Exhibit 4.1
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INGERSOLL-RAND COMPANY LIMITED, as ISSUER,
INGERSOLL-RAND COMPANY, as GUARANTOR
and
WELLS FARGO BANK MINNESOTA, N.A., as Trustee
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INDENTURE
Dated as of __________ __, 2002
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Debt Securities
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Table of Contents
Page
RECITALS OF THE COMPANY.....................................................1
ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION.........1
SECTION 101. Definitions...................................................1
Act....................................................................2
Affiliate..............................................................2
Attributable Debt......................................................2
Authenticating Agent...................................................2
Board of Directors.....................................................2
Board Resolution.......................................................2
Business Day...........................................................2
Commission.............................................................2
Common Shares..........................................................3
Company................................................................3
Company Request........................................................3
Company Order..........................................................3
Corporate Trust Office.................................................3
Defaulted Interest.....................................................3
Dollar.................................................................3
Event of Default.......................................................3
Funded Indebtedness....................................................3
Global Security........................................................3
Guarantee..............................................................3
Guaranteed Securities..................................................4
Guarantor..............................................................4
Holder.................................................................4
Indenture..............................................................4
Interest...............................................................4
Interest Payment Date..................................................4
Judgment Currency......................................................4
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Maturity...............................................................4
Mortgage...............................................................4
Officer's Certificate..................................................4
Opinion of Counsel.....................................................4
Original Issue Discount Security.......................................5
Outstanding............................................................5
Paying Agent...........................................................6
Person.................................................................6
Place of Payment.......................................................6
Predecessor Security...................................................6
Principal Property.....................................................6
Process Agent..........................................................6
Redemption Date........................................................6
Redemption Price.......................................................6
Regular Record Date....................................................6
Required Currency......................................................6
Responsible Officer....................................................6
Restricted Subsidiary..................................................7
Sale and Leaseback Transaction.........................................7
Securities.............................................................7
Security Register and Security Registrar...............................7
shareholders' equity in the Company and its consolidated Subsidiaries..7
Special Record Date....................................................7
Stated Maturity........................................................7
Subsidiary.............................................................7
Trustee................................................................7
Trust Indenture Act....................................................7
U.S. Depositary........................................................7
U.S. Government Obligations............................................8
Vice President.........................................................8
SECTION 102. Compliance Certificates and Opinions..........................8
SECTION 103. Form of Documents Delivered to Trustee........................8
SECTION 104. Acts of Holders...............................................9
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SECTION 105. Notices, Etc., to Trustee, Guarantor and Company..............10
SECTION 106. Notice to Holders; Waiver.....................................10
SECTION 107. Conflict with Trust Indenture Act.............................11
SECTION 108. Effect of Headings and Table of Contents......................11
SECTION 109. Successors and Assigns........................................11
SECTION 110. Separability Clause...........................................11
SECTION 111. Benefits of Indenture.........................................11
SECTION 112. GOVERNING LAW.................................................11
SECTION 113. Legal Holidays................................................11
SECTION 114. Incorporators, Shareholders, Officers and Directors of the
Company and the Guarantor Exempt from Individual Liability....12
SECTION 115. Counterparts..................................................12
SECTION 116. Currency Exchange.............................................12
SECTION 117. Judgment Currency; Consent to Jurisdiction and Service........12
ARTICLE TWO SECURITY FORMS..................................................14
SECTION 201. Forms Generally...............................................14
SECTION 202. Form of Face of Security......................................14
SECTION 203. Form of Reverse of Security...................................16
SECTION 204. Form of Trustee's Certificate of Authentication...............20
SECTION 205. Securities in Global Form.....................................21
SECTION 206. Guarantee; Form of Guarantee..................................21
ARTICLE THREE THE SECURITIES................................................23
SECTION 301. Amount Unlimited; Issuable in Series..........................23
SECTION 302. Denominations.................................................25
SECTION 303. Execution, Authentication, Delivery and Dating................25
SECTION 304. Temporary Securities..........................................27
SECTION 305. Registration, Registration of Transfer and Exchange...........27
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities..............30
SECTION 307. Payment of Interest; Interest Rights Preserved................31
SECTION 308. Persons Deemed Owners.........................................32
SECTION 309. Cancellation..................................................32
SECTION 310. Computation of Interest.......................................33
SECTION 311. CUSIP Numbers.................................................33
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ARTICLE FOUR SATISFACTION AND DISCHARGE.....................................33
SECTION 401. Satisfaction and Discharge of Indenture.......................33
SECTION 402. Application of Trust Money....................................35
SECTION 403. Satisfaction, Discharge and Defeasance of Securities of
any Series....................................................35
SECTION 404. Reinstatement.................................................37
ARTICLE FIVE REMEDIES.......................................................38
SECTION 501. Events of Default.............................................38
SECTION 502. Acceleration of Maturity; Rescission and Annulment............39
SECTION 503. Collection of Indebtedness and Suits for Enforcement by
Trustee.......................................................41
SECTION 504. Trustee May File Proofs of Claim..............................41
SECTION 505. Trustee May Enforce Claims Without Possession of Securities...42
SECTION 506. Application of Money Collected................................42
SECTION 507. Limitation on Suits...........................................43
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium
and Interest..................................................44
SECTION 509. Restoration of Rights and Remedies............................44
SECTION 510. Rights and Remedies Cumulative................................44
SECTION 511. Delay or Omission Not Waiver..................................44
SECTION 512. Control by Holders............................................45
SECTION 513. Waiver of Past Defaults.......................................45
SECTION 514. Undertaking for Costs.........................................45
SECTION 515. Waiver of Stay or Extension Laws..............................46
ARTICLE SIX THE TRUSTEE.....................................................46
SECTION 601. Certain Duties and Responsibilities...........................46
SECTION 602. Notice of Defaults............................................47
SECTION 603. Certain Rights of Trustee.....................................47
SECTION 604. Not Responsible for Recitals or Issuance of Securities........48
SECTION 605. May Hold Securities...........................................49
SECTION 606. Money Held in Trust...........................................49
SECTION 607. Compensation and Reimbursement................................49
SECTION 608. Disqualification; Conflicting Interests.......................50
SECTION 609. Corporate Trustee Required; Different Trustees for Different
Series; Eligibility...........................................50
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SECTION 610. Resignation and Removal; Appointment of Successor.............51
SECTION 611. Acceptance of Appointment by Successor........................52
SECTION 612. Merger, Conversion, Consolidation or Succession to Business...53
SECTION 613. Preferential Collection of Claims Against the Company or the
Guarantor.....................................................53
SECTION 614. Authenticating Agents.........................................54
ARTICLE SEVEN HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY.............55
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.....55
SECTION 702. Preservation of Information; Communications to Holders........56
SECTION 703. Reports by Trustee............................................57
SECTION 704. Reports by Company............................................57
ARTICLE EIGHT CONSOLIDATION, MERGER, CONVEYANCE, SALE OR LEASE..............58
SECTION 801. Company and Guarantor May Consolidate, Etc., on Certain
Terms.........................................................58
SECTION 802. Securities to be Secured in Certain Events....................60
SECTION 803. Successor Corporation to be Substituted.......................60
SECTION 804. Opinion of Counsel to be Given to Trustee.....................60
ARTICLE NINE SUPPLEMENTAL INDENTURES........................................61
SECTION 901. Supplemental Indentures without Consent of Holders............61
SECTION 902. Supplemental Indentures with Consent of Holders...............62
SECTION 903. Execution of Supplemental Indentures..........................63
SECTION 904. Effect of Supplemental Indentures.............................63
SECTION 905. Conformity with Trust Indenture Act...........................64
SECTION 906. Reference in Securities to Supplemental Indentures............64
ARTICLE TEN COVENANTS.......................................................64
SECTION 1001. Payment of Principal, Premium and Interest....................64
SECTION 1002. Maintenance of Office or Agency...............................64
SECTION 1003. Money for Securities Payments to Be Held in Trust.............65
SECTION 1004. Limitation on Liens...........................................66
SECTION 1005. Limitation on Sale and Leaseback Transactions.................68
SECTION 1006. Defeasance of Certain Obligations.............................69
SECTION 1007. Statement by Officer as to Default............................70
SECTION 1008. Waiver of Certain Covenants...................................71
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SECTION 1009. Calculation of Original Issue Discount........................71
ARTICLE ELEVEN REDEMPTION OF SECURITIES.....................................71
SECTION 1101. Applicability of Article......................................71
SECTION 1102. Election to Redeem; Notice to Trustee.........................71
SECTION 1103. Selection by Trustee of Securities to Be Redeemed.............72
SECTION 1104. Notice of Redemption..........................................72
SECTION 1105. Deposit of Redemption Price...................................73
SECTION 1106. Securities Payable on Redemption Date.........................73
SECTION 1107. Securities Redeemed in Part...................................73
ARTICLE TWELVE SINKING FUNDS................................................74
SECTION 1201. Applicability of Article......................................74
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities.........74
SECTION 1203. Redemption of Securities for Sinking Fund.....................74
ARTICLE THIRTEEN GUARANTEE OF GUARANTEED SECURITIES.........................75
SECTION 1301. Guarantee.....................................................75
SECTION 1302. Execution and Delivery of Guarantees..........................76
SECTION 1303. Notice to Trustee.............................................77
SECTION 1304. This Article Not to Prevent Events of Default.................77
SECTION 1305. Amendment, Etc................................................77
SECTION 1306. Limitation on Liability.......................................77
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Reconciliation and tie between Trust Indenture Act of 1939 and Indenture,
dated as of _________ __, 2002.
Trust Indenture Act Section Indenture Section
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ss. 310(a)(1).................................... 609
(a)(2).................................. 609
(a)(3).................................. Not Applicable
(a)(4).................................. Not Applicable
(b)..................................... 608, 610
ss. 311(a)....................................... 613
(b)..................................... 613
(b)(2).................................. 703(a)
ss. 312(a)....................................... 701, 702(a)
(b)..................................... 702(b)
(c)..................................... 702(c)
ss. 313(a)....................................... 703(a)
(b)(1).................................. Not Applicable
(b)(2).................................. 703(a)
(c)..................................... 703(a)
(d)..................................... 703(b)
ss. 314(a)....................................... 704
(b)..................................... Not Applicable
(c)(1).................................. 102
(c)(2).................................. 102
(c)(3).................................. Not Applicable
(d)..................................... Not Applicable
(e)..................................... 102
ss. 315(a)....................................... 601(a)
(b)..................................... 602
(c)..................................... 601(b)
(d)..................................... 601(c)
(d)(1).................................. 601(c)(1)
(d)(2).................................. 601(c)(2)
(d)(3).................................. 601(c)(3)
(e)..................................... 514
ss. 316(a)(1)(A)................................. 502, 512
(a)(1)(B)............................... 513
(a)(2).................................. Not Applicable
(b)..................................... 508
ss. 317(a)(1).................................... 503
(a)(2).................................. 504
(b)..................................... 1003
ss. 318(a)....................................... 107
Note: This reconciliation and tie shall not, for any purpose, be deemed to be
a part of this Indenture.
INDENTURE, dated as of _______ __, 2002 among INGERSOLL-RAND COMPANY
LIMITED, a company duly organized and existing under the laws of Bermuda
(herein called the "Company"), having an office at Clarendon House, 2 Church
Street, Hamilton, HM11 Bermuda, INGERSOLL-RAND COMPANY, a corporation duly
organized and existing under the laws of the State of New Jersey (herein
called the "Guarantor"), having an office at 200 Chestnut Ridge Road,
Woodcliff Lake, New Jersey 07677, and Wells Fargo Bank Minnesota, N.A., a
national banking association, 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.
The Company, directly or indirectly, owns beneficially 100% of the
issued share capital of the Guarantor.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
The Guarantor has duly authorized the execution and delivery of this
Indenture to provide for the Guarantee of the Guaranteed Securities provided
for herein.
All things necessary to make this Indenture a valid agreement of the
Guarantor, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for
the equal and proportionate benefit of all Holders of the Securities or of
series thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions.
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For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as
the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles in the United States of America, and, except
as otherwise herein expressly provided, the term "generally accepted
accounting principles" with respect to any computation required or
permitted hereunder shall mean such accounting principles as are
generally accepted at the date of such computation; and
(4) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not
to any particular Article, Section or other subdivision.
Certain terms, used principally in Article Six, are defined in that
Article.
"Act" when used with respect to any Holder, has the meaning
specified in Section 104.
"Affiliate" of any specified person means any other person
directly or indirectly controlling or controlled by or under direct
or indirect common control with such specified person. For the
purposes of this definition, "control" when used with respect to any
specified person means the power to direct the management and
policies of such person, directly or indirectly, whether through the
ownership of voting securities, by contract or otherwise; and the
terms "controlling" and "controlled" have meanings correlative to
the foregoing.
"Attributable Debt" has the meaning specified in Section 1004.
"Authenticating Agent" means any person authorized to
authenticate and deliver Securities on behalf of the Trustee for the
Securities of any series pursuant to Section 614.
"Board of Directors" means either the Board of Directors of the
Company or the Guarantor, as applicable, or an executive committee
of such Board or any other duly authorized committee of that Board
to which the powers of that Board have been lawfully delegated.
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Company or the
Guarantor, as applicable, to have been duly adopted by the Company's
Board of Directors or the Guarantor's Board of Directors, as the
case may be, and to be in full force and effect on the date of such
certification, and delivered to the Trustee for the Securities of
any series.
"Business Day", when used with respect to any Place of Payment,
means each day which is not a day on which banking institutions in
that Place of Payment are authorized or obligated by law to close.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities Exchange
Act of 1934, or, if at any time after the execution of this
instrument such Commission is not existing and performing the
2
duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
"Common Shares" means the common shares, par value $1 per
share, of the Company.
"Company" means the person named as the "Company" in the first
paragraph of this instrument until a successor corporation shall
have become such pursuant to the applicable provisions of this
Indenture, and thereafter "Company" shall mean such successor
corporation.
"Company Request" or "Company Order" means, in the case of the
Company, a written request or order signed in the name of the
Company, by its Chairman of the Board, a Deputy Chairman of the
Board, its President or a Vice President, and by its Treasurer, an
Assistant Treasurer, its Secretary or an Assistant Secretary, and
delivered to the Trustee for the Securities of any series and, in
the case of the Guarantor, a written request or order signed in the
name of the Guarantor by its Chairman of the Board, a Vice Chairman
of the Board, its President or a Vice President, and by its
Treasurer, an Assistant Treasurer, its Secretary or an Assistant
Secretary and delivered to the Trustee for the Securities of any
series.
"Corporate Trust Office" means the principal office of the
Trustee for the Securities of any series at which at any particular
time its corporate trust business shall be administered, which at
the date of this Indenture is 9062 Old Annapolis Road, Columbia, MD
21045-1951, Attention: Corporate Trust Trustee Administration,
Reference Number: MAC-N2702-011.
"Defaulted Interest" has the meaning specified in Section 307.
"Dollar" or "$" means a dollar or other equivalent unit in such
coin or currency of the United States of America as at the time
shall be legal tender for the payment of public and private debts.
"Event of Default" unless otherwise specified in the
supplemental indenture, Board Resolution or Officer's Certificate
establishing a series of Securities, has the meaning specified in
Section 501.
"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.
"Global Security" means a Security evidencing all or part of a
series of Securities, including, without limitation, any temporary
or permanent Global Securities.
"Guarantee" means the guarantee by the Guarantor as endorsed on
each Guaranteed Security and authenticated and delivered pursuant to
this Indenture, which
3
guarantee shall include the provisions set forth in Article Thirteen
of this Indenture. "Guaranteed" shall have a meaning correlative to
the foregoing.
"Guaranteed Securities" means Securities which are Guaranteed
by the Guarantor and authenticated and delivered under this
Indenture, and which are designated as Guaranteed Securities
pursuant to Section 301(16).
"Guarantor" means the Person named as the "Guarantor" in the
first paragraph of this Indenture until a successor Person shall
have become such pursuant to the applicable provisions of this
Indenture, and thereafter "Guarantor" shall mean such successor
Person.
"Holder" means a person in whose name a Security is registered
in the Security Register.
"Indenture" means this instrument as originally executed or as
it may from time to time be supplemented or amended by one or more
indentures supplemental hereto entered into pursuant to the
applicable provisions hereof and shall include the terms of
particular series of Securities established as contemplated by
Section 301.
"Interest", when used with respect to an Original Issue
Discount Security which by its terms bears interest only after
Maturity, means interest payable after Maturity.
"Interest Payment Date", when used with respect to any
Security, means the Stated Maturity of an installment of interest on
such Security.
"Judgment Currency" has the meaning specified in Section 117.
"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.
"Mortgage" has the meaning specified in Section 1004.
"Officer's Certificate" means, in the case of the Company, a
certificate signed by the Chairman of the Board, a Deputy Chairman
of the Board, the President or a Vice President of the Company, and
in the case of the Guarantor, a certificate signed by the Chairman
of the Board, a Vice Chairman of the Board, the President or a Vice
President of the Guarantor, and, in each case, delivered to the
Trustee for the Securities of any series. Each such certificate
shall include the statements provided for in Section 102 if and to
the extent required by this Indenture.
"Opinion of Counsel" means a written opinion of counsel, who
may be an employee of or regular counsel for the Company or the
Guarantor, as the case may be, or may be other counsel reasonably
satisfactory to the Trustee for the Securities of any series. Each
such opinion shall include the statements provided for in Section
102 if and to the extent required by this Indenture.
4
"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, means, as
of the date of determination, all Securities theretofore
authenticated and delivered under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee for
such Securities or delivered to such 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 for such Securities 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 reasonably satisfactory to such Trustee
has been made; and
(iii) Securities which have been paid pursuant to Section
306 or in exchange for or in lieu of which other Securities
have been authenticated and delivered pursuant to this
Indenture, other than any such Securities in respect of which
there shall have been presented to the Trustee for such
Securities proof satisfactory to it that such Securities are
held by a bona fide purchaser in whose hands such Securities
are valid obligations of the Company,
provided, however, that in determining whether the Holders of the
requisite principal amount of the Outstanding Securities have given
any request, demand, authorization, direction, notice, consent or
waiver hereunder, (a) the principal amount of an Original Issue
Discount Security that shall be deemed to be Outstanding for such
purposes shall be the amount of the principal thereof that would be
due and payable as of the date of such determination upon a
declaration of acceleration of the maturity thereof pursuant to
Section 502, and (b) Securities owned by the Company, the Guarantor
or any other obligor upon the Securities or any Affiliate of the
Company, the Guarantor or of such other obligor shall be disregarded
and deemed not to be Outstanding, except that in determining whether
the Trustee for such Securities shall be protected in relying upon
any such request, demand, authorization, direction, notice, consent
or waiver, only Securities which a Responsible Officer of such
Trustee actually knows to be so owned shall be so disregarded.
