INGERSOLL-RAND COMPANY,
AS ISSUER
TO
THE BANK OF NEW YORK,
AS TRUSTEE
Indenture
DATED AS OF March 23, 1998
INGERSOLL-RAND COMPANY
RECONCILIATION AND TIE BETWEEN TRUST
INDENTURE ACT OF 1939, AS AMENDED
AND INDENTURE, DATED AS OF MARCH 23, 1998
TRUST INDENTURE INDENTURE SECTION
ACT SECTION
Section 310(a)(1) 609
(a)(2) 609
(a)(3) Not Applicable
(a)(4) Not Applicable
(b) 608, 610
Section 311(a) 613
(b) 613
Section 312(a) 701, 702(a)
(b) 702(b)
(c) 702(c)
Section 313(a) 703(a)
(b) Not Applicable
(c) 703(a), 703(b)
(d) 703(b)
Section 314(a) 704
(b) Not Applicable
(c)(1) 102
(c)(2) 102
(c)(3) Not Applicable
(d) Not Applicable
(e) 102
Section 315(a) 601(a)
(b) 602
(c) 601(b)
(d) 601(c)
(d)(l) 601(a), 601(c)
(d)(2) 601(c)
(d)(3) 601(c)
(e) 514
Section 316(a)(1)(A) 512
(a)(1)(B) 502, 513
(a)(2) Not Applicable
(b) 508
Section 317(a)(1) 503
(a)(2) 504
(b) 1009
Section 318(a) 107
NOTE: THIS RECONCILIATION AND TIE SHALL NOT, FOR ANY PURPOSE,
BE DEEMED TO BE A PART OF THIS INDENTURE.
TABLE OF CONTENTS
Page
ARTICLE 1DEFINITIONS AND OTHER PROVISIONSOF GENERAL APPLICATION 1
SECTION 101.Definitions 1
Act 1
Affiliate 1
Authenticating Agent 2
Bankruptcy Law 2
Board of Directors 2
Board Resolution 2
Business Day 2
Capitalized Lease Obligation 2
Capital Stock 2
Commission 2
Common Depositary 2
Company 2
Company Request 2
Company Order 2
Corporate Trust Office 2
Covenant Defeasance 2
Custodian 2
Default 2
Defaulted Interest 2
Defeasance 2
Dollars 3
Event of Default 3
Exchange Act 3
Funded Indebtedness 3
GAAP 3
Holder 3
Security holder 3
Indenture 3
Interest 3
Interest Payment Date 3
Maturity 3
Officer 3
Officer's Certificate 3
Opinion of Counsel 3
Original Issue Discount Security 3
Outstanding 3
Paying Agent 4
Person 4
Place of Payment 4
Principal Property 4
Redemption Date 4
Redemption Price 4
Registered Security 4
Regular Record Date 4
Responsible Officer 4
Restricted Subsidiary 4
Securities 4
Security Register 4
Security Registrar 4
Special Record Date 4
Stated Maturity 5
Subsidiary 5
Trust Indenture Act 5
Trustee 5
U.S. Depositary 5
U.S. Government Obligations 5
Vice President 5
SECTION 102.Compliance Certificates and Opinions 5
SECTION 103.Form of Documents Delivered to Trustee 6
SECTION 104.Acts of Holders 6
SECTION 105.Notices, Etc., to Trustee and Company 7
SECTION 106.Notice to Holders; Waiver 7
SECTION 107.Conflict with Trust Indenture Act 8
SECTION 108.Effect of Headings and Table of Contents 8
SECTION 109.Successors and Assigns 8
SECTION 110.Separability Clause 8
SECTION 111.Benefits of Indenture 8
SECTION 112.Governing Law 8
SECTION 113.Legal Holidays 8
SECTION 114.No Recourse Against Others 8
ARTICLE 2 SECURITY FORMS 9
SECTION 201.Forms Generally 9
SECTION 202.Form of Face of Security 9
SECTION 203.Form of Reverse of Security 11
SECTION 204.Form of Trustee's Certificate of Authentication 14
SECTION 205.Securities in Global Form 14
SECTION 206.CUSIP Number 15
SECTION 207. Form of Legend for the Securities in Global
Form15
ARTICLE 3 THE SECURITIES 15
SECTION 301.Amount Unlimited; Issuable in Series 15
SECTION 302.Denominations 17
SECTION 303.Execution, Authentication, Delivery and Dating 17
SECTION 304.Temporary Securities 18
SECTION 305.Registration, Registration of Transfer and
Exchange 19
SECTION 306.Mutilated, Destroyed, Lost and Stolen Securities 20
SECTION 307.Payment of Interest; Interest Rights Preserved 21
SECTION 308.Persons Deemed Owners 21
SECTION 309.Cancellation 22
SECTION 310.Computation of Interest 22
ARTICLE 4 SATISFACTION AND DISCHARGE 22
SECTION 401.Satisfaction and Discharge of Indenture 22
SECTION 402.Application of Trust Money 23
ARTICLE 5 REMEDIES 23
SECTION 501.Events of Default 23
SECTION 502.Acceleration of Maturity; Rescission and Annulment 24
SECTION 503. Collection of Indebtedness and Suits for
Enforcement by Trustee 25
SECTION 504.Trustee May File Proofs of Claim 25
SECTION 505. Trustee May Enforce Claims Without Possession
of Securities 26
SECTION 506.Application of Money Collected 26
SECTION 507.Limitation on Suits 26
SECTION 508. UnconditionLa Right of Holders to Receive
Principal, Premium and Interest. 27
SECTION 509.Restoration of Rights and Remedies 27
SECTION 510.Rights and Remedies Cumulative 27
SECTION 511.Delay or Omission Not Waiver 27
SECTION 512.Control by Holders 27
SECTION 513.Waiver of Past Defaults 27
SECTION 514.Undertaking for Costs 28
ARTICLE 6 THE TRUSTEE 28
SECTION 601. Certain Duties and Responsibilities of the
Trustee 28
SECTION 602. Notice of Defaults 28
SECTION 603. Certain Rights of Trustee 28
SECTION 604. Not Responsible for Recitals or Issuance of
Securities 29
SECTION 605. May Hold Securities 29
SECTION 606. Money Held in Trust 30
SECTION 607. Compensation and Reimbursement 30
SECTION 608. Disqualification; Conflicting Interests 30
SECTION 609. Corporate Trustee Required; Eligibility 30
SECTION 610. Resignation and Removal; Appointment of
Successor 31
SECTION 611. Acceptance of Appointment by Successor 32
SECTION 612. Merger, Conversion, Consolidation or
Succession to Busines 32
SECTION 613. Preferential Collection of Claims Against
Company 33
SECTION 614. Appointment of Authenticating Agent 33
ARTICLE 7 HOLDERS' LISTS AND REPORTS BY TRUSTEE AND
COMPANY 34
SECTION 701. Company to Furnish Trustee Names and Addresses of
Holders 34
SECTION 702. Preservation of Information; Communications to
Holders 34
SECTION 703. Reports by Trustee 35
SECTION 704. Reports by Company 35
ARTICLE 8 CONSOLIDATION, MERGER, LEASE, SALE OR TRANSFER 36
SECTION 801. When Company May Merge, Etc. 36
SECTION 802. Opinion of Counsel 36
SECTION 803. Successor Corporation Substituted 36
ARTICLE 9 SUPPLEMENTAL INDENTURES 37
SECTION 901. Supplemental Indentures Without Consent of
Holders 37
SECTION 902. Supplemental Indentures with Consent of Holders 37
SECTION 903. Execution of Supplemental Indentures 38
SECTION 904. Effect of Supplemental Indentures 38
SECTION 905. Conformity with Trust Indenture Act 38
SECTION 906. Reference in Securities to Supplemental
Indentures 39
ARTICLE 10 COVENANTS 39
SECTION 1001.Payments of Securities 39
SECTION 1002.Maintenance of Office or Agency 39
SECTION 1003.Compliance Certificates 39
SECTION 1004.Money for Securities Payments to Be Held in
Trust 39
SECTION 1005.Limitation on Liens 40
SECTION 1006 Limitation on Sale and Leaseback Transactions 42
SECTION 1008 Waiver of Certain Covenants 42
ARTICLE 11 REDEMPTION OF SECURITIES 42
SECTION 1101.Applicability of Article 42
SECTION 1102.Election to Redeem; Notice to Trustee 43
SECTION 1103.Selection by Trustee of Securities to Be
Redeemed 43
SECTION 1104.Notice of Redemption 43
SECTION 1105.Deposit of Redemption Price 44
SECTION 1106.Securities Payable on Redemption Date 44
SECTION 1107.Securities Redeemed in Part 44
ARTICLE 12 SINKING FUNDS 44
SECTION 1201.Applicability of Article 44
SECTION 1202.Satisfaction of Sinking Fund Payments with
Securities 45
SECTION 1203.Redemption of Securities for Sinking Fund 45
ARTICLE 13 DEFEASANCE AND COVENANT DEFEASANCE 45
SECTION 1301.Applicability of Article; Company's Option to
Effect Defeasance or Covenant Defeasance 45
SECTION 1302.Defeasance and Discharge 45
SECTION 1303.Covenant Defeasance 46
SECTION 1304.Conditions to Defeasance or Covenant Defeasance 46
SECTION 1305.Deposited Money and Government Obligations To Be
Held In Trust 47
ARTICLE 14 MISCELLANEOUS 47
SECTION 1401.Miscellaneous 47
Indenture, dated as of March 23, 1998, between INGERSOLL-
RAND COMPANY, a corporation duly organized and existing under the
laws of the State of New Jersey (herein called the "Company "),
having its principal office at 200 Chestnut Ridge Road, Woodcliff
Lake, New Jersey 07675 and The Bank of New York, a
, 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 1
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 11. 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 GAAP;
(4) the word "including" (and with the correlative meaning
"Include") means including, without limiting the generality of,
any description preceding such term; and
(5) 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.
