution" means a copy of a resolution certified by the Secretary or
an Assistant Secretary of the Company to have been duly adopted by the Board of
Directors and to be in full force and effect on the date of such certification,
and delivered to the Trustee.
"Business Day", when used with respect to any Place of Payment, means each
Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in that Place of Payment are authorized or obligated by law
to close.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Securities Exchange Act of 1934, or, if at
any time after the execution of this instrument such Commission is not existing
and performing the duties now assigned to it under the Trust Indenture Act, then
the body performing such duties at such time.
"Company" means the Person named as the "Company" in the first paragraph of
this instrument until a successor corporation shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor corporation.
"Company Request" or "Company Order" means a written request or order signed
in the name of the Company by its Chairman of the Board, its
2
<PAGE>
101
President or a Vice President, and by its Treasurer, an Assistant Treasurer, its
Secretary or an Assistant Secretary, and delivered to the Trustee.
"Corporate Trust Office" means the principal office of the Trustee in
Chicago, Illinois at which at any particular time its corporate trust business
shall be administered.
"corporation" includes corporations, associations, companies and business
trusts.
"Defaulted Interest" has the meaning specified in Section 307.
"Event of Default" has the meaning specified in Section 501.
"Funded Debt" means all indebtedness for money borrowed which by its terms
matures at or is extendable or renewable at the option of the obligor to a date
more than twelve months after the date of the creation of such indebtedness.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Indenture" means 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 established as contemplated
by Section 301.
"interest", when used with respect to an Original Issue Discount Security
which by its terms bears interest only after Maturity, means interest payable
after Maturity.
"Interest Payment Date", when used with respect to any Security, means the
Stated Maturity of an instalment of interest on such Security.
"Maturity", when used with respect to any Security, means the date on which
the principal of such Security or an instalment of principal becomes due and
payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Officers' Certificate" means a certificate signed by the Chairman of the
Board, the President or a Vice President, and by the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary, of the Company, and
delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be counsel
for the Company, and who shall be acceptable to the Trustee.
3
<PAGE>
101
"Original Issue Discount Security" and "Original Issue Discount Debt
Security" mean any Security which provides for an amount less than the principal
amount thereof to be due and payable upon a declaration of acceleration of the
Maturity thereof pursuant to Section 502.
"Outstanding", when used with respect to Securities, means, as of the date of
determination, all Securities theretofore authenticated and delivered under this
Indenture, except:
(i) Securities theretofore cancelled by the Trustee or delivered to the
Trustee for cancellation;
(ii) Securities for whose payment or redemption money in the necessary
amount has been theretofore deposited with the Trustee or any Paying Agent
(other than the Company) in trust or set aside and segregated in trust by the
Company (if the Company shall act as its own Paying Agent) for the Holders of
such Securities; provided that, if such Securities are to be redeemed, notice
of such redemption has been duly given pursuant to this Indenture or
provision therefor satisfactory to the Trustee has been made; and
(iii) Securities which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Securities have been authenticated and
delivered pursuant to this Indenture, other than any such Securities in
respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona fide purchaser in
whose hands such Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Securities owned
by the Company or any other obligor upon the Securities or any Affiliate of the
Company or of such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Securities which the Trustee knows to be so owned shall
be so disregarded. Securities so owned which have been pledged in good faith may
be regarded as Outstanding if the pledge establishes to the satisfaction of the
Trustee the pledge's right so to act with respect to such Securities and that
the pledge is not the Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor
4
<PAGE>
101
"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest (if any) on any Securities on
behalf of the Company.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Place of Payment", when used with respect to the Securities of any series,
means the place or places where the principal of (and premium, if any) and
interest (if any) on the Securities of that series are payable as specified as
contemplated by Section 301.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Redemption Date", when used with respect to any Security to be redeemed,
means the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price", when used with respect to any Security to be redeemed,
means the price at which it is to be redeemed pursuant to this Indenture.
"Regular Record Date" for the interest payable on any Interest Payment Date
on the Securities of any series means the date specified for that purpose as
contemplated by Section 301.
"Repayment Date" has the meaning specified in Section 203.
"Repayment Price" has the meaning specified in Section 203.
"Responsible Officer", when used with respect to the Trustee, means 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 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 corpo-
5
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101
rate trust matter, any other officer to whom such matter is referred because of
his knowledge of and familiarity with the particular subject.
"Restricted Subsidiary" means:
(a) any Subsidiary other than
(i) a Subsidiary substantially all of the physical properties of which
are located, or substantially all of the business of which is carried on,
outside the United States of America ("United States of America" shall not
include the territories and possessions thereof), or
(ii) a Subsidiary the primary business of which consists of purchasing
accounts receivable and/or making loans secured by accounts receivable or
inventories and/or making investments in real estate or providing services
directly related thereto, or which is otherwise primarily engaged in the
business of a finance or real estate investment company, or
(iii) a Subsidiary the primary business of which consists of leasing
equipment, machinery, vehicles, rolling stock and other articles for use
in the business of the Company, or
(iv) a Subsidiary the stock of which is held primarily for the purpose
of securing the investment of the Company in such Subsidiary, while the
management of such Subsidiary is accumulating funds for the purchase of
such stock pursuant to written contract
and
(b) any Subsidiary specified in clauses (i) through (iv) of paragraph (a)
above which at the time of determination shall be a Restricted Subsidiary
pursuant to designation by the Board of Directors hereinafter provided for.
The Company may by Board Resolution designate any Restricted Subsidiary to be
an Unrestricted Subsidiary, provided that in the opinion of the Board of
Directors it does not own a major manufacturing or research property, plant or
facility of the Company and its Restricted Subsidiaries taken as a whole, and
may designate any Unrestricted Subsidiary to be a Restricted Subsidiary. The
Company may by Board Resolution designate a newly acquired or formed Subsidiary
to be an Unrestricted Subsidiary, provided such designation takes place within
90 days of such acquisition or formation.
"Secured Debt" means indebtedness for money borrowed if such indebtedness is
secured by a mortgage, pledge, lien, security interest or en-
6
<PAGE>
101
cumbrance on any of the manufacturing or research property, plant or facilities
of the Company or any Restricted Subsidiary (but not including a property
determined not to be a principal property of the Company or a Restricted
Subsidiary by the Board of Directors in its discretion) or on any shares of
stock or indebtedness of any Restricted Subsidiary.
"Securities" has the meaning stated in the first recital of this Indenture
and more particularly means any Securities authenticated and delivered under
this Indenture.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 305.
"Shareholders' Interest" means as of any particular time the aggregate of
capital and surplus of the Company and its Restricted Subsidiaries, after
deducting the cost of the shares of the Company held in treasury, as shown on a
consolidated balance sheet of the Company and its Restricted Subsidiaries,
prepared in accordance with generally accepted accounting principles, as of the
end of the latest fiscal year ended prior to such determination.
"Special Record Date" for the payment of any Defaulted Interest means a date
fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or any instalment
of principal thereof or interest thereon, means the date specified in such
Security as the fixed date on which the principal of such Security or such
instalment of principal or interest is due and payable.
"Subsidiary" means a corporation more than 50% of the outstanding voting
stock of which is owned, directly or indirectly, by the Company or by one or
more other Subsidiaries, or by the Company and one or more other Subsidiaries.
For the purposes of this definition, "voting stock" means stock which ordinarily
has voting power for the election of directors, whether at all times or only so
long as no senior class of stock has such voting power by reason of any
contingency.
"Trustee" means the Person named as the "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, and if at any time there is
more than one such Person, "Trustee" as used with respect to the Securities of
any series shall mean the Trustee with respect to Securities of that series.
7
<PAGE>
101, 102
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force at
the date as of which this instrument was executed, except as provided in Section
905.
"Unrestricted Subsidiary" means any Subsidiary which is not a Restricted
Subsidiary.
"Vice President", when used with respect to the Company or the Trustee, means
any vice president, whether or not designated by a number or a word or words
added before or after the title "vice president".
"Wholly-owned Restricted Subsidiary" means a Restricted Subsidiary all of the
outstanding capital stock of which, other than directors' qualifying shares, and
all of the Funded Debt of which, shall at the time be owned by the Company or by
one or more Wholly-owned Restricted Subsidiaries, or by the Company in
conjunction with one or more Wholly-owned Restricted Subsidiaries.
SECTION 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take any
action under any provision of this Indenture, the Company shall furnish to the
Trustee an Officers' Certificate stating that all conditions precedent, if any,
provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with, except
that in the case of any such application or request as to which the furnishing
of such documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate or
opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture shall include
(1) a statement that each individual signing such certificate or opinion
has read such covenant or condition and the definitions herein relating
thereto;
(2) a 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 each such individual, he has made
such examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and
8
<PAGE>
102, 103, 104
(4) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or covered
by an opinion of, any specified Person, it is not necessary that all such
matters be certified by, or covered by the opinion of, only one such Person, or
that they be so certified or covered by only one document, but one such Person
may certify or give an opinion with respect to some matters and one or more
other such Persons as to other matters, and any such Person may certify or give
an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based, insofar
as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent, waiver or
other action provided by this Indenture to be given or taken by Holders may be
embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by agent duly appointed in writing;
and, except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments are delivered to the Trustee and,
where it is hereby expressly required, to the Company. Such instrument or
instruments (and the action embodied therein and evidenced thereby) are herein
sometimes referred to as the "Act" of the Holders signing such instrument or
instruments. Proof of execution of any
9
<PAGE>
104, 105
such instrument or of a writing appointing any such agent shall be sufficient
for any purpose of this Indenture and (subject to Section 601) conclusive in
favor of the Trustee and the Company, if made in the manner provided in this
Section.
(b) The fact and date of the execution by any Person of any such instrument
or writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such execution is by
a signer acting in a capacity other than his individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his
authority. The fact and date of the execution of any such instrument or writing,
or the authority of the Person executing the same, may also be proved in any
other manner which the Trustee deems sufficient.
(c) The ownership of Securities shall be proved by the Security Register.
(d) Any request, demand, authorization, direction, notice, consent, waiver or
other Act of the Holder of any Security shall bind every future Holder of the
same Security and the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee or the Company in
reliance thereon, whether or not notation of such action is made upon such
Security.
SECTION 105. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver or Act
of Holders or other document provided or permitted by this Indenture to be made
upon, given or furnished to, or filed with,
(1) the Trustee by any Holder, or by the Company shall be sufficient for
every purpose hereunder if made, given, furnished or filed in writing to or
with the Trustee at its Corporate Trust Office, or
(2) the Company by the Trustee or by any Holder shall be sufficient for
every purpose hereunder (unless otherwise herein expressly provided) if in
writing and mailed, first-class postage prepaid, to the Company addressed to
it at the address of its principal office specified in the first paragraph of
this instrument or at any other address previously furnished in writing to
the Trustee by the Company.
10
<PAGE>
106, 107, 108, 109, 110
SECTION 106. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such notice
shall be sufficiently given (unless otherwise herein expressly provided) if in
writing and mailed, first-class postage prepaid, to each Holder affected by such
event, at his address as it appears in the Security Register, not later than the
latest date, and not earlier than the earliest date, prescribed for the giving
of such notice. In any case where notice to Holders is given by mail, neither
the failure to mail such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice with respect to
other Holders. Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by reason of
any other cause it shall be impracticable to give such notice by mail, then such
notification as shall be made with the approval of the Trustee shall constitute
a sufficient notification for every purpose hereunder.
SECTION 107. Conflict with Trust Indenture Act.
if any provision hereof limits, qualifies or conflicts with another provision
hereof which is required to be included in this Indenture by any of the
provisions of the Trust Indenture Act, such required provision shall control.
SECTION 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
SECTION 109. Successors and Assigns.
All convenants and agreements in this Indenture by the Company shall bind its
successors and assigns, whether so expressed or not.
SECTION 110. Separability Clause.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
11
<PAGE>
111, 112, 113, 201
SECTION 111. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied, shall
give to any Person, other than the parties hereto and their successors hereunder
and the Holders, any benefit or any legal or equitable right, remedy or claim
under this Indenture.
SECTION 112. Governing Law.
This Indenture and the Securities shall be governed by and construed in
accordance with the laws of the State of New York.
SECTION 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of this Indenture or of the
Securities) payment of interest (if any) or principal (and premium, if any) need
not be made at such Place of Payment on such date, but may be made on the next
succeeding Business Day at such Place of Payment with the same force and effect
as if made on the Interest Payment Date or Redemption Date, or at the Stated
Maturity, provided that no interest shall accrue for the period from and after
such Interest Payment Date, Redemption Date or Stated Maturity, as the case may
be.
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally.
The Securities of each series shall be in substantially the form set forth in
this Article, or in such other form as shall be established by or pursuant to a
Board Resolution 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 the rules of any securities exchange
or as may, consistently herewith, be determined by the officers executing such
Securities, as evidenced by their execution of the Securities. If the form of
Securities of any series is established by action taken pursuant to a Board
Resolution, a copy of an appropriate record of such action shall be certified by
the Secretary or an Assistant Secretary of the Company and delivered to the
Trustee at or prior to the delivery of the Company Order contemplated by Section
303 for the authentication and delivery of such Securities.
12
<PAGE>
201, 202
The Trustee's certificates of authentication shall be in substantially the
form set forth in this Article.
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 202. Form of Face of Security.
[If the Security is an Original Issue Discount Security, insert--FOR
PURPOSES OF SECTION 1232 OF THE UNITED STATES INTERNAL REVENUE CODE
OF 1954, AS AMENDED, THE ISSUE PRICE OF THIS SECURITY IS . . .% OF ITS
PRINCIPAL AMOUNT AND THE ISSUE DATE IS . . . . . . . ., 19 . .]
PPG INDUSTRIES, INC.
. . . . . . . . . . . . . . . . .
No. . . . . . $. . . . . . . . . .
PPG INDUSTRIES, INC., a corporation duly organized and existing under the
laws of the Commonwealth of Pennsylvania (herein called the "Company", which
term includes any successor corporation under the Indenture hereinafter referred
to), for value received, hereby promises to pay to . . . . . . . . . ., or
registered assigns, the principal sum of . . . . . . . . . Dollars on . . . . .
. . . . . [If the Security is to bear interest prior to Maturity, insert--, and
to pay interest thereon from . . . . . or from the most recent Interest Payment
Date to which interest has been paid or duly provided for, semi-annually on . .
. . . and . . . . . in each year, commencing . . . . ., at the rate of . . .%
per annum, until the principal hereof is paid or made available for payment and
(to the extent that the payment of such interest shall be legally enforceable)
at the rate of . . .% per annum on any overdue principal and premium and on any
overdue instalment of interest. The interest so payable, and punctually paid or
duly provided for, on any Interest Payment Date will, as provided in such
Indenture, be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest, which shall be the . . . . . or . . . . .
(whether or not a Business Day), as the case may be, next preceding such
Interest Payment Date. Any such interest not so punctually paid or duly provided
for will forthwith cease to be payable to the Holder on such Regular Record Date
and may either be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on
13
<PAGE>
202
a Special Record Date for the payment of such Defaulted Interest to be fixed by
the Trustee, notice whereof shall be given to Holders of Securities of this
series not less than 10 days prior to such Special Record Date, or be paid at
any time in any other lawful manner not inconsistent with the requirements of
any securities exchange on which the Securities of this series may be listed,
and upon such notice as may be required by such exchange, all as more fully
provided in said Indenture].
[If the Security is not to bear interest prior to Maturity, insert--The
principal of this Security shall not bear interest except in the case of a
default in payment of principal upon acceleration, upon redemption or at Stated
Maturity and in such case the overdue principal of this Security shall bear
interest at the rate of . . .% per annum (to the extent that the payment of such
interest shall be legally enforceable), which shall accrue from the date of such
default in payment to the date payment of such principal has been made or duly
provided for. Interest on any overdue principal shall be payable on demand. Any
such interest on any overdue principal that is not so paid on demand shall bear
interest at the rate of . . .% per annum (to the extent that the payment of such
interest shall be legally enforceable), which shall accrue from the date of such
demand for payment to the date payment of such interest has been made or duly
provided for, and such interest shall also be payable on demand.]
Payment of the principal of (and premium, if any) and [if applicable,
insert--any such] interest on this Security will be made at the office or agency
of the Company maintained for that purpose in . . . . ., in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts [if applicable, insert--;
provided, however, that at the option of the Company payment of interest may be
made by check mailed to the address of the Person entitled thereto as such
address shall appear in the Security Register].
Reference is hereby made to the further provisions of this Security set forth
on the reverse hereof, which further provisions shall for all purposes have the
same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
14
<PAGE>
202, 203
Dated:
PPG INDUSTRIES, INC.
By.....................................
Attest:
...................................
SECTION 203. Form of Reverse of Security.
This Security is one of a duly authorized issue of securities of the Company
(herein called the "Securities"), issued and to be issued in one or more series
under an Indenture, dated as of August 1, 1982 (herein called the "Indenture"),
between the Company and Harris Trust and Savings Bank, as Trustee (herein called
the "Trustee", which term includes any successor trustee under the Indenture),
to which Indenture and all indentures supplemental thereto reference is hereby
made for a statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Company, the Trustee and the Holders of the
Securities and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Security is one of the series designated on
the face hereof [, limited in aggregate principal amount to $. . . . . .].
[If applicable, insert--The Securities of this series are subject to
redemption upon not less than 30 days' notice by mail, [if applicable, insert--
(1) on . . . . . in any year commencing with the year . . . . and ending with
the year through operation of the sinking fund for this series at a Redemption
Price equal to 100% of the principal amount, and (2)] at any time [on or after .
. . . . ., 19..], as a whole or in part, at the election of the Company, at the
following Redemption Prices (expressed as percentages of the principal amount):
If redeemed [on or before . . . . . , . . . %, and if redeemed] during the
12-month period beginning . . .. . . . . . . of the years indicated,
Redemption Redemption
Year Price Year Price
---- ----- ---- -----
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<PAGE>
203
and thereafter at a Redemption Price equal to . . .% of the principal amount,
together in the case of any such redemption [if applicable, insert--(whether
through operation of the sinking fund or otherwise)] with accrued interest to
the Redemption Date, but interest instalments whose Stated Maturity is on or
prior to such Redemption Date will be payable to the Holders of such Securities,
or one or more Predecessor Securities, of record at the close of business on the
relevant Record Dates referred to on the face hereof, all as provided in the
Indenture.]
[If applicable, insert--The Securities of this series are subject to
redemption upon not less than 30 days' notice by mail, (1) on . . . . . in any
year commencing with the year . . . . and ending with the year . . . . through
operation of the sinking fund for this series at the Redemption Prices for
redemption through operation of the sinking fund (expressed as percentages of
the principal amount) set forth in the table below, and (2) at any time [on or
after . . . . . .], as a whole or in part, at the election of the Company, at
the Redemption Prices for redemption otherwise than through operation of the
sinking fund (expressed as percentages of the principal amount) set forth in the
table below: If redeemed during the 12-month period beginning . . . . . . of the
years indicated,
Redemption Price Redemption Price For
For Redemption Redemption Otherwise
Through Operation Than Through Operation
Year of the Sinking Fund of the Sinking Fund
---- ------------------- -------------------
and thereafter at a Redemption Price equal to . . .% of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued interest to the Redemption Date, but
interest instalments whose Stated Maturity is on or prior to such Redemption
Date will be payable to the Holders of such Securities, or one or more
Predecessor Securities, of record at the close of business on the relevant
Record Dates referred to on the face hereof, all as provided in the Indenture.]
[Notwithstanding the foregoing, the Company may not, prior to . . . . .,
redeem any Securities of this series as contemplated by [Clause (2) of] the
preceding paragraph as a part of, or in anticipation of, any refunding
16
<PAGE>
203
operation by the application, directly or indirectly, of moneys borrowed having
an interest cost to the Company (calculated in accordance with generally
accepted financial practice) of less than . . .% per annum.]
[The sinking fund for this series provides for the redemption on . . . . . in
each year beginning with the year . . . . and ending with the year . . . . of
[not less than] $. . . . [("mandatory sinking fund") and not more than $. . . .]
aggregate principal amount of Securities of this series. [Securities of this
series acquired or redeemed by the Company otherwise than through [mandatory]
sinking fund payments may be credited against subsequent [mandatory] sinking
fund payments otherwise required to be made -- in the inverse order in which
they become due.]
In the event of redemption of this Security in part only, a new Security or
Securities of this series for the unredeemed portion hereof will be issued in
the name of the Holder hereof upon the cancellation hereof.
[If applicable, insert--Each Security of this series is subject to repayment,
in whole or from time to time in part, at the option of the registered holder
thereof on . . . . . . . (each a "Repayment Date"), at a price equal to the
principal amount thereof (the "Repayment Price") [, if applicable, insert--
together with interest accrued to such Repayment Date (but instalments of
interest whose due date expressed in the Securities is on or prior to a
Repayment Date will be payable to the Holders of such Security or Securities in
lieu of or in substitution for which such Securities were issued, at the close
of business on the relevant record dates).]
A Holder of this Security desiring to exercise his option for repayment
shall, as condition to such repayment, on or before the . . . . . or, if such .
. . . . is not a Business Day, the next succeeding Business Day, but not earlier
than the . . . . . prior to the . . . . . . . . . . in the above-mentioned
years, (i) surrender this Security in whole or in part with the form entitled
"Option to Elect Repayment" attached hereto duly completed at the office or
agency of the Company in . . . . ., . . . . . . . ., . . . . . ., or (ii)
deliver a telegram, telex, facsimile transmission or letter from a member of a
national securities exchange or the National Association of Securities Dealers,
Inc. or a commercial bank or trust company in the United States of America, to
the Company at such office or agency, setting forth the name of the Holder of
this Security, the principal amount of this Security, the amount of this
Security to be repaid, a statement that the option to elect repayment is being
made thereby and a guarantee that this Security to be repaid with said form
entitled "Option to Elect Repayment" duly completed will be received by the
Company no later than . . . . . Business Days after the
17
<PAGE>
203
date of such telegram, telex, facsimile transmission or letter, and this
Security and form duly completed are received by the Company by such . . . . .
Business Day. Either form of notice received on or before the . . . . .
preceding any such . . . . . shall be irrevocable. The written notice of the
exercise of such option shall specify the principal amount of this Security to
be repaid, which shall be $. . . . . or an integral multiple of $. . . . . in
excess of $. . . . ., and in the case of a partial repayment of this Security,
shall specify the denomination or denominations of this Security to be issued to
the Holder for the portion of the principal of this Security surrendered which
is not to be repaid; provided that the portion of the principal amount of this
Security not being repaid shall be at least $. . . . . . All questions as to the
validity, eligibility (including time of receipt) and acceptance of any
Securities for repayment will be determined by the Company, whose determination
shall be final and binding.