Securities so owned as described in (b) above which have been
pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of such Trustee the pledgee's right
so to act with respect to such Securities and that the pledgee is
not the Company, the Guarantor or any other obligor upon the
Securities or any Affiliate of the Company or of such other obligor.
5
"Paying Agent" means any person authorized by the Company to pay the
principal of (and premium, if any) or interest, if any, on any Securities
on behalf of the Company.
"Person" means any individual, corporation, partnership, joint
venture, joint-stock company, trust unincorporated organization or
government or any agency or political subdivision thereof.
"Place of Payment", when used with respect to the Securities of any
series means the place or places where the principal of (and premium, if
any) and interest, if any, on the Securities of that series are payable
as specified in or as contemplated by Section 301.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that
evidenced by such particular Security; and, for the purposes of this
definition, any Security authenticated and delivered under Section 306 in
exchange for or in lieu of a mutilated, destroyed, lost or stolen
Security shall be deemed to evidence the same debt as the mutilated,
destroyed, lost or stolen Security.
"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 of the Company by
resolution declares is not of material importance to the total business
conducted by the Company and its Restricted Subsidiaries.
"Process Agent" has the meaning specified in Section 117.
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture, exclusive of accrued and unpaid interest.
"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.
"Required Currency" has the meaning specified in Section 117.
"Responsible Officer", where used with respect to the Trustee for
the Securities of any series, means any officer within the corporate
trust department of such Trustee, including any vice president, assistant
vice president, assistant secretary, assistant treasurer, trust officer
or any other officer of such Trustee who customarily performs functions
similar to those performed by the Persons who at the time shall be such
officers, respectively, or to whom any corporate trust matter is referred
because of such person's knowledge of and familiarity with the particular
subject and who shall have direct responsibility for the administration
of this Indenture.
6
"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.
"Sale and Leaseback Transaction" has the meaning specified in
Section 1005.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and
delivered under this Indenture.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"shareholders' equity in the Company and its consolidated
Subsidiaries" has the meaning specified in Section 1004.
"Special Record Date" for the payment of any Defaulted Interest
means a date fixed by the Trustee for such series 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" 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 of the Company.
"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
each such Trustee with respect to those series of Securities with respect
to which it is serving as Trustee.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
force at the date as of which this instrument was executed, except as
provided in Section 905.
"U.S. Depositary" means a clearing agency registered under the
Securities Exchange Act of 1934, as amended, or any successor thereto,
which 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" as used with
respect to the Securities of any series shall mean the U.S. Depositary
with respect to the Securities of that series.
7
"U.S. Government Obligations" means direct obligations of the United
States for the payment of which its full faith and credit is pledged, or
obligations of a person controlled or supervised by and acting as an
agency or instrumentality of the United States and the payment of which
is unconditionally guaranteed by the United States.
"Vice President", when used with respect to the Company, the
Guarantor or the Trustee for any series of Securities, 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 102. Compliance Certificates and Opinions.
------------------------------------
Upon any application or request by the Company or the Guarantor to
the Trustee for any series of Securities to take any action under any
provision of this Indenture, the Company or the Guarantor, as the case may be,
shall furnish to such 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:
(1) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions
herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual,
he has made such examination or investigation as is necessary to
enable him or her to express an informed opinion as to whether or
not such covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee.
--------------------------------------
In any case where several matters are required to be certified by,
or covered by an opinion of, any specified person, it is not necessary that
all such matters be certified by, or covered by the opinion of, only one such
person, or that they may 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.
8
Any certificate or opinion of an officer of the Company or the
Guarantor 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 or
her 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 or the Guarantor, as the case may be, stating that the
information with respect to such factual matters is in the possession of the
Company or the Guarantor, as the case may be, 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
instructions under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. Acts of Holders.
---------------
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent
duly appointed in writing, and, except as herein otherwise expressly provided,
such action shall become effective when such instrument or instruments are
delivered to the Trustee for the appropriate series of Securities and, where
it is hereby expressly required, to the Company or the Guarantor. 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 such
Trustee, the Guarantor 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 or her the execution
thereof. Where such execution is by a signer acting in a capacity other than
his or her individual capacity, such certificate or affidavit shall also
constitute sufficient proof of his or her 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
for such Securities deems sufficient.
(c) The ownership of Securities shall be proved by the Security
Register.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future
Holder of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee for
9
such Securities, the Guarantor or the Company in reliance thereon, whether or
not notation of such action is made upon such Security.
SECTION 105. Notices, Etc., to Trustee, Guarantor and Company.
Any request, demand, authorization, direction, notice, consent,
waiver or Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee for a series of Securities by any Holder or by
the Company or the Guarantor shall be sufficient for every purpose
hereunder if made, given, furnished or filed in writing to or with
such Trustee at its Corporate Trust Office,
(2) the Company by such Trustee, or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and sent by registered or
certified mail, prepaid, to the Company addressed to it care of the
Guarantor at the address of the Guarantor specified in the first
paragraph of this instrument or at any other address previously
furnished in writing to such Trustee by the Company, or
(3) the Guarantor by such Trustee, or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and sent by registered or
certified mail, prepaid, to the Guarantor addressed to it at the
address of its office specified in the first paragraph of this
instrument or at any other address previously furnished in writing
to such Trustee by the Guarantor.
SECTION 106. Notice to Holders; Waiver.
-------------------------
Where this Indenture provides for notice to Holders of any event,
such notice shall be sufficiently given (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to each
Holder affected by such event, at his or her address as it appears in the
Security Register, not later than the latest date, and not earlier than the
earliest date, prescribed for the giving of such notice. In any case where
notice to Holders is given by mail, neither the failure to mail such notice,
nor any defect in any notice so mailed, to any particular Holder shall affect
the sufficiency of such notice with respect to other Holders. Where this
Indenture provides for notice in any manner, such notice may be waived in
writing by the person entitled to receive such notice, either before or after
the event, and such waiver shall be the equivalent of such notice. Waiver of
notice by Holders shall be filed with the Trustee for such Securities, 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
for such Securities shall constitute a sufficient notification for every
purpose hereunder.
10
SECTION 107. Conflict with Trust Indenture Act.
---------------------------------
If any provision hereof limits, qualifies or conflicts with another
provision hereof which is required to be included in this Indenture by any of
the provisions of the Trust Indenture Act, such required provision shall
control.
SECTION 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents
are for convenience only and shall not affect the construction hereof.
SECTION 109. Successors and Assigns.
All covenants and agreements in this Indenture by each of the
Company and the Guarantor 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 or the
Guarantee 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 or the Guarantee,
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, THE SECURITIES AND THE GUARANTEE SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 113. Legal Holidays.
--------------
In any case where any Interest Payment Date, Redemption Date or
Stated Maturity of any Security shall not be a Business Day at any Place of
Payment, then (notwithstanding any other provision of this Indenture or of the
Securities or the Guarantee) payment of interest, if any, or principal (and
premium, if any) need not be made at such Place of Payment on such date, but
may be made on the next succeeding Business Day at such Place of Payment with
the same force and effect as if made on the Interest Payment Date or
Redemption Date, or at the Stated Maturity, provided that no interest shall
accrue for the period from and after such Interest Payment Date, Redemption
Date or Stated Maturity, as the case may be.
11
SECTION 114. Incorporators, Shareholders, Officers and Directors of the
Company and the Guarantor Exempt from Individual Liability.
----------------------------------------------------------
No recourse for the payment of the principal of (and premium, if
any) or interest, if any, on any Security or any Guarantee, 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 or the Guarantor in this
Indenture or in any supplemental indenture, or in any Security or in any
Guarantee, or because of the creation of any indebtedness represented thereby,
shall be had against any incorporator, shareholder, officer or director, as
such, past, present or future, of the Company or the Guarantor or of any
successor corporation, either directly or through the Company or the Guarantor
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 and the Guarantee.
SECTION 115. Counterparts.
------------
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.
SECTION 116. Currency Exchange.
-----------------
If, in determining whether the Holders of the requisite principal
amount of Securities have given any request, demand, authorization, direction,
notice, consent or waiver hereunder, it becomes necessary to determine the
principal amount of Securities of any series denominated in any coin or
currency other than that of the United States of America, such principal
amount shall be computed by converting such coin or currency into coin or
currency of the United States of America based upon the rate of exchange in
effect at the office of the Trustee for such Securities in New York, New York
at 10:00 A.M., New York City time, or as close to such time as is reasonably
practicable, on the date of initial issuance of such series of Securities.
SECTION 117. Judgment Currency; Consent to Jurisdiction and Service.
------------------------------------------------------
(a) Each of the Company and, in the case of Guaranteed Securities,
the Guarantor agrees, to the fullest extent that it may effectively do so
under applicable law, that (a) if for the purpose of obtaining judgment in any
court it is necessary to convert the sum due in respect of the principal of or
interest on the Securities of any series (the "Required Currency") into a
currency in which a judgment will be rendered (the "Judgment Currency"), the
rate of exchange used shall be the rate at which in accordance with normal
banking procedures the Trustee for such Securities could purchase in The City
of New York the Required Currency with the Judgment Currency at 10:00 A.M.
New York City time, or as close to such time as is reasonably practicable, on
the day on which final unappealable judgment is entered, unless such day is
not a New York Banking Day, then, to the extent permitted by applicable law,
the rate of exchange used shall be the rate at which in accordance with
normal banking procedures such Trustee could
12
purchase in The City of New York the Required Currency with the Judgment
Currency at 10:00 A.M. New York City time, or as close to such time as is
reasonably practicable, on the New York Banking Day preceding the day on which
final unappealable judgment is entered and (b) its obligations under this
Indenture to make payments in the Required Currency (i) shall not be
discharged or satisfied by any tender, or any recovery pursuant to any
judgment (whether or not entered in accordance with this subsection (a)), in
any currency other than the Required Currency, except to the extent that such
tender or recovery shall result in the actual receipt, by the payee, of the
full amount of the Required Currency expressed to be payable in respect of
such payments, (ii) shall be enforceable as an alternative or additional cause
of action for the purpose of recovering in the Required Currency the amount,
if any, by which such actual receipt shall fall short of the full amount of
the Required Currency so expressed to be payable and (iii) shall not be
affected by judgment being obtained for any other sum due under this
Indenture. For purposes of the foregoing, "New York Banking Day" means any day
except a Saturday, Sunday or a legal holiday in The City of New York or a day
on which banking institutions in The City of New York are authorized or
required by law or executive order to close.
(b) To the fullest extent permitted by applicable law, each of the
Company and the Guarantor hereby irrevocably submits to the jurisdiction of
any Federal or state court located in the Borough of Manhattan in The City of
New York, New York in any suit, action or proceeding based on or arising out
of or relating to this Indenture or any Securities or any Guarantee and
irrevocably agrees that all claims in respect of such suit or proceeding may
be determined in any such court. Each of the Company and the Guarantor
irrevocably waives, to the fullest extent permitted by law, any objection
which it may have to the laying of the venue of any such suit, action or
proceeding brought in an inconvenient forum. Each of the Company and the
Guarantor agrees that final judgment in any such suit, action or proceeding
brought in such a court shall be conclusive and binding upon the Company
and/or the Guarantor, as applicable, and may be enforced in the courts of
Bermuda (or any other courts to the jurisdiction of which the Company or the
Guarantor, as applicable, is subject) by a suit upon such judgment, provided
that service of process is effected upon the Company and/or the Guarantor, as
applicable, in the manner specified herein or as otherwise permitted by law.
Each of the Company and the Guarantor hereby irrevocably designates and
appoints CT Corporation System, 1633 Broadway, 23 Floor, New York, New York
(the "Process Agent") as their authorized agent for purposes of this Section
117(b), it being understood that the designation and appointment of the
Process Agent as such authorized agent shall become effective immediately
without any further action on the part of the Company and the Guarantor. Each
of the Company and the Guarantor further agrees that service of process upon
the Process Agent and written notice of said service to the Company and/or the
Guarantor, as applicable, mailed by prepaid registered first class mail or
delivered to the Process Agent at its principal office, shall be deemed in
every respect effective service of process upon the Company and/or the
Guarantor, as applicable, in any such suit or proceeding. Each of the Company
and the Guarantor further agrees to take any and all action, including the
execution and filing of any and all such documents and instruments as may be
necessary, to continue such designation and appointment of the Process Agent
in full force and effect so long as the Company and/or the Guarantor, as
applicable, has any outstanding obligations under this Indenture. To the
extent the Company and/or the Guarantor, as applicable, has or hereafter may
acquire any immunity from jurisdiction of any court or from any legal process
(whether through service of notice, attachment prior to judgment, attachment
in aid of execution, executor or otherwise) with respect to itself or its
property, each of the Company and the Guarantor hereby
13
irrevocably waives such immunity in respect of its obligations under this
Indenture to the extent permitted by law.
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally.
---------------
The Securities of each series shall be in substantially the form set
forth in this Article, or in such other form as shall be established by or
pursuant to a Board Resolution of the Company or in one or more indentures
supplemental hereto, in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture, and may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as may be required to comply
with the rules of any securities exchange or as may, consistently herewith, be
determined by the officer executing such Securities, as evidenced by his or
her execution of such Securities.
The certificate of authentication of the Trustee for any series of
Securities shall be in substantially the form set forth in this Article.
The definitive Securities shall be printed, lithographed or engraved
on steel engraved borders or may be produced in any other manner, all as
determined by the officer executing such Securities, as evidenced by their
execution of such Securities.
If the Securities are Guaranteed Securities, the definitive
Guarantees shall be printed, lithographed or engraved on steel engraved
borders or may be produced in any other manner, all as determined by the
officers executing such Guarantees, as evidenced by their execution of such
Guarantees.
SECTION 202. Form of Face of Security.
------------------------
INGERSOLL-RAND COMPANY LIMITED
[Title of the Security]
No. Cusip No. _____ $____________
INGERSOLL-RAND COMPANY LIMITED, a company duly organized and
existing under the laws of Bermuda (herein called the "Company", which term
includes any successor corporation under the Indenture hereinafter referred
to), for value received, hereby promises to pay to _________________________,
or registered assigns, the principal sum of _____________ Dollars on
_______________ [If the Security is to bear interest prior to Maturity, insert
- -- , and to pay interest thereon from __________________ __, ______ (the
"Original Issue Date"), or from the most recent Interest Payment Date to which
interest has been paid or duly provided for, [semiannually on ______________
and ______________] [quarterly on _________, __________, ___________ and
____________] in each year, commencing _______ __, _____, at [If the Security
is to bear interest at a fixed rate insert-the rate per annum
14
provided in the title hereof] [If the Security is to bear interest at a
floating rate, insert- [a rate of [Insert Floating Rate] per annum], until the
principal hereof is paid or made available for payment. [If applicable insert
- -- , and, subject to the terms of the Indenture, at [the rate per annum
provided in the title hereof] [such rate] on any overdue principal and premium
and (to the extent that the payment of such interest shall be legally
enforceable) 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 [_________ or _________] [________, _________,
________ or ___________] (whether or not a Business Day), as the case may be,
next preceding such Interest Payment Date. Any such interest not so punctually
paid or duly provided for will forthwith cease to be payable to the Holder on
such Regular Record Date and may either be paid to the person in whose name
this Security (or one or more Predecessor Securities) is registered at the
close of business on 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 to bear interest at a fixed rated prior to
Maturity, insert -- Interest shall be computed on the basis of a year of
twelve 30-day months.] [If the Security is to bear interest at a floating rate
prior to Maturity, insert -- Interest shall be computed on the basis of the
actual number of days in the relevant interest period and a 360-day year.]
[If the Security is to bear interest at a floating rate prior to
Maturity, insert -- The [insert Floating Rate] will be reset [insert period
time as set forth in a Board Resolution of the Company] on each Interest
Payment Date (each an "Interest Reset Date"), beginning on ________ __, _____.
The interest rate for the period from and including the Original Issue Date to
and excluding the first Interest Payment Date shall be ______ per annum (the
"Initial Interest Rate"). The _________ Business Day preceding an Interest
Reset Date will be the "Interest Determination Date" for that Interest Reset
Date. The interest rate in effect on each day that is not an Interest Reset
Date will be the interest rate determined as of the Interest Determination
Date pertaining to the immediately preceding Interest Reset Date or the
Initial Interest Rate, as the case may be. The interest rate in effect on any
day that is an Interest Reset Date will be the interest rate determined as of
the Interest Determination Date pertaining to that Interest Reset Date.
Wells Fargo Bank Minnesota, N.A. shall act as calculation agent
(together with its successors in that capacity, the "Calculation Agent") in
connection with the Securities. The Calculation Agent shall serve as the
calculation agent hereunder unless and until a successor calculation agent is
appointed by the Company. The following definitions shall be used by the
Calculation Agent in its determination of the interest rate: [insert
definitions for floating rate determination]. ]
[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
15
acceleration, upon redemption or at Stated Maturity and in such case the
overdue principal of this Security shall bear interest at the rate of [yield
to maturity]% 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 [yield to maturity]% 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 interest, if
any, on this Security will be made at the office or agency of the Company
maintained for that purpose in the Borough of Manhattan, The City of New York,
in [coin or currency], 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.
Dated:
[Seal]
INGERSOLL-RAND COMPANY LIMITED
By_____________________________________
SECTION 203. Form of Reverse of Security.