"Authenticating Agent" means any Person authorized by the
Trustee to act on behalf of the Trustee to authenticate
Securities. "Bankruptcy Law" means Title 11, U.S. Code or any
similar federal or state law for the relief of debtors.
"Board of Directors" means the board of directors of the
Company; provided, however, that when the context refers to
actions or resolutions of the Board of Directors, then the term
"Board of Directors" shall also mean any duly authorized
committee of the Board of Directors of the Company or Officer
authorized to act with respect to any particular matter to
exercise the power of the Board of Directors of the Company.
"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 or regulation
to close.
"Capitalized Lease Obligation" means an obligation under a
lease that is required to be capitalized for financial reporting
purposes in accordance with GAAP, and the amount of Indebtedness
represented by such obligation shall be the capitalized amount of
such obligations determined ln accordance with such principles.
"Capital Stock" of any Person shall mean any and all shares,
interests, participations or other equivalents of or interests in
(however designated) equity of such Person, including any
preferred stock, but excluding any debt securities convertible
into such equity.
"Commission" means the Securities and Exchange Commission,
as from time to time constituted, created under the Exchange Act,
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.
"Common Depositary" has the meaning specified in Section
304.
"Company" means the Person named as the "Company" in the
first paragraph of this Indenture 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 President or a Vice President, and by its Treasurer,
an Assistant Treasurer, its Controller, an Assistant Controller,
its Secretary or an Assistant Secretary, and delivered to the
Trustee.
"Corporate Trust Office" means the office of the Trustee in
New York, New York at which at any particular time its corporate
trust business shall be principally administered, which office at
the date hereof is located at 101 Barclay Street, New York, New
York 10286.
"Covenant Defeasance" has the meaning specified in Section
1303.
"Custodian" means any receiver, trustee, assignee,
liquidator, sequestrator or similar official under any Bankruptcy
Law.
"Default" means any event which is, or after notice or
passage of time or both would be, an Event of Default.
"Defaulted Interest" has the meaning specified in Section
307.
"Defeasance" has the meaning specified in Section 1302.
"Dollars" and "$" means lawful money of the United States of
America.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities and Exchange Act of
1934, as amended from time to time, and the rules and regulations
promulgated thereunder.
"Funded Indebtedness" means indebtedness created, assumed or
guaranteed by a Person for money borrowed which matures by its
terms, or is renewable by the borrower to a date, more than one
year after the date of its original creation, assumption or
guarantee.
"GAAP" means such accounting principles that are generally
accepted in the United States of America as of the date of any
computation required hereunder.
"Holder" or "Security holder" means a Person in whose name a
Security if 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 installment 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
installment 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.
"Officer" means the Chairman of the Board, the Vice Chairman
of the Board, the President, any Executive Vice President, any
Senior Vice President, any Vice President, the Treasurer, any
Assistant Treasurer, the Controller, the Secretary or any
Assistant Secretary of the Company.
"Officer's Certificate" means a certificate signed by an
Officer and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who
may be an employee of or counsel for the Company, and who shall
be reasonably acceptable to the Trustee.
"Original Issue Discount Security" means 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 or
Securities of any series, means, as of the date of determination,
all such 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, or portions thereof, 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; (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; and (iv) Securities which have been defeased
pursuant to Section 1302; 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,
(a) the principal amount of an Original Issue Discount Security
that shall be deemed to be Outstanding for such purposes shall be
that portion of the principal amount thereof that could be
declared to be due and payable upon the occurrence of an Event of
Default and the continuation thereof pursuant to the terms of
such Original Issue Discount Security as of the date of such
determination and (b) 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 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.
"Paying Agent" means any Person authorized by the Company to
pay the principal of (and premium, if any) or interest on any
Securities on behalf of the Company. The Company may act as
Paying Agent with respect to any Securities issued hereunder.
"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 on the Securities of that
series are payable as specified as contemplated by Section 301.
"Principal Property" means any manufacturing plant or other
manufacturing facility of the Company or any Restricted
Subsidiary, which plant or facility is located within the United
States of America, except any such plant or facility which the
Board of Directors by resolution declares is not of material
importance to the total business conducted by the Company and its
Restricted Subsidiaries.
"Redemption Date," when used with respect to any Security of
any series 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
of any series to be redeemed, means the price at which it is to
be redeemed pursuant to this Indenture.
"Registered Security" means any Security issued hereunder
and registered in the Security Register.
"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.
"Responsible Officer," when used with respect to the
Trustee, means any officer of the Trustee in its Corporate Trust
Office and also means, with respect to a particular corporate
trust matter, any other officer to whom such matter is referred
because of his knowledge of and familiarity with the particular
subject.
"Restricted Subsidiary" means any Subsidiary which owns a
Principal Property excluding, however, any corporation the
greater part of the operating assets of which are located or the
principal business of which is carried on outside the United
States of America.
"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.
"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 installment 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 installment of principal
or interest is due and payable.
"Subsidiary" of a Person means any corporation of which at
least a majority of the outstanding stock having voting power
under ordinary circumstances to elect a majority of the Board of
Directors of said corporation shall at the time be owned by the
Company or by the Company and one or more Subsidiaries or by one
or more Subsidiaries.
"Trust Indenture Act" means the Trust Indenture Act of 1939,
as amended, as in force at the date as of which this Indenture
was executed; provided, however, that in the event that such Act
is amended after such date, "Trust Indenture Act" means the Trust
Indenture Act of 1939 as so amended.
"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.
"U.S. Depositary" means, with respect to the Securities of
any series issuable or issued in whole or in part in the form of
one or more permanent global Securities, the Person designated as
U.S. Depositary by the Company pursuant to Section 301, which
must be a clearing agency registered under the Exchange Act until
a successor U.S. Depositary shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "U.S.
Depositary" shall mean or include each Person who is then a U.S.
Depositary hereunder, and if at any time there is more than one
such Person, "U.S. Depositary" shall mean the U.S. Depositary
with respect to the Securities of that series.
"U.S. Government Obligations" means securities which are (i)
direct obligations of the United States of America for the
payment of which its full faith and credit is pledged or (ii)
obligations of a Person controlled or supervised by and acting as
an agency or instrumentality of the United States of America the
timely payment of which is unconditionally guaranteed by the full
faith and credit of the United States of America which, in either
case, are not callable or redeemable at the option of the issuer
thereof or otherwise subject to prepayment, and shall also
include a depository receipt issued by a New York Clearing House
bank or trust company as custodian with respect to any such U.S.
Government Obligation or a specific payment or interest on or
principal of any such U.S. Government Obligation held by such
custodian for the account of the holder of a depository receipt,
provided that (except as required by law) such custodian is not
authorized to make any deduction from the amount payable to the
holder of such depository receipt or from any amount held by the
custodian in respect of the U.S. Government Obligation or the
specific payment of interest on or principal of the U.S.
Government Obligation evidenced by such depository receipt.
"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".
SECTION 12. 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,
other than an action permitted by Sections 205 and 704 hereof,
the Company shall furnish to the Trustee an Officer's 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:
(a) a statement that each individual signing such
certificate or opinion has read such covenant or condition and
the definitions herein relating thereto;
(b) 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; (c) 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
(d) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 13. 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 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 14. 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 agents 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 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 Registered 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. (e) If the Company shall
solicit from the Holders any request, demand, authorization,
direction, notice, consent, waiver or other Act, the Company may,
at its option, by or pursuant to a Board Resolution, fix in
advance a record date for the determination of Holders entitled
to give such request, demand, authorization, direction, notice,
consent, waiver or other Act, but the Company shall have no
obligation to do so. If such a record date is fixed, such
request, demand, authorization, direction, notice, consent,
waiver or other Act may be given before or after such record
date, but only the Holders of record at the close of business on
such record date shall be deemed to be Holders for the purposes
of determining whether Holders of the requisite proportion of
Outstanding Securities have authorized or agreed or consented to
such request, demand, authorization, direction, notice, consent,
waiver or other Act, and for that purpose the Outstanding
Securities shall be computed as of such record date; provided
that no such authorization, agreement or consent by the Holders
on such record date shall be deemed effective unless it shall
become effective pursuant to the provisions of this Indenture not
later than six months after the record date.
SECTION 15. 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,
(a) 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 and received by the
Trustee at its Corporate Trust Office, Attention: Corporate Trust
Administration, or
(b) 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
Indenture, attention: Secretary, or at any other address
previously furnished in writing to the Trustee by the Company.
SECTION 16. Notice to Holders; Waiver.
Where this Indenture or any Security provides for notice to
Holders of any event, such notice shall be deemed sufficiently
given (unless otherwise herein or in such Security 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 or the
validity of the proceedings to which such notice relates. Where
this Indenture or any Security 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.
Any request, demand, authorization, direction, notice,
consent or waiver required or permitted under this Indenture
shall be in the English language, except that any published
notice may be in an official language of the country of
publication.
SECTION 17. 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. If any provision of this
Indenture modifies or excludes any provision of the Trust
Indenture Act that may be so modified or excluded, the latter
provision shall be deemed to apply to this Indenture as so
modified or shall be excluded, as the case may be.
SECTION 18. 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 19. Successors and Assigns.
All covenants 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.
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 (other than the choice of
law provisions) 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 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 or on such other day as may be set out in the
Officer's Certificate pursuant to Section 301 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.
SECTION 114. No Recourse Against Others.
No recourse for the payment of the principal of (and
premium, if any) or interest, if any, on any Security, or for any
claim based thereon or otherwise in respect thereof, and no
recourse under or upon any obligation, covenant or agreement of
the Company in this Indenture or in any supplemental indenture,
or in any Security, or because of the creation of any
indebtedness represented thereby, shall be had against any
incorporator, stockholder, officer or director, as such, past,
present or future, of the Company or of any successor
corporation, either directly or through the Company or any
successor corporation, whether by virtue of any constitution,
statute or rule of law, or by the enforcement of any assessment
or penalty or otherwise; it being expressly understood that all
such liability is hereby waived and released as a condition of
and as a consideration for, the execution of this Indenture and
the issue of the Securities.