Upon surrender of this Security for repayment the Company shall execute and
the Trustee shall authenticate and deliver without service charge to the
registered holder of the Security so surrendered a new Security or Securities of
the same series as this Security, of any authorized denomination specified in
the foregoing notice, in an aggregate principal amount equal to any portion of
the principal of the Security so surrendered which is not to be repaid.
Notice of exercise of the option of repayment having been given and the
Securities so to be repaid in whole or in part having been surrendered as
aforesaid, such Securities, or the portion of the principal amount thereof being
repaid, shall, on the Repayment Date, mature and become due and payable at the
price herein specified and from and after such date (unless the Company shall
default in the payment of such price) such Securities or such portion of the
principal amount thereof shall cease to bear interest and shall be paid by
the Company on the Repayment Date.
If this Security is surrendered for repayment in whole or in part but shall
not be paid on the Repayment Date the Company shall be obligated for the
principal amount of this Security, or the portion of the principal amount
thereof to be repaid, and shall be obligated to pay interest on such principal
amount or such portion of the principal amount at the rate borne by this
Security during the . . . . period in which such failure to pay occurred until
payment in full of such principal amount or such portion of the principal
amount.]
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<PAGE>
203
[If the Security is not an Original Issue Discount Security,--If an Event of
Default with respect to Securities of this series shall occur and be continuing,
the principal of the Securities of this series may be declared due and payable
in the manner and with the effect provided in the Indenture.]
[If the Security is an Original Issue Discount Security,--If an Event of
Default with respect to Securities of this series shall occur and be continuing,
an amount of principal of the Securities of this series may be declared due and
payable in the manner and with the effect provided in the Indenture. Such amount
shall be equal to--insert formula for determining the amount. Upon payment (i)
of the amount of principal so declared due and payable and (ii) of interest on
any overdue principal and overdue interest (in each case to the extent that the
payment of such interest shall be legally enforceable), all of the Company's
obligations in respect of the payment of the principal of and interest (if any)
on the Securities of this series shall terminate.]
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of 66 2/3% in principal amount of the Securities at the
time Outstanding of each series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Securities of each series at the time Outstanding, on behalf of the
Holders of all Securities of such series, to waive compliance by the Company
with certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the registration
of transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this Security or of
the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of (and premium, if any) and
interest (if any) on this Security at the times, place and rate, and in the coin
or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Security is registrable in the Security Register,
upon surrender of this Security for registration of transfer at the office or
agency of the Company in any place where the principal of (and premium, if any)
and interest (if any) on this Security are payable, duly endorsed by, or
19
<PAGE>
203
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities of
this series, of authorized denominations and for the same aggregate principal
amount, will be issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered form without
coupons in denominations of $. . . . . and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Securities of this series are exchangeable for a like aggregate principal amount
of Securities of this series of a different authorized denomination, as
requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
All terms used in this Security which are defined in the Indenture shall have
the meanings assigned to them in the Indenture.
[If applicable, insert--
[FORM OF OPTION TO ELECT REPAYMENT]
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and instructs the Company to
repay the within Security (or portion thereof specified below) pursuant to its
terms at a price equal to the principal amount thereof [, if applicable,
insert--together with interest to the Repayment Date,] to the undersigned, at
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Please Print or Typewrite Name and Address of the Undersigned)
20
<PAGE>
203, 204
For this Security to be repaid the Company must receive at its office or
agency in . . . . . . . . . . ., or at such additional place or places of which
the Company shall from time to time notify the Holder of the within Security, on
or before the . . . . . or, if such . . . . . is not a Business Day, the next
succeeding Business Day, but not earlier than the . . . . ., prior to . . . . .,
(i) this Security with this "Option to Elect Repayment" form duly completed or
(ii) a telegram, telex, facsimile transmission or letter from a member of a
national securities exchange or the National Association of Securities Dealers,
Inc. or a commercial bank or a trust company in the United States of America
setting forth the name of the holder of the Security, the principal amount of
the Security, the amount of the Security to be repaid, a statement that the
option to elect repayment is being made thereby and a guarantee that the
Security to be repaid with the form entitled "Option to Elect Repayment" on the
reverse of the Security duly completed will be received by the Company not later
than . . . . Business Days after the date of such telegram, telex, facsimile
transmission or letter, and such Security and form duly completed are received
by the Company by such . . . . Business Day.
If less than the entire principal amount of the within Security is to be
repaid, specify the portion thereof (which shall be $. . . . . or an integral
multiple of $. . . . . in excess of $. . . . .) which the Holder elects to have
repaid: $. . . . .; and specify the denomination or denominations (which shall
be $. . . . . or an integral multiple of $. . . . . in excess of $. . . . .) of
the Security or Securities to be issued to the Holder for the portion of the
within Security not being repaid (in the absence of any such specification, one
such Security will be issued for the portion not being repaid): $. . . . ..
Dated:
-----------------------------------------------------------
Note: the signature to this Option to Elect Repayment must
correspond with the name as written upon the face of the
Security in every particular without alteration or
enlargement.]
SECTION 204. Form of Trustee's Certificate of Authentication.
This is one of the Securities of the series designated therein referred to in
the within-mentioned Indenture.
Harris Trust and Savings Bank
as Trustee
By..................................................
Authorized Officer
21
<PAGE>
301
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution, and set forth in an Officers'
Certificate, or established in one or more indentures supplemental hereto, 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 304, 305, 306, 906 or 1107);
(3) the date or dates on which the principal of the Securities of the
series is payable;
(4) the rate or rates at which the Securities of the series shall bear
interest, if any, the date or dates from which such interest shall accrue,
the Interest Payment Dates on which such interest shall be payable and the
Regular Record Date for the interest payable on any Interest Payment Date;
(5) the place or places where the principal of (and premium, if any) and
interest (if any) on Securities of the series shall be payable;
(6) the period or periods within which, the price or prices at 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;
(7) the obligation, if any, of the Company to redeem or purchase
Securities of the series pursuant to any sinking fund or analogous provisions
or at the option of a Holder thereof and the period or periods within which,
the price or prices at which and the terms and conditions upon which
Securities of the series shall be redeemed or purchased, in whole or in part,
pursuant to such obligation;
(8) the obligation, if any, of the Company to repay Securities of the
series (at the option of Holders or otherwise) prior to the date on which the
principal of the Security is due as expressed in the Security and the period
or periods within which, the price or prices at which and the
22
<PAGE>
301, 302, 303
terms and conditions upon which Securities of the series shall be so repaid,
in whole or in part, pursuant to such obligation;
(9) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which Securities of the series shall be
issuable;
(10) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section 502;
and
(11) any other terms of the series (which terms 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
Board Resolution and set forth in such Officers' Certificate or in any such
indenture supplemental hereto.
If any of the terms of the series are established by action taken pursuant to
a Board Resolution, a copy of an appropriate record of such action shall be
certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
SECTION 302. Denominations.
The Securities of each series shall be issuable in registered form without
coupons in such denominations as shall be specified as contemplated by Section
301. In the absence of any such provisions with respect to the Securities of any
series, the Securities of such series shall be issuable in denominations of
$1,000 and any integral multiple thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its Chairman of
the Board, its President or one of its Vice Presidents, under its corporate seal
reproduced thereon attested by its Secretary or one of its Assistant
Secretaries. The signature of any of these officers on the Securities may be
manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals who were
at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
23
<PAGE>
303
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, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee in accordance
with the Company Order shall authenticate and deliver such Securities. If the
form or terms of the Securities of the series have been established in or
pursuant to one or more Board Resolutions as permitted by Sections 201 and 301,
in authenticating such Securities, and accepting the additional responsibilities
under this Indenture in relation to such Securities, the Trustee shall be
entitled to receive, and (subject to Section 601) shall be fully protected in
relying upon, an Opinion of Counsel stating,
(a) if the form of such Securities has been established by or pursuant to
Board Resolution as permitted by Section 201, that such form has been
established in conformity with the provisions of this Indenture;
(b) if the terms of such Securities have been established by or pursuant
to Board Resolution as permitted by Section 301, that such terms have been
established in conformity with the provisions of this Indenture; and
(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, enforceable in accordance with their
terms, subject to bankruptcy, insolvency, reorganization and other laws of
general applicability relating to or affecting the enforcement of creditors'
rights and to general equity principles.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be valid
or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder and is entitled to the
benefits of this Indenture.
24
<PAGE>
304, 305
SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities of any series, the Company
may execute, and upon Company Order the Trustee shall authenticate and deliver,
temporary Securities which are printed, lithographed, type-written, mimeographed
or otherwise produced, in any authorized denomination, substantially of the
tenor of the definitive Securities in lieu of which they are issued and with
such appropriate insertions, omissions, substitutions and other variations as
the officers executing such Securities may determine, as evidenced by their
execution of such Securities.
If temporary Securities of any series are issued, the Company will cause
definitive Securities of that series to be prepared without unreasonable delay.
After the preparation of definitive Securities of such series, the temporary
Securities of such series shall be exchangeable for definitive Securities of
such series upon surrender of the temporary Securities of such series at the
office or agency of the Company in a Place of Payment for that series, without
charge to the Holder. Upon surrender for cancellation of any one or more
temporary Securities of any series the Company shall execute and the Trustee
shall authenticate and deliver in exchange therefor a like principal amount of
definitive Securities of the same series of authorized denominations. Until so
exchanged the temporary Securities of any series shall in all respects be
entitled to the same benefits under this Indenture as definitive Securities of
such series.
SECTION 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office of the
Trustee a register (the register maintained in such office and in any other
office or agency of the Company in a Place of Payment being herein sometimes
collectively referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Securities and of transfers of Securities. The Trustee is hereby
appointed "Security Registrar" for the purpose of registering Securities and
transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security of any series at
the office or agency in a Place of Payment for that series, the Company shall
execute, and the Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Securities of the same
series, of any authorized denominations and of a like aggregate principal
amount.
At the option of the Holder, Securities of any series may be exchanged for
other Securities of the same series, of any authorized denominations and
25
<PAGE>
305, 306
of a like aggregate principal amount, upon surrender of the Securities to be
exchanged at such office or agency. Whenever any Securities are so surrendered
for exchange, the Company shall execute, and the Trustee shall authenticate and
deliver, the Securities which the Holder making the exchange is entitled to
receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or for
exchange shall (if so required by the Company or the Trustee) be duly endorsed,
or be accompanied by a written instrument of transfer in form satisfactory to
the Company and the Security Registrar duly executed, by the Holder thereof or
his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or exchange
of Securities, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in connection with any
registration of transfer or exchange of Securities, other than exchanges
pursuant to Section 304, 906 or 1107 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer of or
exchange Securities of any series during a period beginning at the opening of
business 15 days before the day of the mailing of a notice of redemption of
Securities of that series selected for redemption under Section 1103 and ending
at the close of business on the day of such mailing, or (ii) to register the
transfer of or exchange any Security so selected for redemption in whole or in
part, except the unredeemed portion of any Security being redeemed in part.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
new Security of the same series and of like tenor and principal amount and
bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence to
their satisfaction of the destruction, loss or theft of any Security and (ii)
such security or indemnity as may be required by them to save each of them and
any agent of either of them harmless, then, in the absence of notice to the
Company or the Trustee that such Security has been acquired by a bona
26
<PAGE>
306, 307
fide purchaser, the Company shall execute and upon its request the Trustee shall
authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become or
is about to become due and payable, the Company in its discretion may, instead
of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in lieu of
any destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Interest on any Security which is payable, and is punctually paid or duly
provided for, on any Interest Payment Date shall be paid to the Person in whose
name that Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest.
Any interest on any Security of any series which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to the
Persons in whose names the Securities of such series (or their respective
Predecessor Securities) are registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest, which shall be fixed
in the following manner. The Company shall notify the Trustee in writing of
the amount of Defaulted Interest
27
<PAGE>
307, 308
proposed to be paid on each Security of such series and the date of the
proposed payment, and at the same time the Company shall deposit with the
Trustee an amount of money equal to the aggregate amount proposed to be paid
in respect of such Defaulted Interest or shall make arrangements satisfactory
to the Trustee for such deposit prior to the date of the proposed payment,
such money when deposited to be held in trust for the benefit of the Persons
entitled to such Defaulted Interest as in this Clause provided. Thereupon the
Trustee shall fix a Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15 days and not less than 10 days prior
to the date of the proposed payment and not less than 10 days after the
receipt by the Trustee of the notice of the proposed payment. The Trustee
shall promptly notify the Company of such Special Record Date and, in the
name and at the expense of the Company, shall cause notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor to be
mailed, first-class postage prepaid, to each Holder of Securities of such
series at his address as it appears in the Security Register, not less than
10 days prior to such Special Record Date. Notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor having been so
mailed, such Defaulted Interest shall be paid to the Persons in whose names
the Securities of such series (or their respective Predecessor Securities)
are registered at the close of business on such Special Record Date and shall
no longer be payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest on the
Securities of any series in any other lawful manner not inconsistent with the
requirements of any securities exchange on which such Securities may be
listed, and upon such notice as may be required by such exchange, if, after
notice given by the Company to the Trustee of the proposed payment pursuant
to this Clause, such manner of payment shall be deemed practicable by the
Trustee.
Subject to the foregoing provisions of this Section, each Security delivered
under this Indenture upon registration of transfer of or in exchange for or in
lieu of any other Security shall carry the rights to interest accrued and
unpaid, and to accrue, which were carried by such other Security.
SECTION 308. Persons Deemed Owners.
Prior to due presentment of a Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name such Security is registered as the owner of such Security
for the purpose of receiving payment of principal of (and
28
<PAGE>
308, 309, 310, 401
premium, if any) and (subject to Section 307) interest (if any) on such Security
and for all other purposes whatsoever, whether or not such Security be overdue,
and neither the Company, the Trustee nor any agent of the Company or the Trustee
shall be affected by notice to the contrary.
SECTION 309. Cancellation.
All Securities surrendered for payment, redemption, registration of transfer
or exchange or for credit against any sinking fund payment shall, if surrendered
to any Person other than the Trustee, be delivered to the Trustee and shall be
promptly cancelled by it. The Company may at any time deliver to the Trustee for
cancellation any Securities previously authenticated and delivered hereunder
which the Company may have acquired in any manner whatsoever, and all Securities
so delivered shall be promptly cancelled by the Trustee. No Securities shall be
authenticated in lieu of or in exchange for any Securities cancelled as provided
in this Section, except as expressly permitted by this Indenture. All cancelled
Securities held by the Trustee shall be disposed of as directed by a Company
Order.
SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for Securities
of any series, interest (if any) on the Securities of each series shall be
computed on the basis of a year of twelve 30-day months.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further effect
(except as to any surviving rights of registration of transfer or exchange of
Securities herein expressly provided for), and the Trustee, at the expense of
the Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered (other than
(i) Securities which have been destroyed, lost or stolen and which have
been replaced or paid as provided in Section 306 and (ii) Securities for
whose payment money has theretofore been deposited in trust or segregated
and held in trust by the Company and thereafter repaid to the Company or
discharged from such trust, as
29
<PAGE>
401, 402
provided in Section 1003) have been delivered to the Trustee for
cancellation; or
(B) all such Securities not theretofore delivered to the Trustee for
cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within
one year, or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the
Company,
and the Company, in the case of (i), (ii) or (iii) above, has deposited or
caused to be deposited with the Trustee as trust funds in trust for the
purpose an amount sufficient to pay and discharge the entire indebtedness
on such Securities not theretofore delivered to the Trustee for
cancellation, for principal (and premium, if any) and interest (if any) to
the date of such deposit (in the case of Securities which have become due
and payable) or to the Stated Maturity or Redemption Date, as the case may
be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture
have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 607 and, if money shall
have been deposited with the Trustee pursuant to subclause (B) of clause (1) of
this Section, the obligations of the Trustee under Section 402 and the last
paragraph of Section 1003 shall survive.
SECTION 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all money
deposited with the Trustee pursuant to Section 401 shall be held in trust and
applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and
30
<PAGE>
402, 501
premium, if any) and interest (if any) for whose payment such money has been
deposited with the Trustee.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
"Event of Default", wherever used herein with respect to Securities of any
series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body:
(1) default in the payment of any interest upon any Security of that
series when it becomes due and payable, and continuance of such default for a
period of 30 days; or
(2) default in the payment of the principal of (or premium, if any, on)
any Security of that series at its Maturity; or
(3) default in the deposit of any sinking fund payment, when and as due by
the terms of a Security of that series; or
(4) default in the performance, or breach, of any covenant or warranty of
the Company in this Indenture (other than a covenant or warranty a default in
whose performance or whose breach is elsewhere in this Section specifically
dealt with or which has expressly been included in this Indenture solely for
the benefit of series of Securities other than that series), and continuance
of such default or breach for a period of 60 days after there has been given,
by registered or certified mail, to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 10% in principal amount of
the Outstanding Securities of that series a written notice specifying such
default or breach and requiring it to be remedied and stating that such
notice is a "Notice of Default" hereunder; or
(5) a default under any bond, debenture, note or other evidence of
indebtedness for money borrowed by the Company (including a default with
respect to Securities of any series other than that series) or under any
mortgage, indenture or instrument under which there may be issued or by which
there may be secured or evidenced any indebtedness for money borrowed by the
Company (including this Indenture), whether such indebtedness now exists or
shall hereafter be created, which default shall have resulted in more than
$10,000,000 principal amount of
31
<PAGE>
501
such indebtedness becoming or being declared due and payable prior to the
date on which it would otherwise have become due and payable, without such
acceleration having been rescinded or annulled within a period of 10 days
after there shall have been given, by registered or certified mail, to the
Company by the Trustee or to the Company and the Trustee by the Holders of at
least 25% in principal amount of the Outstanding Securities of that series, a
written notice specifying such default and requiring the Company to cause
such acceleration to be rescinded or annulled and stating that such notice is
a "Notice of Default" hereunder; or
(6) the entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of the Company in an involuntary case
or proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or (B) a decree or order adjudging the
Company a bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of or in
respect of the Company under any applicable Federal or State law, or
appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator
or other similar official of the Company or of any substantial part of its
property, or ordering the winding up or liquidation of its affairs, and the
continuance of any such decree or order for relief or any such other decree
or order unstayed and in effect for a period of 90 consecutive days; or
(7) the commencement by the Company of a voluntary case or proceeding
under any applicable Federal or State bankruptcy, insolvency, reorganization
or other similar law or of any other case or proceeding to be adjudicated a
bankrupt or insolvent, or the consent by it to the entry of a decree or order
for relief in respect of the Company in an involuntary case or proceeding
under any applicable Federal or State bankruptcy, insolvency, reorganization
or other similar law or to the commencement of any bankruptcy or insolvency
case or proceeding against it, or the filing by it of a petition or answer or
consent seeking reorganization or relief under any applicable Federal or
State law, or the consent by it to the filing of such petition or to the
appointment of or taking possession by a custodian, receiver, liquidator,
assignee, trustee, sequestrator or similar official of the Company or of any
substantial part of its property, or the making by it of an assignment for
the benefit of creditors, or the admission by it in writing of its inability
to pay its debts generally as they become due, or the taking of corporate
action by the Company in furtherance of any such action; or
32
<PAGE>
501, 502
(8) any other Event of Default provided with respect to Securities of that
series.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Securities of any series at the time
Outstanding occurs and is continuing, then in every such case the Trustee or the
Holders of not less than 25% in principal amount of the Outstanding Securities
of that series may declare the principal amount (or, if the Securities of that
series are Original Issue Discount Securities, such portion of the principal
amount as may be specified in the terms of that series) of all of the Securities
of that series to be due and payable immediately, by a notice in writing to the
Company (and to the Trustee if given by Holders), and upon any such declaration
such principal amount (or specified amount) shall become immediately due and
payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum sufficient to
pay
(A) all overdue interest on all Securities of that series,
(B) the principal of (and premium, if any, on) any Securities of that
series which have become due otherwise than by such declaration of
acceleration and interest (if any) thereon at the rate or rates prescribed
therefor in such Securities,
(C) to the extent that payment of such interest is lawful, interest
upon overdue interest at the rate or rates prescribed therefor in such
Securities, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel;
and
(2) all Events of Default with respect to Securities of that series, other
than the non-payment of the principal of Securities of that series which have
become due solely by such declaration of acceleration, have been cured or
waived as provided in Section 513.
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502, 503, 504
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if
(1) default is made in the payment of any interest on any Security when
such interest becomes due and payable and such default continues for a period
of 30 days, or
(2) default is made in the payment of the principal of (or premium, if
any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal (and premium, if any) and interest (if any) and, to the
extent that payment of such interest shall be legally enforceable, interest on
any overdue principal (and premium, if any) and on any overdue interest, at the
rate or rates prescribed therefor in such Securities, and, in addition thereto,
such further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon such Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon such Securities, wherever
situated.
If an Event of Default with respect to Securities of any series occurs and is
continuing, the Trustee may in its discretion proceed to protect and enforce its
rights and the rights of the Holders of Securities of such series by such
appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any such rights, whether for the specific enforcement of any
covenant or agreement in this Indenture or in aid of the exercise of any power
granted herein, or to enforce any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
34
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504, 505
judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of overdue principal or interest) shall be entitled
and empowered, by intervention in such proceeding or otherwise,
(i) to file and prove a claim for the whole amount of principal (and
premium, if any) and interest owing and unpaid in respect of the Securities
and to file such other papers or documents as may be necessary or advisable
in order to have the claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel) and of the Holders allowed in such judicial
proceeding, and
(ii) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to
pay to the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 607.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
SECTION 505. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities may be
prosecuted and enforced by the Trustee without the possession of any of the
Securities or the production thereof in any proceeding relating thereto, and any
such proceeding instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment shall, after provision
for the payment of the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel,
35
<PAGE>
505, 506, 507
be for the ratable benefit of the Holders of the Securities in respect of which
such judgment has been recovered.
SECTION 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be applied
in the following order, at the date or dates fixed by the Trustee and; in case
of the distribution of such money on account of principal (or premium, if any)
or interest (if any) upon presentation of the Securities and the notation
thereon of the payment if only partially paid and upon surrender thereof if
fully paid:
FIRST: To the payment of all amounts due the Trustee under Section 607; and
SECOND: To the payment of the amounts then due and unpaid for principal of
(and premium, if any) and interest (if any) on the Securities in respect of
which or for the benefit of which such money has been collected, ratably,
without preference or priority of any kind, according to the amounts due and
payable on such Securities for principal (and premium, if any) and interest
(if any), respectively.
SECTION 507. Limitation on Suits.
No Holder of any Security of any series shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the Trustee of a
continuing Event of Default with respect to the Securities of that series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default in its
own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request an
offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given to
the Trustee during such 60-day period by the Holders of a majority in
principal amount of the Outstanding Securities of that series;
36
<PAGE>
507, 508, 509, 510
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium and
Interest.
Notwithstanding any other provision in this Indenture, the Holder of any
Security shall have the right, which is absolute and unconditional, to receive
payment of the principal of (and premium, if any) and (subject to Section 307)
interest (if any) on such Security on the Stated Maturity or Maturities
expressed in such Security (or, in the case of redemption, on the Redemption
Date) and to institute suit for the enforcement of any such payment, and such
rights shall not be impaired without the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder, then and in every such case, subject to any determination in
such proceeding, the Company, the Trustee and the Holders shall be restored
severally and respectively to their former positions hereunder and thereafter
all rights and remedies of the Trustee and the Holders shall continue as though
no such proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities in the last paragraph of Section
306, no right or remedy herein conferred upon or reserved to the Trustee or to
the Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
37
<PAGE>
511, 512, 513, 514
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Securities to
exercise any right or remedy accruing upon any Event of Default shall impair any
such right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article or by law to
the Trustee or to the Holders may be exercised from time to time, and as often
as may be deemed expedient, by the Trustee or by the Holders, as the case may
be.
SECTION 512. Control by Holders.
The Holders of a majority in principal amount of the Outstanding Securities
of any series shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred on the Trustee, with respect to the Securities of
such series, provided that
(1) such direction shall not be in conflict with any rule of law or with
this Indenture, and
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.
SECTION 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series waive any past default hereunder with respect to such
series and its consequences, except a default
(1) in the payment of the principal of (or premium, if any) or interest
(if any) on any Security of such series, or
(2) in respect of a covenant or provision hereof which under Article Nine
cannot be modified or amended without the consent of the Holder of each
Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
default or impair any right consequent thereon.
SECTION 514. Undertaking for 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,
38
<PAGE>
514, 515, 601
suffered 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 shall not apply to any suit instituted by the
Company, to any suit instituted by the Trustee, to any suit instituted by any
Holder, or group of Holders, holding in the aggregate more than 10% in principal
amount of the Outstanding Securities of any series, or to any suit instituted by
any Holder for the enforcement of the payment of the principal of (or premium,
if any) or interest (if any) on any Security on or after the Stated Maturity or
Maturities expressed in such Security (or, in the case of redemption, on or
after the Redemption Date).
SECTION 515. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that it will
not at any time insist upon, or plead, or in any manner whatsoever claim or take
the benefit or advantage of, any stay or extension law wherever enacted, now or
at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties and only such
duties 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 its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon certificates or opinions furnished
to the Trustee and conforming to the requirements of this Indenture; but
in the case of any such certificates or opinions which by any provision
39
<PAGE>
601, 602
hereof are specifically required to be furnished to the Trustee, the
Trustee shall be under a duty to examine the same to determine whether or
not they conform to the requirements of this Indenture.
(b) In case an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, 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.
(c) 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 wilful misconduct, except that
(1) this Subsection shall not be construed to limit the effect of
Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts;
(3) 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 Holders of a majority in principal amount of the
Outstanding Securities of any series, determined as provided in Section
512, 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 with respect to the
Securities of such series; and
(4) no provision of this Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of
its rights or powers, if it shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this Section.
SECTION 602. Notice of Defaults.
Within 90 days after the occurrence of any default hereunder with respect to
the Securities of any series, the Trustee shall transmit by mail to all Holders
of Securities of such series, as their names and addressees appear in the
Security Register, notice of such default hereunder known to the
40
<PAGE>
602, 603
Trustee, unless such default shall have been cured or waived; provided, however,
that, except in the case of a default in the payment of the principal of (or
premium, if any) or interest (if any) on any Security of such series or in the
payment of any sinking fund installment with respect to 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 or Responsible Officers of the Trustee in good faith determine that
the withholding of such notice is in the interest of the Holders of Securities
of such series; and provided, further, that in the case of any default of the
character specified in Section 501(4) with respect to Securities of such series,
no such notice to Holders shall be given until at least 30 days after the
occurrence thereof. For the purpose of this Section, the term "default" means
any event which is, or after notice or lapse of time or both would become, an
Event of Default with respect to Securities of such series.
SECTION 603. Certain Rights of Trustee.
Subject to the provisions of Section 601.
(a) the Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness 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 or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad faith
on its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the written advice of such
counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction
of any of the Holders pursuant to this Indenture, unless such Holders
41
<PAGE>
603, 604, 605, 606, 607
shall have offered to the Trustee reasonable security or indemnity against
the costs, expenses and liabilities which might be incurred by it in
compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further inquiry
or investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records and premises of the Company,
personally or by agent or attorney; and
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder.
SECTION 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the Trustee's
certificates of authentication, shall be taken as the statements of the Company,
and the Trustee assumes no responsibility for their correctness. The Trustee
makes no representations as to the validity or sufficiency of this Indenture or
of the Securities. The Trustee shall not be accountable for the use or
application by the Company of Securities or the proceeds thereof.
SECTION 605. May Hold Securities.
The Trustee, any Paying Agent, any Security Registrar or any other agent of
the Company, in its individual or any other capacity, may become the owner or
pledgee of Securities and, subject to Sections 608 and 613, may otherwise deal
with the Company with the same rights it would have if it were not Trustee,
Paying Agent, Security Registrar or such other agent.
SECTION 606. Money Held in Trust
Money held by the Trustee in trust hereunder need not be segregated from
other funds except to the extent required by law. The Trustee shall be under no
liability for interest on any money received by it hereunder except as otherwise
agreed with the Company.
SECTION 607. Compensation and Reimbursement.
The Company agrees:
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<PAGE>
607, 608
(1) to pay to the Trustee from time to time reasonable compensation for
all services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee
of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision of
this Indenture (including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad
faith; and
(3) to indemnify the Trustee for, and to hold it harmless against, any
loss, liability or expense incurred without negligence or bad faith on its
part, arising out of or in connection with the acceptance or administration
of the trust or trusts hereunder, including the costs and expenses of
defending itself against any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder.
SECTION 608. Disqualification; Conflicting Interests.
(a) If the Trustee has or shall acquire any conflicting interest, as
defined in this Section, 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 hereinafter specified in this
Article.
(b) In the event that the Trustee shall fail to comply with the provisions
of Subsection (a) of this Section with respect to the Securities of any series,
the Trustee shall, within 10 days after the expiration of such 9O-day period,
transmit by mail to all Holders of Securities of that series, as their names and
addresses appear in the Security Register, notice of such failure.
(c) For the purposes of this Section, the Trustee shall be deemed to have a
conflicting interest with respect to the Securities of any series if
(1) the Trustee is trustee under this Indenture with respect to the
Outstanding Securities of any series other than that series or is trustee
under another indenture under which any other securities, or certificates of
interest or participation in any other securities, of the Company 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
43
<PAGE>
608
of this paragraph this Indenture with respect to the Securities of any series
other than that series or any indenture or indentures under which other
securities, or certificates of interest or participation in other securities,
of the Company are outstanding, if
(i) 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, unless the Commission shall have found and
declared by order pursuant to Section 305(b) or Section 307(c) of the
Trust Indenture Act that differences exist between the provisions of this
Indenture with respect to Securities of that series and one or more other
series or 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 with
respect to the Securities of that series and such other series or under
such other indenture or indentures, or
(ii) the Company shall have sustained the burden of proving, on
application to the Commission and after opportunity for hearing thereon,
that trusteeship under this Indenture with respect to the Securities of
that series and such other series or 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 the Securities of that series and such other series or under
such other indenture or indentures;
(2) the Trustee or any of its directors or executive officers is an
obligor upon the Securities or an underwriter for the Company;
(3) the Trustee directly or indirectly controls or is directly or
indirectly controlled by or is under direct or indirect common control with the
Company or an underwriter for the Company;
(4) the Trustee or any of its directors or executive officers is a
director, officer, partner, employee, appointee or representative of the
Company, or of an underwriter (other than the Trustee itself) for the Company
who is currently engaged in the business of underwriting, except that (i) one
individual may be a director or an executive officer, or both, of the Trustee
and a director or an executive officer, or both, of the Company but may not be
at the same time an executive officer of both the Trustee and the Company; (ii)
if and so long as the number of directors of the Trustee in office is more than
nine, one additional
44
<PAGE>
608
individual may be a director or an executive officer, or both, of the Trustee
and a director of the Company; and (iii) the Trustee may be designated by the
Company or by any underwriter for the Company 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, 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 the Company or by any director, partner or executive officer
thereof, or 20% or more of such voting securities is beneficially owned,
collectively, by any two or more of such persons; or 10% or more of the voting
securities of the Trustee is beneficially owned either by an underwriter for the
Company 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 (as hereinafter in this
Subsection defined), (i) 5% or more of the voting securities, or 10% or more of
any other class of security, of the Company not including the Securities issued
under this Indenture and securities issued under any other indenture under which
the Trustee is also trustee, or (ii) 10% or more of any class of security of an
underwriter for the Company;
(7) the Trustee is the beneficial owner of, or holds as collateral
security for an obligation which is in default (as hereinafter in this
Subsection defined), 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, the Company;
(8) the Trustee is the beneficial owner of, or holds as collateral
security for an obligation which is in default (as hereinafter in this
Subsection defined), 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 the
Company; 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. As to any such securities of
45
<PAGE>
608
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
the principal of (or premium, if any) or interest on any of the Securities
when and as the same becomes 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, 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.
The specification of percentages in paragraphs (5) to (9), inclusive, of this
Subsection shall not be construed as indicating that the ownership of such
percentages of the securities of a person is or is not necessary or sufficient
to constitute direct or indirect control for the purposes of paragraph (3) or
(7) of this Subsection.
For the purposes of paragraphs (6), (7), (8) and (9) of this Subsection only,
(i) 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; (ii) 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 (iii) the Trustee shall not be deemed to be the
owner or holder of (A) any security which it holds as collateral security, as
trustee or otherwise, for an obligation which is not in default as defined in
clause (ii) above, or (B) any security which it holds as collateral security
under this Indenture, irrespective of any default hereunder, or (C) any
security which it holds as agent for collection, or as custodian, escrow agent
or depositary, or in any similar representative capacity.
46
<PAGE>
608
(d) For the purposes of this Section:
(1) The term "underwriter", when used with reference to the Company,
means every person who, within three years prior to the time as of which the
determination is made, has purchased from the Company with a view to, or has
offered or sold for the Company in connection with, the distribution of any
security of the Company 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" means any director of a corporation or any
individual performing similar functions with respect to any organization,
whether incorporated or unincorporated.
(3) The term "person" means 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" means 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 "Company" means any obligor upon the Securities.
(6) The term "executive officer" means the president, every vice
president, every trust officer, the cashier, the secretary and the treasurer
of a corporation, and any individual customarily performing similar
functions with respect to any organization whether incorporated or
unincorporated, but shall not include the chairman of the board of
directors.
(e) The percentages of voting securities and other securities specified in
this Section shall be calculated in accordance with the following provisions:
(1) A specified percentage of the voting securities of the Trustee, the
Company or any other person referred to in this Section (each of whom is
referred to as a "person" in this paragraph) means such
47
<PAGE>
608
amount of the outstanding voting securities of such person as entitles the
holder or holders thereof 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.
(2) A specified percentage of a class of securities of a person means
such percentage of the aggregate amount of securities of the class
outstanding.
(3) 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.
(4) 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; and
(iv) securities held in escrow if placed in escrow by the issuer
thereof;
provided, however, that any voting securities of an issuer shall be deemed
outstanding if any person other than the issuer is entitled to exercise the
voting rights thereof.
(5) 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
48
<PAGE>
608, 609, 610
them securities of different classes, whether or not they are issued under a
single indenture.
SECTION 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be a corporation
organized and doing business under the laws of the United States of America, any
State thereof or 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 or State
authority. If such corporation publishes reports of condition at least annually,
pursuant to law or to the requirements of said supervising or examining
authority, then for the purposes of this Section, 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 the Trustee shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article.
SECTION 610. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 611.
(b) The Trustee may resign at any time with respect to the Securities of
one or more series by giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required by Section 611 shall
not have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
(c) The Trustee may be removed at any time with respect to the Securities
of any series by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series, delivered to the Trustee and to the
Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608(a) after written
request therefor by the Company or by any Holder who has been a bona fide
Holder of a Security for at least six months, or
49
<PAGE>
610
(2) the Trustee shall cease to be eligible under Section 609 and shall
fail to resign after written request therefor by the Company or by any such
Holder, or
(3) the Trustee shall become incapable of acting or shall be adjudged a
bankrupt or insolvent or a receiver of the Trustee or of its property shall
be appointed or any public officer shall take charge or control of the
Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to all Securities, or (ii) subject to Section 514, any
Holder who has been a bona fide Holder of a Security 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 a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of acting,
or if a vacancy shall occur in the office of Trustee for any cause, with respect
to the Securities of one or more series, the Company, by a Board Resolution,
shall promptly appoint a successor Trustee or Trustees with respect to the
Securities of that or those series (it being understood that any such successor
Trustee may be appointed with respect to the Securities of one or more or all of
such series and that at any time there shall be only one Trustee with respect to
the Securities of any particular series) and shall comply with the applicable
requirements of Section 611. If, within one year after such resignation, removal
or incapability, or the occurrence of such vacancy, a successor Trustee with
respect to the Securities of any series shall be appointed by Act of the Holders
of a majority in principal amount of the Outstanding Securities of such series
delivered to the Company and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment in accordance
with the applicable requirements of Section 611, become the successor Trustee
with respect to the Securities of such series and to that extent supersede the
successor Trustee appointed by the Company. If no successor Trustee with respect
to the Securities of any series shall have been so appointed by the Company or
the Holders and accepted appointment in the manner required by Section 611, any
Holder who has been a bona fide Holder of a Security of such series for at least
six months may, on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the appointment of a successor Trustee
with respect to the Securities of such series.
(f) The Company shall give notice of each resignation and each removal of
the Trustee with respect to the Securities of any series and each ap-
50
<PAGE>
610, 611
pointment of a successor Trustee with respect to the Securities of any series by
mailing written notice of such event by first-class mail, postage prepaid, to
all Holders of Securities of such series as their names and addresses appear in
the Security Register. Each notice shall include the name of the successor
Trustee with respect to the Securities of such series and the address of its
Corporate Trust Office.
SECTION 611. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on the request
of the Company or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee and
shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates, (2)
if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees co-trustees of the
same trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or
51
<PAGE>
611, 612, 613
trusts hereunder administered by any other such Trustee; and upon the execution
and delivery of such supplemental indenture the resignation or removal of the
retiring Trustee shall become effective to the extent provided therein and each
such successor Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates; but, on request of the Company or
any successor Trustee, such retiring Trustee shall duly assign, transfer and
deliver to such successor Trustee all property and money held by such retiring
Trustee hereunder with respect to the Securities of that or those series to
which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall execute
any and all instruments for more fully and certainly vesting in and confirming
to such successor Trustee all such rights, powers and trusts referred to in
Subsection (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this Article.
SECTION 612. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities.
SECTION 613. Preferential Collection of Claims Against Company.
(a) Subject to Subsection (b) of this Section, if the Trustee shall be or
shall become a creditor, directly or indirectly, secured or unsecured, of the
Company within four months prior to a default, as defined in Subsection (c) of
this Section, or subsequent to such a default, then, unless and until such
52
<PAGE>
613
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
Subsection (c) of this Section:
(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 months' period and valid as
against the Company 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 the Company upon the date of such default; and
(2) all property received by the Trustee in respect of any claims as such
creditor, either as security therefor, or in satisfaction or composition
thereof, or otherwise, after the beginning of such four months' period, or
an amount equal to the proceeds of any such property, if disposed of,
subject, however, to the rights, if any, of the Company 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 the Company) 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 the Company in bankruptcy or
receivership or in proceedings for reorganization pursuant to the Federal
Bankruptcy Act 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 months' 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 months'
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, would occur within four months; or
53
<PAGE>
613
(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 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 months' period for property held as security at the
time of such substitution shall, to the extent of the fair value of the property
released, have the same status as the property released, and, to the extent that
any claim referred to in any of such paragraphs is created in renewal of or in
substitution for or for the purpose of repaying or refunding any pre-existing
claim of the Trustee as such creditor, such claim shall have the same status as
such pre-existing claim.
If the Trustee shall be required to account, the funds and property held in
such special account and the proceeds thereof shall be apportioned among the
Trustee, the Holders and the holders of other indenture securities in such
manner that the Trustee, the Holders 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 the Company in bankruptcy or
receivership or in proceedings for reorganization pursuant to the Federal
Bankruptcy Act 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 the Company of the funds and property in such special
account and before crediting to the respective claims of the Trustee and the
Holders and the holders of other indenture securities dividends on claims filed
against the Company in bankruptcy or receivership or in proceedings for
reorganization pursuant to the Federal Bankruptcy Act 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
proceedings for reorganization pursuant to the Federal Bankruptcy Act 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 proceedings for reorganization is pending shall have
jurisdiction (i) to apportion among the Trustee, the Holders 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 proceeds thereof, or
(ii) in lieu of such apportion-
54
<PAGE>
613
ment, 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 and the Holders and the holders of other indenture securities with
respect to their respective claims, in which event it shall not be necessary to
liquidate or to appraise the value of any securities or other property held in
such special account or as security for any such claim, or to make a specific
allocation of such distributions as between the secured and unsecured portions
of such claims, or otherwise to apply the provisions of this paragraph as a
mathematical formula.
Any Trustee which has resigned or been removed after the beginning of such
four months' period shall be subject to the provisions of this Subsection as
though such resignation or removal had not occurred. If any Trustee has resigned
or been removed prior to the beginning of such four months' period, it shall be
subject to the provisions of this Subsection 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 months' 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 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 preserving
any property which shall at any time be subject to the lien of this
Indenture or of discharging tax liens or other prior liens or encumbrances
thereon, if notice of such advances and of the circumstances surrounding the
making thereof is given to the Holders at the time and in the manner
provided in this Indenture;
(3) disbursements made in the ordinary course of business in the
capacity of trustee under an indenture, transfer agent, registrar,
custodian, paying agent, fiscal agent or depositary, or other similar
capacity;
(4) an indebtedness created as a result of services rendered or premises
rented; or an indebtedness created as a result of goods or securities sold
in a cash transaction, as defined in Subsection (c) of this Section;
55
<PAGE>
613
(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 the Company; and
(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.
(c) For the purposes of this Section only:
(1) the term "default" means any failure to make payment in full of the
principal of or interest (if any) on any of the Securities or upon the other
indenture securities when and as such principal or interest (if any) becomes
due and payable;
(2) the term "other indenture securities" means securities upon which the
Company is an obligor outstanding under any other indenture (i) under which
the Trustee is also trustee, (ii) which contains provisions substantially
similar to the provisions of this Section, and (iii) under which a default
exists at the time of the apportionment of the funds and property held in
such special account;
(3) the term "cash transaction" means 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" means any draft, bill of exchange,
acceptance or obligation which is made, drawn, negotiated or incurred by the
Company for the purpose of financing the purchase, processing,
manufacturing, 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 the security is received by the Trustee simultaneously
with the creation of the creditor relationship with the Company arising from
the making, drawing, negotiating or incurring of the draft, bill of
exchange, acceptance or obligation;
(5) the term "Company" means any obligor upon the Securities; and
(6) the term "Federal Bankruptcy Act" means the Bankruptcy Act or Title
11 of the United States Code.
56
<PAGE>
701, 702
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee
(a) semi-annually, not later than January 15 and July 15 in each year,
a list, in such form as the Trustee may reasonably require, of the names and
addresses of the Holders as of the preceding December 31 or June 30, as the
case may be, and
(b) at such other times as the Trustee may request in writing, within 30
days after the receipt by the Company of any such request, a list of similar
form and content as of a date not more than 15 days prior to the time such
list is furnished;
excluding from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
SECTION 702. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 701 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
(b) If three or more Holders (herein 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 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 with respect to their rights
under this Indenture or under the 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
(i) afford such applicants access to the information preserved at the
time by the Trustee in accordance with Section 702(a), or
(ii) inform such applicants as to the approximate number of Holders
whose names and addresses appear in the information pre-
57
<PAGE>
702, 703
served at the time by the Trustee in accordance with Section 702(a), and as
to the approximate cost of mailing to such Holders the form of proxy or other
communication, if any, specified in such application.
If the Trustee shall elect not to afford such applicants access to such
information, the Trustee shall, upon the written request of such applicants,
mail to each Holder whose name and address appear in the information preserved
at the time by the Trustee in accordance with Section 702(a) 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 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 interest of the Holders
or would be in violation of applicable law. Such written statement shall specify
the basis of such opinion. If the 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, the 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 Holders 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) 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 of them shall be held accountable by reason of the
disclosure of any such information as to the names and addresses of the Holders
in accordance with Section 702(b), regardless of the source from which such
information was derived, and that the Trustee shall not be held accountable by
reason of mailing any material pursuant to a request made under Section 702(b).
SECTION 703. Reports by Trustee.
(a) Within 60 days after January 15 of each year commencing with the year
1983, the Trustee shall transmit by mail to all Holders, as their names and
addresses appear in the Security Register, a brief report dated as of such
January 15 with respect to:
58
<PAGE>
703
(1) its eligibility under Section 609 and its qualifications under
Section 608, or in lieu thereof, if to the best of its knowledge it has
continued to be eligible and qualified under said Sections, a written
statement to such effect;
(2) the character and amount of any advances (and if the Trustee elects
so to state, the circumstances surrounding the making thereof) made by the
Trustee (as such) which remain unpaid on the date of such report, and for
the reimbursement of which it claims or may claim a lien or charge, prior to
that of the Securities, on any property or funds held or collected by it as
Trustee, except that the Trustee shall not be required (but may elect) to
report such advances if such advances so remaining unpaid aggregate not more
than 1/2 of 1% of the principal amount of the Securities 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 an indebtedness based upon a creditor relationship arising
in any manner described in Section 613(b)(2), (3), (4) or (6);
(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
hereunder 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 the Trustee in accordance
with Section 602.
(b) The Trustee shall transmit by mail to all Holders, as their names and
addresses appear in the Security Register, 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 Subsection (a) of
this Section (or if no such report has yet been so transmitted, since the date
of execution of this instrument) for the reimbursement of which it claims or may
claim a lien or charge, prior to that of the Securities, on property or funds
held or collected by it as Trustee and which it has not previously reported
pursuant to this Subsection, except that the Trustee shall not be required (but
may elect) to report such advances if such advances remaining unpaid at any time
aggregate 10% or less of the princi-
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<PAGE>
703, 704
pal amount of the Securities Outstanding at such time, such report to be
transmitted within 90 days after such time.
(c) A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each stock exchange upon which any
Securities are listed, with the Commission and with the Company. The
Company will notify the Trustee when any Securities are listed on any stock
exchange.
SECTION 704. Reports by Company.
The Company shall:
(1) file with the Trustee, within 15 days after the Company is required
to file the same with the Commission, copies of the annual reports and of
the information, documents and other reports (or copies of such portions of
any of the foregoing as the Commission may from time to time by rules and
regulations prescribe) which the Company may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934; or, if the Company is not required to file
information, documents or reports pursuant to either of said Sections, then
it shall file with the Trustee and the Commission, in accordance with rules
and regulations prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents and reports which may be
required pursuant to Section 13 of the Securities Exchange Act of 1934 in
respect of a security listed and registered on a national securities
exchange as may be prescribed from time to time in such rules and
regulations;
(2) file with the Trustee and the Commission, in accordance with rules
and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by
the Company with the conditions and covenants of this Indenture as may be
required from time to time by such rules and regulations; and
(3) transmit by mail to all Holders, as their names and addresses
appear m the Security Register, within 30 days after the filing thereof with
the Trustee, such summaries of any information, documents and reports
required to be filed by the Company pursuant to paragraphs (1) and (2) of
this Section as may be required by rules and regulations prescribed from
time to time by the Commission.
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801
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other corporation
or convey, transfer or lease its properties and assets substantially as an
entirety to any Person, and the Company shall not permit any Person to
consolidate with or merge into the Company or convey, transfer or lease its
properties and assets substantially as an entirety to the Company, unless:
(1) in case the Company shall consolidate with or merge into another
corporation or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, the corporation formed by such
consolidation or into which the Company is merged or the Person which
acquires by conveyance or transfer or which leases the properties and assets
of the Company substantially as an entirety shall be a corporation organized
and existing under the laws of the United States of America, any State
thereof or the District of Columbia and shall expressly assume, by an
indenture supplemental hereto, executed and delivered to the Trustee, in
form satisfactory to the Trustee, the due and punctual payment of the
principal of (and premium, if any) and interest (if any) on all the
Securities and the performance of every covenant of this Indenture on the
part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction and treating any
indebtedness which becomes an obligation of the Company or a Subsidiary as a
result of such transaction as having been incurred by the Company or such
Subsidiary at the time of such transaction, no Event of Default, and no
event which, after notice or lapse of time or both, would become an Event of
Default, shall have happened and be continuing;
(3) if, as a result of any such consolidation or merger or such
conveyance, transfer or lease, properties or assets of the Company would
become subject to a mortgage, pledge, lien, security interest or other
encumbrance which would not be permitted by this Indenture, the Company or
such successor corporation or Person, as the case may be, shall take such
steps as shall be necessary effectively to secure the Securities equally and
ratably with (or prior to) all indebtedness secured thereby; and
(4) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that such consolidation, merger,
conveyance, transfer or lease and, if a supplemental indenture is required
in connection with such transaction, such supplemental in-
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801, 802, 901
denture comply with this Article and that all conditions precedent herein
provided for relating to such transaction have been complied with.
SECTION 802. Successor Corporation Substituted.
Upon any consolidation by the Company with or merger by the Company into any
other corporation or any conveyance, transfer or lease of the properties and
assets of the Company substantially as an entirety in accordance with Section
801, the successor corporation formed by such consolidation or into which the
Company is merged or to which such conveyance, transfer or lease is made shall
succeed to, and be substituted for, and may exercise every right and power of,
the Company under this Indenture with the same effect as if such successor
corporation had been named as the Company herein, and thereafter, except in the
case of a lease, the predecessor corporation shall be relieved of all
obligations and covenants under this Indenture and the Securities.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by a Board
Resolution, and the Trustee, at any time and from time to time, may enter into
one or more indentures supplemental hereto, in form satisfactory to the Trustee,
for any of the following purposes:
(1) to evidence the succession of another corporation to the Company and
the assumption by any such successor of the covenants of the Company herein
and in the Securities; or
(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (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 solely for the benefit of such series)
or to surrender any right or power herein conferred upon the Company; or
(3) to add any additional Events of Default; or
(4) to add to or change any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the issuance of
Securities in bearer form, registrable or not registrable as to principal,
and with or without interest coupons; or
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901, 902
(5) to change or eliminate any of the provisions of this Indenture,
provided that any such change or elimination shall become effective only
when there is no Security Outstanding of any series created prior to the
execution of such supplemental indenture which is entitled to the benefit of
such provision; or
(6) to secure the Securities pursuant to the requirements of Sections
1004 and 1005 or otherwise; or
(7) to establish the form or terms of Securities of any series as
permitted by Sections 201 and 301; or
(8) 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
611(b); or
(9) to cure any ambiguity, to correct or supplement any provision herein
which may be inconsistent with any other provision herein, or to make any
other provisions with respect to matters or questions arising under this
Indenture, provided such action shall not adversely affect the interests of
the Holders of Securities of any series in any material respect.
SECTION 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than 66 2/3% in principal amount
of the Outstanding Securities of each series affected by such supplemental
indenture, by Act of said Holders delivered to the Company and the Trustee, the
Company, when authorized by a Board Resolution, and the Trustee may enter into
an indenture or indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture or of modifying in any manner the rights of the Holders of
Securities of such series under this Indenture; provided, however, that no such
supplemental indenture shall, without the consent of the Holder of each
Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any instalment of
principal of or interest on, any Security, or reduce the principal amount
thereof or the rate of interest thereon or any premium payable upon the
redemption thereof, or reduce the amount of the principal of an Original
Issue Discount Security that would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section
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902, 903
502, or change any Place of Payment where, or the coin or currency in which,
any Security or any premium or the interest thereon is payable, or impair
the right to institute suit for the enforcement of any such payment on or
after the Stated Maturity thereof (or, in the case of redemption, on or
after the Redemption Date); or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required for
any waiver (of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided for in this
Indenture; or
(3) modify any of the provisions of this Section, Section 513 or
Section 1010, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Security affected
thereby; provided, however, that this clause shall not be deemed to require
the consent of any Holder with respect to changes in the references to "the
Trustee" and concomitant changes in this Section and Section 1010, or the
deletion of this proviso, in accordance with the requirements of Sections
611(b) and 901(8).
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
SECTION 903. Execution of Supplemental lndentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
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904, 905, 906, 1001, 1002
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall conform
to the requirements of the Trust Indenture Act as then in effect.
SECTION 906. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the execution of
any supplemental indenture pursuant to this Article may, and shall if required
by the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Securities of any series so modified as to conform, in the opinion of the
Trustee and the Company, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee in
exchange for Outstanding Securities of such series.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of (and premium,
if any) and interest (if any) on the Securities of that series in accordance
with the terms of the Securities and this Indenture.
SECTION 1002. Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series may be presented
or surrendered for payment, where Securities of that series may be surrendered
for registration of transfer or exchange and where notices and demands to or
upon the Company in respect of the Securities of that series and this Indenture
may be served. The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address
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1002, 1003
thereof, such presentations, surrenders, notices and demands may be made or
served at the Corporate Trust Office of the Trustee, and the Company hereby
appoints the Trustee as its agent to receive all such presentations, surrenders,
notices and demands.
The Company may also from time to time designate one or more other offices or
agencies where the Securities of one or more series may be presented or
surrendered for any or all such purposes and may from time to time rescind such
designations; provided, however, that no such designation or rescission shall in
any manner relieve the Company of its obligation to maintain an office or agency
in each Place of Payment for Securities of any series for such purposes. The
Company will give prompt written notice to the Trustee of any such designation
or rescission and of any change in the location of any such other office or
agency.
SECTION 1003. Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with respect
to any series of Securities, it will, on or before each due date of the
principal of (and premium, if any) or interest (if any) on any of the Securities
of that series, segregate and hold in trust for the benefit of the Persons
entitled thereto a sum sufficient to pay the principal (and premium, if any) or
interest (if any) so becoming due until such sums shall be paid to such Persons
or otherwise disposed of as herein provided and will promptly notify the Trustee
of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any series of
Securities, it will, prior to each due date of the principal of (and premium, if
any) or interest (if any) on any Securities of that series, deposit with a
Paying Agent a sum sufficient to pay the principal (and premium, if any) or
interest (if any) so becoming due, such sum to be held in trust for the benefit
of the Persons entitled to such principal, premium or interest, and (unless such
Paying Agent is the Trustee) the Company will promptly notify the Trustee of its
action or failure so to act.
The Company will cause each Paying Agent for any series of Securities other
than the Trustee to execute and deliver to the Trustee an instrument in which
such Paying Agent shall agree with the Trustee, subject to the provisions of
this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of (and
premium, if any) or interest (if any) on Securities of that series in trust
for the benefit of the Persons entitled thereto until such sums shall be
paid to such Persons or otherwise disposed of as herein provided;
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<PAGE>
1003, 1004
(2) give the Trustee notice of any default by the Company (or any other
obligor upon the Securities of that series) in the making of any payment of
principal (and premium, if any) or interest (if any) on the Securities of
that series; and
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Company
Order direct any Paying Agent to pay, to the Trustee all sums held in trust by
the Company or such Paying Agent, such sums to be held by the Trustee upon the
same trusts as those upon which such sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to such
money.
Any money deposited with the Trustee or any Paying Agent, or then held by
the Company, in trust for the payment of the principal of (and premium, if any)
or interest (if any) on any Security of any series and remaining unclaimed for
three years after such principal (and premium, if any) or interest (if any) has
become due and payable shall be paid to the Company on Company Request, or (if
then held by the Company) shall be discharged from such trust; and the Holder of
such Security shall thereafter, as an unsecured general creditor, look only to
the Company for payment thereof, and all liability of the Trustee or such
Paying Agent with respect to such trust money, and all liability of the Company
as trustee thereof, shall thereupon cease; provided, however, that the Trustee
or such Paying Agent, before being required to make any such repayment, may at
the expense of the Company cause to be published once, in a newspaper published
in the English language, customarily published on each Business Day and of
general circulation in the Borough of Manhattan, The City of New York, notice
that such money remains unclaimed and that, after a date specified therein,
which shall not be less than 30 days from the date of such publication, any
unclaimed balance of such money then remaining will be repaid to the Company.
SECTION 1004. Limitation on Secured Debt.
The provisions of this Section and Section 1005 shall apply so long as
Securities of any series are Outstanding, except to the extent that one or more
of such provisions is expressly made inapplicable to the Securities of
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1004
particular series, as specified in the terms of such series (in accordance with
Section 301) at the time of establishment of such series.
The Company covenants and agrees that it will not itself, and will not
permit any Restricted Subsidiary to, issue, assume, guarantee or incur any
Secured Debt, without effectively providing that the Securities of any series to
which this Section applies (together with, if the Company shall so determine,
any other indebtedness of the Company or such Restricted Subsidiary then
existing or thereafter created ranking equally with the Securities of such
series, including guaranty of indebtedness of others) shall be secured equally
and ratably with (or prior to) such Secured Debt, so long as such Secured Debt
shall be so secured, except that this Section 1004 shall not apply to Secured
Debt secured by:
(1) mortgages on property of any corporation existing at the time such
corporation becomes a Subsidiary;
(2) mortgages on property existing at the time of acquisition thereof or
to secure the payment of all or any part of the purchase price thereof or to
secure any indebtedness incurred prior to, at the time of or within 90 days
after the acquisition of such property for the purpose of financing all or
any part of the purchase price thereof;
(3) mortgages on particular property to secure indebtedness incurred in
financing all or any part of the cost of exploration or development of such
property, or to secure all or any part of the cost of improvements to such
property which is, in the opinion of the Board of Directors, substantially
unimproved, or to secure any indebtedness incurred to provide funds for such
purpose;
(4) mortgages on property in favor of the United States of America or
any State thereof, or any other country, or any political subdivision of any
of the foregoing, to secure payments pursuant to any contract or statute or
to secure any indebtedness incurred for the purpose of financing all or any
part of the purchase price or the cost of construction of the property
subject to such mortgages;
(5) mortgages which secure indebtedness owing to the Company or to a
Wholly-owned Restricted Subsidiary by a Subsidiary; and
(6) any extension, renewal or replacement (or successive extensions,
renewals or replacements), in whole or in part, of any mortgage referred to
in the foregoing clauses (1) to (5), inclusive, or of any indebtedness
secured thereby; provided that such extension, renewal or replacement
mortgage shall be limited to all or any part of the same
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1004, 1005
property that secured the mortgage extended, renewed or replaced (plus
improvements on such property).
As used in clauses (1) through (6) above, the terms "mortgage" or "mortgages"
shall include pledges, liens, and security interests.
Notwithstanding the foregoing provisions of this Section 1004, the Company
and any one or more Restricted Subsidiaries may, without equally and ratably
securing the Securities of any series to which this Section applies, issue,
assume, guarantee or incur Secured Debt which would otherwise be subject to the
foregoing restrictions if, after giving effect to the Secured Debt to be issued,
assumed, guaranteed or incurred, the sum of (a) the aggregate amount of all such
Secured Debt of the Company and its Restricted Subsidiaries (not including
Secured Debt permitted under clauses (1) through (6) above) and (b) the
aggregate value of the Sale and Leaseback Transactions (as defined in Section
1005) in existence at such time (except Sale and Leaseback Transactions the
proceeds of which have been applied in accordance with Section 1005(a)(2)) does
not exceed 5% of the Shareholders' Interest.
SECTION 1005. Limitation on Sales and Leaseback's
and Transfers of Assets to Unrestricted Subsidiaries.
(a) The Company will not itself, and will not permit any Restricted
Subsidiary to, enter into any arrangement with any bank, insurance company or
other lender or investor, or to which any such lender or investor is a party,
providing for the leasing to the Company or a Restricted Subsidiary of any real
property (except a lease for a temporary period not to exceed three years by the
end of which it is intended that the use of such real property by the lessee
will be discontinued) which has been or is to be sold or transferred by the
Company or such Restricted Subsidiary to such lender or investor or to any
person to whom funds have been or are to be advanced by such lender or investor
on the security of such real property (herein referred to as a "Sale and
Leaseback Transaction") unless either:
(1) the Company or such Restricted Subsidiary could create Secured Debt
secured by a mortgage, in accordance with Section 1004, on the real property
to be leased, in an amount equal to the value of such Sale and Leaseback
Transaction, without equally and ratably securing the Securities of any
series to which this Section applies, or
(2) the Company (and in any such case the Company covenants that it
will) within 120 days after the Sale and Leaseback Transaction, regardless
of whether such Sale and Leaseback Transaction may have been made by the
Company or by a Restricted Subsidiary, applies an
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1005, 1006
amount equal to the greater of (i) the net proceeds of the sale of the real
property leased pursuant to such Sale and Leaseback Transaction and (ii) the
fair value of the real property so leased at the time of entering into such
Sale and Leaseback Transaction (as determined by the Board of Directors) to
the retirement of Funded Debt of the Company; provided, that the amount to be
applied to the retirement of Funded Debt of the Company shall be reduced by
(i) the principal amount of any Securities of any series to which this
Section applies delivered within 120 days after such sale to the Trustee
for retirement and cancellation, and
(ii) the principal amount of Funded Debt, other than Securities of such
series, voluntarily retired by the Company within 120 days after such
sale;
provided, that no retirement referred to in this clause (2) may be effected
by payment at maturity or pursuant to any mandatory sinking fund payment or
any mandatory prepayment provision.
For purposes of this Section 1005 and Section 1004, the term "value"
shall mean, with respect to a Sale and Leaseback Transaction, as of any
particular time, the amount equal to the greater of (i) the net proceeds of
the sale of the real property leased pursuant to such Sale and Leaseback
Transaction and (ii) the fair value of the real property so leased at the
time of entering into such Sale and Leaseback Transaction (as determined by
the Board of Directors), divided first by the number of full years in the
term of the lease and then multiplied by the number of full years of such
term remaining at the time of determination, without regard to any renewal or
extension options contained in the lease.
(b) The Company will not itself, and will not permit any Restricted
Subsidiary to, transfer any assets which, in the opinion of the Board of
Directors, constitute a major manufacturing or research property, plant or
facility of the Company and its Restricted Subsidiaries, taken as a whole, to
any Unrestricted Subsidiary.
SECTION 1006. Corporate Existence.
Subject to Article Eight, the Company will do or cause to be done all things
necessary to preserve and keep in full force and effect its corporate existence,
rights (charter and statutory) and franchises; provided, however, that the
Company shall not be required to preserve any such right or franchise if the
Board of Directors shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company and that
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1006, 1007, 1008, 1009, 1010
the loss thereof is not disadvantageous in any material respect to the Holders.
SECTION 1007. Maintenance of Properties.
The Company will cause all properties used or useful in the conduct of its
business or the business of any Subsidiary to be maintained and kept in good
condition, repair and working order and supplied with all necessary equipment
and will cause to be made all necessary repairs, renewals, replacements,
betterments and improvements thereof, all as in the judgment of the Company may
be necessary so that the business carried on in connection therewith may be
properly and advantageously conducted at all times; provided, however, that
nothing in this Section shall prevent the Company from discontinuing the
operation or maintenance of any of such properties if such discontinuance is, in
the judgment of the Company, desirable in the conduct of its business or the
business of any Subsidiary and not disadvantageous in any material respect to
the Holders.
SECTION 1008. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or discharged, before
the same shall become delinquent, (1) all taxes, assessments and governmental
charges levied or imposed upon the Company or any Subsidiary or upon the income,
profits or property of the Company or any Subsidiary, and (2) all lawful claims
for labor, materials and supplies which, if unpaid, might by law become a lien
upon the property of the Company or any Subsidiary; provided, however, that the
Company shall not be required to pay or discharge or cause to be paid or
discharged any such tax, assessment, charge or claim whose amount, applicability
or validity is being contested in good faith by appropriate proceedings.
SECTION 1009. Statement by Officers as to Default.
The Company will deliver to the Trustee, within 120 days after the end of
each fiscal year of the Company ending after the date hereof, an Officers'
Certificate, stating whether or not to the best knowledge of the signers thereof
the Company is in default in the performance and observance of any of the terms,
provisions and conditions of Sections 1001 to 1008, inclusive, and if the
Company shall be in default, specifying all such defaults and the nature and
status thereof of which they may have knowledge.
SECTION 1010. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any term,
provision or condition set forth in Sections 1001 to 1008, inclusive,
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1010, 1101, 1102, 1103
with respect to the Securities of any series if before the time for such
compliance the Holders of at least 66 2/3% in principal amount of the
Outstanding Securities of such series shall, by Act of such Holders, either
waive such compliance in such instance or generally waive compliance with such
term, provision or condition, but no such waiver shall extend to or affect such
term, provision or condition except to the extent so expressly waived, and,
until such waiver shall become effective, the obligations of the Company and the
duties of the Trustee in respect of any such term, provision or condition shall
remain in full force and effect.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article.
Securities of any series which are redeemable before their Stated Maturity
shall be redeemable in accordance with their terms and (except as otherwise
specified as contemplated by Section 301 for Securities of any series) in
accordance with this Article.
SECTION 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced by a
Board Resolution. In case of any redemption at the election of the Company of
less than all the Securities of any series, the Company shall, at least 60 days
prior to the Redemption Date fixed by the Company (unless a shorter notice shall
be satisfactory to the Trustee), notify the Trustee of such Redemption Date and
of the principal amount of Securities of such series to be redeemed. In the case
of any redemption of Securities prior to the expiration of any restriction on
such redemption provided in the terms of such Securities or elsewhere in this
Indenture, the Company shall furnish the Trustee with an Officers' Certificate
evidencing compliance with such restriction.
SECTION 1103. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities of any series are to be redeemed, the
particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities of
such series not previously called for redemption, by such method as the Trustee
shall deem fair and appropriate and which may provide for the selection for
redemption of portions (equal to the minimum authorized denomination for
Securities of that series or any integral multiple thereof)
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1103, 1104, 1105
of the principal amount of Securities of such series of a denomination larger
than the minimum authorized denomination for Securities of that series.
The Trustee shall promptly notify the Company in writing of the Securities
selected for redemption and, in the case of any Securities selected for partial
redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities shall relate, in the
case of any Securities redeemed or to be redeemed only in part, to the portion
of the principal amount of such Securities which has been or is to be redeemed.
SECTION 1104. Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage prepaid,
mailed not less than 30 nor more than 60 days prior to the Redemption Date, to
each Holder of Securities to be redeemed, at his address appearing in the
Security Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any series are to be
redeemed, the identification (and, in the case of partial redemption, the
principal amounts) of the particular Securities to be redeemed,
(4) that on the Redemption Date the Redemption Price will become due and
payable upon each such Security to be redeemed and, if applicable, that
interest thereon will cease to accrue on and after said date,
(5) the place or places where such Securities are to be surrendered for
payment of the Redemption Price, and
(6) that the redemption is for a sinking fund, if such is the case.
Notice of redemption of Securities to be redeemed at the election of the
Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
SECTION 1105. Deposit of Redemption Price.
Prior to any Redemption Date, the Company shall deposit with the Trustee or
with a Paying Agent (or, if the Company is acting as its own Paying Agent,
segregate and hold in trust as provided in Section 1003) an amount of money
sufficient to pay the Redemption Price of, and (except if
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<PAGE>
1105, 1106, 1107, 1201
the Redemption Date shall be an Interest Payment Date) accrued interest on, all
the Securities which are to be redeemed on that date.
SECTION 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so to be
redeemed shall, on the Redemption Date, become due and payable at the Redemption
Price therein specified, and from and after such date (unless the Company shall
default in the payment of the Redemption Price and accrued interest) such
Securities shall cease to bear interest. Upon surrender of any such Security for
redemption in accordance with said notice, such Security shall be paid by the
Company at the Redemption Price, together with accrued interest to the
Redemption Date; provided, however, that instalments of interest whose Stated
Maturity is on or prior to the Redemption Date shall be payable to the Holders
of such Securities, or one or more Predecessor Securities, registered as such at
the close of business on the relevant Record Dates according to their terms and
the provisions of Section 307.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal (and premium, if any) shall, until paid,
bear interest from the Redemption Date at the rate prescribed therefor in the
Security.
SECTION 1107. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered at a
Place of Payment therefor (with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Company shall execute, and the Trustee
shall authenticate and deliver to the Holder of such Security without service
charge, a new Security or Securities of the same series, of any authorized
denomination as requested by such Holder, in aggregate principal amount equal to
and in exchange for the unredeemed portion of the principal of the Security so
surrendered.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund for
the retirement of Securities of a series except as otherwise specified as
contemplated by Section 301 for Securities of such series.
74
<PAGE>
1201, 1202, 1203
The minimum amount of any sinking fund payment provided for by the terms of
Securities of any series is herein referred to as a "mandatory sinking fund
payment", and any payment in excess of such minimum amount provided for by the
terms of Securities of any series is herein referred to as an "optional sinking
fund payment". If provided for by the terms of Securities of any series, the
cash amount of any sinking fund payment may be subject to reduction as provided
in Section 1202. Each sinking fund payment shall be applied to the redemption of
Securities of any series as provided for by the terms of Securities of such
series.
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities.
The Company (1) may deliver Outstanding Securities of a series (other than
any previously called for redemption) and (2) may apply as a credit Securities
of a series which have been redeemed either at the election of the Company
pursuant to the terms of such Securities or through the application of permitted
optional sinking fund payments pursuant to the terms of such Securities, in each
case in satisfaction of all or any part of any sinking fund payment with respect
to the Securities of such series required to be made pursuant to the terms of
such Securities as provided for by the terms of such Series; provided that such
Securities have not been previously so credited. Such Securities shall be
received and credited for such purpose by the Trustee at the Redemption Price
specified in such Securities for redemption through operation of the sinking
fund and the amount of such sinking fund payment shall be reduced accordingly.
SECTION 1203. Redemption of Securities for Sinking Fund.
Not less than 45 days prior to each sinking fund payment date for any series
of Securities, the Company will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing sinking fund payment for that series
pursuant to the terms of that series, the portion thereof, if any, which is to
be satisfied by payment of cash and the portion thereof, if any, which is to be
satisfied by delivering and crediting Securities of that series pursuant to
Section 1202 and will also deliver to the Trustee any Securities to be so
delivered. Not less than 30 days before each such sinking fund payment date the
Trustee shall select the Securities to be redeemed upon such sinking fund
payment date in the manner specified in Section 1103 and cause notice of the
redemption thereof to be given in the name of and at the expense of the Company
in the manner provided in Section 1104. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 1106 and 1107.
75
<PAGE>
1203
This instrument may be executed in any number of counterparts, each of which
so executed shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly
executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
PPG Industries, Inc.
By /s/ L. M. Call
.........................
Treasurer
Attest:
/s/ HELEN A. PAVLICK
.............................
Assistant Secretary
Harris Trust and Savings Bank
By /s/ R. S. STAM
.........................
Vice President
Attest:
J. BARTOLINI
.............................
Assistant Secretary
76
<PAGE>
Exhibit 4.2
===============================================================================
First Supplemental Indenture
DATED AS OF APRIL 1, 1986
TO
Indenture Dated As Of
August 1, 1982
PPG INDUSTRIES, INC.
TO
Harris Trust and Savings Bank,
Trustee
Establishing 10.70% Restricted Installment Notes
===============================================================================
<PAGE>
Table of Contents
Page
----
PARTIES.................................................................. 1
RECITALS OF THE COMPANY.................................................. 1
ARTICLE ONE
10.70% RESTRICTED INSTALLMENT NOTES
SECTION 101. Establishment of Series.................................... 2
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally............................................ 2
SECTION 202. Form of Face of Security................................... 3
SECTION 203. Form of Reverse of Security................................ 4
SECTION 204. Form of Trustee's Certificate
of Authentication.................................... 9
SECTION 205. Provision for Completion of Installment Note
When an Installment Note
is Redeemed in Part Only............................. 9
SECTION 206. Provision for Acquiring Installment Notes
without Restrictions................................. 10
ARTICLE THREE
MISCELLANEOUS PROVISIONS
SECTION 301. Benefits Restricted to Parties and Holders of
Installment Notes.................................... 10
SECTION 302. Terms Have Meanings Defined in Indenture................... 10
SECTION 303. Invalidity of Any Provisions Not
To Affect Others..................................... 11
SECTION 304. Date of Execution Indicated by
Acknowledgements..................................... 11
SECTION 305. Provisions Bind and Benefit Successors..................... 11
SECTION 306. Descriptive Headings for Convenience Only.................. 11
SECTION 307. Execution In Counterparts.................................. 11
TESTIMONIUM.............................................................. 12
SIGNATURES AND SEALS..................................................... 12
ACKNOWLEDGEMENTS......................................................... 13
<PAGE>
FIRST SUPPLEMENTAL INDENTURE, dated as of April 1, 1986 between PPG
Industries, Inc., a corporation duly organized and existing under the laws of
the Commonwealth of Pennsylvania (herein called the "Company"), having its
principal office at One PPG Place, Pittsburgh, Pennsylvania 15272, and Harris
Trust and Savings Bank, a corporation duly organized and existing under the laws
of the State of Illinois, as Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has heretofore executed and delivered to the Trustee an Indenture
dated as of August 1, 1982 (herein called the "Original Indenture").
Pursuant to an agreement dated September 16, 1985 between the Company and The
Pitcairn Company, the Company paid cash and issued and delivered its 10.75%
Restricted Installment Note, in the principal amount of $171,264,000 to The
Pitcairn Company in exchange for 8,896,868 shares of Common Stock, par value
$1.66 2/3 per share, of the Company and agreed to include such note under an
indenture qualified under the Trust Indenture Act of 1939.
Pursuant to an agreement dated as of February 20, 1986 between the Company
and The Pitcairn Company, the Company agreed to issue and deliver 10.70%
Restricted Installment Notes of the Company in the aggregate principal amount of
$171,264,000 (the "Installment Notes") under such an indenture to The Pitcairn
Company in exchange for the 10.75% Restricted Installment Note referred to in
the preceding recital.
The Company has duly authorized the execution and delivery of this First
Supplemental Indenture to establish the Installment Notes as a series of
Securities to be issued under the Indenture.
The Installment Notes are to be distributed by The Pitcairn Company to the
stockholders of The Pitcairn Company pursuant to a plan of complete liquidation
adopted by such stockholders.
All things necessary to make this First Supplemental Indenture a valid
agreement of the Company, in accordance with its terms, have been done.
1
<PAGE>
NOW, THEREFORE, THIS FIRST SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Installment
Notes, it is mutually covenanted and agreed, for the equal and proportionate
benefit of all Holders of the Installment Notes, as follows:
ARTICLE ONE
10.70% RESTRICTED INSTALLMENT NOTES
SECTION 101. Establishment of Series.
Pursuant to Section 3.01 and 9.01 of the Original Indenture, there is hereby
established a new series of Securities to be designated "10.70% Restricted
Installment Notes" to be issued under the Indenture. The Installment Notes shall
be limited in aggregate principal amount to $171,264,000 and the terms of the
Installment Notes shall be as set forth in the form of the Installment Note set
forth in Article Two below.
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally.
The Installment Notes shall be in substantially the form set forth in this
Article, with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by the Indenture and this First
Supplemental Indenture and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may,
consistently with the Indenture and this First Supplemental Indenture, be
determined by the officers executing the Installment Notes, as evidenced by
their execution of the Installment Notes.
The Trustee's certificate of authentication shall be in substantially the
form set forth in this Article.
The definitive Installment Notes 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 the Installment Notes, as evidenced by
their execution of the Installment Notes.
2
<PAGE>
SECTION 202. Form of Face of Security.
PPG INDUSTRIES, INC.
10.70% Restricted Installment Note
No. ..... $........ As Reduced by Any Installment Payments
PPG INDUSTRIES, INC., a corporation duly organized and existing under the
laws of the Commonwealth of Pennsylvania (herein called the "Company", which
term includes any successor corporation under the Indenture hereinafter referred
to), for value received, hereby promises to pay to ........................ , or
registered assigns, the principal sum of ............ Dollars in nine
installments payable on October 1, 1987 and on each October 1 thereafter through
October 1, 1995. The first eight of such installments shall each equal 11 1/9%
of such principal sum and the ninth installment shall equal the remaining
principal balance. If one or more installments of principal with respect to this
Installment Note have been paid prior to the date hereof set forth below, there
is stamped hereon notation of such payment. The Company promises to pay interest
on the unpaid principal balance hereof from and including April 1, 1986, or from
and including the most recent Interest Payment Date to which interest has been
paid or duly provided for, semi-annually on October 1 and April 1 in each
12-month period commencing October 1, 1986, at the rate of 10.70% per annum,
until the principal hereof is paid or made available for payment and (to the
extent that the payment of such interest shall be legally enforceable) at the
rate of 10.70% per annum on any overdue principal and premium, if any, and on
any overdue installment of interest. The interest so payable, and punctually
paid or duly provided for, on any Interest Payment Date, will, as provided in
such Indenture, be paid to the Person in whose name this Installment Note (or
one or more Predecessor Securities) is registered at the close of business on
the Regular Record Date for such interest, which shall be the September 15 or
March 15 (whether or not a Business Day), as the case may be, next preceding
such Interest Payment Date. Any such interest not so punctually paid or duly
provided for will forthwith cease to be payable to the Holder on such Regular
Record Date and may either be paid to the Person in whose name this Installment
Note (or one or more Predecessor Securities) is registered at the close of
business on a Special Record Date for the payment of such Defaulted Interest to
be fixed by the Trustee, notice whereof shall be given to Holders of the
Installment Notes (as hereinafter defined) not less than 10 days prior to such
Special Record
3
<PAGE>
Date, or be paid at any time in any other lawful manner, all as more fully
provided in such Indenture.
Payment of the principal of and premium, if any, and interest on this
Installment Note will be made at the office or agency of the Company maintained
for that purpose in Chicago, Illinois, in such coin or currency of the United
States of America as at the time of payment is legal tender for payment of
public and private debts; provided, however, that at the option of the Company
payment of interest may be made by check mailed to the address of the Person
entitled thereto as such address shall appear in the Security Register.
Reference is hereby made to the further provisions of this Installment Note
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Installment
Note shall not be entitled to any benefit under such Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
PPG INDUSTRIES, INC.
By ..........................
[CORPORATE SEAL]
Attest:
.............................
SECTION 203. Form of Reverse of Security.
This Note is one of a duly authorized issue of securities of the Company
(herein called the "Installment Notes"), issued and to be issued in one or more
series under an Indenture dated as of August 1, 1982 between the Company and
Harris Trust and Savings Bank, as Trustee (herein called the "Trustee", which
term includes any successor trustee under said Indenture), as heretofore and
hereafter supplemented and amended (said Indenture as so supplemented and
amended being herein called the "Indenture"), to which Indenture reference is
hereby made for a statement of the respective rights, limitations of rights,
duties and
4
<PAGE>
immunities thereunder of the Company, the Trustee and the Holders of the
Installment Notes and of the terms upon which the Installment Notes are, and are
to be, authenticated and delivered. This Installment Note is one of the series
designated on the face hereof, limited in aggregate principal amount to
$171,264,000.
The Installment Notes are subject to redemption upon not less than 30 days'
notice by mail, as a whole or in part, at the election of the Company, at any
time during the 12-month period beginning October 1 of the year indicated, at
the following Redemption Prices (expressed as percentages of the then remaining
principal balance of the Installment Notes to be redeemed)
<TABLE>
<CAPTION>
Year Percentage
---- ----------
<S> <C>
1990 105.5
1991 104.4
1992 103.3
1993 102.2
1994 101.1
</TABLE>
together in the case of any such redemption with accrued interest to the
Redemption Date, but interest installments whose Stated Maturity is on or prior
to such Redemption Date will be payable to the Holders of the Installment Notes
or one or more Predecessor Securities, of record at the close of business on the
relevant Record Dates referred to on the face hereof, all as provided in the
Indenture.
In the event of redemption of this Installment Note in part only, a new
Installment Note or Installment Notes of authorized denominations for the
unredeemed portion of the principal sum hereof unreduced by any installment
payments will be issued in the name of the Holder hereof upon the cancellation
hereof; provided, however, that if one or more installments of principal with
respect to this Installment Note have been paid prior to any such issuance,
there shall be stamped on such new Installment Note or Installment Notes
notation of such payment.
If an Event of Default with respect to the Installment Notes shall occur and
be continuing, the principal of the Installment Notes may be declared due and
payable in the manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and
5
<PAGE>
the Trustee with the consent of the Holders of 662/3% in principal amount of the
Securities at the time Outstanding of each series to be affected. The Indenture
also contains provisions permitting the Holders of specified percentages in
principal amount of the Securities of each series at the time Outstanding, on
behalf of the Holders of all Securities of such series, to waive compliance by
the Company with certain provisions of the Indenture and certain past defaults
under the Indenture and their consequences. Any such consent or waiver by the
Holder of this Installment Note shall be conclusive and binding upon such Holder
and upon all future Holders of this Installment Note and of any Installment Note
issued upon the registration of transfer hereof or in exchange herefor or in
lieu hereof, whether or not notation of such consent or waiver is made upon this
Installment Note.
No reference herein to the Indenture and no provision of this Installment
Note or of the Indenture shall alter or impair the obligation of the Company,
which is absolute and unconditional, to pay the principal of and premium, if
any, and interest (if any) on this Installment Note at the times, place and
rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Installment Note is registrable in the Security
Register, upon surrender of this Installment Note for registration of transfer
at the office or agency of the Company in any place where the principal of and
premium, if any, and interest (if any) on this Installment Note are payable,
duly endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed by, the
Holder hereof or his attorney duly authorized in writing, and thereupon one or
more new Installment Notes, of authorized denominations and for a like aggregate
principal sum, will be issued to the designated transferee or transferees;
provided, however, that if one or more installments of principal with respect to
this Installment Note have been paid prior to any such registration of transfer,
there shall be stamped on such new Installment Note or Installment Notes
notation of such payment.
Except by will, the laws of descent or distribution or otherwise by operation
of law, this Installment Note may be sold, transferred, pledged or assigned only
to a Permitted Transferee (as hereinafter defined). No transfer will be
effective unless the Trustee receives from the proposed transferee a completed
affidavit to the effect that the proposed transferee is a Permitted Transferee.
Permitted Transferees are (a) for a Holder of an
6
<PAGE>
Installment Note who is a natural person: (i) the Holder's spouse, ancestors,
lineal descendants, whether adopted or by the whole or half blood, brothers and
sisters, whether adopted or by the whole or half blood, or any spouse of such
persons (collectively, such Holder's "Immediate Family"), (ii) any charitable
institution and (iii) any trust, partnership or corporation at least 90% of the
beneficial interest, partnership interest or capital stock of which is held by
the Holder, members of the Holder's Immediate Family or any charitable
institution; (b)) for a Holder of an Installment Note that is either (i) an
estate, (ii) a trust for the benefit of charitable institutions, a natural
person's Immediate Family or both or (iii) a common law trust having as
beneficiaries only natural persons (and no more than 15 such persons); a
beneficiary of such estate or trust or a member of such beneficiary's Immediate
Family; (c) for a Holder of an Installment Note which is a corporation; the
survivor of a merger or consolidation involving the initial Holder and (d) for a
Holder of an Installment Note which is a corporation or partnership having as
shareholders or partners only natural persons (and no more than 15 such
persons), the shareholders or partners of such Holder as of the distribution
date.
Notwithstanding anything contained herein to the contrary; (1) if by reason
of any change in the Internal Revenue Code of 1954, as amended, or the
regulations promulgated thereunder, or otherwise, a Holder of this Installment
Note who is an assignee of The Pitcairn Company as one of its stockholders
pursuant to the plan of complete liquidation of The Pitcairn Company would no
longer be eligible to report for Federal income tax purposes any gain on the
distribution of the Installment Notes pursuant to such plan of complete
liquidation under the installment sale method; or (2) if the Company's
outstanding publicly-held debt securities are rated below BBB by Standard &
Poor's Corporation or below Baa by Moody's Investors' Service, Inc. (or the
equivalent rating in the event of any change in the rating categories), without
regard to any subcategories of such ratings; then on or after September 17,
1987, the Holder of this Installment Note shall have the right to exchange this
Installment Note for one or more new Installment Notes, of authorized
denominations and for a like aggregate principal sum, identical in all respects
to this Installment Note, except that such new Installment Note or Installment
Notes shall not contain this or the immediately preceding paragraph; provided,
however, that if one or more installments of principal with respect to this
Installment Note have been paid prior to any such exchange, there shall be
stamped on such new Installment Note or Installment Notes notation of such
payment. In any such exchange, the Holder shall deliver this
7
<PAGE>
Installment Note to the Trustee, together with an affidavit identifying the
condition that has caused this Installment Note to be exchangeable, and request
the issuance of such a new Installment Note or new Installment Notes.
Notwithstanding anything contained herein to the contrary, on or after
October 1, 1986, the Holder of this Installment Note shall have the right to
exchange this Installment Note for one or more new Installment Notes, of
authorized denominations and for a like aggregate principal sum, identical in
all respects to this Installment Note except that it shall not contain this
paragraph or the immediately preceding two paragraphs, provided, however, that
the right to exchange this Installment Note provided in this paragraph shall not
become effective until the date on which there shall have been delivered to the
Company rulings from the Internal Revenue Service (or, in lieu thereof, an
opinion of counsel in form and substance reasonably acceptable to the Company)
to the effect that the becoming effective of such right will constitute neither
a disposition of this Installment Note within the meaning of Section 453B of the
Internal Revenue Code of 1954, as amended, nor a payment within the meaning of
Section 453(f) of the Internal Revenue Code of 1954, as amended; and provided
further that if one or more installments of principal with respect to this
Installment Note have been paid prior to any such exchange, there shall be
stamped on such new Installment Note or Installment Notes notation of such
payment. The Company will notify the Trustee that such rulings (or such an
opinion) have been received, and shall direct the Trustee to give written notice
thereof to each Holder.
Notwithstanding anything contained herein to the contrary, the rights of the
Holder of this Installment Note to receive payments hereunder may be limited by
the Pennsylvania Business Corporation Law to the unrestricted and unreserved
earned surplus of the Company and, with the approval of the shareholders of the
Company, the unrestricted capital surplus of the Company, at the time of any
such payments. The Company shall seek shareholder approval, if necessary, of
payments under the Installment Notes from unrestricted capital surplus if such
approval would be required under the Pennsylvania Business Corporation Law at
the time of any such payments.
The Installment Notes are issuable only in registered form without coupons in
denominations of $1000 and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth, the Installment
Notes are exchangeable for a like aggregate principal sum of new Installment
Notes of a different authorized denomination,
8
<PAGE>
as requested by the Holder surrendering the same; provided, however, that if one
or more installments of principal with respect to an Installment Note have been
paid prior to any such exchange, there shall be stamped on such new Installment
Note or Installment Notes notation of such payment.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Installment Note for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Installment Note is registered as the
owner hereof for all purposes, whether or not this Installment Note be overdue,
and neither the Company, the Trustee nor any such agent shall be affected by
notice to the contrary.
All terms used in this Installment Note which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
SECTION 204. Form of Trustee's Certificate of Authentication.
This is one of the Securities denominated the 10.70% Restricted Installment
Notes referred to in the within-mentioned Indenture.
Harris Trust and Savings Bank
as Trustee
By ..........................
Authorized Officer
SECTION 205. Provision for Completion of Installment Note When an
Installment Note is Redeemed in Part Only.
If any Installment Note is redeemed in part only, the new Installment Note or
Installment Notes to be issued in exchange for the Installment Note surrendered
in such redemption shall be completed by inserting on the face of the new
Installment Note or Installment Notes, as the amount of the principal sum, an
amount (prorated among the new Installment Notes if more than one new
Installment Note is issued) equal to the product of the principal sum of the
Installment Note surrendered and the percentage of the then remaining principal
balance of the Installment Note surrendered which is not being redeemed.
9
<PAGE>
SECTION 206. Provision for Acquiring Installment
Notes without Restrictions.
If pursuant to the terms of the Installment Notes set forth in Sections 202
and 203 above, the Holder acquires the right to exchange a 10.70% Restricted
Installment Note for one or more new Installment Notes without provision for
restrictions on transfer, then upon request of any such Holder and compliance
with the terms of the Installment Notes, the Trustee shall authenticate and
deliver in exchange for the 10.70% Restricted Installment Note one or more new
Installment Notes in a like aggregate principal sum and in authorized
denominations and containing the same terms and conditions except that (1) the
new Installment Note or Installment Notes shall be entitled "10.70% Installment
Note" and (2) the new Installment Note or Installment Notes shall not include
the paragraphs providing for restrictions on transfer or the removal thereof;
provided, however, that if one or more installments of principal with respect to
an Installment Note have been paid prior to any such exchange, there shall be
stamped on such new Installment Note or Installment Notes notation of such
payment.
ARTICLE THREE
MISCELLANEOUS PROVISIONS
SECTION 301. Benefits Restricted to Parties and
Holders of Installment Notes.
Nothing in this First Supplemental Indenture, expressed or implied, is
intended or shall be construed to confer upon, or to give to, any person, firm
or corporation other than the parties hereto, and the Holders of the Installment
Notes any right, remedy or claim under or by reason of this First Supplemental
Indenture or any covenant, condition or stipulation hereof; and the covenants,
stipulations and agreements in this First Supplemental Indenture contained are
and shall be for the sole and exclusive benefit of the parties hereto, their
successors and assigns, and the Holders of the Installment Notes.
SECTION 302. Terms Have Meanings Defined in Indenture.
All terms used in this First Supplemental Indenture which are defined in the
Indenture shall, for all purposes hereof, have the respective meanings specified
in the Indenture, otherwise specifically provided herein or unless the context
otherwise requires.
10
<PAGE>
SECTION 303. Invalidity of Any Provisions Not To Affect Others.
In case any one or more of the provisions contained in this First
Supplemental Indenture or in the Installment Notes shall for any reason be held
to be invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provisions of this
First Supplemental Indenture, or of the Installment Notes, but this First
Supplemental Indenture and the Installment Notes shall be construed as if such
invalid or illegal or unenforceable provision had never been contained herein or
therein.
SECTION 304. Date of Execution Indicated by Acknowledgements.
Although this First Supplemental Indenture, for convenience and for the
purpose of reference, is dated as of April 1, 1986, the actual date of execution
by the Corporation and the Trustee is as indicated by their respective
acknowledgements hereto annexed.
SECTION 305. Provisions Bind and Benefit Successors.
Subject to the provisions of the Indenture, all the covenants, promises and
agreements in this First Supplemental Indenture contained by or on behalf of the
Company, or by or on behalf of the Trustee, shall bind and inure to the benefit
of their respective successors and assigns, whether so expressed or not. The
Indenture is hereby ratified and confirmed and shall remain and continue in full
force and effect in accordance with the terms and provisions thereof, as further
amended and supplemented hereby.
SECTION 306. Descriptive Headings for Convenience Only.
The descriptive headings of the several Articles of this First Supplemental
Indenture are inserted for convenience only and shall not control or affect the
meaning or construction of any of the provisions hereof.
SECTION 307. Execution In Counterparts.
This First Supplemental Indenture may be simultaneously executed in any
number of counterparts, each of which when so executed and delivered shall be an
original; but such counterparts shall together constitute but one and the same
instrument.
11
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
PPG Industries, Inc.
By /s/ L.M. Call
..........................
Treasurer
Attest:
/s/ Helen A. Pavlick
..........................
Assistant Secretary Harris Trust and Savings Bank
By/s/ R.S. Stam
...........................
Vice President
Attest:
/s/ J. Bartoli
..........................
Assistant Secretary
12
<PAGE>
STATE OF PENNSYLVANIA
SS:
COUNTY OF ALLEGHENY
On the 27th day of March, 1986, before me personally came L. M. Call, to
me known, who, being by me duly sworn, did depose and say that he is Treasurer
of PPG Industries, Inc., one of the corporations described in and which executed
the foregoing instrument; that he knows the seal of said corporation; that the
seal affixed to said instrument is such corporate seal; that it was so affixed
by authority of the Board of Directors of said corporation, and that he signed
his name thereto by like authority.
/s/ Vicki L. Charlier
...................................
VICKI L. CHARLIER
Notary Public
Pittsburgh, Allegheny County
My Commission Expires July 27, 1989
STATE OF ILLINOIS
SS:
COUNTY OF COOK
On the 28th day of March, 1986, before me personally came R. S. Stam, to me
known, who, being by me duly sworn, did depose and say that he is Vice President
of Harris Trust and Savings Bank, one of the corporations described in and which
executed the foregoing instrument; that he knows the seal of said corporation;
that the seal affixed to said instrument is such corporate seal; that it was so
affixed by authority of the Board of Directors of said corporation, and that he
signed his name thereto by like authority.
/s/ T. Muzquiz
...................................
T. MUZQUIZ
My Commission Expires July 12, 1989
13
<PAGE>
EXHIBIT 4.3
===============================================================================
SECOND SUPPLEMENTAL INDENTURE
DATED AS OF OCTOBER 1, 1989
TO
Indenture Dated As Of
August 1, 1982
PPG INDUSTRIES, INC.
TO
Harris Trust and Savings Bank,
Trustee
Modifying 10.70% Restricted Installment Notes
to 9.30% Restricted Notes
===============================================================================
<PAGE>
<TABLE>
<CAPTION>
Table of Contents
Page
----
<S> <C>
PARTIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
RECITALS OF THE COMPANY. . . . . . . . . . . . . . . . . . . . . 1
ARTICLE ONE
9.30% RESTRICTED NOTES
SECTION 101. Modification of Notes. . . . . . . . . . . . . . . 2
ARTICLE TWO
SECURITY FORMS
SECTION 201. Legend of Notes; Attachment of Modified
Terms . .. . . . . . . . . . . . . . . . . . . . 2
SECTION 202. Form of Legend . . . . . . . . . . . . . . . . . . 2
SECTION 203. Form of Face of Modified Note . . . . . . . . . . 3
SECTION 204. Form of Reverse of Modified Note . . . . . . . . . 4
SECTION 205. Form of Trustee's Certificate
of Authentication. . . . . . . . . . . . . . . . 7
SECTION 206. Provision for Acquiring Modified Notes
without Restrictions . . . . . . . . . . . . . . 8
ARTICLE THREE
MISCELLANEOUS PROVISIONS
SECTION 301. Benefits Restricted to Parties and Holder
of Modified Notes . . . . . . . . . . . . . . . 8
SECTION 302. Terms Have Meanings Defined in Indenture . . . . . 8
SECTION 303. Invalidity of Any Provisions Not
to Affect Others . . . . . . . . . . . . . . . . 8
SECTION 304. Date of Execution Indicated by
Acknowledgements . . . . . . . . . . . . . . . . 9
SECTION 305. Provisions Bind and Benefit Successors . . . . . . 9
SECTION 306. Descriptive Headings for Convenience Only. . . . . 9
SECTION 307. Execution in Counterparts. . . . . . . . . . . . . 9
TESTIMONIUM . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SIGNATURES AND SEALS. . . . . . . . . . . . . . . . . . . . . . 11
ACKNOWLEDGEMENTS . . . . . . . . . . . . . . . . . . . . . . . 12
</TABLE>
<PAGE>
SECOND SUPPLEMENTAL INDENTURE, dated as of October 1, 1989 between PPG
Industries, Inc., a corporation duly organized and existing under the laws of
the Commonwealth of Pennsylvania (herein called the "Company"), having its
principal office at One PPG Place, Pittsburgh, Pennsylvania, 15272, and Harris
Trust and Savings Bank, a corporation duly organized and existing under the laws
of the State of Illinois, as Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has heretofore executed and delivered to the Trustee an
Indenture dated as of August 1, 1982 and the First Supplemental Indenture
thereto, dated as of April 1, 1986 (the Indenture as supplemented by the First
Supplemental Indenture is herein called the "Current Indenture").
Pursuant to an agreement dated September 16, 1985 between the Company and
The Pitcairn Company, the Company paid cash and issued and delivered its 10.75%
Restricted Installment Note, in the principal amount of $171,264,000 to The
Pitcairn Company in exchange for 8,896,868 shares of Common Stock, par value
$1.66-2/3 per share, of the Company and agreed to include such note under an
indenture qualified under the Trust Indenture Act of 1939.
Pursuant to an agreement dated as of February 20, 1986 between the Company
and The Pitcairn Company, the Company agreed to issue and deliver 10.70%
Restricted Installment Notes of the Company in the aggregate principal amount of
$171,264,000 (the "Installment Notes") under the Original Indenture to The
Pitcairn Company in exchange for the 10.75% Restricted Installment Note referred
to in the predceeding recital.
The Company, having received on or before September 25, 1989 the consent of
certain holders of the Installment Notes constituting in the aggregate not less
than 66-2/3% in principal amount of the Outstanding Installment Notes (the
"Consenting Noteholders"), has agreed to modify the terms and conditions of the
Installment Notes held by the Consenting Noteholders as set forth in this Second
Supplemental Indenture. Such modified notes are hereinafter referred to as the
"Modified Notes" or "9.30% Restricted Notes".
The Company has duly authorized the execution and delivery of this Second
Supplemental Indenture to modify Consenting Noteholders' Installment Notes
issued under the Current Indenture into the Modified Notes.
All things necessary to make this Second Supplemental Indenture a valid
agreement of the Company, in accordance with its terms, have been done.
<PAGE>
NOW THEREFORE, THIS SECOND SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises and the modification of the
Installment Notes into the Modified Notes, it is mutually covenanted and agreed,
for the equal and proportionate benefit of all Holders of the Modified Notes, as
follows:
ARTICLE ONE
9.30% RESTRICTED NOTES
SECTION 101. Modification of Notes.
Pursuant to Section 902 of the Current Indenture, the terms of the
Installment Notes of the Consenting Noteholders are modified to the form of the
Modified Note set forth in Article Two below.
ARTICLE
SECURITY FORMS
SECTION 201. Legend of Notes; Attachment of Modified Terms.
The Modified Notes shall be in substantially the form set forth in this
Article, with such appropriate insertions, omissions, substitutions and other
variations are as required or permitted by the Original Indenture and this
Second Supplemental Indenture and may have such letters, numbers or other marks
of identification and such legends or endorsements placed thereon as may,
consistently with the Original Indenture and this Second Supplemental Indenture,
be determined by the officers executing the Modified Notes, as evidenced by
their execution of the Modified Notes.
The Trustee's certificate of authentication shall be in substantially the
form set forth in this Article.
Upon receipt of an Installment Note of a Consenting Noteholder, the trustee
shall modify such Installment Note into a Modified Note by imprinting the legend
set forth in Section 202 hereof on the face and reverse side of such Installment
Note and attaching thereto a properly completed form of Modified Note as set
forth in Sections 203, 204 and 205 hereof.
SECTION 202. Form of Legend.
THIS NOTE IS SUBJECT TO THE SECOND SUPPLEMENTAL INDENTURE BETWEEN THE
COMPANY AND THE TRUSTEE UNDER WHICH THE FORM AND TERMS OF THIS NOTE HAVE BEEN
MODIFIED TO THE FORM AND TERMS ATTACHED HERETO.
<PAGE>
SECTION 203. Form of Face of Modified Note.
The Face of the 10.70% Restricted Installment Note to which this is
attached is modified to read as follows:
PPG INDUSTRIES, INC.
9.30% Restricted Note
No. ...... $...........
PPG INDUSTRIES, INC., a corporation duly organized and existing under the
laws of the Commonwealth of Pennsylvania (herein called the "Company", which
term includes any successor corporation under the Indenture hereinafter referred
to), for value received, hereby promises to pay to ..................., or
registered assigns, the principal sum of ............ Dollars on October 1,
1999. The Company promises to pay interest on the unpaid principal balance
hereof from and including April 1, 1989 through July 24, 1989 at the rate of
10.70% per annum, and from and including July 25, 1989, or from and including
the most recent Interest Payment Date after July 25, 1989 to which interest has
been paid or duly provided for, at the rate of 9.30% per annum, semi-annually on
October 1 and April 1 in each 12-month period commencing October 1, 1989, until
the principal hereof is paid or made available for payment and (to the extent
that the payment of such interest shall be legally enforceable) at the rate of
9.30% per annum on any overdue principal and premium, if any, and on any overdue
installment of interest. The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date, will as provided in such Indenture,
be paid to the Person in whose name this Note (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest, which shall be the September 15 or March 15 (whether or not a
Business Day), as the case may be, next preceding such Interest Payment Date.
Any such interest not so punctually paid or duly provided for will forthwith
cease to be payable to the Holder on such Regular Record Date and may either be
paid to the Person in whose name this Note (or one or more Predecessor
Securities) is registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest to be fixed by the Trustee, notice
whereof shall be given to Holders of the Notes (as hereinafter defined) not less
than 10 days prior to such Special Record Date, or to be paid at any time in any
other lawful manner, all as more fully provided in such Indenture.
Payment of the principal of and premium, if any, and interest on this Note
will be made at the office or agency of the Company maintained for that purpose
in Chicago, Illinois, in such coin or currency of the United States of America
as at the time of payment is legal tender for
<PAGE>
payment of public and private debts, provided, however, that at the option of
the Company payment of interest may be made by check mailed to the address of
the Person entitled thereto as such address shall appear in the Security
Register.
Reference is hereby made to the further provisions of this Note set forth
on the reverse hereof, which further provisions shall for all purposes have the
same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to below by manual signature, this Note shall not be entitled
to any benefit under such Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
PPG INDUSTRIES, INC.
By.................................
[CORPORATE SEAL]
Attest:
..............................
SECTION 204. Form of Reverse of Modified Note.
The reverse of the 10.70% Restricted Installment Note to which this is
attached is modified to read as follows:
This Note is one of a duly authorized issue of securities of the Company
(herein called the "Notes"), issued and to be issued in one or more series under
an Indenture dated as of August 1, 1982 between the Company and Harris Trust and
Savings Bank, as Trustee (herein called the "Trustee", which term includes any
successor trustee under said Indenture), as heretofore and hereafter
supplemented and amended (said Indenture as so supplemented and amended being
herein called the "Indenture"), to which Indenture reference is hereby made for
a statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Company, the Trustee and the Holders of the Notes
and of the terms upon which the Notes are, and are to be, authenticated and
delivered. This Note is one of the series designated on the face hereof, limited
in aggregate principal amount to $171,264,000.
<PAGE>
If an Event of Default with respect to the Notes shall occur and be
continuing, the principal of the Notes may be declared due and payable in the
manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at anytime by the Company and the Trustee with the
consent of the Holders of 66-2/3% in principal amount of the Securities at the
time Outstanding of each series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Securities of each series at the time Outstanding, on behalf of the
Holders of all Securities of such series, to waive compliance by the Company
with certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Note shall be conclusive and binding upon such Holder and upon all future
Holders of this Note and of any Note issued upon the registration of transfer
hereof or in exchange herefor or in lieu hereof, whether or not notation of such
consent or waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and premium, if any, and
interest (if any) on this Note at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Note is registrable in the Security Register, upon
surrender of this Note for registration of transfer at the office or agency of
the Company in any place where the principal of and premium, if any, and
interest (if any) on this Note are payable, duly endorsed by, or accompanied by
a written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Notes, of authorized
denominations and for a like aggregate principal sum, will be issued to the
designated transferee or transferees.
Except, by will, the laws of descent or distribution or otherwise by
operation of law, this Note may be sold, transferred, pledged or assigned only
to a Permitted Transferee (as hereinafter defined). No transfer will be
effective unless the Trustee receives from the proposed transferee a completed
affidavit to the effect that the proposed transferee is a Permitted Transferee.
Permitted Transferees are (a) for a Holder of a Note who is a natural person:
(i) the Holder's spouse, ancestors, lineal descendants, whether adopted or by
the whole or half
<PAGE>
blood, brothers and sisters, whether adopted or by the whole or half blood, or
any spouse of such persons (collectively, such Holder's "Immediate Family"),
(ii) any charitable institution and (iii) any trust, partnership or corporation
at least 90% of the beneficial interest, partnership interest or capital stock
of which is held by the Holder, members of the Holder's Immediate Family or any
charitable institution; (b) for a Holder of a Note that is either (i) an estate,
(ii) a trust for the benefit of charitable institutions, a natural person's
Immediate Family or both or (iii) a common law trust having a beneficiaries only
natural persons (and no more than 15 such person); a beneficiary of such or
trust or a member of such beneficiary's Immediate Family; (c) for a Holder of a
Note which is a corporation; the survivor of a merger or consolidation involving
the initial Holder and (d) for a Holder of a Note which is a corporation or
partnership having as shareholders or partners only natural persons (and no more
than 15 such persons) the shareholders or partners of such Holder as of the
distribution date.
Notwithstanding anything contained herein to the contrary: if the Company's
outstanding publicly-held debt securities are rated below BBB by Standard &
Poor's Corporation or below Baa by Moody's Investors Service, Inc. (or the
equivalent rating in the event of any change in the rating categories), without
regard to any subcategories of such ratings; then on or after September 17,
1987, the Holder of this Note shall have the right to exchange this Note for one
of more new Notes, of authorized denominations and for a like aggregate
principal sum, identical in all respects to this Note, except that such new Note
or Notes shall not contain this or the immediately preceding paragraph. In any
such exchange, the Holder shall deliver this Note to the Trustee, together with
an affidavit identifying the condition that has caused this Note to be
exchangeable, and request the issuance of such a new Note or new Notes.
Notwithstanding anYthing contained herein to the contrary, on or after
October 1, 1989, the Holder of this Note shall have the right to exchange this
Note for one or more new Notes, of authorized denominations and for a like
aggregate principal sum, identical in all respects to this Note except that it
shall not contain this paragraph or the immediately preceding two paragraphs,
provided, however, that the right to exchange this Note provided in this
paragraph shall not become effective until the date on which there shall have
been delivered to the Company rulings from the Internal Revenue Service (or, in
lieu thereof, an opinion of counsel in form and substance reasonably acceptable
to the Company) to the effect that the becoming effective of such right will
constitute neither a disposition of this Note within the meaning of Section 453B
of the Internal Revenue Code of 1954, as amended, nor a payment within the
meaning of Section 453(f) of the Internal Revenue Code of 1954, as amended. The
Company will notify the Trustee that such rulings (or such opinion) have been
received, and shall direct the Trustee to give written notice thereof to each
Holder.
<PAGE>
Notwithstanding anything contained herein to the contrary, the rights of
the Holder of this Note to receive payments hereunder may be limited by the
Pennsylvania Business Corporation Law to the unrestricted and unreserved earned
surplus of the Company and, with the approval of the shareholders of the
Company, the unrestricted capital surplus of the Company, at the time of such
payments. The Company shall seek shareholder approval, if necessary, of payments
under the Notes from unrestricted capital surplus if such approval would be
required under the Pennsylvania Business Corporation Law at the time of any such
payments.
The Notes are issuable only in registered form without coupons. As provided
in the Indenture and subject to certain limitations therein set forth the
Installment Notes are exchangeable for a like aggregate principal sum of new
Notes of a different authorized denomination as requested by the Holder
surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Note is registered as the owner hereof for all
purposes, whether or not this Note be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
All terms used in this Note which are defined in the Indenture shall have
the meanings assigned to them in the Indenture.
SECTION 205. Form of Trustee's Certificate of Authentication.
The form of Trustee's Certificate of Authentication of the 10.70%
Restricted Installment Note to which this is attached is modified to read as
follows:
This is one of the Securities denominated the 9.30% Restricted Notes
referred to in the within-mentioned Indenture.
Harris Trust and Savings Bank
as Trustee
By: ..............................
Authorized Officer
<PAGE>
SECTION 206. Provision for Acquiring Modified Notes without Restrictions.
If pursuant to the terms of the Modified Notes set forth in Sections 202
and 203 above, the Holder acquires the right to exchange a 9.30% Restricted Note
for one or more new Modified Notes without provision for restrictions on
transfer, then upon request of any such Holder and compliance with the terms of
the Modified Notes, the Trustee shall authenticate and deliver in exchange for
the 9.30% Restricted Note one or more new Modified Notes in a like aggregate
principal sum and in authorized denominations and containing the same terms and
conditions except that (1) the new Modified Note or Modified Notes shall be
entitled "9.30% Restricted Note" and (2) the new Modified Note or Modified Notes
shall not include the paragraphs providing for restrictions on transfer or the
removal thereof.
ARTICLE THREE
MISCELLANEOUS PROVISIONS
SECTION 301. Benefits Restricted to Parties and Holder of Modified Notes.
Nothing in this Second Supplemental Indenture, expressed or implied, is
intended or shall be construed to confer upon, or to give to, any person, firm,
or corporation other than the parties hereto, and the Holders of the Modified
Notes any right, remedy or claim under or by reason of this Second Supplemental
Indenture or any covenant, condition or stipulation hereof; and the covenants,
stipulations and agreements in this Second Supplemental Indenture contained are
and shall be for the sole and exclusive benefit of the parties hereto, their
successors and assigns, and the Holders of the Modified Notes.
SECTION 302. Terms Have Meanings Defined in Indenture.
All terms used in this Second Supplemental Indenture which are defined in
the Indenture shall, for all purposes hereof, have the respective meanings
specified in the Indenture, otherwise specifically provided herein or unless the
context otherwise requires.
SECTION 303. Invalidity of Any Provisions Not To Affect Others.
In case any one or more of the provisions contained in this Second
Supplemental Indenture or in the Modified Notes shall for any reason be held to
be invalid, illegal or unenforceable in any respect, such
<PAGE>
invalidity, illegality or unenforceability shall not affect any other provision
of this Second Supplemental Indenture and the Modified Notes shall be construed
as if such invalid or illegal or unenforceable provision had never been
contained herein or therein.
SECTION 304. Date of Execution Indicated by Acknowledgements.
Although this Second Supplemental Indenture, for convenience and for the
purpose of reference, i8 dated as of October 1, 1989, the actual date of
execution by the Corporation and the Trustee is as indicated by their respective
acknowledgements hereto annexed.
SECTION 305. Provisions Bind and Benefit Successors.
Subject to the provisions of the Indenture, all the covenants, promises and
agreements in this Second Supplemental Indenture contained by or on behalf of
the Company, or by or on behalf of the Trustee, shall bind and inure to the
benefit of their respective successors and assigns, whether so expressed or not.
The Indenture is hereby ratified and confirmed and shall remain and continue in
full force and effect in accordance with the terms and provisions thereof, as
further amended and supplemented hereby.
SECTION 306. Descriptive Headings for Convenience Only.
The descriptive headings of the several Articles of this Second
Supplemental Indenture are inserted for convenience only and shall not control
or affect the meaning or construction of any of the provisions hereof.
SECTION 307. Execution In Counterparts.
This Second Supplemental Indenture may be simultaneously executed in any
number of counterparts, each of which when so executed and delivered shall be an
original; but such counterparts shall together constitute but one and the same
instrument.
<PAGE>
IN WITNESS THEREOF, the parties hereto have caused this Second Supplemental
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
PPG Industries, Inc.
By /s/ L. Call
----------------------------
Treasurer
L. Call
Attest:
/s/ Thomas L. Butera
- -------------------------------
Assistant Secretary Harris Trust and Savings Bank
Thomas L. Butera
By /s/ J. Bartolini
-----------------------------
Vice President
J. Bartolini
Attest:
/s/ D. G. Donovan
- ------------------------------
Assistant Secretary
<PAGE>
STATE OF PENNSYLVANIA SS:
COUNTY OF ALLEGHENY
On the 25th day of September, 1989, before me personally came L. M. Call,
to me known, who, being by me duly sworn, did depose and say that he is
Treasurer of PPG Industries, Inc., one of the corporations described in and
which executed the foregoing instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of said
corporation, and that he signed his name thereto by like authority.
/s/ Helen A. Pavlick
-----------------------------------
NOTARIAL SEAL
HELEN A. PAVLICK, NOTARY PUBLIC
PITTSBURGH, ALLEGHENY COUNTY
MY COMMISSION EXPIRES OCT. 29, 1990
Member, Pennsylvania Association of Notaries
STATE OF ILLINOIS SS:
COUNTY OF COOK
On the 4th day of October, 1984, before me personally came J. Bartolini, to
me known, who, being by me duly sworn, did depose and say that he is Vice
President of Harris Trust and Savings Bank, one of the corporations described in
and which executed the foregoing instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of said
corporation, and that he signed his name thereto by like authority.
/s/ J. Muzquiz
--------------------------
"OFFICIAL SEAL''
T. Muzquiz
Notary Public, State of Illinois
My Commission Expires 7/12/93
<PAGE>
Exhibit No. 4.4
===============================================================================
PPG INDUSTRIES, INC.
to
Harris Trust and Savings Bank
Trustee
________
Third Supplemental Indenture
Dated as of November 1, 1995
________
===============================================================================
<PAGE>
THIRD SUPPLEMENTAL INDENTURE, dated as of November 1, 1995, between PPG
Industries, Inc., a corporation duly organized and existing under the laws of
the Commonwealth of Pennsylvania (the "Company"), having its principal offices
at One PPG Place, Pittsburgh, Pennsylvania 15272, and Harris Trust and Savings
Bank, a corporation duly organized and existing under the laws of the State of
Illinois, as Trustee (the "Trustee").
Recitals of the Company
The Company and the Trustee have heretofore executed and delivered an
Indenture, dated as of August 1, 1982 (the "Indenture"), as supplemented by the
First Supplemental Indenture, dated as of April 1, 1986 and the Second
Supplemental Indenture, dated as of October 1, 1989, providing for the issuance
from time to time of the Company's unsecured debentures, notes or other
evidences of indebtedness (the "Securities"), to be issued in one or more series
as in the Indenture provided. Terms defined in the Indenture have the same
meanings herein.
Sections 901(5), 901(7) and 901(9) of the Indenture provide, among other
things, that, without the consent of any Holders, the Company, when authorized
by a Board Resolution, and the Trustee, at any time and from time to time, may
enter into one or more indentures supplemental to the Indenture (a) to change or
eliminate any provision of the Indenture, provided that such change or
elimination shall not be effective as to any Security Outstanding of any series
created prior to the execution of such supplemental indenture which is entitled
to the benefit of such provision, (b) to establish the form or terms of
Securities of any series as permitted by Sections 201 and 301, or (c) to cure
any ambiguity, to correct or supplement any provision of the Indenture which may
be inconsistent with any other provision of the Indenture, or to make any other
provisions with respect to matters or questions arising under the Indenture,
provided such action shall not adversely affect the interests of the Holders of
Securities of any series in any material respect.
Pursuant to the foregoing authority, the Company proposes in and by this
Third Supplemental Indenture to amend the Indenture in certain respects with
respect to the Securities of any series created on or after the date hereof.
All things necessary to make this Third Supplemental Indenture a valid
agreement of the Company, in accordance with its terms, have been done.
Now, therefore, this Third Supplemental Indenture Witnesseth:
<PAGE>
For and in consideration of the premises and the purchase of the Securities
by the Holders thereof, it is mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders of the Securities or of series thereof, as
follows:
1. The following definitions are hereby added to Section 101 of the
Indenture:
"Covenant Defeasance" has the meaning specified in Section 1303.
"Defeasance" has the meaning specified in Section 1302.
"Depositary" means, with respect to Securities of any series issuable in
whole or in part in the form of one or more Global Securities, a clearing
agency registered under the Securities Exchange Act of 1934 that is
designated to act as Depositary for such Securities as contemplated by
Section 301.
"Global Security" means a Security that evidences all or part of the
Securities of any series and bears the legend set forth in Section 204 (or
such legend as may be specified as contemplated by Section 301 for such
Securities).
"Senior Debt" means indebtedness of the Company ranking prior to
indebtedness issued by the Company under this Indenture.
"U.S. Government Obligation" has the meaning specified in Section 1304.
2. The definition of "Outstanding" in Section 101 of the Indenture is
amended as follows:
By deleting the word "and" at the end of clause (ii), renumbering clause
(iii) as clause (iv) and adding a new clause (iii) to read in its entirety as
follows:
"(iii) Securities as to which Defeasance has been effected pursuant to
Section 1302; and"
2
<PAGE>
By deleting all of the words following "provided, however," and adding in
lieu thereof the following:
"that in determining whether the Holders of the requisite principal
amount of the Outstanding Securities have given, made or taken any
request, demand, authorization, direction, notice, consent, waiver or
other action hereunder as of any date, (A) the principal amount of an
Original Issue Discount Security which shall be deemed to be Outstanding
shall be the amount of the principal thereof which would be due and
payable as of such date upon acceleration of the Maturity thereof to such
date pursuant to Section 502, (B) if, as of such date, the principal
amount payable at the Stated Maturity of a Security is not determinable,
the principal amount of such Security which shall be deemed to be
Outstanding shall be the amount as specified or determined as
contemplated by Section 301, (C) the principal amount of a Security
denominated in one or more foreign currencies or currency units which
shall be deemed to be Outstanding shall be the U.S. dollar equivalent,
determined as of such date in the manner provided as contemplated by
Section 301, of the principal amount of such Security (or, in the case of
a Security described in Clause (A) or (B) above, of the amount determined
as provided in such Clause), and (D) Securities owned by the Company or
any other obligor upon the Securities or any Affiliate of the Company or
of such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be
protected in relying upon any such request, demand, authorization,
direction, notice, consent, waiver or other action, only Securities which
the Trustee knows to be so owned shall be so disregarded. Securities so
owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee
the pledgee's right so to act with respect to such Securities and that
the pledgee is not the Company or any other obligor upon the Securities
or any Affiliate of the Company or of such other obligor."
3. Section 203 of the Indenture is hereby amended by adding as a new
paragraph immediately after the fifth paragraph:
"[If applicable, insert - The Indenture contains provisions for
defeasance at any time of [the entire indebtedness of this Security] [or]
[certain restrictive covenants and Events of Default with respect to this
3
<PAGE>
Security] [, in each case] upon compliance with certain conditions set forth
in the Indenture.]"
4. A new Section 205 is hereby inserted into the Indenture to read in its
entirety as follows:
"Section 205. Form of Legend for Global Securities.
Unless otherwise specified as contemplated by Section 301 for the
Securities evidenced thereby, every Global Security authenticated and
delivered hereunder shall bear a legend in substantially the following form:
This Security is a Global Security within the meaning of the Indenture
hereinafter referred to and is registered in the name of a Depositary or a
nominee thereof. This Security may not be exchanged in whole or in part for a
Security registered, and no transfer of this Security in whole or in part may
be registered, in the name of any Person other than such Depositary or a
nominee thereof, except in the limited circumstances described in the
Indenture."
5. Section 301 of the Indenture is hereby amended by:
(i) renumbering clauses (3) through (10) as clauses (4) through (11) and
renumbering clause (11) as clause (20);
(ii) adding the following as clause (3):
"(3) the Person to whom any interest on a Security of the series
shall be payable, if other than the Person in whose name that Security (or
one or more Predecessor Securities) is registered at the close of business on
the Regular Record Date for such interest;" and
(iii) adding the following as clauses (12) through (19):
"(12) if the amount of principal of or any premium or interest on any
Securities of the series may be determined with reference to an index or
pursuant to a formula, the manner in which such amounts shall be determined;
4
<PAGE>
(13) if other than the currency of the United States of America, the
currency, currencies or currency units in which the principal of or any
premium or interest on any Securities of the series shall be payable and the
manner of determining the equivalent thereof in the currency of the United
States of America for any purpose, including for purposes of the definition
of "Outstanding" in Section 101;
(14) if the principal of or any premium or interest on any Securities
of the series is to be payable, at the election of the Company or the Holder
thereof, in one or more currencies or currency units other than that or those
in which such Securities are stated to be payable, the currency, currencies
or currency units in which the principal of or any premium or interest on
such Securities as to which such election is made shall be payable, the
periods within which and the terms and conditions upon which such election is
to be made and the amount so payable (or the manner in which such amount
shall be determined);
(15) if the principal amount payable at the Stated Maturity of any
Securities of the series will not be determinable as of any one or more dates
prior to the Stated Maturity, the amount which shall be deemed to be the
principal amount of such Securities as of any such date for any purpose
thereunder or hereunder, including the principal amount thereof which shall
be due and payable upon any Maturity other than the Stated Maturity or which
shall be deemed to be Outstanding as of any date prior to the Stated Maturity
(or, in any such case, the manner in which such amount deemed to be the
principal amount shall be determined);
(16) if applicable, that the Securities of the series, in whole or any
specified part, shall be defeasible pursuant to Section 1302 or Section 1303
or both such Sections and, if other than by a Board Resolution, the manner in
which any election by the Company to defease such Securities shall be
evidenced;
(17) if applicable, that any Securities of the series shall be
issuable in whole or in part in the form of one or more Global Securities
and, in such case, the respective Depositaries for such Global Securities,
the form of any legend or legends which shall be borne by any such Global
Security in addition to or in lieu of that set forth in Section 205 and any
circumstances in addition to or in lieu of those set forth in Clause (2) of
the last paragraph of Section 305 in which any such Global Security may be
5
<PAGE>
exchanged in whole or in part for Securities registered, and any transfer of
such Global Security in whole or in part may be registered, in the name or
names of Persons other than the Depositary for such Global Security or a
nominee thereof;
(18) any addition to or change in the Events of Default which applies
to any Securities of the series and any change in the right of the Trustee or
the requisite Holders of such Securities to declare the principal amount
thereof due and payable pursuant to Section 502;
(19) any addition to or change in the covenants set forth in Article
Ten which applies to Securities of the series; and"
6. Section 303 of the Indenture is hereby amended by adding the following
paragraph immediately before the penultimate paragraph:
"Notwithstanding the provisions of Section 301 and of the preceding
paragraph, if all Securities of a series are not to be originally issued at
one time, it shall not be necessary to deliver the Officer's Certificate
otherwise required pursuant to Section 301 or the Company Order and Opinion
of Counsel otherwise required pursuant to such preceding paragraph at or
prior to the time of authentication of each Security of such series if such
documents are delivered at or prior to the time of authentication upon
original issuance of the first Security of such series to be issued."
7. Section 305 of the Indenture is hereby amended by adding the following
paragraph after the last paragraph thereof:
"The provisions of Clauses (1), (2), (3) and (4) below shall apply only
to Global Securities:
(1) Each Global Security authenticated under this Indenture shall be
registered in the name of the Depositary designated for such Global Security
or a nominee thereof and delivered to such Depositary or a nominee thereof or
custodian therefor, and each such Global Security shall constitute a single
Security for all purposes of this Indenture.
(2) Notwithstanding any other provision in this Indenture, no Global
Security may be exchanged in whole or in part for Securities registered, and
no transfer of a Global Security in whole or in part may be
6
<PAGE>
registered, in the name of any Person other than the Depositary for such
Global Security or a nominee thereof unless (A) such Depositary (i) has
notified the Company that it is unwilling or unable to continue as Depositary
for such Global Security or (ii) has ceased to be a clearing agency
registered under the Exchange Act, (B) there shall have occurred and be
continuing an Event of Default with respect to such Global Security or (C)
there shall exist such circumstances, if any, in addition to or in lieu of
the foregoing as have been specified for this purpose as contemplated by
Section 301.
(3) Subject to Clause (2) above, any exchange of a Global Security for
other Securities may be made in whole or in part, and all Securities issued
in exchange for a Global Security or any portion thereof shall be registered
in such names as the Depositary for such Global Security shall direct.
(4) Every Security authenticated and delivered upon registration of
transfer of, or in exchange for or in lieu of, a Global Security or any
portion thereof, whether pursuant to this Section, Section 304, 306, 906 or
1107 or otherwise, shall be authenticated and delivered in the form of, and
shall be, a Global Security, unless such Security is registered in the name
of a Person other than the Depositary for such Global Security or a nominee
thereof."
8. A new ARTICLE THIRTEEN is hereby inserted into the Indenture to read in
its entirety as follows:
"ARTICLE THIRTEEN
Defeasance and Covenant Defeasance
Section 1301. Company's Option to Effect Defeasance or Covenant Defeasance.
The Company may elect, at its option at any time, to have Section 1302
or Section 1303 applied to any Securities or any series of Securities, as the
case may be, designated pursuant to Section 301 as being defeasible pursuant
to such Section 1302 or 1303, in accordance with any applicable requirements
provided pursuant to Section 301 and upon compliance with the conditions set
forth below in this Article. Any such
7
<PAGE>
election shall be evidenced by a Board Resolution or in another manner
specified as contemplated by Section 301 for such Securities.
Section 1302. Defeasance and Discharge.
Upon the Company's exercise of its option (if any) to have this Section
applied to any Securities or any series of Securities, as the case may be,
the Company shall be deemed to have been discharged from its obligations with
respect to such Securities as provided in this Section on and after the date
the conditions set forth in Section 1304 are satisfied (hereinafter called
"Defeasance"). For this purpose, such Defeasance means that the Company shall
be deemed to have paid and discharged the entire indebtedness represented by
such Securities and to have satisfied all its other obligations under such
Securities and this Indenture insofar as such Securities are concerned (and
the Trustee, at the expense of the Company, shall execute proper instruments
acknowledging the same), subject to the following which shall survive until
otherwise terminated or discharged hereunder: (1) the rights of Holders of
such Securities to receive, solely from the trust fund described in Section
1304 and as more fully set forth in such Section, payments in respect of the
principal of and any premium and interest on such Securities when payments
are due, (2) the Company's obligations with respect to such Securities under
Sections 304, 305, 306, 1002 and 1003, (3) the rights, powers, trusts, duties
and immunities of the Trustee hereunder and (4) this Article. Subject to
compliance with this Article, the Company may exercise its option (if any) to
have this Section applied to any Securities notwithstanding the prior
exercise of its option (if any) to have Section 1303 applied to such
Securities.
Section 1303. Covenant Defeasance.
Upon the Company's exercise of its option (if any) to have this Section
applied to any Securities or any series of Securities, as the case may be,
(1) the Company shall be released from its obligations under Section 801(3),
Section 1004, Section 1005, and any covenants provided pursuant to Section
301(19), 901(2) or 901(7) for the benefit of the Holders of such Securities
and (2) the occurrence of any event specified in Sections 501(4) (with
respect to any of Section 801(3), Section 1004, Section 1005, and any such
covenants provided pursuant to Section 301(19), 901(2) or 901(7)), 501(5) and
501(8) shall be deemed not to be or result in an Event of Default, in each
case with respect to such Securities as provided in this
8
<PAGE>
Section on and after the date the conditions set forth in Section 1304 are
satisfied (hereinafter called "Covenant Defeasance"). For this purpose, such
Covenant Defeasance means that, with respect to such Securities, the Company
may omit to comply with and shall have no liability in respect of any term,
condition or limitation set forth in any such specified Section (to the
extent so specified in the case of Section 501(4)), whether directly or
indirectly by reason of any reference elsewhere herein to any such Section or
by reason of any reference in any such Section to any other provision herein
or in any other document, but the remainder of this Indenture and such
Securities shall be unaffected thereby.
Section 1304. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to the application of Section 1302
or Section 1303 to any Securities or any series of Securities, as the case
may be:
(1) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee which satisfies the
requirements contemplated by Section 609 and agrees to comply with the
provisions of this Article applicable to it) as trust funds in trust for
the purpose of making the following payments, specifically pledged as
security for, and dedicated solely to, the benefits of the Holders of
such Securities, (A) money in an amount, or (B) U.S. Government
Obligations which through the scheduled payment of principal and interest
in respect thereof in accordance with their terms will provide, not later
than one day before the due date of any payment, money in an amount, or
(C) a combination thereof, in each case sufficient, in the opinion of a
nationally recognized firm of independent public accountants expressed in
a written certification thereof delivered to the Trustee, to pay and
discharge, and which shall be applied by the Trustee (or any such other
qualifying trustee) to pay and discharge, the principal of and any
premium and interest on such Securities on the respective Stated
Maturities, in accordance with the terms of this Indenture and such
Securities. As used herein, "U.S. Government Obligation" means (x) any
security which is (i) a direct obligation of the United States of America
for the payment of which the full faith and credit of the United States
of America is pledged or (ii) an obligation of a Person controlled or
supervised by and acting as an agency or instrumentality of the United
States of America the payment
9
<PAGE>
of which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America, which, in either case (i) or
(ii), is not callable or redeemable at the option of the issuer thereof,
and (y) any depositary receipt issued by a bank (as defined in Section
3(a)(2) of the Securities Exchange Act of 1934, as amended) as custodian
with respect to any U.S. Government Obligation which is specified in
Clause (x) above and held by such bank for the account of the holder of
such depositary receipt, or with respect to any specific payment of
principal of or interest on any U.S. Government Obligation which is so
specified and held, provided that (except as required by law) such
custodian is not authorized to make any deduction from the amount payable
to the holder of such depositary receipt from any amount received by the
custodian in respect of the U.S. Government Obligation or the specific
payment of principal or interest evidenced by such depositary receipt.
(2) In the event of an election to have Section 1302 apply to any
Securities or any series of Securities, as the case may be, the Company
shall have delivered to the Trustee an Opinion of Counsel stating that
(A) the Company has received from, or there has been published by, the
Internal Revenue Service a ruling or (B) since the date of this
instrument, there has been a change in the applicable Federal income tax
law, in either case (A) or (B) to the effect that, and based thereon such
opinion shall confirm that, the Holders of such Securities will not
recognize gain or loss for Federal income tax purposes as a result of the
deposit, Defeasance and discharge to be effected with respect to such
Securities and will be subject to Federal income tax on the same amount,
in the same manner and at the same times as would be the case if such
deposit, Defeasance and discharge were not to occur.
(3) In the event of an election to have Section 1303 apply to any
Securities or any series of Securities, as the case may be, the Company
shall have delivered to the Trustee an Opinion of Counsel to the effect
that the Holders of such Securities will not recognize gain or loss for
Federal income tax purposes as a result of the deposit and Covenant
Defeasance to be effected with respect to such Securities and will be
subject to Federal income tax on the same amount, in the same manner and
at the same times as would be the case if such deposit and Covenant
Defeasance were not to occur.
10
<PAGE>
(4) The Company shall have delivered to the Trustee an Officer's
Certificate to the effect that neither such Securities nor any other
Securities of the same series, if then listed on any securities exchange,
will be delisted as a result of such deposit.
(5) No event which is, or after notice or lapse of time or both would
become, an Event of Default with respect to such Securities or any other
Securities shall have occurred and be continuing at the time of such
deposit or, with regard to any such event specified in Sections 501(6)
and (7), at any time on or prior to the 90th day after the date of such
deposit (it being understood that this condition shall not be deemed
satisfied until after such 90th day).
(6) Such Defeasance or Covenant Defeasance shall not cause the Trustee
to have a conflicting interest within the meaning of the Trust Indenture
Act (assuming all Securities are in default within the meaning of such
Act).
(7) Such Defeasance or Covenant Defeasance shall not result in a
breach or violation of, or constitute a default under, any other
agreement or instrument to which the Company is a party or by which it is
bound.
(8) Such Defeasance or Covenant Defeasance shall not result in the
trust arising from such deposit constituting an investment company within
the meaning of the Investment Company Act unless such trust shall be
registered under such Act or exempt from registration thereunder.
(9) At the time of such deposit, (A) no default in the payment of any
principal of or premium or interest on any Senior Debt shall have
occurred and be continuing, (B) no event of default with respect to any
Senior Debt shall have resulted in such Senior Debt becoming, and
continuing to be, due and payable prior to the date on which it would
otherwise have become due and payable (unless payment of such Senior Debt
has been made or duly provided for), and (C) no other event of default
with respect to any Senior Debt shall have occurred and be continuing
permitting (after notice or lapse of time or both) the holders of such
Senior Debt (or a trustee on behalf of such holders) to declare
11
<PAGE>
such Senior Debt due and payable prior to the date on which it would
otherwise have become due and payable.
(10) The Company shall have delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all conditions
precedent with respect to such Defeasance or Covenant Defeasance have
been complied with.
Section 1305. Deposited Money and U.S. Government Obligations to Be Held in
Trust; Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 1003, all
money and U.S. Government Obligations (including the proceeds thereof)
deposited with the Trustee or other qualifying trustee (solely for purposes
of this Section and Section 1306, the Trustee and any such other trustee are
referred to collectively as the "Trustee") pursuant to Section 1304 in
respect of any Securities shall be held in trust and applied by the Trustee,
in accordance with the provisions of such Securities and this Indenture, to
the payment, either directly or through any such Paying Agent (including the
Company acting as its own Paying Agent) as the Trustee may determine, to the
Holders of such Securities, of all sums due and to become due thereon in
respect of principal and any premium and interest, but money so held in trust
need not be segregated from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 1304 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is
for the account of the Holders of Outstanding Securities.
Anything in this Article to the contrary notwithstanding, the Trustee
shall deliver or pay to the Company from time to time upon Company Request
any money or U.S. Government Obligations held by it as provided in Section
1304 with respect to any Securities which, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, are in excess of the amount
thereof which would then be required to be deposited to effect the Defeasance
or Covenant Defeasance, as the case may be, with respect to such Securities.
12
<PAGE>
Section 1306. Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money in
accordance with this Article with respect to any Securities by reason of any
order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, then the obligations
under this Indenture and such Securities from which the Company has been
discharged or released pursuant to Section 1302 or 1303 shall be revived and
reinstated as though no deposit had occurred pursuant to this Article with
respect to such Securities, until such time as the Trustee or Paying Agent is
permitted to apply all money held in trust pursuant to Section 1305 with
respect to such Securities in accordance with this Article; provided,
however, that if the Company makes any payment of principal of or any premium
or interest on any such Security following such reinstatement of its
obligations, the Company shall be subrogated to the rights (if any) of the
Holders of such Securities to receive such payment from the money so held in
trust."
9. All provisions of this Third Supplemental Indenture shall be deemed to be
incorporated in, and made a part of the Indenture; and the Indenture, as
supplemented by this Third Supplemental Indenture, shall be read, taken and
construed as one and the same instrument.
10. The Trustee accepts the trusts created by the Indenture, as supplemented
by this Third Supplemental Indenture, and agrees to perform the same upon the
terms and conditions in the Indenture, as supplemented by this Third
Supplemental Indenture.
11. The recitals contained in the Indenture and the Securities, except the
Trustee's certificate of authentication, shall be taken as statements of the
Company, and the Trustee assumes no responsibility for their correctness. The
Trustee makes no representations as to the validity or sufficiency of the
Indenture or the Securities.
12. All amendments to the Indenture made hereby shall have effect only with
respect to the Securities of any series created on or after the date hereof, and
not with respect to the Securities of any series created prior to the date
hereof.
13. All capitalized terms used and not defined herein shall have the
respective meanings assigned to them in the Indenture.
13
<PAGE>
14. This Third Supplemental Indenture may be executed in any number of
counterparts, each of which when so executed shall be deemed to be an original,
but all such counterparts shall together constitute but one and the same
instrument.
14
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Third
Supplemental Indenture to be duly executed, and their respective seals to be
hereunto affixed and attested, all as of the date first above written.
PPG Industries, Inc.
/s/ W. H. Hernandez
By:__________________________
Name: W. H. Hernandez
Title: Senior Vice President, Finance
[CORPORATE SEAL]
Attest:
/s/ M. C. Hanzel
___________________________
Name: M. C. Hanzel
Title: Assistant Secretary
Harris Trust and Savings Bank
/s/ J. Bartolini
By:___________________________
Name: J. Bartolini
Title: Vice President
[CORPORATE SEAL]
Attest:
/s/ C. Potter
___________________________
Name: C. Potter
Title: Assistant Secretary
15
<PAGE>
State of Pennsylvania )
) ss.:
County of Allegheny )
On the 8th day of November, 1995, before me personally came W. H.
Hernandez, to me known, who, being by me duly sworn, did depose and say that he
is Senior Vice President, Finance of PPG Industries, Inc., one of the
corporations described in and which executed the foregoing instrument; that he
knows the seal of said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation; and that he signed his name thereto by like
authority.
/s/ Susan A. Allan
...............................................