---------------------------
INGERSOLL-RAND COMPANY LIMITED
[Title of the Security]
16
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 _________ __, 2002 (herein called
the "Indenture"), among the Company, Ingersoll-Rand Company (herein called the
"Guarantor", which term includes any successor guarantor under the Indenture)
and Wells Fargo Bank Minnesota, N.A., 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 Guarantor, 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 or more than 60 days' notice by mail to
the Holders of such Securities at their addresses in the Security Register for
such series, [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 _________________, 20__],
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 ____________________:
Redemption Redemption
Year Price Year 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 or more than 60 days' notice by mail to
the Holders of such Securities at their addresses in the Security Register for
such series, (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:
17
If redeemed during the 12-month period beginning _________________:
Redemption Price
For Redemption Redemption Price For
Through Operation Redemption Otherwise
of the Than Through Operation
Year Sinking Fund of the Sinking Fund
---- ------------ -------------------
and thereafter at a Redemption Price equal to _______% of the principal
amount, together in the case of any such redemption (whether through operation
of the sinking fund or otherwise) with accrued 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,
at the option of the Company, 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 order in which they become due.]
[In the event of redemption of this Security in part only, a new
Security or Securities of this series for the unredeemed portion hereof will
be issued in the name of the Holder hereof upon the cancellation hereof.]
The Indenture contains provisions for defeasance of (a) the entire
indebtedness of this Security and (b) certain restrictive covenants upon
compliance by the Company with certain conditions set forth therein.
[If the Security is not an Original Issue Discount Security, insert
- -- If an Event of Default with respect to Securities of this series shall occur
and be continuing, the principal of the
18
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 (the
"Acceleration Amount") may be declared due and payable in the manner and with
the effect provided in the Indenture. In case of a declaration of acceleration
on or before _______, ________ or on _______ in any year, the Acceleration
Amount per principal amount at Stated Maturity of the Securities shall be
equal to the amount set forth in respect of such date below:
Acceleration
Amount per
principal amount
Date of declaration at Stated Maturity
------------------- ------------------
and in case of a declaration of acceleration on any other date, the
Acceleration Amount shall be equal to the Acceleration Amount as of the next
preceding date set forth in the table above, plus accrued original issue
discount (computed in accordance with generally accepted accounting principles
in effect on __________) from such next preceding date to the date of
declaration at the yield to maturity. For the purpose of this computation the
yield to maturity is ______%. Upon payment (i) of the Acceleration Amount so
declared due and payable and (ii) of interest on any overdue principal and
overdue interest (in each case to the extent that the payment of such interest
shall be legally enforceable), all of the Company's obligations in respect of
the payment of the principal of and interest, if any, on the Securities of
this series shall terminate.]
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of
the Company and, in the case of Guaranteed Securities, the Guarantor and the
rights of the Holders of the Securities of each series to be affected under
the Indenture at any time by the Company, the Guarantor, in the case of
Guaranteed Securities, and the Trustee with the consent of the Holders of a
majority in principal amount of the Securities at the time Outstanding of all
series to be affected. The Indenture also contains provisions permitting the
Holders of specified percentages in principal amount of the Securities at the
time Outstanding of all series to be affected, on behalf of the Holders of all
Securities of such series, to waive compliance by the Company and, in the case
of Guaranteed Securities, the Guarantor with certain provisions of the
Indenture and certain past defaults under the Indenture and their
consequences. Any such consent or waiver by the Holder of this Security shall
be conclusive and binding upon such Holder and upon all future Holders of this
Security and of any Security issued upon the registration of transfer hereof
or in exchange herefor or in lieu hereof, whether or not notation of such
consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of (and
premium, if any) and interest, if any, on this Security at the times, place
and rate, and in the coin or currency, herein prescribed.
19
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in the
Security Register, upon surrender of this Security for registration of
transfer at the office or agency of the Company in any place where the
principal of (and premium, if any) and interest, if any, on this Security are
payable, duly endorsed by, or 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 or her attorney duly authorized in writing, and
thereupon one or more new Securities of this series, of authorized
denominations and for the same aggregate principal amount, will be issued to
the designated transferee or transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of _____________ and any integral multiple
thereof. As provided in the Indenture and subject to certain limitations
therein set forth, Securities of this series are exchangeable for a like
aggregate principal amount of Securities of this series of a different
authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company [,the Guarantor,] the Trustee and any agent of the
Company [, the Guarantor] 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 none of the Company [,the Guarantor,] the
Trustee or any such agent shall be affected by notice to the contrary.
No recourse for the payment of the principal of (and premium, if
any) or interest, if any, on this Security [or the Guarantee endorsed hereon],
or for any claim based hereon or thereon or otherwise in respect hereof or
thereof, and no recourse under or upon any obligation, covenant or agreement
of the Company or the Guarantor in the Indenture or in any indenture
supplemental thereto, or in any Security [or in the Guarantee], or because of
the creation of any indebtedness represented thereby, shall be had against any
incorporator, shareholder, officer or director, as such, past, present or
future, of the Company [or the Guarantor] or of any successor corporation,
either directly or through the Company [or the Guarantor] or any successor
corporation, whether by virtue of any constitution, statute or rule of law, or
by the enforcement of any assessment or penalty or otherwise, all such
liability being, by the acceptance hereof and as part of the consideration for
the issue hereof, expressly waived and released.
THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
SECTION 204. Form of Trustee's Certificate of Authentication.
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
20
Wells Fargo Bank Minnesota, N.A., as Trustee
By____________________________________
Authorized Signature
SECTION 205. Securities in Global Form.
-------------------------
If any Security of a series is issuable in global form, such Global
Security may provide that it shall represent the aggregate amount of
Outstanding Securities from time to time endorsed thereon and may also provide
that the aggregate amount of Outstanding Securities represented thereby may
from time to time be reduced to reflect exchanges. Any endorsement of a Global
Security to reflect the amount, or any increase or decrease in the amount, of
Outstanding Securities represented thereby shall be made by the Trustee of
such series of Securities and in such manner as shall be specified in such
Global Security. Any instructions by the Company with respect to a Global
Security, after its initial issuance, shall be in writing but need not comply
with Section 102.
None of the Company, the Guarantor, the Trustee of such series of
Securities, any Paying Agent or the Security Registrar will have any
responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests of a Global
Security or for maintaining, supervising or reviewing any records relating to
such beneficial ownership interests.
SECTION 206. Guarantee; Form of Guarantee.
----------------------------
The Guarantor by its execution of this Indenture hereby agrees with
each Holder of a Guaranteed Security of each series authenticated and
delivered by the Trustee of such series of Securities and with such Trustee on
behalf of each such Holder, to be unconditionally bound by the terms and
provisions of the Guarantee set forth below and authorizes such Trustee to
confirm such Guarantees to the Holder of each such Guaranteed Security by its
execution and delivery of each such Guaranteed Security, with such Guarantees
endorsed thereon, authenticated and delivered by such Trustee.
Guarantees to be endorsed on the Guaranteed Securities shall,
subject to Section 201, be in substantially the form set forth below:
GUARANTEE
OF
INGERSOLL-RAND COMPANY
For value received, Ingersoll-Rand Company, a corporation
incorporated under the laws of the State of New Jersey, having an
office at 200 Chestnut Ridge Road, Woodcliff Lake, New Jersey 07677
(herein called the "Guarantor", which term includes any successor
Person under the Indenture referred to in the Guaranteed Security
upon which this Guarantee is endorsed), hereby irrevocably and
unconditionally guarantees to the Holder of the Guaranteed Security
upon which this Guarantee is endorsed and to the Trustee on behalf
of each such Holder
21
the due and punctual payment of the principal of, premium, if any,
and interest on such Guaranteed Security and the due and punctual
payment of the sinking fund or analogous payments referred to
therein, if any, when and as the same shall become due and payable,
whether at the Stated Maturity, by declaration of acceleration, call
for redemption or otherwise, according to the terms thereof and of
the Indenture referred to therein, all in accordance with and
subject to the terms and limitations of the Guaranteed Security on
which this Guarantee is endorsed and Article Thirteen of the
Indenture. In case of the failure of Ingersoll-Rand Company Limited,
a company duly organized under the laws of Bermuda (herein called
the "Company", which term includes any successor Person under such
Indenture), promptly to make any such payment of principal, premium,
if any, or interest or any such sinking fund or analogous payment,
the Guarantor hereby agrees to cause any such payment to be made
promptly when and as the same shall become due and payable, whether
at the Stated Maturity or by declaration of acceleration, call for
redemption or otherwise, and as if such payment were made by the
Company, subject to the terms and limitations of Article Thirteen of
the Indenture.
This Guarantee shall not be valid or obligatory for any
purpose until the certificate of authentication of such Guaranteed
Security shall have been manually executed by or on behalf of the
Trustee under such Indenture.
All terms used in this Guarantee which are defined in such
Indenture shall have the meanings assigned to them in such
Indenture.
THIS GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
Executed and dated the date on this ___________ day of ________,
20__.
[Seal] INGERSOLL-RAND COMPANY
By
-------------------------------------
Name:
Title:
By:
-------------------------------------
Name:
Title:
- -----------------
Reference is made to Article Thirteen for further provisions with
respect to the Guarantees.
22
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series.
------------------------------------
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution of the Company, and, if the
Securities are Guaranteed Securities, the Guarantor, and set forth in an
Officer's Certificate of the Company, and, if the Securities are Guaranteed
Securities, the Guarantor, 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 that series (which shall
distinguish the Securities of that series from all other series of
Securities);
(2) any limit upon the aggregate principal amount of the
Securities of that 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 that series pursuant to Sections
304, 305, 306, 906, or 1107);
(3) the date or dates on which the principal of the Securities
of that series is payable;
(4) the rate or rates (or the manner of calculation thereof) at
which the Securities of that series shall bear interest, if any, the
date or dates from which such interest shall accrue, the Interest
Payment Dates on which such interest shall be payable and the
Regular Record Date for the interest payable on any Interest Payment
Date;
(5) the place or places where the principal of (and premium, if
any) and interest, if any, on Securities of that series shall be
payable and where such Securities may be registered or transferred;
(6) the period or periods within which, the price or prices at
which and the terms and conditions upon which Securities of that
series may be redeemed, in whole or in part, at the option of the
Company;
(7) the obligation, if any, of the Company to redeem or
purchase Securities of that 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 that series shall be
redeemed or purchased, in whole or in part, pursuant to such
obligation;
(8) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which Securities of that
series shall be issuable;
23
(9) if other than the principal amount thereof, the portion of
the principal amount of Securities of that series which shall be
payable upon declaration of acceleration of the Maturity thereof
pursuant to Section 502;
(10) if other than such coin or currency of the United States
of America, the currency or currency unit in which payment of the
principal of (or premium, if any) or interest, if any, on the
Securities of that series shall be payable or in which the
Securities of that series shall be denominated and the particular
provisions applicable thereto;
(11) if the principal of (and premium, if any) or interest, if
any, on the Securities of that series are to be payable, at the
election of the Company, the Guarantor or a Holder thereof, in a
coin or currency other than that in which the Securities are stated
to be payable, the period or periods within which, and the terms and
conditions upon which, such election may be made;
(12) if the amount of payments of principal of (and premium, if
any) or interest, if any, on the Securities of that series may be
determined with reference to an index based on a coin or currency
other than that in which the Securities are stated to be payable,
the manner in which such amounts shall be determined;
(13) any provisions permitted by this Indenture relating to
Events of Default or covenants of the Company with respect to such
series of Securities (including deletions therefrom, modifications
thereof or additions thereto, whether or not consistent with the
Events of Default or covenants set forth herein);
(14) if the Securities of that series shall be issued in whole
or in part in the form of one or more Global Securities and, in such
case, the U.S. Depositary for such Global Security or Securities;
the manner in which and the circumstances under which Global
Securities representing Securities of that series may be exchanged
for Securities in definitive form, if other than, or in addition to,
the manner and circumstances specified in Section 305;
(15) whether the Securities of that series will be convertible
into Common Shares of the Company and/or exchangeable for other
Securities, and if so, the terms and conditions upon which such
Securities will be so convertible or exchangeable, and any deletions
from or modifications or additions to this Indenture to permit or to
facilitate the issuance of such convertible or exchangeable
Securities or the administration thereof;
(16) whether or not the Securities are Guaranteed Securities
and the applicability of any other guarantees;
(17) if a Person other than Wells Fargo Bank Minnesota, N.A. is
to act as Trustee for the Securities of that series, the name and
location of the Corporate Trust Office of such Trustee; and
24
(18) any other terms of that series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any particular series shall be substantially
identical except as to denomination and except as may otherwise be provided in
or pursuant to such Board Resolution of the Company and, in the case of
Guaranteed Securities, the Guarantor, and set forth in such Officer's
Certificate or in any such indenture supplemental hereto.
If any of the terms of the series, including the form of Security of
such series, are established by action taken pursuant to a Board Resolution of
the Company, and, in the case of Guaranteed Securities, a Board Resolution of
the Guarantor, a copy of an appropriate record of such action shall be
certified by the Secretary or an Assistant Secretary of the Company and, in
the case of Guaranteed Securities, the Secretary or Assistant Secretary of the
Guarantor, and delivered to the Trustee for the Securities of such series at
or prior to the delivery of the Company Order contemplated by Section 303 for
the authentication and delivery of such series of Securities.
SECTION 302. Denominations.
-------------
The Securities of each series shall be issuable in registered form
without coupons in such denominations as shall be specified as contemplated by
Section 301. In the absence of any such provisions with respect to the
Securities of any series, the Securities of such series shall be issuable in
denominations of $1,000 and any integral multiple thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
----------------------------------------------
The Securities shall be executed, manually or by facsimile, on
behalf of the Company by its Chairman of the Board, a Deputy Chairman of the
Board, its President, one of its Vice Presidents or its Treasurer under its
corporate seal reproduced thereon, by facsimile or otherwise, and which need
not be attested.
The Guarantees endorsed on any Guaranteed Securities shall be
executed, manually or by facsimile, on behalf of the Guarantor by its Chairman
of the Board, a Vice Chairman of the Board, its President or one of its Vice
Presidents and by its Treasurer or one of its Assistant Treasurers or its
Secretary or one of its Assistant Secretaries, under its corporate seal
reproduced thereon, by facsimile or otherwise, and which need not be attested.
Securities or Guarantees bearing the manual or facsimile signatures
of individuals who were at any time the proper officers of the Company or the
Guarantor, as the case may be, shall bind the Company or the Guarantor, as the
case may be, notwithstanding that such individuals or any of them have ceased
to hold such offices prior to the authentication and delivery of such
Securities or Guarantees or did not hold such offices at the date of such
Securities or Guarantees.
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 the Securities of such series for
authentication, together with a Company Order for the authentication and
delivery of such Securities, and such Trustee in accordance with the Company
Order shall authenticate and deliver such Securities. If the form or terms of
the Securities of the series have
25
been established in or pursuant to one or more Board Resolutions of the
Company and, in the case of Guaranteed Securities, the Guarantor, as permitted
by Sections 201 and 301, in authenticating such Securities, and accepting the
additional responsibilities under this Indenture in relation to such
Securities, such Trustee shall be entitled to receive, and (subject to Section
601) shall be fully protected in relying upon, an Opinion of Counsel of the
Company and, if the Securities are Guaranteed Securities, the Guarantor,
stating,
(a) if the form of such Securities has been established by or
pursuant to Board Resolution of the Company 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 of the Company and, if the Securities are
Guaranteed Securities, the Guarantor, as permitted by Section 301, that
such terms have been established in conformity with the provisions of
this Indenture;
(c) that such Securities and, in the case of Guaranteed Securities,
the Guarantees endorsed thereon, when authenticated and delivered by such
Trustee and issued by the Company and, in the case of Guaranteed
Securities, the Guarantor in the manner and subject to any conditions
specified in such Opinion of Counsel, will constitute valid and legally
binding obligations of the Company and the Guarantor, respectively,
enforceable in accordance with their terms, subject to bankruptcy,
insolvency, reorganization and other laws of general applicability
relating to or affecting the enforcement of creditors' rights and to
general equity principles; and
(d) that all laws and requirements in respect of the execution and
delivery by the Company of such Securities and, in the case of Guaranteed
Securities, by the Guarantor of such Guarantees have been complied with.
If such form or terms have been so established, the Trustee for the
Securities of such series shall not be required to authenticate such
Securities if such Trustee, being advised by counsel, determines that the
issue of such Securities pursuant to this Indenture will affect such Trustee's
own rights, duties or immunities under the Securities and this Indenture or
otherwise in a manner which is not reasonably acceptable to such Trustee.
Notwithstanding the foregoing, if not all the Securities of any
series are to be issued at one time, it shall not be necessary to deliver the
Officer's Certificate otherwise required pursuant to the foregoing or the
Company Order and Opinion of Counsel otherwise required pursuant to the
foregoing prior to or at the time of issuance of each Security, but such
documents shall be delivered prior to or at the time of issuance of the first
Security of such series.
Each Security shall be dated the date of its authentication.
No Security or Guarantee endorsed thereon 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 for the Securities of
such series by manual signature, and such certificate upon any Security shall
be conclusive evidence, and the only evidence, that such Security has been
duly authenticated
26
and delivered hereunder and, together with the Guarantee, if any, endorsed
thereon, is entitled to the benefits of this Indenture.
SECTION 304. Temporary Securities.
--------------------
Pending the preparation of definitive Securities of any particular
series, the Company may execute, and upon Company Order the Trustee for the
Securities of such series shall authenticate and deliver 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, in the case of
Guaranteed Securities, having endorsed thereon a Guarantee executed by the
Guarantor, of the tenor of the definitive Guarantee, and with such appropriate
insertions, omissions, substitutions and other variations as the officer
executing such Securities may determine, as evidenced by his or her execution
of such Securities.
If temporary Securities of any series are issued, the Company will
cause definitive Securities of that series to be prepared without unreasonable
delay. After the preparation of definitive Securities of such series, the
temporary Securities of such series shall be exchangeable for definitive
Securities of such series upon surrender of the temporary Securities of such
series at the office or agency of the Company in a Place of Payment for that
series, without charge to the Holder. Upon surrender for cancellation of any
one or more temporary Securities of any series the Company shall execute and
the Trustee for the Securities of such series shall authenticate and deliver
in exchange therefor a like principal amount of definitive Securities of the
same series of authorized denominations and, in the case of Guaranteed
Securities, having endorsed thereon the Guarantee by the Guarantor. Until so
exchanged the temporary Securities of any series shall in all respects be
entitled to the same benefits under this Indenture as definitive Securities of
such series.
SECTION 305. Registration, Registration of Transfer and Exchange.