ARTICLE 2
SECURITY FORMS
SECTION 21. 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, ln 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.
The Trustee's certificates of authentication shall be in
substantially the form set forth in this Article.
The definitive Securities shall be photocopied, 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 22. Form of Face of Security.
(If the Security is an Original Issue Discount Security,
insert--FOR PURPOSES OF SECTION 1272 OF THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED (THE "CODE"), THE AMOUNT OF ORIGINAL ISSUE
DISCOUNT (AS DEFINED IN SECTION 1273(a)(1) OF THE CODE AND
TREASURY REGULATION SECTION 1.1273-l(a) WITH RESPECT TO THIS
SECURITY IS , THE ISSUE PRICE (AS DEFINED IN TREASURY
REGULATION SECTION 1.1273-2) OF THIS SECURITY IS , THE
ISSUE DATE (AS DEFINED IN SECTION 1275(a)(2) OF THE CODE AND
TREASURY REGULATION SECTION 1.1273-2) OF THIS SECURITY IS
AND THE YIELD TO MATURITY OF THIS SECURITY IS
). INGERSOLL-RAND COMPANY
........................
No. ________ ($)________
INGERSOLL-RAND COMPANY, a corporation duly organized and
existing under the laws of New Jersey (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 $ 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) (quarterly) (monthly) on
and in each year, commencing , at the rate
of % per annum, until the principal hereof is paid or made
available for payment (If applicable insert--, 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 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 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
of (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 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 Dollars (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.
INGERSOLL-RAND COMPANY
By:
By:___________________________
_____________
Attest:
(SEAL)
SECTION 23. 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 March 17, 1998 (herein called the "Indenture"),
between the Company and 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 nor more than 60
days' notice by first class mail to the holders of such
securities, (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 , ), 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,
Year Redemption Price Year Redemption Price
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 and unpaid 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 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 nor more
than 60 days' notice by first class 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 a 12-month period beginning of
the years indicated,
Redemption Price for Redemption Price for
Redemption Through Redemption Otherwise
Operation of the Than Through
Year Sinking Fund Operation
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 and unpaid 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 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 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 ln the name of the Holder hereof
upon the cancellation hereof.)
(If the Security is not an Original Issue Discount Security,
insert -- If any 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, insert -- 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 -- 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.
This Security is a senior unsecured obligation of the
Company and will rank pari passu in right of payment with all
other senior unsecured obligations of the Company.
This Security is subject to Defeasance as described in the
Indenture.
The Indenture may be modified by the Company and the Trustee
without consent of any Holder with respect to certain matters as
described in the Indenture. In addition, 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 a
majority 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 a majority 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 bind such Holder and all future
Holders of this Security and of any Security issued upon the
registration of transfer hereof or in exchange hereof 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 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 on this Security 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 Securities of this series,
of authorized denominations and for the same Stated Maturity and
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 ($1,000) 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.
The Indenture imposes certain limitations on the ability of
the Company to, among other things, merge or consolidate with any
other Person or sell, assign, transfer or lease all or
substantially all of its properties or assets (If other covenants
are applicable pursuant to the provisions of Section 301, insert
here). All such covenants and limitations are subject to a number
of important qualifications and exceptions. The Company must
report periodically to the Trustee on compliance with the
covenants in the Indenture.
A director, officer, employee or stockholder, as such, of
the Company shall not have any liability for any obligations of
the Company under this Security or the Indenture or for any claim
based on, in respect of or by reason of, such obligations or
their creation. Each Holder, by accepting a Security, waives and
releases all such liability. The waiver and release are part of
the consideration for the issuance of this Security.
(If applicable, insert -- Pursuant to a recommendation
promulgated by the Committee on Uniform Security Identification
Procedures ("CUSIP"), the Company has caused CUSIP numbers to be
printed on the Securities of this series as a convenience to the
Holders of the Securities of this series. No representation is
made as to the correctness or accuracy of such numbers as printed
on the Securities of this series and reliance may be placed only
on the other identification numbers printed hereon.)
All capitalized terms used in this Security without
definition which are defined in the Indenture shall have the
meanings assigned to them in the Indenture. ASSIGNMENT FORM
To assign this Security, fill in the form below: (I) or (we)
assign and transfer this Security to
(Insert assignee's social security or tax I.D. number)
(Print or type assignee's name, address and zip code)
and irrevocably appoint
agent to transfer this Security on the books of the Company. The
agent may substitute another to act for him.
Dated:_________ Your Signature:___________________
(Sign exactly as your
name appears on the other
side of this Security)
Signature Guaranty:_______________________________
(Signatures must be guaranteed by an
"eligible guarantor institution" meeting the
requirements of the Transfer Agent, which
requirements will include membership or
participation in STAMP or such other
"signature guarantee program" as may be
determined by the Transfer Agent in addition
to, or in substitution for, STAMP all in
accordance with the Exchange Act.)
Social Security Number or Taxpayer Identification Number:
SECTION 24. 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.
THE BANK OF NEW YORK
as Trustee
By:___________________________
Authorized Signatory
Dated:_____________________
SECTION 25. Securities in Global Form.
If Securities of a series are issuable in global form, as
contemplated by Section 301, then, notwithstanding the provisions
of Section 302, any such Security shall represent such of the
Outstanding Securities of such series as shall be specified
therein and may provide that it shall represent the aggregate
amount of Outstanding Securities from time to time endorsed
thereon and that the aggregate amount of Outstanding Securities
represented thereby may from time to time be reduced to reflect
exchanges. Any endorsement of a Security in global form to
reflect the amount, or any increase or decrease in the amount, of
Outstanding Securities represented thereby shall be made in such
manner and upon instructions given by such Person or Persons as
shall be specified therein or in the Company Order to be
delivered to the Trustee pursuant to Section 303 or Section 304.
Subject to the provisions of Section 303 and, if applicable,
Section 304, the Trustee shall deliver and redeliver any Security
in permanent global form in the manner and upon instructions
given by the Person or Persons specified therein or in the
applicable Company Order. If a Company Order pursuant to Section
303 or 304 has been, or simultaneously is, delivered, any
instructions by the Company with respect to endorsement or
delivery or redelivery of a Security in global form shall be in
writing but need not comply with Section 102 and need not be
accompanied by an Opinion of Counsel.
The provisions of Section 309 shall apply to any Security
represented by a Security in global form if such Security was
never issued and sold by the Company and the Company delivers to
the Trustee the Security in global form together with written
instructions (which need not comply with Section 102 and need not
be accompanied by an Opinion of Counsel) with regard to the
reduction in the principal amount of Securities represented
thereby.
Notwithstanding the provisions of Sections 201 and 307,
unless otherwise specified as contemplated by Section 301,
payment of principal of, premium, if any, and interest on any
Security in permanent global form shall be made to the Person or
Persons specified therein.
Notwithstanding the provisions of Section 308 and except as
provided in the preceding paragraph, the Company, the Trustee and
any agent of the Company and the Trustee shall treat a Person as
the Holder of such principal amount of Outstanding Securities
represented by a permanent global Security as shall be specified
in a written statement of the Holder of such permanent global
Security.
SECTION 26. CUSIP Number.
The Company in issuing Securities of any series may use a
"CUSIP" number, and, if so, the Trustee may use the CUSIP number
in notices of redemption or exchange as a convenience to Holders
of such series; provided, that any such notice may state that no
representation is made as to the correctness or accuracy of the
CUSIP number printed on the notice or on the Securities of such
series, and that reliance may be placed only on the other
identification numbers printed on the Securities, and any such
redemption shall not be affected by any defect in or omission of
such numbers. The Company will promptly notify the Trustee of
any change in the CUSIP number of any series of Securities.
SECTION 27. Form of Legend for the Securities in Global
Form.
Any Security in global form authenticated and delivered
hereunder shall bear a legend in substantially the following
form:
"THIS SECURITY IS IN GLOBAL FORM WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AN IS REGISTERED IN THE NAME OF
A COMMON DEPOSITARY OR A U.S. DEPOSITARY. UNLESS AND UNTIL IT IS
EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN CERTIFICATED
FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY
THE COMMON DEPOSITARY OR A U.S. DEPOSITARY OR BY A NOMINEE OF THE
COMMON DEPOSITARY OR A NOMINEE OF THE U.S. DEPOSITARY AS THE CASE
MAY BE."
ARTICLE 3
THE SECURITIES
SECTION 31. 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 from time to time in one or
more series. There shall be established in or pursuant to a Board
Resolution, and set forth in an Officer's 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
Sections 304, 305, 306, 906 or 1107);
(3) whether any Securities of the series are to be issuable
in permanent global form with or without coupons and, if so, (i)
whether beneficial owners of interests in any such permanent
global security may exchange such interests for Securities of
such series and of like tenor of any authorized form and
denomination and the circumstances under which any such exchanges
may occur, if other than in the manner provided in Section 305,
and (ii) the name of the Common Depositary (as defined in Section
304) or the U.S. Depositary, as the case may be, with respect to
any global security;
(4) the date or dates on which the principal of the
Securities of the series is payable;
(5) 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 and, if applicable
to such series of Securities, the basis points and United States
Treasury rate(s) and any other rates to be used in calculating
the reset rate;
(6) the place or places where the principal of (and
premium, if any) and interest on Securities of the series shall
be payable;
(7) the right of the Company, if any, to defer any payment
of principal of or interest on the Securities of the series, and
the maximum length of any such deferral period;
(8) 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, pursuant to any sinking fund or otherwise;
(9) 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, and, where applicable, the obligation of the
Company to select the Securities to be redeemed;
(10) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which Securities of the
series shall be issuable;
(11) 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;
(12) additional Events of Default with respect to Securities
of the series, if any, other than those set forth herein;
(13) if either or both of Section 1302 and Section 1303
shall be inapplicable to the Securities of the series (provided
that if no such inapplicability shall be specified, then both
Section 1302 and Section 1303 shall be applicable to the
Securities of the series);
(14) if other than U.S. dollars, the currency or currencies
or units based on or related to currencies in which the
Securities of such series shall be denominated and in which
payments or principal of, and any premium and interest on, such
Securities shall or may by payable;
(15) additional covenants with respect to Securities
of the series, if any, other than those set forth herein;
(16) if other than the Trustee, the identity of the
Registrar and any Paying Agent; and
(17) 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 Officer's 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 Officer's Certificate setting
forth, or providing the manner for determining, the terms of the
Securities of such series.