Susan A. Allan
Notary Seal
State of Illinois )
) ss.:
County of Cook )
On the 8th day of November, 1995, before me personally came J. Bartolini,
to me known, who, being by me duly sworn, did depose and say that XX XX she is
Vice President of Harris Trust and Savings Bank, one of the corporations
described in and which executed the foregoing instrument; that he knows the seal
of said corporation; that the seal affixed to said instrument is such corporate
seal; that it was so affixed by authority of the Board of Directors of said
corporation; and that he signed his name thereto by like authority.
/s/ Maryanne Cody
...............................................
Maryanne Cody
Notary Seal
16
<PAGE>
[LOGO OF PPG] Exhibit No. 5
PPG Industries, Inc.
One PPG Place Pittsburgh, Pennsylvania 15272 USA
Telephone:(412) 434-2932 Fax: (412) 434-2490
James C. Diggs
Senior Vice President and General Counsel
January 16, 1998
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, DC 20549
To the Members of the Commission:
This opinion is submitted in connection with the Registration Statement on
Form S-3 (the "Registration Statement") being filed by PPG Industries, Inc. (the
"Company") with the Securities and Exchange Commission under the Securities Act
of 1933, as amended, in respect of $500,000,000 aggregate principal amount of
Debt Securities to be offered on a delayed basis.
I am Senior Vice President and General Counsel of the Company and, in that
capacity, I, or lawyers in the Law Department of the Company acting under my
supervision, have examined such written documents and corporate records as I, or
they, have deemed necessary or appropriate for the purposes of this opinion.
Based on the foregoing, I am of the opinion that the Company has been duly
incorporated and is validly existing as a corporation under the laws of the
Commonwealth of Pennsylvania, and that the Debt Securities, when duly
authorized, executed, authenticated and delivered, will be legally issued and
will be binding obligations of the Company in accordance with their terms.
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. I also consent to a reference to me and to this opinion
in the documents constituting the Registration Statement.
Very truly yours,
/s/ James C. Diggs
James C. Diggs
J.C.D./dw
<PAGE>
Exhibit 12
PPG INDUSTRIES, INC. AND CONSOLIDATED SUBSIDIARIES
Computation of Ratio Of Earnings to Fixed Charges
(Dollars in Millions)
<TABLE>
<CAPTION>
Nine Months
Year Ended December 31 Ended
---------------------------------------------- Sept. 30,
1992 1993 1994 1995 1996 1997
---- ---- ---- ---- ---- ----------
<S> <C> <C> <C> <C> <C> <C>
Earnings:
Earnings before income taxes.................................. $537.8 $531.2 $839.8 $1,247.3 $1,215.0 $ 906.6
Plus:
Fixed charges exclusive of capitalized interest............. 167.2 127.6 108.2 112.9 124.6 97.7
Amortization of capitalized interest........................ 10.8 11.1 11.6 11.8 12.5 9.4
Adjustments for equity affiliates........................... (1.6) (0.7) (2.4) (4.2) (2.5) (1.2)
------------------------------------------------------------
Total............................................... $714.2 $669.2 $957.2 $1,367.8 $1,349.6 $1,012.5
============================================================
Fixed Charges:
Interest expense including amortization of debt
discount/premium and debt expense........................... $147.4 $107.5 $ 88.2 $ 90.6 $ 101.9 $ 81.6
Rentals -- portion representative of interest................. 19.8 20.1 20.0 22.3 22.7 16.1
------------------------------------------------------------
Fixed charges exclusive of capitalized interest............... 167.2 127.6 108.2 112.9 124.6 97.7
Capitalized interest.......................................... 7.4 6.0 5.3 8.6 11.7 8.1
------------------------------------------------------------
Total............................................... $174.6 $133.6 $113.5 $ 121.5 $ 136.3 $ 105.8
============================================================
Ratio of earnings to fixed charges.............................. 4.09 5.01 8.43 11.26 9.90 9.57
============================================================
</TABLE>
<PAGE>
Exhibit 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in this Registration Statement of
PPG Industries, Inc. on Form S-3 of our reports dated January 16, 1997,
appearing in and incorporated by reference in the Annual Report on Form 10-K of
PPG Industries, Inc. for the year ended December 31, 1996 and to the reference
to us under the heading "Experts" in the Prospectus, which is part of this
Registration Statement.
/s/ Deloitte & Touche LLP
Deloitte & Touche LLP
Pittsburgh, Pennsylvania
January 16, 1998
<PAGE>
PPG INDUSTRIES, INC.
POWER OF ATTORNEY
-----------------
I, ROBERT MEHRABIAN, a Director of PPG Industries, Inc. (the
"Corporation"), a Pennsylvania corporation, hereby constitute and appoint
Raymond W. LeBoeuf, W. H. Hernandez, James C. Diggs and H. Kennedy Linge, or any
one or more of them, my true and lawful attorneys or attorneys-in-fact, with
full power of substitution and revocation, to sign, in my name and on my behalf
as a Director of the Corporation, a Registration Statement on Form S-3 to be
filed by the Corporation with the Securities and Exchange Commission, and any
and all amendments thereto, including post-effective amendments, for the purpose
of effecting the registration or deregistration, or maintaining the
effectiveness of the registration, under the Securities Act of 1933, as amended,
of $500,000,000 of Debt Securities of the Corporation.
WITNESS my hand this 11th day of December 1997
----
/s/ Robert Mehrabian
----------------------
ROBERT MEHRABIAN
<PAGE>
PPG INDUSTRIES, INC.
POWER OF ATTORNEY
-----------------
I, DAVID R. WHITWAM, a Director of PPG Industries, Inc. (the
"Corporation"), a Pennsylvania corporation, hereby constitute and appoint
Raymond W. LeBoeuf, W. H. Hernandez, James C. Diggs and H. Kennedy Linge, or any
one or more of them, my true and lawful attorneys or attorneys-in-fact, with
full power of substitution and revocation, to sign, in my name and on my behalf
as a Director of the Corporation, a Registration Statement on Form S-3 to be
filed by the Corporation with the Securities and Exchange Commission, and any
and all amendments thereto, including post-effective amendments, for the purpose
of effecting the registration or deregistration, or maintaining the
effectiveness of the registration, under the Securities Act of 1933, as amended,
of $500,000,000 of Debt Securities of the Corporation.
WITNESS my hand this 11th day of December 1997
----
/s/ David R. Whitwam
----------------------
DAVID R. WHITWAM
<PAGE>
PPG INDUSTRIES, INC.
POWER OF ATTORNEY
-----------------
I, DAVID G. VICE, a Director of PPG Industries, Inc. (the "Corporation"), a
Pennsylvania corporation, hereby constitute and appoint Raymond W. LeBoeuf, W.
H. Hernandez, James C. Diggs and H. Kennedy Linge, or any one or more of them,
my true and lawful attorneys or attorneys-in-fact, with full power of
substitution and revocation, to sign, in my name and on my behalf as a Director
of the Corporation, a Registration Statement on Form S-3 to be filed by the
Corporation with the Securities and Exchange Commission, and any and all
amendments thereto, including post-effective amendments, for the purpose of
effecting the registration or deregistration, or maintaining the effectiveness
of the registration, under the Securities Act of 1933, as amended, of
$500,000,000 of Debt Securities of the Corporation.
WITNESS my hand this 11th day of December 1997
----
/s/ David G. Vice
----------------------
DAVID G. VICE
<PAGE>
PPG INDUSTRIES, INC.
POWER OF ATTORNEY
-----------------
I, ERROLL B. DAVIS, JR., a Director of PPG Industries, Inc. (the
"Corporation"), a Pennsylvania corporation, hereby constitute and appoint
Raymond W. LeBoeuf, W. H. Hernandez, James C. Diggs and H. Kennedy Linge, or any
one or more of them, my true and lawful attorneys or attorneys-in-fact, with
full power of substitution and revocation, to sign, in my name and on my behalf
as a Director of the Corporation, a Registration Statement on Form S-3 to be
filed by the Corporation with the Securities and Exchange Commission, and any
and all amendments thereto, including post-effective amendments, for the purpose
of effecting the registration or deregistration, or maintaining the
effectiveness of the registration, under the Securities Act of 1933, as amended,
of $500,000,000 of Debt Securities of the Corporation.
WITNESS my hand this 11th day of December 1997
----
/s/ Erroll B. Davis, Jr.
------------------------
ERROLL B. DAVIS, JR.
<PAGE>
PPG INDUSTRIES, INC.
POWER OF ATTORNEY
-----------------
I, HAROLD A. MCINNES, a Director of PPG Industries, Inc. (the
"Corporation"), a Pennsylvania corporation, hereby constitute and appoint
Raymond W. LeBoeuf, W. H. Hernandez, James C. Diggs and H. Kennedy Linge, or any
one or more of them, my true and lawful attorneys or attorneys-in-fact, with
full power of substitution and revocation, to sign, in my name and on my behalf
as a Director of the Corporation, a Registration Statement on Form S-3 to be
filed by the Corporation with the Securities and Exchange Commission, and any
and all amendments thereto, including post-effective amendments, for the purpose
of effecting the registration or deregistration, or maintaining the
effectiveness of the registration, under the Securities Act of 1933, as amended,
of $500,000,000 of Debt Securities of the Corporation.
WITNESS my hand this 11th day of December 1997
----
/s/ Harold A. McInnes
------------------------
HAROLD A. MCINNES
<PAGE>
PPG INDUSTRIES, INC.
POWER OF ATTORNEY
-----------------
I, STEVEN C. MASON, a Director of PPG Industries, Inc. (the "Corporation"),
a Pennsylvania corporation, hereby constitute and appoint Raymond W. LeBoeuf, W.
H. Hernandez, James C. Diggs and H. Kennedy Linge, or any one or more of them,
my true and lawful attorneys or attorneys-in-fact, with full power of
substitution and revocation, to sign, in my name and on my behalf as a Director
of the Corporation, a Registration Statement on Form S-3 to be filed by the
Corporation with the Securities and Exchange Commission, and any and all
amendments thereto, including post-effective amendments, for the purpose of
effecting the registration or deregistration, or maintaining the effectiveness
of the registration, under the Securities Act of 1933, as amended, of
$500,000,000 of Debt Securities of the Corporation.
WITNESS my hand this 11th day of December 1997
----
/s/ Steven C. Mason
------------------------
STEVEN C. MASON
<PAGE>
PPG INDUSTRIES, INC.
POWER OF ATTORNEY
-----------------
I, ALLEN J. KROWE, a Director of PPG Industries, Inc. (the "Corporation"),
a Pennsylvania corporation, hereby constitute and appoint Raymond W. LeBoeuf, W.
H. Hernandez, James C. Diggs and H. Kennedy Linge, or any one or more of them,
my true and lawful attorneys or attorneys-in-fact, with full power of
substitution and revocation, to sign, in my name and on my behalf as a Director
of the Corporation, a Registration Statement on Form S-3 to be filed by the
Corporation with the Securities and Exchange Commission, and any and all
amendments thereto, including post-effective amendments, for the purpose of
effecting the registration or deregistration, or maintaining the effectiveness
of the registration, under the Securities Act of 1933, as amended, of
$500,000,000 of Debt Securities of the Corporation.
WITNESS my hand this 11th day of December 1997
----
/s/ Allen J. Krowe
------------------------
ALLEN J. KROWE
<PAGE>
PPG INDUSTRIES, INC.
POWER OF ATTORNEY
-----------------
I, NED C. LAUTENBACH, a Director of PPG Industries, Inc. (the
"Corporation"), a Pennsylvania corporation, hereby constitute and appoint
Raymond W. LeBoeuf, W. H. Hernandez, James C. Diggs and H. Kennedy Linge, or any
one or more of them, my true and lawful attorneys or attorneys-in-fact, with
full power of substitution and revocation, to sign, in my name and on my behalf
as a Director of the Corporation, a Registration Statement on Form S-3 to be
filed by the Corporation with the Securities and Exchange Commission, and any
and all amendments thereto, including post-effective amendments, for the purpose
of effecting the registration or deregistration, or maintaining the
effectiveness of the registration, under the Securities Act of 1933, as amended,
of $500,000,000 of Debt Securities of the Corporation.
WITNESS my hand this 11th day of December 1997
----
/s/ Ned C. Lautenbach
------------------------
NED C. LAUTENBACH
<PAGE>
PPG INDUSTRIES, INC.
POWER OF ATTORNEY
-----------------
I, VINCENT A. SARNI, a Director of PPG Industries, Inc. (the
"Corporation"), a Pennsylvania corporation, hereby constitute and appoint
Raymond W. LeBoeuf, W. H. Hernandez, James C. Diggs and H. Kennedy Linge, or any
one or more of them, my true and lawful attorneys or attorneys-in-fact, with
full power of substitution and revocation, to sign, in my name and on my behalf
as a Director of the Corporation, a Registration Statement on Form S-3 to be
filed by the Corporation with the Securities and Exchange Commission, and any
and all amendments thereto, including post-effective amendments, for the purpose
of effecting the registration or deregistration, or maintaining the
effectiveness of the registration, under the Securities Act of 1933, as amended,
of $500,000,000 of Debt Securities of the Corporation.
WITNESS my hand this 11th day of December 1997
----
/s/ Vincent A. Sarni
------------------------
VINCENT A. SARNI
<PAGE>
PPG INDUSTRIES, INC.
POWER OF ATTORNEY
-----------------
I, THOMAS J. USHER, a Director of PPG Industries, Inc. (the "Corporation"),
a Pennsylvania corporation, hereby constitute and appoint Raymond W. LeBoeuf, W.
H. Hernandez, James C. Diggs and H. Kennedy Linge, or any one or more of them,
my true and lawful attorneys or attorneys-in-fact, with full power of
substitution and revocation, to sign, in my name and on my behalf as a Director
of the Corporation, a Registration Statement on Form S-3 to be filed by the
Corporation with the Securities and Exchange Commission, and any and all
amendments thereto, including post-effective amendments, for the purpose of
effecting the registration or deregistration, or maintaining the effectiveness
of the registration, under the Securities Act of 1933, as amended, of
$500,000,000 of Debt Securities of the Corporation.
WITNESS my hand this 11th day of December 1997
----
/s/ Thomas J. Usher
------------------------
THOMAS J. USHER
<PAGE>
PPG INDUSTRIES, INC.
POWER OF ATTORNEY
-----------------
I, MICHELE J. HOOPER, a Director of PPG Industries, Inc. (the
"Corporation"), a Pennsylvania corporation, hereby constitute and appoint
Raymond W. LeBoeuf, W. H. Hernandez, James C. Diggs and H. Kennedy Linge, or any
one or more of them, my true and lawful attorneys or attorneys-in-fact, with
full power of substitution and revocation, to sign, in my name and on my behalf
as a Director of the Corporation, a Registration Statement on Form S-3 to be
filed by the Corporation with the Securities and Exchange Commission, and any
and all amendments thereto, including post-effective amendments, for the purpose
of effecting the registration or deregistration, or maintaining the
effectiveness of the registration, under the Securities Act of 1933, as amended,
of $500,000,000 of Debt Securities of the Corporation.
WITNESS my hand this 11th day of December 1997
----
/s/ Michele J. Hooper
------------------------
MICHELE J. HOOPER
<PAGE>
Exhibit 25
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
Statement of Eligibility
Under the Trust Indenture Act of 1939
of a Corporation Designated to Act as Trustee
Check if an Application to Determine Eligibility
of a Trustee Pursuant to Section 305(b)(2) ______
HARRIS TRUST AND SAVINGS BANK
(Name of Trustee)
Illinois 36-1194448
(State of Incorporation) (I.R.S. Employer Identification No.)
111 West Monroe Street, Chicago, Illinois 60603
(Address of principal executive offices)
Judith Bartolini, Harris Trust and Savings Bank,
311 West Monroe Street, Chicago, Illinois, 60606
312-461-2527 phone 312-461-3525 facsimile
(Name, address and telephone number for agent for service)
PPG INDUSTRIES, INC.
(Name of obligor)
Pennsylvania 25-0730780
(State of Incorporation) (I.R.S. Employer Identification No.)
One PPG Place
Pittsburgh, Pennsylvania 15272
(Address of principal executive offices)
Debt Securities
(Title of indenture securities)
<PAGE>
1. GENERAL INFORMATION. Furnish the following information as to the Trustee:
(a) Name and address of each examining or supervising authority to which
it is subject.
Commissioner of Banks and Trust Companies, State of Illinois,
Springfield, Illinois; Chicago Clearing House Association, 164 West
Jackson Boulevard, Chicago, Illinois; Federal Deposit Insurance
Corporation, Washington, D.C.; The Board of Governors of the Federal
Reserve System,Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Harris Trust and Savings Bank is authorized to exercise corporate
trust powers.
2. AFFILIATIONS WITH OBLIGOR. If the Obligor is an affiliate of the Trustee,
describe each such affiliation.
The Obligor is not an affiliate of the Trustee.
3. thru 15.
NO RESPONSE NECESSARY
16. LIST OF EXHIBITS.
1. A copy of the articles of association of the Trustee is now in effect
which includes the authority of the trustee to commence business and to
exercise corporate trust powers.
A copy of the Certificate of Merger dated April 1, 1972 between Harris
Trust and Savings Bank, HTS Bank and Harris Bankcorp, Inc. which
constitutes the articles of association of the Trustee as now in effect
and includes the authority of the Trustee to commence business and to
exercise corporate trust powers was filed in connection with the
Registration Statement of Louisville Gas and Electric Company, File No.
2-44295, and is incorporated herein by reference.
2. A copy of the existing by-laws of the Trustee.
A copy of the existing by-laws of the Trustee was filed in connection
with the Registration Statement of Commercial Federal Corporation, File
No. 333-20711, and is incorporated herein by reference.
3. The consents of the Trustee required by Section 321(b) of the Act.
(included as Exhibit A on page 2 of this statement)
4. A copy of the latest report of condition of the Trustee published
pursuant to law or the requirements of its supervising or examining
authority.
(included as Exhibit B on page 3 of this statement)
1
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the Trustee,
HARRIS TRUST AND SAVINGS BANK, a corporation organized and existing under the
laws of the State of Illinois, has duly caused this statement of eligibility to
be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of Chicago, and State of Illinois, on the 13th day of January, 1998.
HARRIS TRUST AND SAVINGS BANK
By: /s/ J. Bartolini
---------------------------
J. Bartolini
Vice President
EXHIBIT A
The consents of the trustee required by Section 321(b) of the Act.
Harris Trust and Savings Bank, as the Trustee herein named, hereby consents that
reports of examinations of said trustee by Federal and State authorities may be
furnished by such authorities to the Securities and Exchange Commission upon
request therefor.
HARRIS TRUST AND SAVINGS BANK
By: /s/ J. Bartolini
---------------------------
J. Bartolini
Vice President
2
<PAGE>
EXHIBIT B
Attached is a true and correct copy of the statement of condition of Harris
Trust and Savings Bank as of September 30, 1997, as published in accordance with
a call made by the State Banking Authority and by the Federal Reserve Bank of
the Seventh Reserve District.
[LOGO OF HARRIS BANK]
Harris Trust and Savings Bank
111 West Monroe Street
Chicago, Illinois 60603
of Chicago, Illinois, And Foreign and Domestic Subsidiaries, at the close of
business on September 30, 1997, a state banking institution organized and
operating under the banking laws of this State and a member of the Federal
Reserve System. Published in accordance with a call made by the Commissioner of
Banks and Trust Companies of the State of Illinois and by the Federal Reserve
Bank of this District.
Bank's Transit Number 71000288
<TABLE>
<CAPTION>
THOUSANDS
ASSETS OF DOLLARS
Cash and balances due from depository institutions:
<S> <C> <C>
Non-interest bearing balances and currency and coin..................... $ 1,188,709
Interest bearing balances............................................... $ 550,173
Securities:....................................................................
a. Held-to-maturity securities $ 0
b. Available-for-sale securities $ 3,685,983
Federal funds sold and securities purchased under agreements to resell i $ 396,400
Loans and lease financing receivables:
Loans and leases, net of unearned income................................ $8,401,048
LESS: Allowance for loan and lease losses.............................. $ 107,180
-------------------
Loans and leases, net of unearned income, allowance, and reserve
(item 4.a minus 4.b).................................................... $ 8,293,868
Assets held in trading accounts................................................ $ 98,368
Premises and fixed assets (including capitalized leases)....................... $ 213,612
Other real estate owned........................................................ $ 778
Investments in unconsolidated subsidiaries and associated companies............ $ 86
Customer's liability to this bank on acceptances outstanding................... $ 41,205
Intangible assets.............................................................. $ 283,839
Other assets................................................................... $ 603,886
-------------------------
TOTAL ASSETS $15,356,907
=========================
</TABLE>
3
<PAGE>
<TABLE>
<CAPTION>
LIABILITIES
Deposits:
<S> <C> <C>
In domestic offices.......................................................... $ 8,374,055
Non-interest bearing.................................................... $2,770,029
Interest bearing........................................................ $5,604,026
In foreign offices, Edge and Agreement subsidiaries, and IBF's............... $ 1,991,659
Non-interest bearing.................................................... $ 27,364
Interest bearing........................................................ $1,964,295
Federal funds purchased and securities sold under agreements to repurchase in
domestic offices of the bank and of its Edge and Agreement subsidiaries, and
in IBF's:
Federal funds purchased.& securites sold under agreements to repurchase...... $ 2,549,328
Trading Liabilities 62,186
Other borrowed money:..........................................................
a. With remaining maturity of one year or less $ 630,911
b. With remaining maturity of more than one year $ 0
Bank's liability on acceptances executed and outstanding $ 41,205
Subordinated notes and debentures.............................................. $ 325,000
Other liabilities.............................................................. $ 132,188
-------------------------
TOTAL LIABILITIES $14,106,532
=========================
EQUITY CAPITAL
Common stock................................................................... $ 100,000
Surplus........................................................................ $ 600,853
a. Undivided profits and capital reserves..................................... $ 553,257
b. Net unrealized holding gains (losses) on available-for-sale securities ($3,735)
-------------------------
TOTAL EQUITY CAPITAL $ 1,250,375
=========================
Total liabilities, limited-life preferred stock, and equity capital............ $15,356,907
=========================
</TABLE>
I, Pamela Piarowski, Vice President of the above-named bank, do hereby
declare that this Report of Condition has been prepared in conformance with the
instructions issued by the Board of Governors of the Federal Reserve System and
is true to the best of my knowledge and belief.
PAMELA PIAROWSKI
10/29/97
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and, to the best of our
knowledge and belief, has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and the
Commissioner of Banks and Trust Companies of the State of Illinois and is true
and correct.
EDWARD W. LYMAN,
ALAN G. McNALLY,
JAMES J. GLASSER
Directors.
4