---------------------------------------------------
The Company shall cause to be kept at the Corporate Trust Office of
the Trustee for the Securities of each series a register (the register
maintained at such office and in any other office or agency of the Company in
a Place of Payment being herein sometimes collectively referred to as the
"Security Register") in which, subject to such reasonable regulations as it
may prescribe, the Company shall provide for the registration of Securities
and of transfers of Securities. The Trustee for the Securities of each series
is hereby appointed "Security Registrar" for the purpose of registering
Securities and transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security of any
series at the office or agency in a Place of Payment for that series, the
Company shall execute, and the Trustee for the Securities of each series shall
authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Securities of the same series, of any authorized
denominations and of a like aggregate principal amount, and, in the case of
Guaranteed Securities, having endorsed thereon a Guarantee executed by the
Guarantor.
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
27
amount, upon surrender of the Securities to be exchanged at such office or
agency. Whenever any Securities are so surrendered for exchange, the Company
shall execute, and the Trustee for the Securities of such series shall
authenticate and deliver, the Securities which the Holder making the exchange
is entitled to receive, and, in the case of Guaranteed Securities, having
endorsed thereon a Guarantee executed by the Guarantor.
All Securities and, in the case of Guaranteed Securities, Guarantees
endorsed thereon issued upon any registration of transfer or exchange of
Securities and, in the case of Guaranteed Securities, Guarantees endorsed
thereon, shall be the valid obligations of the Company and, in the case of
Guaranteed Securities, the Guarantor, respectively evidencing the same debt,
and entitled to the same benefits under this Indenture, as the Securities and,
in the case of Guaranteed Securities, Guarantees endorsed thereon 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 for the
Securities of such series) 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 or her attorney duly
authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed
in connection with any registration of transfer or exchange of Securities,
other than exchanges pursuant to Sections 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.
If the Company shall establish pursuant to Section 301 that the
Securities of a series are to be issued in whole or in part in the form of one
or more Global Securities, then the Company shall execute (along with, in the
case of Guaranteed Securities, a Guarantee executed by the Guarantor endorsed
thereon) and the Trustee for the Securities of such series shall, in
accordance with Section 303 and the Company Order with respect to such series,
authenticate and deliver one or more Global Securities in temporary or
permanent form that (i) shall represent and shall be denominated in an amount
equal to the aggregate principal amount of the Outstanding Securities of such
series to be represented by one or more Global Securities, (ii) shall be
registered in the name of the U.S. Depositary for such Global Security or
Securities or the nominee of such depositary, and (iii) shall bear a legend
substantially to the following effect: "This Security (and in the case of
Guaranteed Securities, the related Guarantee) may not be transferred except as
a whole by the Depositary to a nominee of the Depositary or by a nominee of
the Depositary to the Depositary or another nominee of the Depositary or by
the Depositary or any such nominee to a successor Depositary or a nominee of
such successor Depositary, unless
28
and until this Security is exchanged in whole or in part for Securities in
definitive form" and such other legend as may be required by the U.S.
Depositary.
Notwithstanding any other provision of this Section, unless and
until it is exchanged in whole or in part for Securities in definitive form, a
Global Security (and, in the case of Guaranteed Securities, the related
Guarantee) representing all or a portion of the Securities of a series may not
be transferred except as a whole by the U.S. Depositary for such series to a
nominee of such depositary or by a nominee of such depositary to such
depositary or another nominee of such depositary or by such depositary or any
such nominee to a successor U.S. Depositary for such series or a nominee of
such successor depositary.
If at any time the U.S. Depositary for the Securities of a series
notifies the Company that it is unwilling or unable to continue as U.S.
Depositary for the Securities of such series or if any time the U.S.
Depositary for Securities of a series shall no longer be a clearing agency
registered and in good standing under the Securities Exchange Act of 1934, as
amended, or other applicable statute or regulation, the Company shall appoint
a successor U.S. Depositary with respect to the Securities of such series. If
a successor U.S. Depositary for the Securities of such series is not appointed
by the Company within 90 days after the Company receives such notice or
becomes aware of such condition, the Company will execute, and the Trustee for
the Securities of such series, upon receipt of a Company Order for the
authentication and delivery of definitive Securities of such series, will
authenticate and deliver, Securities of such series in definitive form in an
aggregate principal amount equal to the principal amount of the Global
Security or Securities representing such series in exchange for such Global
Security or Securities and in the case of Guaranteed Securities, having
endorsed thereon a Guarantee executed by the Guarantor.
The Company may at any time and in its sole discretion determine
that the Securities of any series issued in the form of one or more Global
Securities shall no longer be represented by such Global Security or
Securities. In such event, the Company will execute, and the Trustee for the
Securities of such series, upon receipt of a Company Order for the
authentication and delivery of definitive Securities of such series, will
authenticate and deliver, Securities of such Series in definitive form and in
an aggregate principal amount equal to the principal amount of the Global
Security or Securities representing such series in exchange for such Global
Security or Securities and, in the case of Guaranteed Securities, having
endorsed thereon a Guarantee executed by the Guarantor.
If the Securities of any series shall have been issued in the form
of one or more Global Securities and if an Event of Default with respect to
the Securities of such series shall have occurred and be continuing, the
Company will promptly execute, and the Trustee for the Securities of such
series, upon receipt of a Company Order for the authentication and delivery of
definitive Securities of such series, will authenticate and deliver Securities
of such series in definitive form and in an aggregate principal amount equal
to the principal amount of the Global Security or Securities representing such
series in exchange for such Global Security or Securities and, in the case of
Guaranteed Securities, having endorsed thereon a Guarantee executed by the
Guarantor.
If specified by the Company pursuant to Section 301 with respect to
Securities of a series, the U.S. Depositary for such series of Securities may
surrender a Global Security for such series
29
of Securities in exchange in whole or in part for Securities of such series in
definitive form on such terms as are acceptable to the Company and such
depositary. Thereupon, the Company shall execute and the Trustee for the
Securities of such series shall authenticate and deliver, without charge:
(i) to each Person specified by the U.S. Depositary a new registered
Security or Securities of the same series, of an authorized denomination
as requested by such Person in an aggregate principal amount equal to and
in exchange for such Person's beneficial interest in the Global Security
and, in the case of Guaranteed Securities, having endorsed thereon a
Guarantee executed by the Guarantor; and
(ii) to the U.S. Depositary a new Global Security in a denomination
equal to the difference, if any, between the principal amount of the
surrendered Global Security and the aggregate principal amount of
Securities delivered to Holders thereof and, in the case of Guaranteed
Securities, having endorsed thereon a Guarantee executed by the
Guarantor.
Upon the exchange of a Global Security in whole for Securities in
definitive form, such Global Security shall be canceled by the Trustee for the
Securities of such series. Securities issued in exchange for a Global Security
shall be registered in such names and in such authorized denominations as the
U.S. Depositary for such Global Security, pursuant to instructions from its
direct or indirect participants or otherwise, shall instruct the Trustee for
the Securities of such series. Such Trustee shall deliver such Securities to
the Persons in whose names such Securities are so registered.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
------------------------------------------------
If any mutilated Security is surrendered to the Trustee for the
series of such Securities, the Company shall execute and such 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, and, in the case of Guaranteed Securities,
having endorsed thereon a Guarantee executed by the Guarantor.
If there shall be delivered to the Company and the Trustee for the
series of such Securities (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 such Trustee
that such Security has been acquired by a bona fide purchaser, the Company
shall execute and upon its request such 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, and, in the case of Guaranteed
Securities, having endorsed thereon a Guarantee executed by the Guarantor.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security.
30
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 for the series of
such Securities) connected therewith.
Every new Security of any series and, in the case of Guaranteed
Securities, the Guarantee endorsed thereon, issued pursuant to this Section in
lieu of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company and, in the case of
Guaranteed Securities, the Guarantor, respectively, whether or not the
destroyed, lost or stolen Security shall be at any time enforceable by anyone,
and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of that series duly issued
hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 307. Payment of Interest; Interest Rights Preserved.
----------------------------------------------
Interest on any Security which is payable, and is punctually paid or
duly provided for, on any Interest Payment Date shall be paid to the person in
whose name that Security (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date for such interest.
Any interest on any Security of any series which is payable, but is
not punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the persons in whose names the Securities of such
series (or their respective Predecessor Securities) are
registered at the close of business on a Special Record Date
for the payment of such Defaulted Interest, which shall be
fixed in the following manner. The Company shall notify the
Trustee for the Securities of such series 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 such
Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or
shall make arrangements reasonably satisfactory to such Trustee
for such deposit prior to the date of the proposed payment,
such money when deposited to be held in trust for the benefit
of the persons entitled to such Defaulted Interest as in this
Clause provided. Thereupon such 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 such Trustee of the notice of the proposed
payment. Such Trustee shall promptly notify the Company of
31
such Special Record Date and, in the name and at the expense of
the Company, shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be
mailed, first-class postage prepaid, to each Holder of
Securities of such series at his or her 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 for the Securities of such series of the
proposed payment pursuant to this Clause, such manner of
payment shall be deemed practicable by such Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Security.
SECTION 308. Persons Deemed Owners.
---------------------
Prior to due presentment of a Security for registration of transfer,
the Company, the Guarantor (in the case of Guaranteed Securities), the Trustee
for such Security and any agent of the Company, the Guarantor (in the case of
Guaranteed Securities) or such 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, if any, on such Security and for all other purposes
whatsoever, whether or not such Security be overdue, and none of the Company,
the Guarantor, such Trustee or any agent of the Company, the Guarantor or such
Trustee shall be affected by notice to the contrary.
Notwithstanding the foregoing, with respect to any Global Security,
nothing herein shall prevent the Company, the Guarantor (in the case of
Guaranteed Securities), the Trustee for such Security, or any agent of any of
the foregoing, from giving effect to any written certification, proxy or other
authorization furnished by any depositary, as a Holder, with respect to such
Global Security or impair, as between such depositary and owners of beneficial
interests in such Global Security, the operation of customary practices
governing the exercise of the rights of such depositary (or its nominee) as
Holder of such Global Security.
SECTION 309. Cancellation.
------------
All Securities surrendered for payment, redemption, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any person other than the
32
Trustee for such Securities, be delivered to such Trustee and shall be
promptly cancelled by it. The Company or the Guarantor (in the case of
Guaranteed Securities) may at any time deliver to such Trustee for
cancellation any Securities previously authenticated and delivered hereunder
which the Company or the Guarantor (in the case of Guaranteed Securities) may
have acquired in any manner whatsoever, and all Securities so delivered shall
be promptly cancelled by such Trustee. No Securities shall be authenticated in
lieu of or in exchange for any Securities cancelled as provided in this
Section, except as expressly permitted by this Indenture. All cancelled
Securities held by such Trustee shall be disposed of in accordance with such
Trustee's customary practices.
SECTION 310. Computation of Interest.
-----------------------
Except as otherwise specified as contemplated by Section 301 for
Securities of any particular series, interest, if any, on the Securities of
each series shall be computed on the basis of a year of twelve 30-day months.
SECTION 311. CUSIP Numbers.
-------------
The Company in issuing the Securities may use "CUSIP" numbers (if
then generally in use), and, if so, the Trustee for such Securities shall use
"CUSIP" numbers in notices of redemption as a convenience to Holders of such
Securities; provided that any such notice may state that no representation is
made as to the correctness of such numbers either as printed on the Securities
or as contained in any notice of a redemption 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 such Trustee of any change in the
"CUSIP" numbers.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
---------------------------------------
This Indenture shall upon Company Request cease to be of further
effect (except as to any surviving rights of registration of transfer or
exchange of Securities herein expressly provided for), and the Trustee for the
Securities of each series, 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 or, in the case of Guaranteed Securities,
the Guarantor and thereafter repaid to the Company or, in the
case of Guaranteed Securities, the Guarantor or discharged from
such
33
trust, as provided in Section 1003) have been delivered to the
Trustee for the Securities of such series for cancellation; or
(B) all such Securities not theretofore delivered to the
Trustee for the Securities of such series 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 reasonably satisfactory to such Trustee
for the giving of notice of redemption by such Trustee in
the name, and at the expense, of the Company or, in the
case of Guaranteed Securities, the Guarantor; or
(iv) are deemed paid and discharged pursuant to
Section 403, as applicable,
and the Company or, in the case of Guaranteed Securities, the
Guarantor, in the case of (i), (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee for the
Securities of such series as trust funds in trust for the
purpose an amount of (a) money, or (b) in the case of (ii) or
(iii) above and (except as provided in an indenture
supplemental hereto) if no Securities of any series Outstanding
are subject to repurchase at the option of Holders, (I) U.S.
Government Obligations which through the payment of interest
and principal in respect thereof in accordance with their terms
will provide not later than one day before the Stated Maturity
or Redemption Date, as the case may be, money in an amount, or
(II) a combination of money or U.S. Government Obligations as
provided in (I) above, in each case sufficient to pay and
discharge the entire indebtedness on such Securities not
theretofore delivered to such Trustee for cancellation, for
principal (and premium, if any) and interest, if any, to the
date of such deposit (in the case of Securities which have
become due and payable) or to the Stated Maturity or Redemption
Date, as the case may be;
(2) the Company or, in the case of Guaranteed Securities, the
Guarantor has paid or caused to be paid all other sums payable hereunder
by the Company; and
(3) the Company or, in the case of Guaranteed Securities, the
Guarantor has delivered to the Trustee for the Securities of such series
an Officer's Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the satisfaction and
discharge of this Indenture have been complied with.
34
Notwithstanding the satisfaction and discharge of this Indenture,
the obligations of the Company to the Trustee of the Securities of each series
under Section 607, the obligations of such Trustee to any Authenticating Agent
under Section 614 and, if money or U.S. Government Obligations shall have been
deposited with the Trustee of the Securities of any series pursuant to
subclause (B) of Clause (1) of this Section or if money or U.S. Government
Obligations shall have been deposited with or received by the Trustee of the
Securities of any series pursuant to Section 403, the obligations of such
Trustee under Section 402 and the last paragraph of Section 1003 shall
survive.
SECTION 402. Application of Trust Money.
--------------------------
(a) Subject to the provisions of the last paragraph of Section 1003,
all money or U.S. Government Obligations deposited with the Trustee of a
particular series of Securities pursuant to Section 401, 403 or 1006 and
all money received by the Trustee of a particular series of Securities in
respect of U.S. Government Obligations deposited with the Trustee of that
series of Securities pursuant to Section 401, 403 or 1006, 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, or in the case of Guaranteed
Securities, the Guarantor acting as its own Paying Agent) as such Trustee
may determine, to the persons entitled thereto, of the principal (and
premium, if any) and interest, if any, for whose payment such money has
been deposited with or received by such Trustee or to make mandatory
sinking fund payments or analogous payments as contemplated by Section
401, 403 or 1006.
(b) The Company and, in the case of Guaranteed Securities, the
Guarantor shall pay and shall indemnify the Trustee of each series of
Securities against any tax, fee, or other charge imposed on or assessed
against U.S. Government Obligations deposited pursuant to Section 401,
403 or 1006 or the interest and principal received in respect of such
obligations other than any payable by or on behalf of Holders.
(c) The Trustee of each series of Securities shall deliver or pay to
the Company or, in the case of Guaranteed Securities, the Guarantor from
time to time upon Company Request any U.S. Government Obligations or
money held by it as provided in Section 401, 403 or 1006 which, in the
opinion of a nationally recognized firm of independent certified public
accountants expressed in a written certification thereof delivered to
such Trustee, are then in excess of the amount thereof which then would
have been required to be deposited for the purpose for which such U.S.
Government Obligations or money was deposited or received. This provision
shall not authorize the sale by such Trustee of any U.S. Government
Obligations held under this Indenture.
SECTION 403. Satisfaction, Discharge and Defeasance of Securities of any
Series.
-----------------------------------------------------------
The Company and, in the case of Guaranteed Securities, the Guarantor
shall be deemed to have paid and discharged the entire indebtedness on all the
Outstanding Securities of any series and, in the case of Guaranteed
Securities, the Guarantees, respectively, on the 91st day after the date of
the deposit referred to in subparagraph (a) hereof, and the provisions of this
Indenture, as it relates to such Outstanding Securities of such series and, in
the case of Guaranteed Securities,
35
the Guarantees, respectively, shall no longer be in effect (and the Trustee
for the Securities of such series, at the expense of the Company or, in the
case of Guaranteed Securities, the Guarantor, shall at Company Request execute
proper instruments acknowledging the same), except as to:
(1) the rights of Holders of Securities of such series to
receive, from the trust funds described in subparagraph (a) hereof,
(i) payment of the principal of (and premium, if any) and each
installment of principal of (and premium, if any) or interest, if
any, on the Outstanding Securities of such series on the Stated
Maturity of such principal or installment of principal or interest
or to and including the Redemption Date irrevocably designated by
the Company pursuant to subparagraph (e) hereof and (ii) the benefit
of any mandatory sinking fund payments applicable to the Securities
of such series on the day on which such payments are due and payable
in accordance with the terms of this Indenture and the Securities of
such series;
(2) the Company's obligations with respect to such Securities
of such series under Sections 305, 306, and 1002 and, if the Company
shall have irrevocably designated a Redemption Date pursuant to
subparagraph (e) hereof, Sections 1101, 1104 and 1106 as they apply
to such Redemption Date;
(3) the Company's obligations with respect to the Trustee for
Securities of such series under Section 607; and
(4) the rights, powers, trust and immunities of such Trustee
hereunder and the duties of such Trustee under Section 402 and, if
the Company shall have irrevocably designated a Redemption Date
pursuant to subparagraph (e) hereof, Article Eleven and the duty of
such Trustee to authenticate Securities of such series on
registration of transfer or exchange;
provided that, the following conditions shall have been satisfied:
(a) the Company or the Guarantor has deposited or caused to be
irrevocably deposited (except as provided in Section 402(c) and the last
paragraph of Section 1003) with such Trustee as trust funds in trust,
specifically pledged as security for, and dedicated solely to, the
benefit of the Holders of the Securities of such series, (i) money in an
amount, or (ii) (except as provided in a supplemental indenture with
respect to such series) if Securities of such series are not subject to
repurchase at the option of Holders, (A) U.S. Government Obligations
which through the payment of interest and principal in respect thereof in
accordance with their terms will provide not later than one day before
the due date of any payment referred to in clause (x) or (y) of this
subparagraph (a) money in an amount or (B) a combination thereof,
sufficient, in the opinion of a nationally recognized firm of independent
certified public accountants expressed in a written certification thereof
delivered to such Trustee, to pay and discharge (x) the principal of (and
premium, if any) and each installment of principal (and premium, if any)
and interest, if any, on the Outstanding Securities of such series on the
Stated Maturity of such principal or installment of principal or interest
or to and including the
36
Redemption Date irrevocably designated by the Company pursuant to
subparagraph (e) hereof and (y) any mandatory sinking fund payments
applicable to the Securities of such series on the day on which such
payments are due and payable in accordance with the terms of the
Indenture and of the Securities of such series;
(b) the Company or (in the case of Guaranteed Securities) the
Guarantor has delivered to such Trustee an Opinion of Counsel to the
effect that such provision would not cause any Outstanding Securities of
such series then listed on any national securities exchange to be
delisted as a result thereof;
(c) no Event of Default or event which with notice or lapse of time
would become an Event of Default (including by reason of such deposit)
with respect to the Securities of such series shall have occurred and be
continuing on the date of such deposit or during the period ending on the
91st day after such date;
(d) the Company or (in the case of Guaranteed Securities) the
Guarantor has delivered to such Trustee an Opinion of Counsel in the U.S.
to the effect that the Company or (in the case of Guaranteed Securities)
the Guarantor has received from, or there has been published by the
Internal Revenue Service a ruling to the effect that Holders of the
Securities of such series will not recognize income, gain or loss for
Federal income tax purposes as a result of such deposit, defeasance and
discharge; and
(e) if the Company or the Guarantor has deposited or caused to be
deposited money or U.S. Government Obligations to pay or discharge the
principal of (and premium, if any) and interest, if any, on the
Outstanding Securities of a series to and including a Redemption Date on
which all of the Outstanding Securities of such series are to be
redeemed, such Redemption Date shall be irrevocably designated by a Board
Resolution of the Company delivered to such Trustee on or prior to the
date of deposit of such money or U.S. Government Obligations, and such
Board Resolution shall be accompanied by an irrevocable Company Request
that such Trustee give notice of such redemption in the name and at the
expense of the Company or (in the case of Guaranteed Securities) the
Guarantor and less than 30 nor more than 60 days prior to such Redemption
Date in accordance with Section 1104.