SECTION 32. 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 33. Execution, Authentication, Delivery and
Dating.
The Securities shall be executed on behalf of the Company by
its Chairman of the Board, its Vice Chairman of the Board, its
President, any Executive Vice President, any Senior Vice
President or one of its Vice Presidents and its Treasurer or one
of its Assistant Treasurers or its Secretary or one of its
Assistant Secretaries. The signature of any of these officers on
the Securities may be manual or facsimile. The seal of the
Company may be in the form of a facsimile thereof and may be
impressed, affixed, imprinted or otherwise reproduced on the
Securities. Typographical and other minor errors or defects in
any such reproduction of the seal or any such signature shall not
affect the validity or enforceability of any security that has
been duly authenticated and delivered by the Trustee.
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.
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 make
such Securities available for delivery. 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 Sections 315(a) through (d) of the Trust Indenture
Act) 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; (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, except to the extent enforceability
may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium and other similar laws affecting the
enforcement of creditors' rights generally and by the effect of
general principles of equity (regardless of whether
enforceability is considered in a proceeding ln equity or at
law); and
(d that no consent, approval, authorization, order,
registration or qualification of or with any court or any
governmental agency or body having jurisdiction over the Company
is required for the execution and delivery of such Securities by
the Company, except such as have been obtained (except that no
opinion need be expressed as to state securities or Blue Sky
laws).
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, or in the written
opinion of counsel to the Trustee (which counsel may be an
employee of the Trustee) such authentication may not lawfully be
made or would involve the Trustee in personal liability.
Notwithstanding the provisions of Section 301 and of the
immediately 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 the immediately 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 authentication upon original issuance of the first
security of such series to be issued.
If the Company shall establish pursuant to Section 301 that
the Securities of a series are to be issued in the form of one or
more global Securities, then the Company shall execute and the
Trustee shall, in accordance with this Section and the Company
Order with respect to the authentication and delivery of such
series, authenticate and deliver one or more global Securities
that (i) shall be in an aggregate amount equal to the aggregate
principal amount specified in such Company Order, (ii) shall be
registered in the name of the Common Depositary or U.S.
Depositary, as the case may be, therefor or its nominee, and
(iii) shall be made available for delivery by the Trustee to such
depositary or pursuant to such depositary's instruction.
Each depositary designated pursuant to Section 301 must, at
the time of its designation and at all times while it serves as
depositary, be a clearing agency registered under the Exchange
Act and any other applicable statute or regulation.
Unless otherwise provided for in the form of security, 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.
SECTION 34. Temporary Securities.
Pending the preparation of definitive Securities of any
series, the Company may execute, and upon Company Order the
Trustee shall authenticate and make available for delivery,
temporary Securities which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor of the
definitive Securities in lieu of which they are issued 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.
In the case of Securities of any series, such temporary
Securities may be in global form, representing all or a portion
of the Outstanding Securities of such series.
Except in the case of temporary Securities in global form
(which shall be exchanged in accordance with the provisions of
Section 305), 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 make available for delivery in
exchange therefor a like principal amount of definitive
Securities of the same series of authorized denominations and of
like tenor. 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.
If temporary Securities of any series are issued in global
form, any such temporary global Security shall, unless otherwise
provided therein, be delivered to the office of a depositary or
common depositary (the "COMMON DEPOSITARY") for credit to the
respective accounts of the beneficial owners of such Securities
(or to such other accounts as they may direct).
SECTION 35. 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 registration 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 of the Company in Place of
Payment for that series, the Company shall execute, and the
Trustee shall authenticate and make available for delivery, 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 and Stated
Maturity.
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 of a like aggregate principal amount
and Stated Maturity, 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 make available for delivery, the
Securities which the Holder making the exchange is entitled to
receive.
Notwithstanding the foregoing, except as otherwise specified
as contemplated by Section 301, any permanent global security
shall be exchangeable only as provided in this paragraph. If the
beneficial owners of interests in a permanent global security are
entitled to exchange such interests for Securities of such series
and of like tenor and principal amount of another authorized form
and denomination, as specified and as subject to the conditions
contemplated by Section 301, then without unnecessary delay but
in any event not later than the earliest date on which such
interests may be so exchanged, the Company shall deliver to the
Trustee definitive Securities of that series in aggregate
principal amount equal to the principal amount of such permanent
global security, executed by the Company. On or after the
earliest date on which such interests may be so exchanged, such
permanent global Securities shall be surrendered from time to
time by the Common Depositary or the U.S. Depositary, as the case
may be, and in accordance with instructions given to the Trustee
and the Common Depositary or the U.S. Depositary, as the case may
be (which instructions shall be in writing but need not comply
with Section 102 or be accompanied by an Opinion of Counsel), as
shall be specified in the Company Order with respect thereto to
the Trustee, as the Company's agent for such purpose, to be
exchanged, in whole or in part, for definitive Securities of the
same series without charge. The Trustee shall authenticate and
make available for delivery, in exchange for each portion of such
surrendered permanent global security, a like aggregate principal
amount of definitive Securities of the same series of authorized
denominations and of like tenor as the portion of such permanent
global security to be exchanged which shall be in the form of the
Securities of such series; provided, however, that no such
exchanges may occur 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. Promptly following any such exchange in part,
such permanent global Security shall be returned by the Trustee
to the Common Depositary or the U.S. Depositary, as the case may
be, or such other Common Depositary or U.S. Depositary referred
to above in accordance with the written instructions of the
Company referred to above. If a Security in the form specified
for such series is issued in exchange for any portion of a
permanent global Security after the close of business at the
office or agency where such exchange occurs on (i) any Regular
Record Date and before the opening of business at such office or
agency on the relevant Interest Payment Date, or (ii) any Special
Record Date and before the opening of business at such office or
agency on the related proposed date for payment of interest or
Defaulted Interest, as the case may be, such interest or
Defaulted Interest will not be payable on such Interest Payment
Date or proposed date for payment, as the case may be, in respect
of such security in the form specified for such series, but will
be payable on such Interest Payment Date or proposed date for
payment, as the case may be, only to the Person to whom interest
in respect of such portion of such permanent global Security is
payable in accordance with the provisions of this Indenture.
All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligation, 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.
Unless otherwise provided in the Securities to be
transferred or exchanged, 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 36. 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
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,
make payment with respect to 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 37. 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 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 Section 307 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 its 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 Section 307, 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 38. 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 premium, if any) and
(subject to Section 307) interest 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.
None of the Company, the Trustee or any agent of the Company
or the Trustee shall have any responsibility or liability for any
aspect of the records relating to or payments made on account of
beneficial ownership interest of a Security in global form, or
for maintaining, supervising or reviewing any records relating to
such beneficial ownership interest. Notwithstanding the
foregoing, with respect to any Security in global form, nothing
herein shall prevent the Company or the Trustee or any agent of
the Company or the Trustee from giving effect to any written
certification, proxy or other authorization furnished by any
Common Depositary (or its nominee), as a Holder, with respect to
such Security in global form or impair, as between such Common
Depositary and owners of beneficial interests in such Security in
global form, the operation of customary practices governing the
exercise of the right of such Common Depositary (or its nominee)
as holder of such Security in global form.
SECTION 39. 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. Upon the written request
of the Company all cancelled Securities shall be held by the
Trustee and may be destroyed (and, if so destroyed, certification
of their destruction shall be delivered to the Company, unless,
by a Company Order, the Company shall direct that cancelled
Securities be returned to it).
SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301
for Securities of any series, interest on the Securities of each
series shall be computed on the basis of a 360-day year
consisting of twelve 30-day months.
ARTICLE 4
SATISFACTION AND DISCHARGE
SECTION 41. Satisfaction and Discharge of Indenture.
This Indenture shall cease to be of further effect (except
as to any surviving rights of registration of transfer or
exchange of Securities herein expressly provided for or in the
form of security for such series), when the Trustee, upon Company
Request and 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 provided in Section 1009) 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 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 to the date of such
deposit (in the case of Securities which have become due and
payable) or 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 Officer's
Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for herein 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, the obligations of the Company to any Authenticating
Agent under Section 614 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 1009 shall survive.
SECTION 42. Application of Trust Money.
Subject to the provisions of the last paragraph of Section
1009, 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
premium, if any) and interest for whose payment such money has
been deposited with or received by the Trustee.