SECTION 404. Reinstatement.
-------------
If the Trustee of the Securities of any series or any Paying Agent
is unable to apply any money in accordance with Section 402 by reason of any
order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, then the obligations of
the Company and the Guarantor (in the case of Guaranteed Securities) under
this Indenture and such Securities and any related coupons and Guarantees
shall be revived and reinstated as though no deposit had occurred pursuant to
Section 403 or Section 1006, as the case may be, until such time as such
Trustee or Paying Agent is permitted to apply all such money in accordance
with Section 402; provided, however, that if the Company makes any payment of
principal of (or premium, if any) or interest, if any, on any such Security or
any related coupon following the reinstatement of its obligations, the Company
shall be subrogated to the rights of
37
the Holders of such Securities and any related coupons to receive such payment
from the money held by such Trustee or Paying Agent.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
-----------------
"Event of Default", wherever used herein with respect to Securities
of any series, means any one of the following events (whatever the reason for
such Event of Default and whether it shall be voluntary or involuntary or be
effected by operation of law or pursuant to any judgment, decree or order of
any court or any order, rule or regulation of any administrative or
governmental body):
(1) default in the payment of any interest upon any Security of
that series when it becomes due and payable, and continuance of such
default for a period of 30 days; or
(2) default in the payment of the principal of (or premium, if
any, on) any Security of that series at its Maturity; or
(3) default in the payment of any sinking fund installment,
when and as due by the terms of a Security of that series, and
continuance of such default for a period of 30 days; or
(4) default in the performance, or breach, of any covenant or
warranty of the Company or, in the case of Guaranteed Securities,
the Guarantor in this Indenture (other than a covenant or warranty a
default in whose performance or whose breach is elsewhere in this
Section specifically dealt with or which has expressly been included
in this Indenture solely for the benefit of series of Securities
other than that series), and continuance of such default or breach
for a period of 90 days after there has been given, by registered or
certified mail, to the Company and, in the case of Guaranteed
Securities, the Guarantor by the Trustee for the Securities of such
series or to the Company, the Guarantor (in the case of Guaranteed
Securities) and such Trustee by the Holders of at least 25% in
principal amount of the Outstanding Securities of that series a
written notice specifying such default or breach and requiring it to
be remedied and stating that such notice is a "Notice of Default"
hereunder; or
(5) the entry by a court having jurisdiction in the premises of
(A) a decree or order for relief in respect of the Company or, in
the case of Guaranteed Securities, the Guarantor in an involuntary
case or proceeding under any applicable Federal or State or Bermuda
bankruptcy, insolvency, reorganization or other similar law or (B) a
decree or order adjudging the Company or, in the case of Guaranteed
Securities, the Guarantor a bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization, arrangement,
adjustment or composition of or in respect of the Company or, in the
case of Guaranteed Securities, the Guarantor under any applicable
Federal or State or Bermuda law,
38
or appointing a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or, in the
case of Guaranteed Securities, the Guarantor or of any substantial
part of its property, or ordering the winding up or liquidation of
its affairs, and the continuance of any such decree or order for
relief or any such other decree or order unstayed and in effect for
a period of 90 consecutive days; or
(6) the commencement by the Company or, in the case of
Guaranteed Securities, the Guarantor of a voluntary case or
proceeding under any applicable Federal or State or Bermuda
bankruptcy, insolvency, reorganization or other similar law or of
any other case or proceeding to be adjudicated a bankrupt or
insolvent, or the consent by the Company or, in the case of
Guaranteed Securities, the Guarantor to the entry of a decree or
order for relief in respect of the Company or, in the case of
Guaranteed Securities, the Guarantor, respectively, in an
involuntary case or proceeding under any applicable Federal or State
or Bermuda bankruptcy, insolvency, reorganization or other similar
law or to the commencement of any bankruptcy or insolvency case or
proceeding against the Company or, in the case of Guaranteed
Securities, the Guarantor, or the filing by the Company or, in the
case of Guaranteed Securities, the Guarantor of a petition or answer
or consent seeking reorganization or relief under any applicable
Federal or State or Bermuda law, or the consent by the Company or,
in the case of Guaranteed Securities, the Guarantor to the filing of
such petition or to the appointment of or taking possession by a
custodian, receiver, liquidator, assignee, trustee, sequestrator or
similar official of the Company or, in the case of Guaranteed
Securities, the Guarantor or of any substantial part of its
property, or the making by the Company or, in the case of Guaranteed
Securities, the Guarantor of an assignment for the benefit of
creditors, or the admission by the Company or, in the case of
Guaranteed Securities, the Guarantor in writing of its inability to
pay its debts generally as they become due, or the taking of
corporate action by the Company or, in the case of Guaranteed
Securities, the Guarantor in furtherance of any such action; or
(7) any other Event of Default provided in the supplemental
indenture or provided in or pursuant to a Board Resolution or
Officer's Certificate of the Company and, in the case of Guaranteed
Securities, the Guarantor, under which such series of Securities is
issued or in the form of Security for such series.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
--------------------------------------------------
If an Event of Default (other than an Event of Default specified in
Section 501(5) or 501(6)) with respect to Securities of any series at the time
Outstanding occurs and is continuing, then in every such case the Trustee for
the Securities of such series or the Holders of not less than 25% in aggregate
principal amount of the Outstanding Securities of that series may declare the
principal amount (or, if the Securities of that series are Original Issue
Discount Securities, such portion of the principal amount as may be specified
in the terms of that series) of all of the Securities of that series to be due
and payable immediately, by a notice in writing to the Company (and to such
Trustee if given by Holders), and upon any such declaration such
39
principal amount (or specified amount) shall become immediately due and
payable. If an Event of Default specified in Section 501(5) or 501(6) with
respect to Securities of any series at the time Outstanding occurs, the
principal amount of all the Securities of that series (or, if any Securities
of that series are Original Issue Discount Securities, such portion of the
principal amount of such Securities as may be specified by the terms thereof)
shall automatically, and without any declaration or other action on the part
of such Trustee or any Holder, become immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee for the Securities
of such series as hereinafter in this Article provided, the Holders of a
majority in principal amount of the Outstanding Securities of that series, by
written notice to the Company, the Guarantor (in the case of Guaranteed
Securities) and such Trustee, may rescind and annul such declaration and its
consequences if:
(1) the Company or, in the case of Guaranteed Securities, the
Guarantor has paid or deposited with such Trustee a sum sufficient
to pay,
(A) all overdue interest, if any, on all Securities of
that series,
(B) the principal of (and premium, if any, on) any
Securities, of that series which have become due otherwise than
by such declaration of acceleration and interest thereon at the
rate or rates prescribed therefor in such Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate or rates prescribed
therefor in such Securities, and
(D) all sums paid or advanced by such Trustee hereunder
and the reasonable compensation, expenses, disbursements and
advances of such Trustee, its agents and counsel; and
(2) all Events of Default with respect to Securities of that
series, other than the non-payment of the principal of and accrued
interest on Securities of that series which have become due solely
by such declaration of acceleration, have been cured or waived as
provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
For all purposes under this Indenture, if a portion of the principal
of any Original Issue Discount Securities shall have been accelerated and
declared due and payable pursuant to the provisions hereof, then, from and
after such declaration, unless such declaration has been rescinded and
annulled, the principal amount of such Original Issue Discount Securities
shall be deemed, for all purposes hereunder, to be such portion of the
principal thereof as shall be due and payable as a result of such
acceleration, and payment of such portion of the principal thereof as shall be
due and payable as a result of such acceleration, together with interest, if
any, thereon
40
and all other amounts owing thereunder, shall constitute payment in full of
such Original Issue Discount Securities.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
---------------------------------------------------------------
The Company covenants that if:
(1) default is made in the payment of any interest on any
Security when such interest becomes due and payable and such default
continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee for the Securities of such
series, pay to it, for the benefit of the Holders of such Securities, the
whole amount then due and payable on such Securities for principal (and
premium, if any) and interest, if any, and, to the extent that payment of such
interest shall be legally enforceable, interest on any overdue principal (and
premium, if any) and on any overdue interest, at the rate or rates prescribed
therefor in such Securities, and, in addition thereto, such further amount as
shall be sufficient to cover the costs and expenses of collection, including
the reasonable compensation, expenses, disbursements and advances of such
Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand,
such 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, the Guarantor (in the case of Guaranteed
Securities) 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, the Guarantor (in the case of Guaranteed Securities)
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 for the Securities of such series 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 such Trustee shall deem most effectual to protect and enforce any such
rights, whether for the specific enforcement of any covenant or agreement in
this Indenture or in aid of the exercise of any power granted herein, or to
enforce any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim.
--------------------------------
In any case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition
or other judicial proceeding relative to the Company, the Guarantor (in the
case of Guaranteed Securities) or any other obligor upon the Securities or the
property of the Company, the Guarantor (in the case of Guaranteed Securities)
or of such other obligor or their creditors, the Trustee for the Securities of
such series (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 such Trustee shall have
41
made any demand on the Company or the Guarantor (in the case of Guaranteed
Securities) for the payment of overdue principal or interest) shall be
entitled and empowered, by intervention in such proceeding or otherwise:
(i) to file and prove a claim for the whole amount of principal
(and premium, if any) and interest owing and unpaid in respect of
the Securities and to file such other papers or documents as may be
necessary or advisable in order to have the claims of such Trustee
(including any claim for the reasonable compensation, expenses,
disbursements and advances of such Trustee, its agents and counsel)
and of the Holders of such Securities allowed in such judicial
proceeding; and
(ii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the
same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder of such Securities to make such payments to such Trustee and, in
the event that such Trustee shall consent to the making of such payments
directly to such Holders, to pay to such Trustee any amount due it for the
reasonable compensation, expenses, disbursements and advances of such Trustee,
its agents and counsel, and any other amounts due such Trustee under Section
607.
Nothing herein contained shall be deemed to authorize the Trustee
for the Securities of any series 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, the Guarantees (in the case of
Guaranteed Securities) or the rights of any Holder thereof or to authorize
such Trustee to vote in respect of the claim of any Holder in any such
proceeding.
SECTION 505. Trustee May Enforce Claims Without Possession of Securities.
-----------------------------------------------------------
All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee for any series of
Securities without the possession of any of the Securities or the production
thereof in any proceeding relating thereto, and any such proceeding instituted
by such 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 such
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 506. Application of Money Collected.
------------------------------
Any money collected by the Trustee for any series of Securities
pursuant to this Article shall be applied in the following order, at the date
or dates fixed by such 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 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 such Trustee under
Section 607;
42
SECOND: In case the principal of the Securities of such series
in respect of which moneys have been collected shall not have become
and be then due and payable, to the payment of interest, if any, on
the Securities of such series in default in the order of the
maturity of the installments of such interest, with interest (to the
extent that such interest has been collected by such Trustee and to
the extent permitted by law) upon the overdue installments of
interest at the rate prescribed therefor in such Securities, such
payments to be made ratably to the persons entitled thereto, without
discrimination or preference;
THIRD: In case the principal of the Securities of such series
in respect of which moneys have been collected shall have become and
shall be then due and payable, to the payment of the whole amount
then owing and unpaid upon all the Securities of such series for
principal and interest, if any, with interest upon the overdue
principal, and (to the extent that such interest has been collected
by such Trustee and to the extent permitted by law) upon overdue
installments of interest at the rate prescribed therefor in the
Securities of such series; and in case such moneys shall be
insufficient to pay in full the whole amount so due and unpaid upon
the Securities of such series, then to the payment of such principal
and interest, without preference or priority of principal over
interest, or of interest over principal, or of any installment of
interest over any other installment of interest, or of any Security
of such series over any other Security of such series, ratably to
the aggregate of such principal and accrued and unpaid interest; and
FOURTH: To the payment of the remainder, if any, to the Company
or any other person lawfully entitled thereto.
SECTION 507. Limitation on Suits.
-------------------
No Holder of any Security of any series shall have any right to
institute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless:
(1) such Holder has previously given written notice to the
Trustee for the Securities of such series 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 such 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 such Trustee
reasonable indemnity against the costs, expenses and liabilities to
be incurred in compliance with such request;
(4) such Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
43
(5) no direction inconsistent with such written request has
been given to such 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 such Holders shall
have any right in any manner whatever by virtue of, or by availing of, any
provision of this Indenture to affect, disturb or prejudice the rights of any
other of such Holders, or to obtain or to seek to obtain priority or
preference over any other of such Holders or to enforce any right under this
Indenture, except in the manner herein provided and for the equal and ratable
benefit of all such Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium
and Interest.
------------------------------------------------------------
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of (and premium, if any) and (subject to
Section 307) interest, if any, on such Security on the Stated Maturity or
Maturities expressed in such Security (or, in the case of redemption, on the
Redemption Date) and to institute suit for the enforcement of any such
payment, and such rights shall not be impaired without the consent of such
Holder.
SECTION 509. Restoration of Rights and Remedies.
----------------------------------
If the Trustee for the Securities of any series 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 such Trustee or to such Holder, then and in every
such case, subject to any determination in such proceeding, the Company, the
Guarantor (in the case of Guaranteed Securities), such Trustee and the Holders
shall be restored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of such Trustee and the
Holders shall continue as though no such proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
------------------------------
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities in the last
paragraph of Section 306, no right or remedy herein conferred upon or reserved
to the Trustee for the Securities of any series or to any Holder 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 for the Securities of any series
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 such Trustee or to the Holders
44
may be exercised from time to time, and as often as may be deemed expedient,
by such 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 for
the Securities of such series, or exercising any trust or power conferred on
such Trustee, with respect to the Securities of such series, provided that:
(1) such direction shall not be in conflict with any rule of
law or with this Indenture; and
(2) such Trustee may take any other action deemed proper by
such Trustee which is not inconsistent with such direction.
SECTION 513. Waiver of Past Defaults.
-----------------------
The Holders of not less than a majority in aggregate principal
amount of the Outstanding Securities of any series may on behalf of the
Holders of all of the Securities of such series waive any past default
hereunder with respect to such series and its consequences, except a default
(1) in the payment of the principal of (or premium, if any) or
interest, if any, on any Security of such series, or
(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of
the Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
SECTION 514. Undertaking for Costs.
---------------------
All parties to this Indenture agree, and each Holder of any Security
by his or her 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
the Securities of any series for any action taken or omitted by it as Trustee,
the filing by any party litigant in such suit of an undertaking to pay the
costs of such suit, and that such court may in its discretion assess
reasonable costs, including reasonable attorneys' fees, against any party
litigant in such suit, having due regard to the merits and good faith of the
claims or defenses made by such party litigant; but the provisions of this
Section shall not apply to any suit instituted by the Trustee for the
Securities of any series, to any suit instituted by any Holder, or group of
Holders, holding in the aggregate more than 10% in principal amount of the
Outstanding Securities of any series, or to any suit instituted by any Holder
for the enforcement of the payment of the principal of (or premium, if any) or
interest, if any, on any Security on or
45
after the Stated Maturity or Maturities expressed in such Security (or, in the
case of redemption, on or after the Redemption Date).
SECTION 515. Waiver of Stay or Extension Laws.
--------------------------------
Each of the Company and, in the case of Guaranteed Securities, the
Guarantor covenants (to the extent that it may lawfully do so) that it will
not at any time insist upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and each of the Company and, in the case of
Guaranteed Securities, the Guarantor (to the extent that it may lawfully do
so) hereby expressly waives all benefit or advantage of any such law and
covenants that it will not hinder, delay or impede the execution of any power
herein granted to the Trustee for the Securities of any series, but will
suffer and permit the execution of every such power as though no such law had
been enacted.
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities.
-----------------------------------
(a) Except during the continuance of an Event of Default with
respect to the Securities of any series for which the Trustee is serving
as such:
(1) such Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture, and no
implied covenants or obligations shall be read into this Indenture
against such Trustee; and
(2) in the absence of bad faith on its part, such Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to such Trustee and conforming to the
requirements of this Indenture; but in the case of any such
certificates or opinions which by any provision hereof are
specifically required to be furnished to such Trustee, such Trustee
shall be under a duty to examine the same to determine whether or
not they conform to the requirements of this Indenture.
(b) In case an Event of Default with respect to a series of
Securities has occurred and is continuing, the Trustee for the Securities
of such series shall exercise such of the rights and powers vested in it
by this Indenture, and use the same degree of care and skill in their
exercise, as a prudent man would exercise or use under the circumstances
in the conduct of his or her own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee for the Securities of any series from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(1) this Subsection shall not be construed to limit the effect
of Subsection (a) of this Section;
46
(2) such Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it shall be
proved that such Trustee was negligent in ascertaining the pertinent
facts;
(3) such Trustee shall not be liable with respect to any action
taken, suffered or omitted to be taken by it in good faith in
accordance with the direction of the Holders of a majority in
principal amount of the Outstanding Securities of any particular
series, determined as provided in Section 512, relating to the time,
method and place of conducting any proceeding for any remedy
available to such Trustee, or exercising any trust or power
conferred upon such Trustee, under this Indenture with respect to
the Securities of that series; and
(4) no provision of this Indenture shall require the Trustee
for any series of Securities to expend or risk its own funds or
otherwise incur any financial liability in the performance of any of
its duties hereunder, or in the exercise of any of its rights or
powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee for any series of Securities shall be
subject to the provisions of this Section.
SECTION 602. Notice of Defaults.
------------------
Within 90 days after the occurrence of any default hereunder with
respect to the Securities of any particular series, the Trustee for the
Securities of such series shall transmit by mail to all Holders of Securities
of that series, as their names and addresses appear in the Security Register
for that series, notice of such default hereunder known to such Trustee,
unless such default shall have been cured or waived; provided, however, that,
except in the case of a default in the payment of the principal of (or
premium, if any) or interest, if any, on any Security of that series or in the
payment of any sinking fund installment with respect to Securities of that
series, such Trustee shall be protected in withholding such notice if and so
long as the board of directors, the executive committee or a trust committee
of directors and/or Responsible Officers of such Trustee in good faith
determines that the withholding of such notice is in the interest of the
Holders of Securities of that series; and provided, further, that in the case
of any default of the character specified in Section 501(4) with respect to
Securities of that series, no such notice to Holders shall be given until at
least 30 days after the occurrence thereof. For the purpose of this Section,
the term "default" means any event which is, or after notice or lapse of time
or both would become, an Event of Default with respect to Securities of that
series.
SECTION 603. Certain Rights of Trustee.
-------------------------
Subject to the provisions of Section 601:
(a) the Trustee for any series of Securities may rely and shall be
protected in acting or refraining from acting upon any resolution,
certificate, statement, instrument,
47
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 or, in the case of
Guaranteed Securities, the Guarantor mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order of the
Company or, in the case of Guaranteed Securities, the Guarantor, as the
case may be, and any resolution of the Board of Directors may be
sufficiently evidenced by a Board Resolution of the Company or, in the
case of Guaranteed Securities, the Guarantor, as the case may be;
(c) whenever in the administration of this Indenture such Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, such 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) such Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(e) such 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 of Securities of any series pursuant to
this Indenture for which it is acting as Trustee, unless such Holders
shall have offered to such Trustee reasonable security or indemnity
against the costs, expenses and liabilities which might be incurred by it
in compliance with such request or direction;
(f) such Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but such Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see fit,
and, if such Trustee shall determine to make such further inquiry or
investigation, it shall be entitled upon reasonable request to examine
the books, records and premises of the Company, personally or by agent or
attorney; and
(g) such 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 such Trustee shall not be responsible for any misconduct
or negligence on the part of any agent or attorney appointed with due
care by it hereunder.
SECTION 604. Not Responsible for Recitals or Issuance of Securities.
------------------------------------------------------
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company and, in the case of Guaranteed Securities, the Guarantor, and
neither the Trustee for any
48
series of Securities nor any Authenticating Agent assumes any responsibility
for their correctness. The Trustee for any series of Securities makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities. Neither the Trustee for any series of Securities nor any
Authenticating Agent shall be accountable for the use or application by the
Company of Securities or the proceeds thereof.
SECTION 605. May Hold Securities.
-------------------
The Trustee for any series of Securities, any Authenticating Agent,
any Paying Agent, any Security Registrar or any other agent of the Company,
the Guarantor or such Trustee, 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 or the Guarantor with the same rights
it would have if it were not such Trustee, Authenticating Agent, Paying Agent,
Security Registrar or such other agent.
SECTION 606. Money Held in Trust.
-------------------
Money held by the Trustee for any series of Securities in trust
hereunder need not be segregated from other funds except to the extent
required by law. The Trustee for any series of Securities shall be under no
liability for interest on any money received by it hereunder except as
otherwise agreed with the Company or, in the case of Guaranteed Securities,
the Guarantor.
SECTION 607. Compensation and Reimbursement.
------------------------------
The Company agrees:
(1) to pay to the Trustee for any series of Securities from
time to time such compensation for all services rendered by it
hereunder as shall be agreed upon in writing from time to time by
the Company and such Trustee (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 for any series of Securities upon its request for all
reasonable expenses, disbursements and advances incurred or made by
such Trustee in accordance with any provision of this Indenture
(including the reasonable compensation and the reasonable 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 such Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without negligence
or bad faith on its part, arising out of or in connection with the
acceptance or administration of this 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.
The Trustee for any series of Securities shall have a lien prior to
the Securities as to all property and funds held by such Trustee hereunder for
any amount owing it or any predecessor
49
Trustee pursuant to this Section 607, except with respect to funds held in
trust for the benefit of the Holders of such particular Securities.
When the Trustee for any series of Securities 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 shall survive the termination of this
Indenture.
SECTION 608. Disqualification; Conflicting Interests.
---------------------------------------
If the Trustee for any series of Securities has or shall acquire a
conflicting interest within the meaning of the Trust Indenture Act, such
Trustee shall either eliminate such interest or resign, to the extent and in
the manner provided by, and subject to the provisions of, the Trust Indenture
Act and this Indenture. In determining whether such Trustee has a conflicting
interest as defined in Section 310(b) of the Trust Indenture Act with respect
to the Securities of any series, there shall be excluded Securities of any
particular series of Securities other than that series.
SECTION 609. Corporate Trustee Required; Different Trustees for Different
Series; Eligibility.
------------------------------------------------------------
There shall at all times be a Trustee hereunder for each series of
Securities which shall be a corporation organized and doing business under the
laws of the United States of America, any State thereof, or the District of
Columbia, authorized under such laws to exercise corporate trust powers,
having a combined capital and surplus of at least $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. If at any time such 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.
A different Trustee may be appointed by the Company for each series
of Securities prior to the issuance of such Securities. If the initial Trustee
for any series of Securities is to be other than Wells Fargo Bank Minnesota,
N.A., the Company and such Trustee shall, prior to the issuance of such
Securities, execute and deliver an indenture supplemental hereto, which shall
provide for the appointment of such Trustee as Trustee for the Securities of
such series and shall add to or change any of the provisions of this Indenture
as shall be necessary to 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.
50
SECTION 610. Resignation and Removal; Appointment of Successor.
-------------------------------------------------
(a) No resignation or removal of the Trustee for the Securities of
any series 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 for the Securities of any series may resign at any
time with respect to the Securities of such 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 for the Securities of such series 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 for the Securities of any series may be removed at
any time with respect to the Securities of such series by Act of the
Holders of a majority in principal amount of the Outstanding Securities
of such series, delivered to such Trustee and to the Company.
(d) If at any time:
(1) the Trustee for the Securities of any series shall fail to
comply with Section 608 after written request thereof by the Company
or by any Holder who has been a bona fide Holder of a Security of
such series for at least six months; or
(2) such Trustee shall cease to be eligible under Section 609
and shall fail to resign after written request therefor by the
Company or by any such Holder; or
(3) such Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of such Trustee or of
its property shall be appointed or any public officer shall take
charge or control of such 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
such Trustee and appoint a successor Trustee, or (ii) subject to Section
514, 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
removal of such Trustee and the appointment of a successor Trustee or
Trustees.
(e) If the Trustee for the Securities of any series shall resign, be
removed or become incapable of acting, or if a vacancy shall occur in the
office of Trustee for the Securities of any series for any cause, the
Company, by a Board Resolution, shall promptly appoint a successor
Trustee with respect to the Securities of such 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 such
series shall not have been appointed by the
51
Company pursuant to this Section 610, then a successor Trustee may 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. If no successor Trustee for the Securities of such
series shall have been so appointed by the Company or the Holders and
shall have accepted appointment in the manner required by Section 611,
and if such Trustee to be replaced is still incapable of acting, 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 that series and the address of its Corporate Trust Office.
SECTION 611. Acceptance of Appointment by Successor.
--------------------------------------
(a) Every such successor Trustee appointed hereunder with respect to
the Securities of any series shall execute, acknowledge and deliver to
the Company, the Guarantor (in the case of Guaranteed Securities) and 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, the Guarantor (in
the case of Guaranteed Securities) 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 Guarantor (in the case of Guaranteed Securities), 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
52
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 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, the Guarantor (in the case of Guaranteed Securities) 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 and, in
the case of Guaranteed Securities, the Guarantor 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 for the Securities of any
series shall be qualified and eligible under this Article.
SECTION 612. Merger, Conversion, Consolidation or Succession to Business.
-----------------------------------------------------------
Any corporation into which the Trustee for the Securities of any
series 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 Trustee shall be a party, or any corporation succeeding to all or
substantially all of the corporate trust business of such Trustee, shall be
the successor of such 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 or the Authenticating Agent for such series then in
office, any successor by merger, conversion or consolidation to such
authenticating Trustee or Authenticating Agent, as the case may be, may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee or successor Authenticating Agent had
itself authenticated such Securities.
SECTION 613. Preferential Collection of Claims Against the Company or the
Guarantor.
------------------------------------------------------------
If and when the Trustee of any series of Securities shall be or
become a creditor of the Company or, in the case of Guaranteed Securities, the
Guarantor (or any other obligor upon the Securities), such Trustee shall be
subject to the provisions of the Trust Indenture Act regarding the collection
of claims against the company (or any such other obligor).
53
SECTION 614. Authenticating Agents.
---------------------
From time to time the Trustee of any series of Securities, in its
sole discretion, may appoint one or more Authenticating Agents with respect to
the Securities of such series, which may include the Company, the Guarantor or
any Affiliate of the Company or the Guarantor, with power to act on the
Trustee's behalf and subject to its discretion in the authentication and
delivery of Securities of such series or in connection with transfers and
exchanges under Sections 304, 305, 306 and 1107 as fully to all intents and
purposes as though such Authenticating Agent had been expressly authorized by
those Sections of this Indenture to authenticate and deliver Securities of
such series. For all purposes of this Indenture, the authentication and
delivery of Securities of such series by an Authenticating Agent for such
Securities pursuant to this Section shall be deemed to be authentication and
delivery of such Securities "by the Trustee" for the Securities of such
series. Any such 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, any State thereof or the District of Columbia,
authorized under such laws to exercise corporate trust powers, having a
combined capital and surplus of at least $25,000,000 and, if other than the
Company, the Guarantor or any Affiliate of the Company or the Guarantor,
subject to supervision or examination by Federal, State or District of
Columbia authority. If such corporation publishes reports of condition at
least annually pursuant to law or the requirements of such authority, then for
the purposes of this Section the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set
forth in its most recent report of condition so published. If at any time an
Authenticating Agent for any series of Securities 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 any Authenticating Agent may be merged or
with which it may be consolidated, or any corporation resulting from any
merger or consolidation or to which any Authenticating Agent shall be a party,
or any corporation succeeding to the corporate trust business of any
Authenticating Agent, shall be the successor of such Authenticating Agent
hereunder, if such successor corporation is otherwise eligible under this
Section, without the execution or filing of any paper or any further act on
the part of the parties hereto or the Authenticating Agent or such successor
corporation.
Any Authenticating Agent for any series of Securities may resign at
any time by giving written notice of resignation to the Trustee for such
series and to the Company. The Trustee for any series of Securities may at any
time terminate the agency of any Authenticating Agent for such series by
giving written notice of termination to such Authenticating Agent and to the
Company. Upon receiving such a notice of resignation or upon such a
termination, or in case at any time any Authenticating Agent for any series of
Securities shall cease to be eligible under this Section, the Trustee for such
series may appoint a successor Authenticating Agent, which shall be acceptable
to the Company, shall give written notice of such appointment to the Company
and shall give written notice of such appointment to all Holders of Securities
of such series with respect to which such Authenticating Agent will serve, as
the names and addresses of such Holders appear on 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
54
Agent. No successor Authenticating Agent shall be appointed unless eligible
under the provisions of this Section.
The Trustee for any series of Securities agrees to pay to the
Authenticating Agent for such series from time to time reasonable compensation
for its services, and such Trustee shall be entitled to be reimbursed for such
payments, subject to Section 607.
If an appointment with respect to one or more series of Securities
is made pursuant to this Section, the Securities of such series may have
endorsed thereon, in addition to the Trustee's certificate of authentication,
an alternate certificate of authentication in the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
Wells Fargo Bank Minnesota, N.A., as Trustee
By ____________________________
As Authenticating Agent
By ____________________________
Authorized Officer
The provisions of Sections 309, 604 and 605 shall be applicable to
any Authenticating Agent.
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.
---------------------------------------------------------
With respect to each particular series of Securities, the Company
will furnish or cause to be furnished to the Trustee for the Securities of
such series,
(a) semi-annually, not later than 15 days after each Regular Record
Date, or, in the case of any series of Securities on which semi-annual
interest is not payable, not more than 15 days after such semi-annual
dates as may be specified by such Trustee, a list, in such form as such
Trustee may reasonably require, of the names and addresses of the Holders
as of such Regular Record Date or semi-annual date, as the case may be,
and
(b) at such other times as such 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;
55
provided, however, that so long as such Trustee is Security Registrar for any
series of Securities, no such list shall be required to be furnished with
respect to any such series.
SECTION 702. Preservation of Information; Communications to Holders.
------------------------------------------------------
(a) The Trustee for each series of Securities 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 such Trustee as
provided in Section 701 and the names and addresses of Holders received
by such Trustee in its capacity as Security Registrar. Such 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 of any particular series (herein
referred to as "applicants") apply in writing to the Trustee for the
Securities of such series, and furnish to such 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 of
Securities of such series 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 such 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 such Trustee in accordance with Section 702(a); or
(ii) inform such applicants as to the approximate number of
Holders of Securities of such series whose names and addresses
appear in the information preserved at the time by such 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 any such Trustee shall elect not to afford such applicants access
to such information, such Trustee shall, upon the written request of such
applicants, mail to each Holder of Securities of such series whose name
and address appear in the information preserved at the time by such
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 such 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 such 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 such 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
56
such objections, the Commission shall find, after notice and
opportunity for hearing, that all the objections so sustained have been
met and shall enter an order so declaring, such 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 such
Trustee shall be relieved of any obligation or duty to such applicants
respecting their application.
(c) Every Holder of Securities of each series, by receiving and
holding the same, agrees with the Company, the Guarantor and the Trustee
for the Securities of such series that none of the Company, the Guarantor
and such Trustee nor any agent of any 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 such Trustee
shall not be held accountable by reason of mailing any material pursuant
to a request made under Section 702(b).
(d) The U.S. Depositary may grant proxies and otherwise authorize
its participants which own the Global Securities to give or take any Act
which a Holder is entitled to take under the Indenture; provided,
however, that the U.S. Depositary has delivered a list of such
participants to the Trustee for the Securities of such series.
SECTION 703. Reports by Trustee.
------------------
(a) The Trustee for the Securities of each series shall transmit to
Holders of Securities of each series for which such Trustee serves such
reports concerning such Trustee and its actions under this Indenture as
may be required pursuant to the Trust Indenture Act at the times and in
the manner provided pursuant thereto. If required by Section 313(a) of
the Trust Indenture Act, the Trustee for the Securities of each series
shall, within sixty days after each May 15 following the date of this
Indenture deliver to Holders of Securities of each series for which such
Trustee serves a brief report, dated as of such May 15, which complies
with the provisions of such Section 313(a).
(b) A copy of each such report shall, at the time of such
transmission to Holders of Securities of each particular series be filed
by each particular Trustee with each stock exchange upon which any
Securities are listed, with the Commission and with the Company. The
Company will notify the Trustee when any Securities are listed on any
stock exchange.
SECTION 704. Reports by Company.
------------------
The Company shall:
(1) file with the Trustee for the Securities of each series,
within 15 days after the Company is required to file the same with
the Commission, copies of the annual reports and of the information,
documents and other reports (or copies of such portions of any of
the foregoing as the Commission may from time to time by rules and
regulations prescribe) which the Company may be required to file
with the Commission pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934; or if the Company is not required
to file information,
57
documents or reports pursuant to either of said Sections, then it
shall file with such Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the
Commission, such of the supplementary and periodic information,
documents and reports which may be required pursuant to Section 13
of the Securities Exchange Act of 1934, in respect of a security
listed and registered on a national securities exchange as may be
prescribed from time to time in such rules and regulations;
(2) file with the Trustee for the Securities of such series and
the Commission, in accordance with rules and regulations prescribed
from time to time by the Commission, such additional information,
documents and reports with respect to compliance by the Company with
the conditions and covenants of this Indenture as may be required
from time to time by such rules and regulations; and
(3) transmit by mail to all Holders, as their names and
addresses appear in the Security Register, within 30 days after the
filing thereof with the Trustee for the Securities of such series,
such summaries of any information, documents and reports required to
be filed by the Company pursuant to paragraphs (1) and (2) of this
Section as may be required by rules and regulations prescribed from
time to time by the Commission.
Delivery of such reports, information and documents to the Trustee
for the Securities of each series is for informational purposes only and such
Trustee's receipt of such shall not constitute constructive notice of any
information contained therein or determinable from information contained
therein, including the Company's compliance with any of its covenants
hereunder (as to which such Trustee is entitled to rely exclusively on
Officer's Certificates).
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, SALE OR LEASE
SECTION 801. Company and Guarantor May Consolidate, Etc., on Certain Terms.