ARTICLE 5
REMEDIES
SECTION 51. 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 to 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 the Company defaults in the payment of interest on
any Security of that series when such interest becomes due and
payable and the default continues for a period of 30 days;
provided, however, that if the Company is permitted by the terms
of the Securities of the applicable series to defer the payment
in question, the date on which such payment is due and payable
shall be the date on which the Company is required to make
payment following such deferral, if such deferral has been
elected pursuant to the terms of the Securities; or
(2 the Company defaults in the payment of the principal
of (or premium, if any, on) any Security of that series when the
same becomes due and payable at Maturity, upon redemption
(including redemptions under Article 11), or otherwise; provided,
however, that if the Company is permitted by the terms of the
Securities of the applicable series to defer the payment in
question, the date on which such payment is due and payable shall
be the date on which the Company is required to make payment
following such deferral, if such deferral has been elected
pursuant to the terms of the Securities; or
(3 The Company defaults in the payment of any sinking
fund installment, when and as due by the terms of a Security and
the default continues for a period of 30 days; or
(4 The Company fails to observe or perform any of its
other covenants, warranties or agreements in the Securities of
that series or this Indenture (other than a covenant, agreement
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 the failure
to observe or perform continues for the period and after the
notice specified in the last paragraph of this Section; or(5 the
Company pursuant to or within the meaning of any Bankruptcy Law (A)
commences a voluntary case or proceeding under any Bankruptcy Law
with respect to itself, (B) consents to the entry of a judgment,
decree or order for relief against it in an involuntary case or
proceeding under any Bankruptcy Law, (C) consents to or acquiesces
in the institution of bankruptcy or insolvency proceedings against
it, (D) applies for, consents to or acquiesces in the appointment of
or taking possession by a Custodian of the Company or for any
material part of its property, (E) makes a general assignment for the
benefit of its creditors or (F) takes any corporate action in
furtherance of or to facilitate, conditionally or otherwise, any of
the foregoing; or
(6 (i) a court of competent jurisdiction enters a
judgment, decree or order for relief in respect of the Company in
an involuntary case or proceeding under any Bankruptcy Law which
shall (A) approve as properly filed a petition seeking
reorganization, arrangement, adjustment or composition in respect
of the Company, (B) appoint a Custodian of the Company or for any
material part of its property, or (C) order the winding-up or
liquidation of its affairs, and such judgment, decree or order
shall remain unstayed and in effect for a period of 90
consecutive days; or (ii) any bankruptcy or insolvency petition
or application is filed, or any bankruptcy or insolvency
proceeding is commenced against the Company and such petition,
application or proceeding is not dismissed within 90 days; or
(iii) a warrant of attachment is issued against any material
portion of the property of the Company which is not released
within 90 days of service; or
(7 any other Event of Default provided with respect to
Securities of that series.
A Default under clause (4) above is not an Event of Default
until the Trustee or the Holders of at least 25% in aggregate
principal amount of the Outstanding Securities of that series
notify the Company and the Trustee of the Default and the Company
does not cure the Default within 90 days after receipt of the
notice. The notice must specify the Default, demand that it be
remedied and state that the notice is a "Notice of Default."
When a Default under clause (4) above is cured within such 90-day
period, it ceases.
SECTION 52. Acceleration of Maturity; Rescission and
Annulment.
If an Event of Default with respect to Securities of any
series (other than an Event of Default specified in clause (5) or
(6) of Section 501) occurs and is continuing, the Trustee by
notice in writing to the Company, or the Holders of at least 25%
in aggregate principal amount of the Outstanding Securities of
that series by notice in writing to the Company and the Trustee,
may declare the unpaid principal of and accrued interest to the
date of acceleration (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) on all
the Outstanding Securities of that series to be due and payable
immediately and, upon any such declaration, the Outstanding
Securities of that series (or specified principal amount) shall
become and be immediately due and payable.
If an Event of Default specified in clause (5) or (6) of
Section 501 occurs, all unpaid principal of and accrued interest
on the Outstanding Securities of that series (or specified
principal amount) shall ipso facto become and be immediately due
and payable without any declaration or other act on the part of
the Trustee or any Holder of any Security of that series.
Upon payment of all such principal and interest, all of the
Company's obligations under the Securities of that series and
(upon payment of the Securities of all series) this Indenture
shall terminate, except obligations under Section 607.
The Holders of a majority in principal amount of the
Outstanding Securities of that series by notice to the Trustee
may rescind an acceleration and its consequences if (i) all
existing Events of Default, other than the nonpayment of the
principal and interest of the Securities of that series that has
become due solely by such declaration of acceleration, have been
cured or waived, (ii) to the extent the payment of such interest
is lawful, interest on overdue installments of interest and
overdue principal that has become due otherwise than by such
declaration of acceleration have been paid, (iii) the rescission
would not conflict with any judgment or decree of a court of
competent jurisdiction and (iv) all payments due to the Trustee
and any predecessor Trustee under Section 607 have been made.
SECTION 53.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 of any series 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 of any series 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 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 reasonable 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 secure any other proper remedy.
SECTION 54. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment,
composition or other judicial proceeding relative to the Company
or any other obligor upon the Securities or the property of the
Company or 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,
(i0 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 agent and counsel) and of the Holders allowed in
such judicial proceedings, and
(ii0 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 55.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, be for the ratable benefit of the Holders of the
Securities in respect of which such judgment has been recovered.
SECTION 56. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article
in respect of the Securities of any series 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, upon presentation of
the Securities in respect of which moneys have been collected 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 applicable to such series;
Second: To the payment of the amounts then due and unpaid
for principal of (and premium, if any) and interest on the
Securities of such series 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 of such series for principal (and
premium, if any) and interest, respectively; and
Third: To the Company.
The Trustee may fix a record date and payment date for any
payment to Holders pursuant to this Section 506. At least fifteen
(15) days before such record date, the Trustee shall mail to each
Holder and the Company a notice that states the record date, the
payment date and the amount to be paid.
SECTION 57. 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 and offer of indemnity has failed to institute
any such proceeding; and
(5 no direction inconsistent with such written request
has been given to the Trustee during such 60-day period by the
Holders of a majority in principal amount of the Outstanding
Securities of that series;
it being understood and intended that no one or more of Holders
of Securities of any series shall have any right in any manner
whatever by virtue of, or by availing of, any provision of this
Indenture to affect, disturb or prejudice the rights of any other
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 Holders of Securities of
the affected series.
SECTION 58. 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 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 59. 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 has
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.
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;
(2 the Trustee may take any other action deemed proper
by the Trustee which is not inconsistent with such direction; and
(3 subject to Section 601, the Trustee need not take any
action which might involve the Trustee in personal liability or
be unduly prejudicial to the Holders not joining therein.
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 by written notice
to the Trustee on behalf of the Holders of all the Securities of
such series waive any Default or Event of Default with respect to
such series and its consequences, except a Default or Event of
Default (1 in respect of the payment of the principal of (or
premium, if any) or interest on any Security of such series, or
(2 in respect of a covenant or other 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 or Event of Default shall
cease to exist and shall be deemed to have been cured, for every
purpose of this Indenture and the Securities of such series; but
no such waiver shall extend to any subsequent or other Default or
Event of 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, 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 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).
ARTICLE 6
THE TRUSTEE
SECTION 61. Certain Duties and Responsibilities of
the Trustee.
(a Except during the continuance of an Event of Default,
the Trustee's duties and responsibilities under this Indenture
shall be governed by Section 315(a) of the Trust Indenture Act.
(b In case an Event of Default has occurred and is
continuing, and is known to the Trustee, the Trustee shall
exercise the rights and powers vested in it by this Indenture,
and shall 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 None of the provisions of Section 315(d) of the Trust
Indenture Act shall be excluded from this Indenture.
SECTION 62. Notice of Defaults.
Within 90 days after the occurrence of any Default or Event
of Default with respect to the Securities of any series, the
Trustee shall give to all Holders of Securities of such series,
as their names and addresses appear in the Security Register,
notice of such Default or Event of Default known to the Trustee,
unless such Default or Event of Default shall have been cured or
waived; provided, however, that, except in the case of a Default
or Event of Default in the payment of the principal of (or
premium, if any) or interest 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 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.
SECTION 63. Certain Rights of Trustee.
Subject to the provisions of the Trust Indenture Act:
(a the Trustee may rely and shall be protected in acting
or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, 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 Officer's Certificate;
(d the Trustee may consult with counsel of its selection
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 shall have offered to the Trustee
security or indemnity to its reasonable satisfaction against the
costs, expenses and liabilities which might be incurred by it in
compliance with such request or direction;
(f prior to the occurrence of an Event of Default with
respect to the Securities of any series and after the curing or
waiving of all such Events of Default which may have occurred,
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, approval or other paper or document,
or the books and records of the Company, unless requested in
writing to do so by the Holders of a majority in principal amount
of the Outstanding Securities of any series; provided, however,
that if the payment within a reasonable time to the Trustee of
the costs, expenses or liabilities likely to be incurred by it in
the making of such investigation is not, in the opinion of the
Trustee, reasonably assured to the Trustee by the security
afforded to it by the terms of this Indenture, the Trustee may
require reasonable indemnity against such costs, expenses or
liabilities as a condition to so proceeding; the reasonable
expense of every such investigation shall be paid by the Company
or, if paid by the Trustee, shall be repaid by the Company upon
demand;
(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; and
(h the Trustee shall not be required 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
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.
SECTION 64. Not Responsible for Recitals or Issuance
of Securities.
The recitals herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the
statements of the Company, and the Trustee or any Authenticating
Agent assumes no responsibility for their correctness. The
Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Securities. Neither the
Trustee nor any Authenticating Agent shall be accountable for the
use or application by the Company of Securities or the proceeds
thereof.
SECTION 65. May Hold Securities.
The Trustee, any Authenticating Agent, 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, Authenticating Agent, Paying Agent, Security
Registrar or such other agent.
SECTION 66. Money Held in Trust.
Money held by the Trustee in trust hereunder (including
amounts held by the Trustee as Paying Agent) 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 upon in
writing with the Company.
SECTION 67. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time such
compensation for all services rendered by it hereunder as the
parties shall agree from time to time (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, damage, claim or expense, including
taxes (other than taxes based upon or determined or measured by
the income of the Trustee), incurred without gross 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.
When the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 501(5)
or Section 501(6), the expenses (including the reasonable
charges and expenses of its counsel) and the compensation for the
services are intended to constitute expenses of administration
under any applicable federal or state bankruptcy, insolvency or
other similar law.
The provisions of this Section 607 shall survive this
Indenture.
SECTION 68. Disqualification; Conflicting Interests.
The Trustee shall be disqualified only where such
disqualification is required by Section 310(b) of the Trust
Indenture Act. Nothing shall prevent the Trustee from filing with
the Commission the application referred to in the second to last
paragraph of Section 310(b) of the Trust Indenture Act.