-------------------------------------------------------------
(a) Subject to the provisions of Section 802, nothing contained in
this Indenture or in any of the Securities shall prevent any
consolidation, amalgamation or merger of the Company with or into any
other corporation or corporations (whether or not affiliated with the
Company) or successive consolidations, amalgamations or mergers in which
the Company or its successor or successors shall be a party or parties,
or shall prevent any sale, conveyance or lease of all or substantially
all the property of the Company, to any other corporation (whether or not
affiliated with the Company), authorized to acquire and operate the same;
provided, however, that the Company hereby covenants and agrees, that
upon any such consolidation, amalgamation, merger, sale, conveyance or
lease, the due and punctual payment of the principal of (and premium, if
any) and interest, if any, on all of the Securities, according to their
tenor, and the due and punctual performance and observance of all of the
covenants and conditions of this Indenture to be performed by the Company
shall be expressly assumed, by supplemental indenture reasonably
satisfactory in form to the Trustee for each series of Securities,
executed and delivered to each such Trustee by the corporation (if other
than the Company) formed by such
58
consolidation or amalgamation, or into which the Company shall have been
merged, or by the corporation which shall have acquired or leased such
property, and provided further, that such corporation shall be a solvent
corporation organized under the laws of the United States of America or a
State thereof or the District of Columbia or Bermuda. The Company will
not so consolidate, amalgamate or merge, or make any such sale, lease or
other disposition, and the Company will not permit any other corporation
to merge into the Company, unless immediately after the proposed
consolidation, amalgamation, merger, sale, lease or other disposition,
and after giving effect thereto, the Company or such successor
corporation, as the case may be, will not be in default in the
performance or observance of any of the terms, covenants, agreements or
conditions contained in this Indenture.
(b) Nothing contained in this Indenture or in any of the Securities
shall prevent any consolidation or merger of the Guarantor with or into
any other corporation or corporations (whether or not affiliated with the
Guarantor) or successive consolidations or mergers in which the Guarantor
or its successor or successors shall be a party or parties, or shall
prevent any sale, conveyance or lease of all or substantially all the
property of the Guarantor, to any other corporation (whether or not
affiliated with the Guarantor), authorized to acquire and operate the
same; provided, however, that with respect to Guaranteed Securities, the
Guarantor hereby covenants and agrees, that upon any such consolidation,
merger, sale, conveyance or lease to or with a Person other than the
Company, the performance of the obligations under the Guarantee, and the
due and punctual performance and observance of all of the covenants and
conditions of this Indenture to be performed by the Guarantor shall be
expressly assumed, by supplemental indenture reasonably satisfactory in
form to the Trustee for each series of Guaranteed Securities, executed
and delivered to each such Trustee by the corporation (if other than the
Guarantor) formed by such consolidation, or into which the Guarantor
shall have been merged, or by the corporation which shall have acquired
or leased such property, and provided further, that with respect to
Guaranteed Securities, except in the case of any such consolidation,
amalgamation, merger, sale, conveyance or lease to or with the Company,
such corporation shall be a solvent corporation organized under the laws
of the United States of America or a State thereof or the District of
Columbia. With respect to the Guaranteed Securities, except in the case
of a consolidation, amalgamation, merger, sale, conveyance or lease to or
with the Company, the Guarantor will not so consolidate or merge, or make
any such sale, lease or other disposition, and the Guarantor will not
permit any other corporation to merge into the Guarantor, unless
immediately after the proposed consolidation, merger, sale, lease or
other disposition, and after giving effect thereto, the Guarantor or such
successor corporation, as the case may be, will not be in default in the
performance or observance of any of the terms, covenants, agreements or
conditions contained in this Indenture or the Guarantee. Notwithstanding
the preceding sentences, the Guarantor may consolidate or merge with or
into or sell, convey or lease all or substantially all of its property or
sell any or all of its capital stock to the Company without limitation.
59
SECTION 802. Securities to be Secured in Certain Events.
------------------------------------------
If upon any such consolidation, amalgamation or merger, or upon any
such sale, conveyance or lease, or upon any consolidation, amalgamation or
merger of any Restricted Subsidiary, or upon the sale, conveyance or lease of
all or substantially all the property of any Restricted Subsidiary to any
other corporation, any Principal Property or any shares of stock or Funded
Indebtedness of any Restricted Subsidiary owned immediately prior thereto
would thereupon become subject to any Mortgage, the Company, prior to such
consolidation, amalgamation, merger, sale, conveyance or lease, will by
indenture supplemental hereto secure the due and punctual payment of the
principal of and premium, if any, and interest, if any, on the Securities
(together with, if the Company shall so determine, any other indebtedness of
or guarantee by the Company or such Restricted Subsidiary ranking equally with
the Securities and then existing or thereafter created) by a Mortgage, the
lien of which, upon completion of said merger, consolidation, amalgamation,
sale, conveyance or lease, will rank prior to the lien of such Mortgage of
such other corporation on all assets owned by the Company or such Restricted
Subsidiary immediately prior to such merger, consolidation, amalgamation,
sale, conveyance or lease.
SECTION 803. Successor Corporation to be Substituted.
---------------------------------------
(a) Upon any consolidation, amalgamation or merger of the Company
with or into any other corporation or corporations or any sale,
conveyance or lease of all or substantially all of the property of the
Company to any other corporation or corporations in accordance with this
Article Eight, the successor shall succeed to, and be substituted for,
and may exercise every right and power of, the Company under this
Indenture and the Securities with the same effect as if such successor
had been named as the Company herein and therein, and thereafter, except
in the case of a lease, the Company as the predecessor corporation shall
be relieved of all obligations and covenants under this Indenture and the
Securities and the Company as the predecessor corporation may thereupon
or at any time thereafter be dissolved, wound up or liquidated.
(b) Subject to Section 801(b), upon any consolidation or merger of
the Guarantor with or into any other corporation or corporations or any
sale, conveyance or lease of all or substantially all of the property of
the Guarantor to any other corporation or corporations in accordance with
this Article Eight, the successor shall succeed to, and be substituted
for, and may exercise every right and power of, the Guarantor under this
Indenture, the Securities and the Guarantee with the same effect as if
such successor had been named as the Guarantor herein and therein, and
thereafter, except in the case of a lease, the Guarantor as predecessor
corporation shall be relieved of all obligations and covenants under this
Indenture and the Guarantee, and the Guarantor as the predecessor
corporation may thereupon or at any time thereafter be dissolved, wound
up or liquidated.
SECTION 804. Opinion of Counsel to be Given to Trustee.
-----------------------------------------
The Trustee for each series of Securities, subject to Section 601,
shall be entitled to receive an Opinion of Counsel as conclusive evidence that
any such consolidation,
60
amalgamation, merger, sale, conveyance or lease and any such assumption
complies with the provisions of this Article.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures without Consent of Holders.
--------------------------------------------------
Without the consent of any Holders, the Company, when authorized by
or pursuant to a Board Resolution of its Board of Directors, the Guarantor (in
the case of Guaranteed Securities), when authorized by or pursuant to a Board
Resolution by the Guarantor's Board of Directors, and the Trustee for the
Securities of any or all series, at any time and from time to time, may enter
into one or more indentures supplemental hereto, in form reasonably
satisfactory to such Trustee, for any of the following purposes:
(1) to evidence the succession of another corporation to the
Company or (in the case of Guaranteed Securities) the Guarantor and
the assumption by any such successor of the covenants of the Company
herein and in the Securities or the assumption by any such successor
of the covenants of the Guarantor (in the case of Guaranteed
Securities) herein and in the Guarantee; or
(2) to add to the covenants of the Company or the Guarantor (in
the case of Guaranteed Securities) for the benefit of the Holders of
all or any series of Securities (and if such covenants are to be for
the benefit of less than all series of Securities, stating that such
covenants are expressly being included solely for the benefit of
such series) or to surrender any right or power herein conferred
upon the Company or the Guarantor, as applicable; or
(3) to add any additional Events of Default; or
(4) to add to or change any of the provisions of this Indenture
to such extent as shall be necessary to permit or facilitate the
issuance of Securities in bearer form, registrable or not
registrable as to principal, and with or without interest coupons;
or
(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 provisions; 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
61
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 evidence and provide for the acceptance of appointment
hereunder of a Trustee other than Wells Fargo Bank Minnesota, N.A.
as Trustee for a series of Securities 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 609; or
(10) to provide for any rights of the Holders of Securities of
any series to require the repurchase of Securities of such series
from the Company; or
(11) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture, provided such action shall
not adversely affect the interests of the Holders of Securities of
any series in any material respect;
(12) to continue its qualification under the Trust Indenture
Act or as may be necessary or desirable in accordance with
amendments to the Trust Indenture Act; or
(13) for any other reason specified pursuant to Section 301
with respect to the Securities of such series.
SECTION 902. Supplemental Indentures with Consent of Holders.
-----------------------------------------------
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities of any or all series affected
by such supplemental indenture (voting as one class), by Act of said Holders
delivered to the Company, the Guarantor (in the case of Guaranteed Securities)
and the Trustee of each such series of Securities, the Company, when
authorized by or pursuant to a Board Resolution of its Board of Directors, the
Guarantor, when authorized by or pursuant to a Board Resolution by the
Guarantor's Board of Directors, and each such Trustee may enter into an
indenture or indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions
of this Indenture or of modifying in any manner the rights of the Holders of
Securities of such series under this Indenture; provided, however, that no
such supplemental indenture shall, without the consent of the Holder of each
Outstanding Security affected thereby:
(1) change the Stated Maturity of the principal of, or any
installment of principal of or interest, if any, on, any Security,
or reduce the principal amount thereof or the rate of interest
thereon or any premium payable upon the redemption thereof, or
reduce the amount of the principal of an Original Issue Discount
Security that would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 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
62
enforcement of any such payment on or after the Stated Maturity
thereof (or, in the case of redemption, on or after the Redemption
Date), or (in the case of Guaranteed Securities) release the
Guarantor from any of its obligations under the Guarantee otherwise
than in accordance with the terms of this Indenture;
(2) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose Holders
is required for any such supplemental indenture or the consent of
whose Holders is required for any waiver (of compliance with certain
provisions of this Indenture or certain defaults hereunder and their
consequences) provided for in this Indenture; or
(3) modify any of the provisions of this Section, Section 513
or Section 1008, except to increase any such percentage or to
provide that certain other provisions of this Indenture cannot be
modified or waived without the consent of the Holder of each
Outstanding Security affected thereby provided, however, that this
clause shall not be deemed to require the consent of any Holder with
respect to changes in the references to "the Trustee" and
concomitant changes in this Section and Section 1008, or the
deletion of this proviso, in accordance with the requirements of
Sections 609, 611(b), 901(8) and 901(9).
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders of any series of
Securities under this Section to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such Act shall approve
the substance thereof.
SECTION 903. Execution of Supplemental Indentures.
------------------------------------
In executing, or accepting the additional trusts created by, and
supplemental indenture permitted by this Article or the modifications thereby
of the trusts created by this Indenture, the Trustee for any series of
Securities shall be entitled to receive, and (subject to Section 601) shall be
fully protected in relying upon, an Opinion of Counsel stating that the
execution of such supplemental indenture is authorized or permitted by this
Indenture. The Trustee for any series of Securities may, but shall not be
obligated to, enter into any such supplemental indenture which affects such
Trustee's own rights, duties or immunities under this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures.
---------------------------------
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes,
and every Holder of Securities theretofore or thereafter authenticated and
delivered hereunder shall be bound thereby.
63
SECTION 905. Conformity with Trust Indenture Act.
-----------------------------------
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 906. Reference in Securities to Supplemental Indentures.
--------------------------------------------------
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and
shall if required by the Trustee for the Securities of such series, bear a
notation in form approved by such Trustee as to any matter provided for in
such supplemental indenture. If the Company or (in the case of Guaranteed
Securities) the Guarantor shall so determine, new forms of the Securities of
any series and (in the case of Guaranteed Securities) any Guarantees endorsed
thereon modified as to conform, in the opinion of the Trustee for the
Securities of such series , the Company and (in the case of Guaranteed
Securities) the Guarantor, to any supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by such Trustee in
exchange for Outstanding Securities of such series.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest.
------------------------------------------
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of (and premium,
if any) and interest, if any, on the Securities of that series in accordance
with the terms of the Securities and this Indenture.
SECTION 1002. Maintenance of Office or Agency.
-------------------------------
The Company will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series may be
presented or surrendered for payment, where Securities of that series may be
surrendered for registration of transfer or exchange and where notices and
demands to or upon the Company in respect of the Securities of that series and
this Indenture may be served. If Securities are Guaranteed Securities, the
Guarantor will maintain an office or agency in each Place of Payment for any
series of Guaranteed Securities where notices and demands to or upon the
Guarantor in respect of the Guaranteed Securities of that series and this
Indenture may be served. The Company and (in the case of Guaranteed
Securities) the Guarantor will give prompt written notice to the Trustee for
Securities of that series of the location, and any change in the location, of
such office or agency. If at any time the Company or (in the case of
Guaranteed Securities) the Guarantor shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee for the Securities of
that series with the address thereof, such presentations, surrenders, notices
and demands may be made or served at the Corporate Trust Office of such
Trustee, and the Company and (in the case of Guaranteed Securities) the
Guarantor hereby appoints such Trustee as its agent to receive all such
presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be
presented or surrendered for any or all such
64
purposes and may from time to time rescind such designations; provided,
however, that no such designation or rescission shall in any manner relieve
the Company of its obligation to maintain an office or agency in each Place of
Payment for Securities of any series for such purposes. The Company will give
prompt written notice to the Trustee for the Securities of each series of any
such designation or rescission and of any change in the location of any such
other office or agency.
SECTION 1003. Money for Securities Payments to Be Held in Trust.
-------------------------------------------------
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of
the principal of (and premium, if any) or interest, if any, on any of the
Securities of that series, segregate and hold in trust for the benefit of the
persons entitled thereto a sum sufficient to pay the principal (and premium,
if any) or interest, if any, so becoming due until such sums shall be paid to
such persons or otherwise disposed of as herein provided and will promptly
notify the Trustee for the Securities of such series of its action or failure
so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it will, prior to each due date of the principal of (and
premium, if any) or interest, if any, on any Securities of that series,
deposit with a Paying Agent a sum sufficient to pay the principal (and
premium, if any) or interest 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 for the Securities of such
series) the Company will promptly notify such Trustee of its action or failure
so to act.
The Company will cause each Paying Agent for any series of
Securities other than the Trustee for the Securities of such series to execute
and deliver to such Trustee an instrument in which such Paying Agent shall
agree with such Trustee, subject to the provisions of this Section, that such
Paying Agent will:
(1) hold all sums held by it for the payment of the principal
of (and premium, if any) or interest, if any, on Securities of that
series in trust for the benefit of the persons entitled thereto
until such sums shall be paid to such persons or otherwise disposed
of as herein provided;
(2) give such Trustee notice of any default by the Company (or
any other obligor upon the Securities of that series) in the making
of any payment of principal (and premium, if any) or interest, if
any, on the Securities of that series; and
(3) at any time during the continuance of any such default,
upon the written request of such Trustee, forthwith pay to such
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 for the
Securities of any series all sums held in trust by the Company or such Paying
Agent, such sums to be held by such Trustee upon the same trusts as
65
those upon which such sums were held by the Company or such Paying Agent; and,
upon such payment by any Paying Agent to such 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 for the
Securities of any series, or then held by the Company or (in the case of
Guaranteed Securities) the Guarantor, in trust for the payment of the
principal of (and premium, if any) or interest, if any, on any Security of any
series and remaining unclaimed for two years after such principal (and
premium, if any) or interest has become due and payable shall be paid to the
Company or (in the case of Guaranteed Securities) the Guarantor on Company
Request, or (if then held by the Company or (in the case of Guaranteed
Securities) the Guarantor) shall be discharged from such trust; and the Holder
of such Security shall thereafter, as an unsecured general creditor, look only
to the Company or (in the case of Guaranteed Securities) the Guarantor, as the
case may be, for payment thereof, and all liability of such Trustee or such
Paying Agent with respect to such trust money, and all liability of the
Company or (in the case of Guaranteed Securities) the Guarantor, as the case
may be, as trustee thereof, shall thereupon cease; provided, however, that
such Trustee or such Paying Agent, before being required to make any such
repayment, may at the expense of the Company cause to be published once, in a
newspaper published in the English language, customarily published on each
Business Day and of general circulation in the City, County and State of New
York, notice that such money remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days from the date of such
publication, any unclaimed balance of such money then remaining will be repaid
to the Company or (in the case of Guaranteed Securities) the Guarantor, as the
case may be.
SECTION 1004. 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 of the Company 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 (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
66
(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 1004(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
1004, 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 1005) 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
67
clause (b) of Section 1005), does not at the time exceed 10% 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 8?% 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 share capital, share
premium, contributed surplus and retained earnings of the Company
and its consolidated Subsidiaries, excluding the cost of shares of
the Company held by its affiliates, all as determined in accordance
with U.S. generally accepted accounting principles; 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 1005. 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 of the Company 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),
68
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
1004, 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 (x) the principal amount of any Securities delivered within 180 days after
such sale or transfer to the Trustee for the Securities of such series for
retirement and cancellation and (y) 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 for the Securities of such series an Officer's Certificate setting
forth in reasonable detail all material facts necessary to show compliance
with this Subsection.
SECTION 1006. Defeasance of Certain Obligations.
---------------------------------
The Company may omit to comply with, and shall have no liability in
respect of, any term, provision or condition set forth in Sections 802, 1004
and 1005 (and the Company and the Guarantor (in the case of Guaranteed
Securities) may omit to comply with, and shall have no liability in respect of
any other provision or condition specified pursuant to Section 301(13) for
such Securities) with respect to the Securities of any series whether directly
or indirectly, by reason of any reference elsewhere herein to any such
covenant, to any other provision herein or in any other document and such
omission to comply shall not constitute a Default or Event of Default under
Section 501(4) or otherwise, as the case may be, provided that the following
conditions shall have been satisfied:
(1) The Company or the Guarantor has deposited or caused to be
irrevocably deposited (except as provided in Section 402(c) and the
last paragraph of Section 1003) with the Trustee for the Securities
of such series (specifying that each deposit is pursuant to this
Section 1006) as trust funds in trust, specifically pledged as
security for, and dedicated solely to, the benefit of the Holders of
the Securities of such series, (i) money in an amount, or (ii)
(except as provided in a supplemental indenture with respect to such
series) if Securities of such series are not subject to repurchase
at the option of such Holders, (A) U.S. Government Obligations which
through the payment of interest and principal in respect thereof in
accordance with their terms will provide not later than one day
before the due date of any payment referred to in clause (x) or (y)
of this subparagraph (1) money in an amount, or (B) a combination
thereof, sufficient, in the opinion of a nationally recognized firm
of independent certified public accountants expressed in a written
certification thereof delivered to such Trustee, to pay and
discharge
69
(x) the principal of (and premium, if any) and each installment of
principal (and premium, if any) and interest, if any, on the
Outstanding Securities of such series on the Stated Maturity of such
principal or installment of principal or interest or to and
including the Redemption Date irrevocably designated by the Company
pursuant to subparagraph (4) of this Section and (y) any mandatory
sinking fund payments applicable to the Securities of such series on
the day on which such payments are due and payable in accordance
with the terms of the Indenture and of the Securities of such
series;
(2) No Event of Default or event which with notice or lapse of
time would become an Event of Default (including by reason of such
deposit) with respect to the Securities of such series shall have
occurred and be continuing on the date of such deposit;
(3) The Company or (in the case of Guaranteed Securities) the
Guarantor shall have delivered to such Trustee an Opinion of Counsel
to the effect that Holders of the Securities of such series will not
recognize income, gain or loss for Federal income tax purposes as a
result of such deposit and defeasance of certain obligations; and
(4) If the Company or (in the case of Guaranteed Securities)
the Guarantor has deposited or caused to be deposited money or U.S.
Government Obligations to pay or discharge the principal of (and
premium, if any) and interest, if any, on the Outstanding Securities
of a series to and including a Redemption Date on which all of the
Outstanding Securities of such series are to be redeemed, such
Redemption Date shall be irrevocably designated by a Board
Resolution of the Company or delivered to such Trustee on or prior
to the date of deposit of such money or U.S. Government Obligations,
and such Board Resolution shall be accompanied by an irrevocable
Company Request that such Trustee give notice of such redemption in
the name and at the expense of the Company and less than 30 nor more
than 60 days prior to such Redemption Date in accordance with
Section 1104.
SECTION 1007. Statement by Officer as to Default.
----------------------------------
The Company will deliver to the Trustee for each series of
Securities, on or before May 15 in each year ending after the date hereof, an
Officer's Certificate stating that in the course of the performance by such
signer of his or her 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 802, 1004 and 1005, 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.
The Company shall deliver to the Trustee, for each series of
Securities as soon as possible and in any event within five days after the
Company becomes aware of the occurrence of any Event of Default or an event
which, with notice or the lapse of time or both, would constitute an
70
Event of Default, an Officer's Certificate setting forth the details of such
Event of Default or default and the action which the Company proposes to take
with respect thereto.
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 802, 1004 and 1005 (and the
Company and the Guarantor may omit in any particular instance to comply with
any term, provision or condition specified pursuant to Section 301(13) for
such Securities) if before the time for such compliance the Holders of at
least a majority 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 Guarantor, as the case may be, and the
duties of the Trustee for the Securities of each series in respect of any such
term, provision or condition shall remain in full force and effect.
SECTION 1009. Calculation of Original Issue Discount.
--------------------------------------
The Company shall file with the Trustee for the Securities of each
series promptly at the end of each calendar year (i) a written notice
specifying the amount of original issue discount (including daily rates and
accrual periods) accrued on the Outstanding Securities as of the end of such
year and (ii) such other specific information relating to such original issue
discount as may then be relevant under the Internal Revenue Code of 1986, as
amended from time to time.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article.
------------------------
Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 301 for Securities of any
series) in accordance with this Article.
SECTION 1102. Election to Redeem; Notice to Trustee.
-------------------------------------
The election of the Company to redeem any Securities of any series
shall be evidenced by an Officer's Certificate. In case of any redemption at
the election of the Company of less than all the Securities of any series, the
Company shall, at least 60 days prior to the Redemption Date fixed by the
Company (unless a shorter notice shall be reasonably satisfactory to the
Trustee for the Securities of such series), notify such Trustee of such
Redemption Date and of the principal amount of Securities of such series to be
redeemed, such notice to be accompanied by a written statement signed by an
authorized officer of the Company stating that no defaults in the payment of
interest or Events of Default with respect to the Securities of that series
have occurred (which have not been waived or cured). 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
71
elsewhere in this Indenture, the Company shall furnish the Trustee for the
Securities of such series with an Officer's Certificate evidencing compliance
with such restriction.
SECTION 1103. Selection by Trustee of Securities to Be Redeemed.
-------------------------------------------------
If less than all the Securities of any series are to be redeemed,
the particular Securities of that series to be redeemed shall be selected not
more than 60 days prior to the Redemption Date by the Trustee for the
Securities of such series, from the Outstanding Securities of such series not
previously called for redemption, by such method as such Trustee shall deem
fair and appropriate and which may provide for the selection for redemption of
portions (equal to the minimum authorized denomination for Securities of that
series or any integral multiple thereof) of the principal amount of Securities
of such series of a denomination larger than the minimum authorized
denomination for Securities of that series.
Securities shall be excluded from eligibility for selection for
redemption if they are identified by registration and certificate number in a
written statement signed by an authorized officer of the Company and delivered
to the Trustee for the Securities of such series at least 60 days prior to the
Redemption Date as being owned of record and beneficially by, and not pledged
or hypothecated by either (a) the Company or (in the case of Guaranteed
Securities) the Guarantor or (b) an entity specifically identified in such
written statement which is an Affiliate of the Company or (in the case of
Guaranteed Securities) the Guarantor.
The Trustee for the Securities of such series shall promptly notify
the Company and (in the case of Guaranteed Securities) the Guarantor in
writing of the Securities selected for redemption and, in the case of any
Securities selected for partial redemption, the principal amount thereof to be
redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall
relate, in the case of any Securities redeemed or to be redeemed only in part,
to the portion of the principal amount of such Securities which has been or is
to be redeemed.
SECTION 1104. Notice of Redemption.
--------------------
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption
Date, to each Holder of Securities to be redeemed, at his or her 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;
72
(4) that on the Redemption Date the Redemption Price will
become due and payable upon each such Security to be redeemed and,
if applicable, that interest thereon will cease to accrue on and
after said date;
(5) the place or places where such Securities are to be
surrendered for payment of the Redemption Price; and
(6) that the redemption is for a sinking fund, if such is the
case.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee for such Securities in the name and at the expense of the Company.
SECTION 1105. Deposit of Redemption Price.
---------------------------
At least one Business Day prior to any Redemption Date, the Company
or (in the case of Guaranteed Securities) the Guarantor shall deposit with the
Trustee for the Securities to be redeemed or with a Paying agent (or, if the
Company or (in the case of Guaranteed Securities) the Guarantor is acting as
its own Paying Agent, segregate and hold in trust as provided in Section 1003)
an amount of money sufficient to pay the Redemption Price of, and (except if
the Redemption Date shall be an Interest Payment Date) accrued interest on,
all the Securities which are to be redeemed on that date (to the extent that
such amounts are not already on deposit at such time in accordance with the
provisions of Section 401, 403 or 1006).
SECTION 1106. Securities Payable on Redemption Date.
-------------------------------------
Notice of redemption having been given as aforesaid, the Securities
so to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued and
unpaid 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 and unpaid 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 Record Dates according to their terms and the provisions of
Section 307.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Security.
SECTION 1107. Securities Redeemed in Part.
---------------------------
Any Security which is to be redeemed only in part shall be
surrendered at a Place of Payment therefor (with, if the Company or the
Trustee for such Security so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company and such Trustee
duly executed by, the Holder thereof or his or her attorney duly authorized in
writing), and the Company shall execute, and such Trustee shall authenticate
and deliver to the Holder of
73
such Security without service charge, a new Security or Securities of the same
series, and, in the case of Guaranteed Securities, having endorsed thereon the
Guarantee executed by the Guarantor, of any authorized denomination as
requested by such Holder, in aggregate principal amount equal to and in
exchange for the unredeemed portion of the principal of the Security so
surrendered.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article.
------------------------
The provisions of this Article shall be applicable to any sinking
fund for the retirement of Securities of a series except as otherwise
specified as contemplated by Section 301 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory
sinking fund payment," and any payment in excess of such minimum amount
provided for by the terms of Securities of any series is herein referred to as
an "optional sinking fund payment." If provided for by the terms of Securities
of any series, the cash amount of any sinking fund payment may be subject to
reduction as provided in Section 1202. Each sinking fund payment shall be
applied to the redemption of Securities of any series as provided for by the
terms of Securities of such series.
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities.
-----------------------------------------------------
In lieu of making all or any part of any mandatory sinking fund
payment with respect to any series of Securities in cash, the Company may at
its option (a) deliver to the Trustee for such Securities, Securities of such
series theretofore purchased or otherwise acquired (except upon redemption
pursuant to the mandatory sinking fund) by the Company or receive credit for
Securities of such series (not previously so credited) theretofore purchased
or otherwise acquired (except as aforesaid) by the Company and delivered to
such Trustee for cancellation pursuant to Section 309, (b) receive credit for
optional sinking fund payments (not previously so credited) made pursuant to
this Section, or (c) receive credit for Securities of such series (not
previously so credited) redeemed by the Company through any optional
redemption provision contained in the terms of such series. Securities so
delivered or credited shall be received or credited by such Trustee at the
sinking fund redemption price specified in such Securities.
SECTION 1203. Redemption of Securities for Sinking Fund.
-----------------------------------------
Not less than 60 days prior to each sinking fund payment date for
any series of Securities, the Company will deliver to the Trustee for the
Securities of such series an Officer's Certificate (which need not contain the
statements required by Section 102) stating that no defaults in the payment of
interest, if any, with respect to Securities of that series and no Events of
Default with respect to Securities of that series have occurred (which in
either case have not been waived or cured) and (a) specifying the amount of
the next ensuing sinking fund payment for that series pursuant to the terms of
that series, (b) whether or not the Company intends to exercise its right, if
any, to make an optional sinking fund payment with respect to such series on
the next ensuing sinking fund payment date and, if so, the amount of such
optional sinking fund payment, and
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(c) 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 such Trustee any Securities to be so delivered. Such written
statement shall be irrevocable and upon its receipt by such Trustee the
Company shall become unconditionally obligated to make all the cash payments
or payments therein referred to, if any, on or before the next succeeding
sinking fund payment date. Failure of the Company, on or before any such 60th
day, to deliver such written statement and Securities specified in this
paragraph, if any, shall not constitute a default but shall constitute, on and
as of such date, the irrevocable election of the Company (i) that the
mandatory sinking fund payment for such series due on the next succeeding
sinking fund payment date shall be paid entirely in cash without the option to
deliver or credit Securities of such series in respect therefor and (ii) that
the Company will make no optional sinking fund payment with respect to such
series as provided in this Section.
Not less than 30 days before each such sinking fund payment date the
Trustee for any series of Securities shall select the Securities of such
series 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
1105, 1106 and 1107.
The Trustee for any series of Securities shall not redeem or cause
to be redeemed any Security of such series with sinking fund moneys or mail
any notice of redemption of Securities of such series by operation of the
sinking fund during the continuance of a default in payment of interest with
respect to Securities of that series or an Event of Default with respect to
the Securities of that series except that, where the mailing of notice of
redemption of any Securities shall theretofore have been made, such Trustee
shall redeem or cause to be redeemed such Securities, provided that it shall
have received from the Company a sum sufficient for such redemption. Except as
aforesaid, any moneys in the sinking fund for such series at the time when any
such default or Event of Default, shall occur, and any moneys thereafter paid
into the sinking fund, shall, during the continuance of such default or Event
of Default, be deemed to have been collected under Article Five and held for
the payment of all such Securities. In case such Event of Default shall have
been waived as provided in Section 513 or the default or Event of Default
cured on or before the 60th day preceding the sinking fund payment date, such
moneys shall thereafter be applied on the next succeeding sinking fund payment
date in accordance with this Section to the redemption of such Securities.
ARTICLE THIRTEEN
GUARANTEE OF GUARANTEED SECURITIES
SECTION 1301. Guarantee.
---------
(a) Subject to the provisions of this Article Thirteen and for good
and valuable consideration, the receipt of which is hereby acknowledged,
the Guarantor hereby fully and unconditionally guarantees to each Holder
of a Guaranteed Security of each series authenticated and delivered by the
Trustee for such Guaranteed Securities hereunder and to such Trustee on
behalf of each such Holder, the due and punctual payment of principal
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of, premium, if any, and interest on the Guaranteed Securities when and
as the same shall become due and payable, whether at the Stated Maturity,
by declaration of acceleration, call for redemption or otherwise,
according to the terms thereof and of this Indenture. In case of the
failure of the Company promptly to make any such payment of principal,
premium, if any, or interest, the Guarantor hereby agrees to make any
such payment to be made promptly when and as the same shall become due
and payable, whether at the Stated Maturity or by declaration of
acceleration, call for redemption or otherwise, and as if such payment
were made by the Company.
(b) The Guarantor hereby agrees that its obligations hereunder shall
be as if it were principal debtor and not merely surety, and shall be
absolute and unconditional, joint and several, irrespective of, and shall
be unaffected by any failure to enforce the provisions of such Guaranteed
Security or this Indenture, or any waiver, modification or indulgence
granted to the Company with respect thereto, by the Holder of such
Guaranteed Security or the Trustee for the Securities of such series or
any other circumstance which may otherwise constitute a legal or
equitable discharge of a surety or guarantor; provided, however,
that, notwithstanding the foregoing, no such waiver, modification or
indulgence shall, without the consent of the Guarantor, increase
the principal amount of such Guaranteed Security, or increase the
interest rate thereon, or increase any premium payable upon redemption
thereof, or alter the Stated Maturity thereof, or increase the principal
amount of any Original Issue Discount Security that would be due and
payable upon a declaration of acceleration or the maturity thereof
pursuant to Article Five of this Indenture. The Guarantor hereby waives
diligence, presentment, demand of payment, filing of claims with a court
in the event of merger or bankruptcy of the Company, any right to require
a proceeding first against the Company, protest or notice with respect to
such Guaranteed Security or the indebtedness evidenced thereby or with
respect to any sinking fund or analogous payment required under such
Guaranteed Security and all demands whatsoever, and covenants that this
Guarantee will not be discharged except by payment in full of the
principal of, premium, if any, and interest on such Guaranteed Security
or as otherwise set forth in this Indenture.
(c) The Guarantor shall be subrogated to all rights of the Holder of
such Guaranteed Security and the Trustee for the Securities of such
series against the Company in respect of any amounts paid to such Holder
by the Guarantor pursuant to the provisions of this Guarantee; provided,
however, that the Guarantor shall not be entitled to enforce or to
receive any payments arising out of or based upon such right of
subrogation until the principal of, premium, if any, and interest on all
Securities of the same series issued under the Indenture shall have been
paid in full.
SECTION 1302. Execution and Delivery of Guarantees.
------------------------------------
The Guarantees to be endorsed on the Guaranteed Securities of each
series shall include the terms of the guarantees set forth in Section 1301 and
any other terms that may be set forth in the form established pursuant to
Section 206 with respect to such series. The Guarantor hereby agrees to
execute the Guarantees, in a form established pursuant to Section 206, to be
endorsed on each Guaranteed Security authenticated and delivered by the
Trustee for the Securities of such series.
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The Guarantees shall be executed in accordance with Section 303. The
delivery of any Guaranteed Security by the Trustee for the Securities of such
series, after the authentication thereof hereunder, shall constitute due
delivery of the Guarantee endorsed thereon on behalf of the Guarantor. The
Guarantor hereby agrees that its Guarantee set forth in Section 1301 shall
remain in full force and effect notwithstanding any failure to endorse a
Guarantee on any Guaranteed Security.
SECTION 1303. Notice to Trustee.
-----------------
The Guarantor shall give prompt written notice to the Trustee for
the Securities of such series of any fact known to the Guarantor which
prohibits the making of any payment to or by such Trustee in respect of the
Guarantee pursuant to the provisions of this Article Thirteen other than any
agreement in effect on the date hereof.
SECTION 1304. This Article Not to Prevent Events of Default.
---------------------------------------------
The failure to make a payment on account of principal of, premium,
if any, or interest on the Guaranteed Securities by reason of any provision of
this Article will not be construed as preventing the occurrence of an Event of
Default.
SECTION 1305. Amendment, Etc.
---------------
No amendment, modification or waiver of any provision of this
Indenture relating to the Guarantor or consent to any departure by the
Guarantor or any other person from any such provision will in any event be
effective unless it is signed by the Guarantor and the Trustee for the
Securities of such series.
SECTION 1306. Limitation on Liability.
-----------------------
The obligations of the Guarantor hereunder will be limited to the
maximum amount, as will not result in the obligations of the Guarantor under
the Guarantee constituting a fraudulent conveyance or fraudulent transfer,
after giving effect to all other relevant liabilities of the Guarantor.
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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.
[Seal] INGERSOLL-RAND COMPANY LIMITED,
as the Company
By:_______________________________
Title:
Attest:
Title:
[Seal] INGERSOLL-RAND COMPANY, as the
Guarantor
By:_______________________________
Title:
Attest:
By:_______________________________
Title:
Attest:
[Seal] WELLS FARGO BANK MINNESOTA, N.A., as
Trustee
By:_______________________________
Title:
Attest:
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the ___ day of _________, 2002 before me personally came
__________________, to me known, who, being by me duly sworn, did depose and
say that he is ____________________ of Ingersoll-Rand Company Limited, one of
the corporations described in and which executed the foregoing instrument;
that he knows the seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by authority of the
Board of Directors of said corporation and that he signed his or her name
thereto by like authority.
-------------------------------
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the ___ day of _________, 2002 before me personally came
__________________, to me known, who, being by me duly sworn, did depose and
say that he is __________________ of Ingersoll-Rand Company, one of the
corporations described in and which executed the foregoing instrument; that he
knows the seal of said corporation; that the seal affixed to said instrument
is such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation and that he signed his or her name thereto by
like authority.
-------------------------------
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the ___ day of __________, 2002 before me personally came
_________________, to me known, who, being by me duly sworn, did depose and
say that he is _________________ of Wells Fargo Bank Minnesota, N.A., one of
the corporations described in and which executed the foregoing instrument;
that he knows the seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by authority of the
Board of Directors of said corporation, and that he signed his or her name
thereto by like authority.
-------------------------------