SECTION 69. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall
be eligible to act as Trustee under Section 310(a)(1) of the
Trust Indenture Act having a combined capital and surplus of at
least $50,000,000 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. Neither the Company nor any Person directly or
indirectly controlling, controlled by, or under common control
with the Company may serve as Trustee. 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. 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.
(d) If at any time:
(1)the Trustee shall fail to comply with Section 310(b)
of the Trust Indenture Act 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
(2)the Trustee shall cease to be eligible under Section
609 and shall fail to resign after written request herefor by the
Company or by any such Holder of a Security who has been a bona
fide Holder of a Security for at least six months; 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 315(e) of the Trust Indenture Act, 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 with
respect to such Securities. 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 appointment of a successor Trustee with respect
to the Securities of any series by mailing written notice of such
event by first-class mail, postage prepaid, to 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 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 paragraph (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 the Trust Indenture Act.
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.
The Trustee shall comply with Section 311(a) of the Trust
Indenture Act, excluding any creditor relationship listed in
Section 311(b) of the Trust Indenture Act. A Trustee who has
resigned or been removed shall be subject to Section 311(a) of
the Trust Indenture Act to the extent indicated therein.
SECTION 614. Appointment of Authenticating Agent.
At any time when any of the Securities remain Outstanding
the Trustee may appoint an Authenticating Agent or Agents with
respect to one or more series of Securities which shall be
authorized to act on behalf of, and subject to the direction of,
the Trustee to authenticate Securities of such series issued upon
exchange, registration of transfer or partial redemption thereof
or pursuant to Section 306, and Securities so authenticated shall
be entitled to the benefits of this Indenture and shall be valid
and obligatory for all purposes as if authenticated by the
Trustee hereunder. Wherever reference is made in this Indenture
to the authentication and delivery of Securities by the Trustee
or the Trustee's certificate of authentication, such reference
shall be deemed to include authentication and delivery on behalf
of the Trustee by an Authenticating Agent and a certificate of
authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times 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 act as Authenticating Agent, having
a combined capital and surplus of not less than $50,000,000 and
subject to supervision or examination by federal or State
authority. If such Authenticating Agent 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 Authenticating Agent shall be deemed to be its combined
capital and surplus as set forth in its most recent report of
condition so published. If at any time an Authenticating Agent
shall cease to be eligible in accordance with the provisions of
this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or
consolidation to which such Authenticating Agent shall be a
party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall
continue to be an Authenticating Agent, provided such corporation
shall be otherwise eligible under this Section, without the
execution or filing of any paper or any further act on the part
of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving
written notice thereof to the Trustee and to the Company. The
Trustee may at any time terminate the agency of an Authenticating
Agent by giving written notice thereof to such Authenticating
Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time
such Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, the Trustee may
appoint a successor Authenticating Agent which shall be
acceptable to the Company and shall mail written notice of such
appointment by first-class mail, postage prepaid, to all Holders
of Securities of the series with respect to which such
Authenticating Agent will serve, as their names and addresses
appear in the security Register. Any successor Authenticating
Agent upon acceptance of its appointment hereunder shall become
vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an
Authenticating Agent. No successor Authenticating Agent shall be
appointed unless eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from
time to time reasonable compensation for its services under this
Section.
If an appointment with respect to one or more series is made
pursuant to this Section, the Securities of such series may have
endorsed thereon, in addition to the Trustee's certificate of
authentication, an alternate certificate of authentication in the
following form:
Form of Authenticating Agent's
Certificate of Authentication
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK
As Trustee
By: __________________________
As Authenticating Agent
By: __________________________
Authorized Signatory
Dated: ______________
ARTICLE 7
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 71. 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 1 and July 1 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 15 or June 15, 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;
provided, however, that so long as the Trustee is the Security
Registrar, no such list shall be required to be furnished.
SECTION 72. 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 preserved 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 appears 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 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 73. Reports by Trustee.
(a) Within 60 days after May 15 of each year commencing
with the year 1998, the Trustee shall transmit by mail to all
Holders of Securities as provided in Section 313(c) of the Trust
Indenture Act, a brief report dated as of May 15, if required by
and in compliance with Section 313(a) of the Trust Indenture Act.
(b) 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 74. Reports by Company.
The Company shall:
(1) file with the Trustee, within 30 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
Exchange Act; 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 Exchange Act 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;
(3) transmit by mail to all Holders, as their names and
addresses appear in the Security Register, (a) concurrently with
furnishing the same to its shareholders, the Company's annual
report to shareholders, containing certified financial
statements, and any other financial reports which the Company
generally furnishes to its shareholders, and (b) within 30 days
after the filing thereof with the Trustee, such summaries of any
other 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; and
ARTICLE 8
CONSOLIDATION, MERGER, LEASE, SALE OR TRANSFER
SECTION 81. When Company May Merge, Etc.
The Company shall not consolidate with, or merge with or
into any other corporation (whether or not the Company shall be
the surviving corporation), or sell, assign, transfer or lease
all or substantially all of its properties and assets as an
entirety or substantially as an entirety to any Person or group
of affiliated Persons, in one transaction or a series of related
transactions, unless:
(1) either the Company shall be the continuing Person or
the Person (if other than the Company) formed by such
consolidation or with which or into which the Company is merged
or the Person (or group of affiliated Persons) to which all or
substantially all the properties and assets of the Company as an
entirety or substantially as an entirety are sold, assigned,
transferred or leased shall be a corporation (or constitute
corporations) organized and existing under the laws of the United
States of America or 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, all the obligations of the Company
under the Securities and this Indenture; and
(2) immediately before and after giving effect to such
transaction or series of related transactions, no Event of
Default, and no Default, shall have occurred and be continuing.
SECTION 82. Opinion of Counsel.
The Company shall deliver to the Trustee prior to the
proposed transaction(s) covered by Section 801 an Officer's
Certificate and an Opinion of Counsel stating that the
transaction(s) and such supplemental indenture comply with this
Indenture and that all conditions precedent to the consummation
of the transaction(s) under this Indenture have been met.
SECTION 83. Successor Corporation Substituted.
Upon any consolidation by the Company with or merger by the
Company into an other corporation or any lease, sale, assignment,
or transfer of all or substantially all of the property and
assets of the Company in accordance with Section 801, the
successor corporation formed by such consolidation or into which
the Company is merged or the successor corporation or affiliated
group of corporations to which such lease, sale, assignment, or
transfer 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
or corporations had been named as the Company herein, and
thereafter, except in the case of a lease, the predecessor
corporation or corporations shall be relieved of all obligations
and covenants under this Indenture and the Securities and in the
event of such conveyance or transfer, except in the case of a
lease, any such predecessor corporation may be dissolved and
liquidated. Such successor corporation thereupon may cause to be
signed, and may issue either in its own name or in the name of
Ingersoll-Rand Company any or all of the Securities of any series
issuable hereunder which theretofore shall not have been signed
by the Company and delivered to the Trustee; and, upon the order
of such successor corporation instead of the Company and subject
to all the terms, conditions and limitations in this Indenture
prescribed, the Trustee shall authenticate and shall deliver
Securities of any series which previously shall have been signed
and delivered by the officers of the Company to the Trustee for
authentication, and any Securities which such successor
corporation thereafter shall cause to be signed and delivered to
the Trustee for that purpose. All the Securities of any series
so issued shall in all respects have the same legal rank and
benefit under this Indenture as the Securities of such series
theretofore or thereafter issued in accordance with the terms of
this Indenture as though all of such Securities had been issued
at the date of the execution hereof.
In case of any such consolidation, merger, sale, conveyance
or lease such changes in phraseology and form (but not in
substance) may be made in the Securities thereafter to be issued
as may be appropriate.
ARTICLE 9
SUPPLEMENTAL INDENTURES
SECTION 91. Supplemental Indentures Without Consent
of Holders.
Without notice to or 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 series) or to surrender any
right or power herein conferred upon the Company; or
(3) to add any additional Events of Default with respect to
all or any series of Securities; or
(4) to add 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
(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; 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, defect or inconsistency or to
correct or supplement any provision herein which may be
inconsistent with any other provision herein; or
(10) to make any change that does not materially adversely
affect the interests of the Holders of Securities of any series.
Upon request of the Company, accompanied by a Board
Resolution authorizing the execution of any such supplemental
indenture, and upon receipt by the Trustee of the documents
described in (and subject to the last sentence of) Section 903,
the Trustee shall join with the Company in the execution of any
supplemental indenture authorized or permitted by the terms of
this Indenture.
SECTION 92. Supplemental Indentures with Consent of
Holders.
With the written consent of the Holders of a majority 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 shall, subject
to Section 903, 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
installment 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
extend the time for payment 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 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);
(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 Defaults or Events
of Default hereunder and their consequences provided for in this
Indenture; or
(3) change the redemption provisions (including Article
Eleven) hereof in a manner adverse to such Holder; or
(4) modify any of the provisions of this Section or Section
513, 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, 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 provisions of this Indenture which as 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 93. Execution of Supplemental Indentures.
The Trustee shall sign any supplemental indenture authorized
pursuant to this Article, subject to the last sentence of this
Section 903. 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
Officer's Certificate and an Opinion of Counsel stating that the
execution of such supplemental indenture is authorized or
permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which
affects the Trustee's own rights, duties or immunities under this
Indenture or otherwise.
SECTION 94. 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 95. 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 96. 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, ln the opinion of the Trustee and the Company, to any
such supplemental indenture may be prepared and executed by the
Company and authenticate and delivered by the Trustee in exchange
for Outstanding Securities of such series.
ARTICLE 10
COVENANTS
SECTION 101. Payments of Securities.
With respect to each series of Securities, the Company will
duly and punctually pay the principal of (and premium, if any)
and interest on such Securities in accordance with their terms
and this Indenture, and will duly comply with all the other
terms, agreements and conditions contained in, or made in the
Indenture for the benefit of, the Securities of such series.
SECTION 102. Maintenance of Office or Agency.
The Company will maintain an office or agency in each Place
of Payment where Securities may be surrendered for registration
of transfer or exchange or for presentation for payment, where
notices and demands to or upon the Company in respect of the
Securities and this Indenture may be served. The Company will
give prompt written notice to the Trustee of the location, and
any change ln 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
thereof, such presentations, surrenders, notices and demands may
be made or served at the address of the Trustee as set forth in
Section 105 hereof and the Company hereby appoints the Trustee as
its agent to receive all presentations, surrenders, notices and
demands.
The Company may also from time to time designate one or more
other offices or agencies where the Securities may be presented
or surrendered for any or all such purposes and may from time to
time rescind such designations. 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 103. Compliance Certificates.
The Company will deliver to the Trustee on or before May 15
in each year ending after the date hereof, an Officers'
Certificate stating that in the course of the performance by each
signer of his duties as an officer of the Company he would
normally have knowledge of any default by the Company in the
performance and observance of any of the covenants contained in
Sections 1005 and 1006, stating whether or not he has knowledge
of any such default and, if so, specifying each such default of
which such signer has knowledge and the nature thereof.
SECTION 104. 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 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 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 on any
Securities of that series, deposit with a Paying Agent a sum
sufficient to pay the principal (and premium, if any) or interest
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 to so 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:
(i) hold all sums held by it for the payment of the
principal of (and premium, if any) or interest 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;
(ii) 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 on the Securities of that series; and
(iii) 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 on any security of
any series and remaining unclaimed for two years after such
principal (and premium, if any) or interest 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 of 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 New York, 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 105. Limitation on Liens.
(a) The Company covenants and agrees for the benefit of
each series of Securities, other than any series established by
or pursuant to a Board Resolution or in one or more supplemental
indentures hereto which specifically provides otherwise, that it
will not, and will not permit any Restricted Subsidiary to,
create, assume or guarantee any indebtedness for money borrowed
secured by a Mortgage (i) on any Principal Property of the
Company or of a Restricted Subsidiary or (ii) on any shares or
Funded Indebtedness of a Restricted Subsidiary or (ii) on any
shares or Funded Indebtedness of a Restricted Subsidiary (whether
such Principal Property, shares or Funded Indebtedness are now
owned or hereafter acquired), without, in any such case,
effectively providing concurrently with the creation, assumption
or guaranteeing of such indebtedness that the Securities
(together, if the Company shall so determine, with any other
indebtedness then or thereafter existing, created, assumed or
guaranteed by the Company or such Restricted Subsidiary ranking
equally with the Securities) shall be secured equally and ratably
with (or prior to) such indebtedness; excluding, however, from
the foregoing any indebtedness secured by a Mortgage (including
any extension, renewal or replacement, or successive extensions,
renewals or replacements, of any Mortgage hereinafter specified
or any indebtedness secured thereby, without increase of the
principal of such indebtedness)
(1) on property, shares or Funded Indebtedness of any
corporation existing at the time such corporation becomes a
Restricted Subsidiary; or
(2) on property existing at the time of acquisition thereof
by the Company or a Restricted Subsidiary, or to secure any
indebtedness incurred by the Company or a Restricted Subsidiary
prior to, at the time of, or within 180 days after the later of
the acquisition, the completion of construction (including any
improvements on an existing property) or the commencement of
commercial operation of such property, which indebtedness is
incurred for the purpose of financing all or any part of the
purchase price thereof or construction or improvements thereon;
provided, however, that in the case of any such acquisition,
construction or improvement the Mortgage shall not apply to any
property theretofore owned by the Company or a Restricted
Subsidiary, other than, in the case of any such construction or
improvement, any theretofore unimproved real property on which
the property so constructed, or the improvement, is located; or
(3) on property, shares or Funded Indebtedness of a
corporation existing at the time such corporation is merged into
or consolidated with the Company or a Restricted Subsidiary, or
at the time of a sale, lease or other disposition of the
properties of a corporation as an entirety or substantially as an
entirety to the Company or a Restricted Subsidiary; or
(4) on property of a Restricted Subsidiary to secure
indebtedness of such Restricted Subsidiary to the Company or
another Restricted Subsidiary; or
(5) on property of the Company or a Restricted Subsidiary
in favor of the United States of America or any State thereof, or
any department, agency or instrumentality or political
subdivision of the United States of America or any State thereof,
to secure partial, progress, advance or other 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 constructing or improving the property
subject to such Mortgage; or
(6) existing at the date of this Indenture;
provided, however, that any Mortgage permitted by any of the
foregoing clauses (1), (2), (3) and (5) of this Section 1005 (a)
shall not extend to or cover any property of the Company or such
Restricted Subsidiary, as the case may be, other than the
property specified in such clauses and improvements thereto.
(b) Notwithstanding the provisions of subsection (a) of
this Section, the Company or any Restricted Subsidiary may
create, assume or guarantee secured indebtedness for money
borrowed which would otherwise be prohibited in said subsection
(a) in an aggregate amount which, together with all other such
indebtedness for money borrowed of the Company and its Restricted
Subsidiaries and the Attributable Debt of the Company and its
Restricted Subsidiaries in respect of Sale and Leaseback
Transactions (as defined in Section 1006) existing at such time
(other than Sale and Leaseback Transactions entered into prior to
the date of this Indenture and Sale and Leaseback Transactions
the proceeds of which have been applied in accordance with clause
(b) of Section 1006), does not at the time exceed 5% of the
shareholders' equity in the Company and its consolidated
Subsidiaries, as shown on the audited consolidated balance sheet
contained in the latest annual report to shareholders of the
Company.
(c) For the purposes of this Article Ten,
(1) the term "Attributable Debt" shall mean, as of any
particular time, the then present value of the total net amount
of rent required to be paid under such lease during the remaining
term thereof (excluding any renewal term unless the renewal is at
the option of the lessor) computed by discounting from the
respective due dates to such date such total net amount of rent
at the actual interest factor included in such rent, or, if such
interest factor cannot readily be determined, at the rate per
annum borne by the initial series of Securities, except that if
no interest is payable in respect of the initial series of
Securities or if such rate is not fixed then at the rate of %
per annum. The net amount of rent required to be paid for any
such period shall be the aggregate amount of the rent payable by
the lessee with respect to such period after excluding amounts
required to be paid on account of, or measured or determined by,
any variable factor, including, without limitation, the cost-of-
living index and costs of maintenance and repairs, insurance,
taxes, assessments, water rates and similar charges and after
excluding any portion of rentals based on a percentage of sales
made by the lessee. In the case of any lease which is terminable
by the lessee upon the payment of a penalty, such net amount
shall also include the amount of such penalty, but no rent shall
be considered as required to be paid under such lease subsequent
to the first date upon which it may be so terminated;
(2) the term "shareholders' equity in the Company and its
consolidated Subsidiaries" shall mean the consolidated capital
and surplus (including retained earnings) of the Company and its
consolidated Subsidiaries, excluding the cost of shares of the
Company held in treasury; and
(3) the term "Mortgage" on any specified property shall
mean any mortgage, lien, pledge, charge or other security
interest or encumbrance of any kind in respect of such property.
SECTION 106 Limitation on Sale and Leaseback
Transactions.
The Company covenants and agrees for the benefit of each
series of Securities, other than any series established by or
pursuant to a Board Resolution or in one or more supplemental
indentures hereto which specifically provides otherwise, that it
will not, and will not permit any Restricted Subsidiary to, enter
into any arrangement with any person for the leasing by the
Company or a Restricted Subsidiary (except for leases for a term
of not more than three years and for leases of a part of a
Principal Property, which has been sold, for use in connection
with the winding up or termination of the business conducted on
such Principal Property, and except, in the case of a Restricted
Subsidiary, a lease to the Company or another Restricted
Subsidiary) of any Principal Property (whether now owned or
hereafter acquired), which Principal Property has been or is
intended to be sold or transferred by the Company or such
Restricted Subsidiary to such person (herein referred to as a
"Sale and Leaseback Transaction"), unless (a) the Company or such
Restricted Subsidiary would be entitled, pursuant to the
provisions of Section 1005, to incur indebtedness secured by a
Mortgage on such Principal Property without equally and ratably
securing the Securities, or (b) the Company shall (and in any
such case the Company covenants that it will) apply an amount
equal to the fair value of such Principal Property so leased (as
determined by the Board of Directors) to the retirement (other
than by payment at maturity or to satisfy the mandatory
requirements of any sinking, purchase or analogous fund or
prepayment provision), within 180 days of the effective date of
any such Sale and Leaseback Transaction, of Securities or other
Funded Indebtedness of the Company or any Restricted Subsidiary
ranking on a parity with the Securities, or to the purchase,
improvement or construction of properties which are Principal
Properties; provided, however, that the amount to be applied to
the retirement of such Funded Indebtedness shall be reduced by
(a) the principal amount of any Securities delivered within 180
days after such sale or transfer to the Trustee for retirement
and cancellation and (b) the principal amount of other Funded
Indebtedness ranking on a parity with the Securities voluntarily
retired by the Company within 180 days after such sale or
transfer; and promptly after the expiration of such 180-day
period the Company shall have delivered to the Trustee an
Officers' Certificate setting forth in reasonable detail all
material facts necessary to show compliance with this Subsection.
SECTION 1008 Waiver of Certain Covenants
The Company may omit in any particular instance to comply
with any term, provision or condition set forth in Sections 1004
and 1005 if before the time for such compliance the Holders of at
least 66-_% in principal amount of the Outstanding Securities of
all series affected by such omission (voting as one class) 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 11
REDEMPTION OF SECURITIES
SECTION 111. 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 112. 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 45 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
Officer's Certificate evidencing compliance with such
restriction.
SECTION 113. 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 45 days prior to the Redemption Date by
the Trustee, from the Outstanding Securities of such series not
previously called for redemption, substantially pro rata, by lot
or by any other method as the Trustee considers fair and
appropriate and that complies with the requirements of the
principal national securities exchange, if any, on which such
Securities are listed, 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) of the principal amount of Securities of such
series of a denomination larger than the minimum authorized
denomination for Securities of that series; provided that in case
the Securities of such series have different terms and
maturities, the Securities to be redeemed shall be selected by
the Company and the Company shall give notice thereof to the
Trustee.
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
the 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 114. Notice of Redemption.
Notice of redemption shall be given by first-class mail,
postage prepaid, mailed not less than 30 nor more than 45 days
prior to the Redemption Date, to each Holder of Securities to be
redeemed, at this 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
be come 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;
(6) that the redemption is for a sinking fund, if such is
the case;
(7) the CUSIP number, if any, of the Securities to be
redeemed; and
(8) unless otherwise provided as to a particular series of
Securities, if at the time of publication or mailing of any
notice of redemption the Company shall not have deposited with
the Trustee or Paying Agent and/or irrevocably directed the
Trustee or Paying Agent to apply, from money held by it available
to be used for the redemption of Securities, an amount in cash
sufficient to redeem all of the Securities called for redemption,
including accrued interest to the Redemption Date, such notice
shall state that it is subject to the receipt of the redemption
moneys by the Trustee or Paying Agent before the Redemption Date
(unless such redemption is mandatory) and such notice shall be of
no effect unless such moneys are so received before such date.
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 115. Deposit of Redemption Price.
Prior to 10:00 a.m. 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 1009) an amount of money sufficient
to pay the Redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date) accrued interest on, all
the Securities which are to be redeemed on that date.
SECTION 116. 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 installments 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 Regular or Special 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 thereof or in the
security.
SECTION 117. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be
surrendered at an office or agency of the Company 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
and Stated Maturity, 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 12
SINKING FUNDS
SECTION 121. 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.
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 redemption 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 122. Satisfaction of Sinking Fund Payments
with Securities.
The Company (1) may deliver Securities of a series (other
than any Securities 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 123. 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 Officer's 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.
ARTICLE 13
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 131. Applicability of Article; Company's
Option to Effect Defeasance or Covenant Defeasance.
Unless pursuant to Section 301 provision is made for the
inapplicability of either or both of (a) Defeasance of the
Securities of a series under Section 1302 or (b) Covenant
Defeasance of the Securities of a series under Section 1303, then
the provisions of such Section or Sections, as the case may be,
together with the other provisions of this Article, shall be
applicable to the Securities of such series, and the Company may
at its option by Board Resolution, at any time, with respect to
the Securities of such series, elect to have either Section 1302
(unless inapplicable) or Section 1303 (unless inapplicable) be
applied to the Outstanding Securities of such series upon
compliance with the applicable conditions set forth below in this
Article.
SECTION 132. Defeasance and Discharge.
Upon the Company's exercise of the option provided in
Section 1301 to defease the Outstanding Securities of a
particular series, the Company shall be discharged from its
obligations with respect to the Outstanding Securities of such
series on the date the applicable conditions set forth in Section
1304 are satisfied (hereinafter, "Defeasance"). Defeasance shall
mean that the Company shall be deemed to have paid and discharged
the entire indebtedness represented by the Outstanding Securities
of such series 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); provided, however, that the following rights, obligations,
powers, trusts, duties and immunities shall survive until
otherwise terminated or discharged hereunder: (A) the rights of
Holders of Outstanding Securities of such series to receive,
solely from the trust fund provided for in Section 1304, payments
in respect of the principal of (and premium, if any) and interest
on such Securities when such payments are due, (B) the Company's
obligations with respect to such Securities under Sections 304,
305, 306, 1002 and 1009, (C) the rights, powers, trusts, duties
and immunities of the Trustee hereunder and (D) this Article.
Subject to compliance with this Article, the Company may exercise
its option with respect to Defeasance under this Section 1302
notwithstanding the prior exercise of its option with respect to
Covenant Defeasance under Section 1303 in regard to the
Securities of such series.
SECTION 133. Covenant Defeasance.
Upon the Company's exercise of the option provided in
Section 1301 to obtain a Covenant Defeasance with respect to the
Outstanding Securities of a particular series, the Company shall
be released from its obligations under this Indenture (except its
obligations under Sections 304, 305, 306, 506, 509, 610, 1001,
1002, 1006, 1008 and 1009) with respect to the Outstanding
Securities of such series on and after the date the applicable
conditions set forth in Section 1304 are satisfied (hereinafter,
"Covenant Defeasance"). Covenant Defeasance shall mean that, with
respect to the Outstanding Securities of such series, the Company
may omit to comply with and shall have no liability in respect of
any term, condition or limitation set forth in this Indenture
(except its obligations under Sections 304, 305, 306, 506, 509,
610, 1001, 1002, 1006, 1008 and 1009), whether directly or
indirectly by reason of any reference elsewhere herein or by
reason of any reference to any other provision herein or in any
other document, and such omission to comply shall not constitute
an Event of Default under Section 501(4) with respect to
Outstanding Securities of such series, and the remainder of this
Indenture and of the Securities of such series shall be
unaffected thereby.
SECTION 134. Conditions to Defeasance or Covenant
Defeasance.
The following shall be the conditions to Defeasance under
Section 1302 and Covenant Defeasance under Section 1303 with
respect to the Outstanding Securities of a particular series:
(1) the Company shall irrevocably have deposited or caused
to be deposited with the Trustee (or another trustee satisfying
the requirements of Section 609 who shall agree to comply with
the provisions of this Article applicable to it), under the terms
of an irrevocable trust agreement in form and substance
reasonably satisfactory to such Trustee, as trust funds in trust
for the purpose of making the following payments, specifically
pledged as security for, and dedicated solely to, the benefit of
the Holders of such Securities, (A) Dollars 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 the due date of any
payment, money in an amount, or (C) a combination thereof, in
each case sufficient, after payment of all federal, state and
local taxes or other charges or assessments in respect thereof
payable by the Trustee, 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 other
qualifying trustee) to pay and discharge, (i) the principal of
(and premium, if any, on) and each installment of principal of
(and premium, if any) and interest on the Outstanding Securities
of such series on the Stated Maturity of such principal or
installment of principal or interest and (ii) any mandatory
sinking fund payments or analogous payments applicable to the
Outstanding Securities of such series on the day on which such
payments are due and payable in accordance with the terms of this
Indenture and of such Securities.
(2) No Default or Event of Default with respect to the
Securities of such series shall have occurred and be continuing
on the date of such deposit or shall occur as a result of such
deposit, and no Default or Event of Default under clause (5) or
(6) of Section 501 hereof shall occur and be continuing, at any
time during the period ending on the 31st day after the date of
such deposit (it being understood that this condition shall not
be deemed satisfied until the expiration of such period).
(3) Such deposit, 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.
(4) Such Defeasance or Covenant Defeasance shall not cause
any Securities of such series then listed on any national
securities exchange registered under the Exchange Act to be
delisted.
(5) In the case of an election with respect to Section
1302, the Company shall have delivered to the Trustee either (A)
a ruling directed to the Trustee received from the Internal
Revenue Service to the effect that the Holders of the Outstanding
Securities of such series will not recognize income, gain or loss
for federal income tax purposes as a result of such Defeasance
and will be subject to federal income tax on the same amounts, in
the same manner and at the same times as would have been the case
if such Defeasance had not occurred or (B) an Opinion of Counsel,
based on such ruling or on a change in the applicable federal
income tax law since the date of this Indenture, in either case
to the effect that, and based thereon such opinion shall confirm
that, the Holders of the Outstanding Securities of such series
will not recognize income, gain or loss for federal income tax
purposes as a result of such Defeasance and will be subject to
federal income tax on the same amounts, in the same manner and at
the same times as would have been the case if such Defeasance had
not occurred.
(6) In the case of an election with respect to Section
1303, the Company shall have delivered to the Trustee an Opinion
of Counsel or a ruling directed to the Trustee received from the
Internal Revenue Service to the effect that the Holders of the
Outstanding Securities of such series will not recognize income,
gain or loss for federal income tax purposes as a result of such
Covenant Defeasance and will be subject to federal income tax on
the same amounts, in the same manner and at the same times as
would have been the case if such Covenant Defeasance had not
occurred.
(7) Such Defeasance or Covenant Defeasance shall be
effected in compliance with any additional terms, conditions or
limitations which may be imposed on the Company in connection
therewith pursuant to Section 301.
(8) The Company shall have delivered to the Trustee an
Officer's Certificate and an Opinion of Counsel, each stating
that all conditions precedent provided for relating to either the
Defeasance under Section 1302 or the Covenant Defeasance under
Section 1303 (as the case may be) have been complied with.
SECTION 135. Deposited Money and Government
Obligations To Be Held In Trust.
Subject to the provisions of the last paragraph of Section
1009, all money and Government Obligations (including the
proceeds thereof) deposited with the Trustee (or other qualifying
trustee--collectively for purposes of this Section 1305, the
"Trustee") pursuant to Section 1304 in respect of the Outstanding
Securities of a particular series 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 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 premium, if any) and interest, but such
money 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
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 the Outstanding Securities of such series.
Anything in this Article to the contrary notwithstanding,
the Trustee shall deliver to pay to the Company from time to time
upon Company Request any money or Government Obligations held by
it as provided ln Section 1304 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 for the purpose for which such money or
Government Obligations were deposited.
ARTICLE 14
MISCELLANEOUS
SECTION 141. Miscellaneous.
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.
INGERSOLL-RAND COMPANY
By ___________________________
Name:
Title:
By: ___________________________
Name:
Title:
Attest:
Name:
Title:
THE BANK OF NEW YORK, as Trustee
By __________________________
Name:
Title:
Attest:
_________________________
Name:
Title: