INDENTURE, dated as of , 1997, between INGERSOLL-
RAND COMPANY, a corporation duly organized and existing under the laws of
the State of New Jersey (herein called the "Company"), having its
principal office at 200 Chestnut Ridge Road, Woodcliff Lake, New Jersey
07675, and ____________________, a corporation duly organized and existing
under the laws of the State of New York, 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 senior subordinated debentures, notes or other evidences of
indebtedness (herein called the "Securities"), to be issued in one or more
series as in this Indenture provided.
All things necessary to make this Indenture a valid agreement
of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Securities by the Holders thereof, it is mutually covenanted and
agreed, for the equal and proportionate benefit of all Holders of the
Securities or of series thereof, as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 1.1 Definitions.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well
as the singular;
(2) all other terms used herein which are defined in the
Trust Indenture Act, either directly or by reference therein,
have the meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein
have the meanings assigned to them in accordance with generally
accepted accounting principles, and, 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 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 1.4.
"Affiliate" of any specified person means any other person
directly or indirectly controlling or controlled by or under direct
or indirect common control with such specified person. For the
purposes of this definition, "control" when used with respect to any
specified person means the power to direct the management and
policies of such person, directly or indirectly, whether through the
ownership of voting securities, by contract or otherwise; and the
terms "controlling" and "controlled" have meanings correlative to
the foregoing.
"Authenticating Agent" means any person authorized to
authenticate and deliver Securities on behalf of the Trustee
pursuant to Section 6.14.
"Board of Directors" means either the Board of Directors of the
Company 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 to have been
duly adopted by the Board of Directors and to be in full force and
effect on the date of such certification, and delivered to the
Trustee.
"Business Day", when used with respect to any Place of Payment,
means each 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 duties
now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"Company" means the person named as the "Company" in the first
paragraph of this instrument until a successor corporation shall
have become such pursuant to the applicable provisions of this
Indenture, and thereafter "Company" shall mean such successor
corporation.
"Company Request" or "Company Order" means a written request or
order signed in the name of the Company by its Chairman of the
Board, its President or a Vice President, and by its Treasurer, an
Assistant Treasurer, its Secretary or an Assistant Secretary, and
delivered to the Trustee.
"Corporate Trust Office" means the principal office of the
Trustee in the Borough of Manhattan, City and State of New York, at
which at any particular time its corporate trust business shall be
administered, which at the date of this Indenture is ,
New York, New York , Attention: Corporate Trust
Administration.
"Defaulted Interest" has the meaning specified in Section 3.7.
"Designated Senior Indebtedness", in respect of a particular
series of Securities, shall have the meaning set forth in the
supplemental indenture, Board Resolution or Officers' Certificate
pursuant to Section 3.1 establishing such series of Securities.
"Discharged" has the meaning specified in Section 4.2.
"Event of Default" has the meaning specified in Section 5.1.
"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 3.1.
"interest", when used with respect to an Original Issue
Discount Security which by its terms bears interest only after
Maturity, means interest payable after Maturity.
"Interest Payment Date", when used with respect to any
Security, means the Stated Maturity of an instalment of interest on
such Security.
"Maturity", when used with respect to any Security, means the
date on which the principal of such Security or an instalment of
principal becomes due and payable as therein or herein provided,
whether at the Stated Maturity or by declaration of acceleration,
call for redemption or otherwise.
"Officers' Certificate" means a certificate signed by the
chairman of the board of directors, the vice chairman of the board
of directors, the president or a vice President, and by the
treasurer, an assistant treasurer, the secretary or an assistant
secretary, of the Company, and delivered to the Trustee. Each such
certificate shall include the statements provided for in Section 1.2
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 may be
other counsel satisfactory to the Trustee. Each such opinion shall
include the statements provided for in Section 1.2 if and to the
extent required by this Indenture.
"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 5.2.
"Outstanding", when used with respect to Securities, means, as
of the date of determination, all Securities theretofore
authenticated and delivered under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment or
redemption money in the necessary amount has been theretofore
deposited with the Trustee or any Paying Agent (other than the
Company) in trust or set aside and segregated in trust by the
Company (if the Company shall act as its own Paying Agent) for
the Holders of such Securities; provided that, if such
Securities are to be redeemed, notice of such redemption has
been duly given pursuant to this Indenture or provision
therefor satisfactory to the Trustee has been made; and
(iii) Securities which have been paid pursuant to Section
3.6 or in exchange for or in lieu of which other Securities
have been authenticated and delivered pursuant to this
Indenture, other than any such Securities in respect of which
there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona fide
purchaser in whose hands such Securities are valid obligations
of the Company;
provided, however, that in determining whether the Holders of the
requisite principal amount of the Outstanding Securities have given
any request, demand, authorization, direction, notice, consent or
waiver hereunder, (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 5.2, and (b) Securities owned by the Company or any other
obliger upon the Securities or any Affiliate of the Company or of
such other obliger shall be disregarded and deemed not to be
Outstanding, except that in determining whether the Trustee shall be
protected in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Securities which the
Trustee knows to be so owned shall be so disregarded. Securities so
owned as described in (b) above which have been pledged in good
faith may be regarded as Outstanding if the pledge establishes to
the satisfaction of the Trustee the pledgee's right so to act with
respect to such Securities and that the pledgee is not the Company
or any other obligor upon the Securities or any Affiliate of the
Company or of such other obligor.
"Paying Agent" means any person authorized by the Company to
pay the principal of (and premium, if any) or interest, if any, on
any Securities on behalf of the Company.
"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
3.1.
"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 3.6 in exchange for or in lieu of a mutilated, destroyed,
lost or stolen Security shall be deemed to evidence the same debt as
the mutilated, destroyed, lost or stolen Security.
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to
this Indenture.
"Redemption Price", when used with respect to any Security to
be redeemed, means the price at which it is to be redeemed pursuant
to this Indenture, 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 3.1.
"Responsible Officer", when used with respect to the Trustee,
means the chairman or any vice chairman of the board of directors,
the chairman or any vice chairman of the executive committee of the
board of directors, the chairman of the trust committee, the
president, any vice president, the secretary, any assistant
secretary, the treasurer, any assistant treasurer, the cashier, any
assistant cashier, any trust officer or assistant trust officer, the
controller or any assistant controller or any other officer of the
Trustee customarily performing functions similar to those performed
by any of the above designated officers and also means, with respect
to a particular corporate trust matter, any other officer to whom
such matter is referred because of his knowledge of and familiarity
with the particular subject.
"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 3.5.
"Senior Indebtedness" has the meaning specified in Section
13.1.
"Senior Representative", in respect of a particular series of
Securities, shall have the meaning set forth in the supplemental
indenture, Board Resolution or Officers' Certificate pursuant to
Section 3.1 establishing such series of Securities.
"Special Record Date" for the payment of any Defaulted Interest
means a date fixed by the Trustee pursuant to Section 3.7.
"Stated Maturity", when used with respect to any Security or
any instalment of principal thereof or interest thereon, means the
date specified in such Security as the fixed date on which the
principal of such Security or such instalment of principal or
interest is due and payable.
"Subsidiary" means 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.
"Trustee" means the person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have
become such pursuant to the applicable provisions of this Indenture,
and thereafter "Trustee" shall mean or include each person who is
then a Trustee hereunder, and if at any time there is more than one
such person, "Trustee" as used with respect to the Securities of any
series shall mean the Trustee with respect to Securities of that
series.
"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 9.5.
"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 or the
Trustee, means any vice president, whether or not designated by a
number or a word or words added before or after the title "vice
president".
SECTION 1.2 Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee
to take any action under any provision of this Indenture, the Company
shall furnish to the Trustee an Officers' Certificate stating that all
conditions precedent, if any, provided for in this Indenture relating to
the proposed action have been complied with and an Opinion of Counsel
stating that in the opinion of such counsel all such conditions precedent,
if any, have been complied with, except that in the case of any such
application or request as to which the furnishing of such documents is
specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion
need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(1) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions
herein relating thereto;
(2) a brief statement as to the nature and scope of the exam-
ination or investigation upon which the statements or opinions con-
tained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual,
he has made such examination or investigation as is necessary to
enable him to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 1.3 Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified person, it is not necessary
that all such matters be certified by, or covered by the opinion of, only
one such person, or that they be so certified or covered by only one
document, but one such person may certify or give an opinion with respect
to some matters and one or more other such persons as to other matters,
and any such person may certify or give an opinion as to such matters in
one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or
opinion of, or representations by, counsel, unless such officer knows, or
in the exercise of reasonable care should know, that the certificate or
opinion or representations with respect to the matters upon which his
certificate or opinion is based are erroneous. Any such certificate or
Opinion of Counsel may be based, insofar as it relates to factual matters,
upon a certificate or opinion of, or representations by, an officer or
officers of the Company stating that the information with respect to such
factual matters is in the possession of the Company, unless such counsel
knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to such matters are
erroneous.
Where any person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions
or other instruments under this Indenture, they may, but need not, be
consolidated and form one instrument.
SECTION 1.4 Acts of Holders.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or
taken by Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in
person or by agent duly appointed in writing; and, except as herein
otherwise expressly provided, such action shall become effective when such
instrument or instruments are delivered to the Trustee and, where it is
hereby expressly required, to the Company. Such instrument or instruments
(and the action embodied therein and evidenced thereby) are herein
sometimes referred to as the "Act" of the Holders signing such instrument
or instruments. Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 6.1) conclusive in favor of the Trustee
and the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any person of any
such instrument or writing may be proved by the affidavit of a witness of
such execution or by a certificate of a notary public or other officer
authorized by law to take acknowledgments of deeds, certifying that the
individual signing such instrument or writing acknowledged to him the
execution thereof. Where such execution is by a signer acting in a
capacity other than his individual capacity, such certificate or affidavit
shall also constitute sufficient proof of his authority. The fact and
date of the execution of any such instrument or writing, or the authority
of the person executing the same, may also be proved in any other manner
which the Trustee deems sufficient.
(c) The ownership of Securities shall be proved by the
Security Register.
(d) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind
every future Holder of the same Security and the Holder of every Security
issued upon the registration of transfer thereof or in exchange therefor
or in lieu thereof in respect of anything done, omitted or suffered to be
done by the Trustee or the Company in reliance thereon, whether or not
notation of such action is made upon such Security.
SECTION 1.5 Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent,
waiver or Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust
Office, or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein ex-
pressly provided) if in writing and sent by registered or certified
mail, prepaid, to the Company addressed to it at the address of its
principal office specified in the first paragraph of this instrument
or at any other address previously furnished in writing to the
Trustee by the Company.
SECTION 1.6 Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any
event, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid,
to each Holder affected by such event, at his address as it appears in the
Security Register, not later than the latest date, and not earlier than
the earliest date, prescribed for the giving of such notice. In any case
where notice to Holders is given by mail, neither the failure to mail such
notice, nor any defect in any notice so mailed, to any particular Holder
shall affect the sufficiency of such notice with respect to other Holders.
Where this Indenture provides for notice in any manner, such notice may be
waived in writing by the person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any
action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or
by reason of any other cause it shall be impracticable to give such notice
by mail, then such notification as shall be made with the approval of the
Trustee shall constitute a sufficient notification for every purpose
hereunder.
SECTION 1.7 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 1.8 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 1.9 Successors and Assigns.
All covenants and agreements in this Indenture by the Company
shall bind its successors and assigns, whether so expressed or not.
SECTION 1.10 Separability Clause.
In case any provision in this Indenture or in the Securities
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
SECTION 1.11 Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or
implied, shall give to any person, other than the parties hereto and their
successors hereunder, the holders of Senior Indebtedness, and the Holders,
any benefit or any legal or equitable right, remedy or claim under this
Indenture.
SECTION 1.12 Governing Law.
This Indenture and the Securities shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 1.13 Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or
Stated Maturity of any Security shall not be a Business Day at any Place
of Payment, then (notwithstanding any other provision of this Indenture or
of the Securities) payment of interest, if any, or principal (and premium,
if any) need not be made at such Place of Payment on such date, but may be
made on the next succeeding Business Day at such Place of Payment with the
same force and effect as if made on the Interest Payment Date or
Redemption Date, or at the Stated Maturity, provided that no interest
shall accrue for the period from and after such Interest Payment Date,
Redemption Date or Stated Maturity, as the case may be.
SECTION 1.14 Incorporators, Stockholders, Officers and
Directors of the Company 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 for any claim based
thereon or otherwise in respect thereof, and no recourse under or upon any
obligation, covenant or agreement of the Company in this Indenture or in
any supplemental indenture, or in any Security, or because of the creation
of any indebtedness represented thereby, shall be had against any
incorporator, stockholder, officer or director, as such, past, present or
future, of the Company or of any successor corporation, either directly or
through the Company or any successor corporation, whether by virtue of any
constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise; it being expressly understood that all
such liability is hereby waived and released as a condition of and as a
consideration for, the execution of this Indenture and the issue of the
Securities.
SECTION 1.15 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 1.16 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 in
New York, New York on the date of initial issuance of such series of
Securities.
ARTICLE II
SECURITY FORMS
SECTION 2.1 Forms Generally.
The Securities of each series shall be in substantially the
form set forth in this Article, or in such other form as shall be
established by or pursuant to a Board Resolution or in one or more
indentures supplemental hereto, in each case with such appropriate
insertions, omissions, substitutions and other variations as are required
or permitted by this Indenture, and may have such letters, numbers or
other marks of identification and such legends or endorsements placed
thereon as may be required to comply with the rules of any securities
exchange or as may, consistently herewith, be determined by the officers
executing such Securities, as evidenced by their execution of the
Securities.
The Trustee's certificates of authentication shall be in
substantially the form set forth in this Article.
The definitive Securities shall be printed, lithographed or
engraved on steel engraved borders or may be produced in any other manner,
all as determined by the officers executing such Securities, as evidenced
by their execution of such Securities.
SECTION 2.2 Form of Face of Security.
[If the Security is an Original Issue Discount Security, insert
-- FOR PURPOSES OF SECTIONS 1273 AND 1275 OF THE INTERNAL REVENUE CODE,
THE AMOUNT OF ORIGINAL ISSUE DISCOUNT ON THIS SECURITY IS ____________% OF
ITS PRINCIPAL AMOUNT, THE ISSUE DATE IS ______________, 19__, [AND] THE
YIELD TO MATURITY IS ____% [, THE METHOD USED TO DETERMINE THE YIELD FOR
THE SHORT ACCRUAL PERIOD OF ________ , 19__ TO ________, 19__, IS _______
AND THE AMOUNT OF ORIGINAL ISSUE DISCOUNT APPLICABLE TO THE SHORT ACCRUAL
PERIOD IS _______% OF THE PRINCIPAL AMOUNT OF THIS SECURITY]. [THIS
SECURITY WAS ISSUED WITHOUT A SHORT ACCRUAL PERIOD.]
INGERSOLL-RAND COMPANY
[Title of the Security]
No. $__________
INGERSOLL-RAND COMPANY, a corporation duly organized and
existing under the laws of the State of New Jersey (herein called the
"Company", which term includes any successor corporation under the
Indenture hereinafter referred to), for value received, hereby promises to
pay to ____________________
_____________________________, or registered assigns, the principal sum of
_________________________ Dollars on __________ [If the Security is to
bear interest prior to Maturity, insert --, and to pay interest thereon
from ____________, or from the most recent Interest Payment Date to which
interest has been paid or duly provided for, semiannually on
________________ and ______________ in each year, commencing ___________,
at the rate per annum provided in the title hereof, 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 on any overdue principal and premium and (to the
extent that the payment of such interest shall be legally enforceable) on
any overdue instalment of interest]. The interest so payable, and
punctually paid or duly provided for, on any Interest Payment Date will,
as provided in such Indenture, be paid to the person in whose name this
Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest, which
shall be the __________ or _________ (whether or not a Business Day), as
the case may be, next preceding such Interest Payment Date. Any such
interest not so punctually paid or duly provided for will forthwith cease
to be payable to the Holder on such Regular Record Date and may either be
paid to the person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on a Special Record
Date for the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to Holders of Securities of this
series not less than 10 days prior to such Special Record Date, or be paid
at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Securities of this
series may be listed, and upon such notice as may be required by such
exchange, all as more fully provided in said Indenture].
[If the Security is not to bear interest prior to Maturity, insert -- The
principal of this Security shall not bear interest except in the case of a
default in payment of principal upon acceleration, upon redemption or at
Stated Maturity and in such case the overdue principal of this Security
shall bear interest at the rate of [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.
The indebtedness evidenced by this Security is, to the extent
provided in the Indenture, subordinate and subject in right of payments to
the prior payment in full of all Senior Indebtedness, and this Security is
issued subject to the provisions of the Indenture with respect thereto.
Each Holder of this Security, by accepting the same, (a) agrees to and
shall be bound by such provisions, (b) authorizes and directs the Trustee
on his behalf to take such actions as may be necessary or appropriate to
effectuate the subordination so provided and (c) appoints the Trustee his
attorney-in-fact for any and all such purposes. Each Holder hereof, by his
acceptance hereof, waives all notice of the acceptance of the
subordination provisions contained herein and in the Indenture by each
holder of Senior Indebtedness, whether now outstanding or hereafter
incurred, and waives reliance by each such holder upon said provisions.
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
By
---------------------------
By
---------------------------
SECTION 2.3 Form of Reverse of Security.
INGERSOLL-RAND COMPANY
[Title of the Security]
This Security is one of a duly authorized issue of securities
of the Company (herein called the "Securities"), issued and to be issued
in one or more series under an Indenture, dated as of , 1997
(herein called the "Indenture"), between the Company and The Bank of New
York, as Trustee (herein called the "Trustee", which term includes any
successor trustee under the Indenture), to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement
of the respective rights, limitations of rights, duties and immunities
thereunder of the Company, the Trustee and the Holders of the Securities
and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Security is one of the series
designated on the face hereof, limited in aggregate principal amount to
_____________________.
[If applicable, insert -- The Securities of this series are
subject to redemption upon not less than 30 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 ___________, 19__], as a whole
or in part, at the election of the Company, at the following Redemption
Prices (expressed as percentages of the principal amount):
If redeemed [on or before _______________, __%, and if
redeemed] during the 12-month period beginning ________________,
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:
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 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 the rights of the Holders of the Securities
of each series to be affected under the Indenture at any time by the
Company and the Trustee with the consent of the Holders of not less than a
majority in aggregate 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 with certain provisions of the Indenture
and certain past defaults under the Indenture and their consequences. Any
such consent or waiver by the Holder of this Security shall be conclusive
and binding upon such Holder and upon all future Holders of this Security
and of any Security issued upon the registration of transfer hereof or in
exchange herefor or in lieu hereof, whether or not notation of such
consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of (and
premium, if any) and interest, if any, on this Security at the times,
place and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in the
Security Register, upon surrender of this Security for registration of
transfer at the office or agency of the Company in any place where the
principal of (and premium, if any) and interest, if any, on this Security
are payable, duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Company and the Security Registrar
duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Securities of this series, of
authorized denominations and for the same aggregate principal amount, will
be issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered
form without coupons in denominations of _______ and any integral multiple
thereof. As provided in the Indenture and subject to certain limitations
therein set forth, Securities of this series are exchangeable for a like
aggregate principal amount of Securities of this series of a different
authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge payable in
connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the
Trustee may treat the person in whose name this Security is registered as
the owner hereof for all purposes, whether or not this Security be
overdue, and neither the Company, the Trustee nor any such agent shall be
affected by notice to the contrary.
No recourse for the payment of the principal of (and premium,
if any) or interest, if any, on this Security, or for any claim based
hereon or otherwise in respect hereof, and no recourse under or upon any
obligation, covenant or agreement of the Company in the Indenture or any
indenture supplemental thereto or in any Security, or because of the
creation of any indebtedness represented thereby, shall be had against any
incorporator, stockholder, officer or director, as such, past, present or
future, of the Company or of any successor corporation, either directly or
through the Company or any successor corporation, whether by virtue of any
constitution, statute or rule of law or by the enforcement of any
assessment or penalty or otherwise, 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 2.4 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.
,
----------------------
as Trustee
By
-----------------------
Authorized Signature
ARTICLE III
THE SECURITIES
SECTION 3.1 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. The
Securities shall be subordinated in right of payment to Senior
Indebtedness as set forth in Article XIII. There shall be established in
or pursuant to a Board Resolution, and set forth in an Officers'
Certificate, or established in one or more indentures supplemental hereto,
prior to the issuance of Securities of any series:
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from all other Securities);
(2) any limit upon the aggregate principal amount of the Secu-
rities of the series which may be authenticated and delivered under
this Indenture (except for Securities authenticated and delivered
upon registration of transfer of, or in exchange for, or in lieu of,
other Securities of the series pursuant to Sections 3.4, 3.5, 3.6,
9.6, or 11.7);
(3) the date or dates on which the principal of the Securities
of the series is payable;
(4) the rate or rates at which the Securities of the series
shall bear interest, if any, the date or dates from which such
interest shall accrue, the Interest Payment Dates on which such
interest shall be payable and the Regular Record Date for the
interest payable on any Interest Payment Date;
(5) the place or places where the principal of (and premium,
if any) and interest, if any, on Securities of the series shall be
payable 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 the
series may be redeemed, in whole or in part, at the option of the
Company;
(7) the obligation, if any, of the Company to redeem or
purchase Securities of the series pursuant to any sinking fund or
analogous provisions or at the option of a Holder thereof, and the
period or periods within which, the price or prices at which and the
terms and conditions upon which Securities of the series shall be
redeemed or purchased, in whole or in part, pursuant to such
obligation;
(8) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which Securities of the
series shall be issuable;
(9) if other than the principal amount thereof, the portion of
the principal amount of Securities of the series which shall be
payable upon declaration of acceleration of the Maturity thereof
pursuant to Section 5.2;
(10) if other than such coin or currency of the United States
of America as at the time of payment is legal tender for payment of
public or private debts, the coin or currency, including composite
currencies such as the European Currency Unit, in which payment of
the principal of (and premium, if any) and interest, if any, on the
Securities of the series shall be payable;
(11) if the principal of (and premium, if any) or interest, if
any, on the Securities of the series are to be payable, at the
election of the Company 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 the 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, covenants of the Company or subordination with
respect to such series of Securities;
(14) whether the Securities of the series will be convertible
into shares of Common Stock 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; and
(15) any other terms of the series and any deletions from or
modifications or additions to the Indenture in respect of such
Securities.
All Securities of any one series shall be substantially
identical except as to denomination and except as may otherwise be
provided in or pursuant to such Board Resolution and set forth in such
Officers' Certificate or in any such indenture supplemental hereto.
If any of the terms of a series, including the form of Security
of such series, are established by action taken pursuant to a Board
Resolution, a copy of an appropriate record of such action shall be
certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Company Order
contemplated by Section 3.3 for the authentication and delivery of such
series of Securities.
SECTION 3.2 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 3.1. 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 3.3 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, its 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 bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall
bind the Company, notwithstanding that such individuals or any of them
have ceased to hold such offices prior to the authentication and delivery
of such Securities or did not hold such offices at the date of such
Securities.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities of any
series executed by the Company to the Trustee for authentication, together
with a Company Order for the authentication and delivery of such
Securities, and the Trustee in accordance with the Company Order shall
authenticate and deliver such Securities. If the form or terms of the
Securities of the series have been established in or pursuant to one or
more Board Resolutions as permitted by Sections 2.1 and 3.1, in
authenticating Securities, and accepting the additional responsibilities
under this Indenture in relation to such Securities, the Trustee shall be
entitled to receive, and (subject to Section 6.1) shall be fully protected
in relying upon, an Opinion of Counsel stating,
(a) if the form of such Securities has been established by or
pursuant to Board Resolution as permitted by Section 2.1, that such
form has been established in conformity with the provisions of this
Indenture;
(b) if the terms of such Securities have been established by
or pursuant to Board Resolution as permitted by Section 3.1, that
such terms have been established in conformity with the provisions
of this Indenture; and
(c) that such Securities, when authenticated and delivered by
the Trustee and issued by the Company in the manner and subject to
any conditions specified in such Opinion of Counsel, will constitute
valid and legally binding obligations of the Company, enforceable in
accordance with their terms, subject to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to
or affecting the enforcement of creditors' rights and to general
equity principles.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the Trustee, being advised by
counsel, determines that the issue of such Securities pursuant to this
Indenture will affect the Trustee's own rights, duties or immunities under
the Securities and this Indenture or otherwise in a manner which is not
reasonably acceptable to the Trustee.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears
on such Security a certificate of authentication substantially in the form
provided for herein executed by the Trustee by manual signature, and such
certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered
hereunder and is entitled to the benefits of this Indenture.
SECTION 3.4 Temporary Securities.
Pending the preparation of definitive Securities of any series,
the Company may execute, and upon Company Order the Trustee shall
authenticate and deliver, temporary Securities which are printed, litho-
graphed, typewritten, mimeographed or otherwise produced, in any author-
ized denomination, substantially of the tenor of the definitive Securities
in lieu of which they are issued and with such appropriate insertions,
omissions, substitutions and other variations as the officers executing
such Securities may determine, as evidenced by their execution of such
Securities.
If temporary Securities of any series are issued, the Company
will cause definitive Securities of that series to be prepared without
unreasonable delay. After the preparation of definitive Securities of
such series, the temporary Securities of such series shall be exchangeable
for definitive Securities of such series upon surrender of the temporary
Securities of such series at the office or agency of the Company in a
Place of Payment for that series, without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Securities of any
series the Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a like principal amount of definitive
Securities of the same series of authorized denominations. Until so
exchanged the temporary Securities of any series shall in all respects be
entitled to the same benefits under this Indenture as definitive
Securities of such series.
SECTION 3.5 Registration, Registration of Transfer and
Exchange.
The Company shall cause to be kept at the Corporate Trust
Office of the Trustee a register (the register maintained in such office
and in any other office or agency of the Company in a Place of Payment
being herein sometimes collectively referred to as the "Security
Register") in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of Securities
and of transfers of Securities. The Trustee is hereby appointed "Security
Registrar" for the purpose of registering Securities and transfers of
Securities as herein provided.
Upon surrender for registration of transfer of any Security of
any series at the office or agency in a Place of Payment for that series,
the Company shall execute, and the Trustee shall authenticate and deliver,
in the name of the designated transferee or transferees, one or more new
Securities of the same series, of any authorized denominations and of a
like aggregate principal amount.
At the option of the Holder, Securities of any series may be
exchanged for other Securities of the same series, of any authorized
denominations and of a like aggregate principal amount, upon surrender of
the Securities to be exchanged at such office or agency. Whenever any
Securities are so surrendered for exchange, the Company shall execute, and
the Trustee shall authenticate and deliver, the Securities which the
Holder making the exchange is entitled to receive.
All securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Securities surrendered upon such registration of
transfer or exchange.
Every Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the
Trustee) be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Company and the Security Registrar
duly executed, by the Holder thereof or his attorney duly authorized in
writing.
No service charge shall be made for any registration of
transfer or exchange of Securities, but the Company may require payment of
a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration of transfer or exchange of
Securities, other than exchanges pursuant to Sections 3.4, 9.6 or 11.7 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 11.3 and ending at the close of business on the day of such
mailing, or (ii) to register the transfer of or exchange any Security so
selected for redemption in whole or in part, except the unredeemed portion
of any Security being redeemed in part.
SECTION 3.6 Mutilated, Destroyed, Lost and Stolen
Securities.
If any mutilated Security is surrendered to the Trustee, the
Company shall execute and the Trustee shall authenticate and deliver in
exchange therefor a new Security of the same series and of like tenor and
principal amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any
Security and (ii) such security or indemnity as may be required by them to
save each of them and any agent of either of them harmless, then, in the
absence of notice to the Company or the Trustee that such Security has
been acquired by a bona fide purchaser, the Company shall execute and upon
its request the Trustee shall authenticate and deliver, in lieu of any
such destroyed, lost or stolen Security, a new Security of the same series
and of like tenor and principal amount and bearing a number not
contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security
has become or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and any
other expenses (including the fees and expenses of the Trustee) connected
therewith.
Every new Security of any series issued pursuant to this
Section in lieu of any destroyed, lost or stolen Security shall constitute
an original additional contractual obligation of the Company, whether or
not the destroyed, lost or stolen Security shall be at any time
enforceable by anyone, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Securities of
that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 3.7 Payment of Interest; Interest Rights Preserved.
Interest on any Security which is payable, and is punctually
paid or duly provided for, on any Interest Payment Date shall be paid to
the person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record
Date for such interest.
Any interest on any Security of any series which is payable,
but is not punctually paid or duly provided for, on any Interest Payment
Date (herein called "Defaulted Interest") shall forthwith cease to be
payable to the Holder on the relevant Regular Record Date by virtue of
having been such Holder, and such Defaulted Interest may be paid by the
Company, at its election in each case, as provided in Clause (1) or (2)
below:
(1) The Company may elect to make payment of any Defaulted
Interest to the persons in whose names the Securities of such series
(or their respective Predecessor Securities) are registered at the
close of business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following manner.
The Company shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each Security of such
series and the date of the proposed payment, and at the same time
the Company shall deposit with the Trustee an amount of money equal
to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the
Trustee for such deposit prior to the date of the proposed payment,
such money when deposited to be held in trust for the benefit of the
persons entitled to such Defaulted Interest as in this Clause
provided. Thereupon the Trustee shall fix a Special Record Date for
the payment of such Defaulted Interest which shall be not more than
15 days and not less than 10 days prior to the date of the proposed
payment and not less than 10 days after the receipt by the Trustee
of the notice of the proposed payment. The Trustee shall promptly
notify the Company of such Special Record Date and, in the name and
at the expense of the Company, shall cause notice of the proposed
payment of such Defaulted Interest and the Special Record Date
therefor to be mailed, first-class postage prepaid, to each Holder
of Securities of such series at his address as it appears in the
Security Register, not less than 10 days prior to such Special
Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been so mailed,
such Defaulted Interest shall be paid to the persons in whose names
the Securities of such series (or their respective Predecessor
Securities) are registered at the close of business on such Special
Record Date and shall no longer be payable pursuant to the following
Clause (2).
(2) The Company may make payment of any Defaulted Interest on
the Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on
which such Securities may be listed, and upon such notice as may be
required by such exchange, if, after notice given by the Company to
the Trustee of the proposed payment pursuant to this Clause, such
manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each
Security delivered under this Indenture upon registration of transfer of
or in exchange for or in lieu of any other Security shall carry the rights
to interest accrued and unpaid, and to accrue, which were carried by such
other Security.
SECTION 3.8 Persons Deemed Owners.
Prior to due presentment of a Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the
Trustee may treat the person in whose name such Security is registered as
the owner of such Security for the purpose of receiving payment of
principal of (and premium, if any) and (subject to Section 3.7) interest,
if any, on such Security and for all other purposes whatsoever, whether or
not such Security be overdue, and neither the Company, the Trustee nor any
agent of the Company or the Trustee shall be affected by notice to the
contrary.
SECTION 3.9 Cancellation.
All Securities surrendered for payment, redemption,
registration of transfer or exchange or for credit against any sinking
fund payment shall, if surrendered to any person other than the Trustee,
be delivered to the Trustee and shall be promptly cancelled by it. The
Company may at any time deliver to the Trustee for cancellation any
Securities previously authenticated and delivered hereunder which the
Company may have acquired in any manner whatsoever, and all Securities so
delivered shall be promptly cancelled by the Trustee. No Securities shall
be authenticated in lieu of or in exchange for any Securities cancelled as
provided in this Section, except as expressly permitted by this Indenture.
All cancelled Securities held by the Trustee shall be disposed of as
directed by a Company Order.
SECTION 3.10 Computation of Interest.
Except as otherwise specified as contemplated by Section 3.1
for Securities of any series, interest, if any, on the Securities of each
series shall be computed on the basis of a year of twelve 30-day months.
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.1 Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of
further effect (except as to any surviving rights of registration of
transfer or exchange of Securities herein expressly provided for), and the
Trustee, at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and
delivered (other than (i) Securities which have been destroyed,
lost or stolen and which have been replaced or paid as provided
in Section 3.6 and (ii) Securities for whose payment money has
theretofore been deposited in trust or segregated and held in
trust by the Company and thereafter repaid to the Company or
discharged from such trust, as provided in Section 10.3) have
been delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the
Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the
giving of notice of redemption by the Trustee in the name,
and at the expense, of the Company, or
(iv) are deemed paid and discharged pursuant to
Section 4.3, as applicable,
and the Company, in the case of (i), (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee as trust
funds in trust for the purpose an amount 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 the Trustee for
cancellation, for principal (and premium, if any) and interest,
if any, to the date of such deposit (in the case of Securities
which have become due and payable) or to the Stated Maturity or
Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other
sums payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture have been complied
with.
Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company to the Trustee under Section
6.7, the obligations of the Trustee to any Authenticating Agent under
Section 6.14 and, if money or U.S. Government Obligations shall have been
deposited with the Trustee pursuant to subclause (B) of Clause (I) of this
Section or if money or U.S. Government Obligations shall have been
deposited with or received by the Trustee pursuant to Section 4.3, the
provisions of Section 4.4, the obligations of the Trustee under Section
4.2 and the last paragraph of Section 10.3 shall survive.
SECTION 4.2 Application of Trust Money.
(a) Subject to the provisions of the last paragraph of Section
10.3, all money or U.S. Government Obligations deposited with the
Trustee pursuant to Section 4.1, 4.3 or 10.6 and all money received
by the Trustee in respect of U.S. Government Obligations deposited
with the Trustee pursuant to Section 4.1, 4.3 or 10.6, shall be held
in trust and applied by it, in accordance with the provisions of the
Securities and this Indenture, to the payment, either directly or
through any Paying Agent (including the Company acting as its own
Paying Agent) as the Trustee may determine, to the persons entitled
thereto, of the principal (and premium, if any) and interest, if
any, for whose payment such money has been deposited with or
received by the Trustee or to make mandatory sinking fund payments
or analogous payments as contemplated by Section 4.1, 4.3 or 10.6.
(b) The Company shall pay and shall indemnify the Trustee
against any tax, fee or other charge imposed on or assessed against
U.S. Government Obligations deposited pursuant to Section 4.1, 4.3
or 10.6 or the interest and principal received in respect of such
obligations other than any payable by or on behalf of Holders.
(c) The Trustee shall deliver or pay to the Company from time
to time upon Company Request any U.S. Government Obligations or
money held by it as provided in Section 4.1, 4.3 or 10.6 which, in
the opinion of a nationally recognized firm of independent certified
public accountants expressed in a written certification thereof
delivered to the 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 the
Trustee of any U.S. Government Obligations held under this
Indenture.
SECTION 4.3 Satisfaction, Discharge and Defeasance of
Securities of any Series.
The Company shall be deemed to have paid and discharged the
entire indebtedness on all the Outstanding Securities of any series on the
91st day after the date of the deposit referred to in subparagraph (f)
hereof, and the provisions of this Indenture, as it relates to such
Outstanding Securities of such series, shall no longer be in effect (and
the Trustee, at the expense of the Company, shall at Company Request
execute proper instruments acknowledging the same), except as to:
(a) the rights of Holders of Securities of such series to
receive, from the trust funds described in subparagraph (f) hereof,
(i) payment of the principal of (and premium, if any) and each
instalment 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 instalment of principal or interest or
to and including the Redemption Date irrevocably designated by the
Company pursuant to subparagraph (i) 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;
(b) the Company's obligations with respect to such Securities
of such series under Sections 3.5, 3.6, and 10.2 and, if the Company
shall have irrevocably designated a Redemption Date pursuant to
subparagraph (i) hereof, Sections 11.1, 11.4 and 11.6 as they apply
to such Redemption Date;
(c) the Company's obligations with respect to the Trustee
under Section 6.7;
(d) the rights, powers, trust and immunities of the Trustee
hereunder and the duties of the Trustee under Section 4.2 and, if
the Company shall have irrevocably designated a Redemption Date
pursuant to subparagraph (i) hereof, Article Eleven and the duty of
the Trustee to authenticate Securities of such series on
registration of transfer or exchange; and
(e) the provisions of Section 4.4;
provided that, the following conditions shall have been satisfied:
(f) the Company has deposited or caused to be irrevocably
deposited (except as provided in Section 4.2(c) and the last
paragraph of Section 10.3) with the 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 (f) 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 the Trustee, to pay and discharge (x) the principal of (and
premium, if any) and each instalment 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 instalment of
principal or interest or to and including the Redemption Date
irrevocably designated by the Company pursuant to subparagraph (i)
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 this Indenture and of
the Securities of such series;
(g) the Company has delivered to the Trustee an Opinion of
Counsel to the effect that the taking of the actions referred to in
subparagraph (f) hereof would not cause any Outstanding Securities
of such series then listed on any national securities exchange to be
delisted as a result thereof;
(h) 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;
(i) the Company has delivered to the Trustee an Opinion of
Counsel to the effect that the Company 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
(j) if the Company 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 delivered to the 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 the Trustee give notice of such redemption in the name
and at the expense of the Company not less than 30 nor more than 60
days prior to such Redemption Date in accordance with Section 11.4.
SECTION 4.4 Effect on Subordination Provisions.
Unless otherwise expressly provided pursuant to Section 3.1
with respect to the Securities of any series, the provisions for
subordination of the Securities set forth in Article XIII hereof are
hereby expressly made subject to the provisions for satisfaction and
discharge set forth in Section 4.1 hereof and the provisions for
defeasance and covenant defeasance set forth in Section 10.6 hereof and,
anything herein to the contrary notwithstanding, upon the effectiveness of
such satisfaction and discharge pursuant to Section 4.1 or any such
defeasance or covenant defeasance pursuant to Section 10.6 with respect to
the Securities of any series, such Securities shall thereupon cease to be
so subordinated and such Securities (and the monies and/or U.S. Government
Obligations deposited in respect thereof) shall no longer be subject to
the provisions of Article XIII hereof and, without limitation to the
foregoing, all moneys, U.S. Government Obligations and other securities or
property deposited with the Trustee (or other qualifying trustee) in trust
in connection with such satisfaction and discharge, defeasance or covenant
defeasance, as the case may be, and all proceeds therefrom may be applied
to pay the principal of, premium, if any, and interest, if any, on, the
Securities of such series as and when the same shall become due and
payable notwithstanding the provisions of Article XIII.
ARTICLE V
REMEDIES
SECTION 5.1 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 instalment,
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 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 by the Trustee or to
the Company and the Trustee by the Holders of at least 25% in
principal amount of the Outstanding Securities of that series a
written notice specifying such default 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 in an
involuntary case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or (B) a
decree or order adjudging the Company a bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of the
Company under any applicable Federal or State law, or appointing a
custodian, receiver, liquidator, assignee, trustee, sequestrator or
other similar official of the Company or of any substantial part of
its property, or ordering the winding up or liquidation of its
affairs, and the continuance of any such decree or order for relief
or any such other decree or order unstayed and in effect for a
period of 90 consecutive days; or
(6) the commencement by the Company of a voluntary case or
proceeding under any applicable Federal or State bankruptcy, in-
solvency, reorganization or other similar law or of any other case
or proceeding to be adjudicated a bankrupt or insolvent, or the
consent by it to the entry of a decree or order for relief in
respect of the Company in an involuntary case or proceeding under
any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or to the commencement of any
bankruptcy or insolvency case or proceeding against it, or the
filing by it of a petition or answer or consent seeking
reorganization or relief under any applicable Federal or State law,
or the consent by it to the filing of such petition or to the
appointment of or taking possession by a custodian, receiver,
liquidator, assignee, trustee, sequestrator or similar official of
the Company or of any substantial part of its property, or the
making by it of an assignment for the benefit of creditors, or the
admission by it in writing of its inability to pay its debts
generally as they become due, or the taking of corporate action by
the Company in furtherance of any such action; or
(7) any other Event of Default provided in the supplemental
indenture or provided in or pursuant to Board Resolution under which
such series of Securities is issued or in the form of Security for
such series.
SECTION 5.2 Acceleration of Maturity; Rescission and
Annulment.
If an Event of Default with respect to Securities of any series
at the time Outstanding occurs and is continuing, then in every such case
the Trustee or the Holders of not less than 25% in 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 the Trustee if given by Holders), and upon any such
declaration such principal amount (or specified amount) shall become
immediately due and payable.
At any time after such a declaration of acceleration with
respect to Securities of any series has been made and before a judgment or
decree for payment of the money due has been obtained by the Trustee as
hereinafter in this Article provided, the Holders of a majority in
principal amount of the Outstanding Securities of that series, by written
notice to the Company and the Trustee, may rescind and annul such
declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest, 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 the Trustee hereunder
and the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel;
and
(2) all Events of Default with respect to Securities of that
series, other than the non-payment of the principal of 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 5.13.
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 and all other amounts owing
thereunder, shall constitute payment in full of such Original Issue
Discount Securities.
SECTION 5.3 Collection of Indebtedness and Suits for
Enforcement by Trustee.
The Company covenants that if
(1) default is made in the payment of any interest on any
Security when such interest becomes due and payable and such default
continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit
of the Holders of such Securities, the whole amount then due and payable
on such Securities for principal (and premium, if any) and interest, if
any, and, to the extent that payment of such interest shall be legally
enforceable, interest on any overdue principal (and premium, if any) and
on any overdue interest, at the rate or rates prescribed therefor in such
Securities, and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express mist,
may institute a judicial proceeding for the collection of the sums so due
and unpaid, may prosecute such proceeding to judgment or final decree and
may enforce the same against the Company or any other obligor upon such
Securities and collect the moneys adjudged or decreed to be payable in the
manner provided by law out of the property of the Company or any other
obligor upon such Securities, wherever situated.
If an Event of Default with respect to Securities of any series
occurs and is continuing, the Trustee may in its discretion proceed to
protect and enforce its rights and the rights of the Holders of Securities
of such series by such appropriate judicial proceedings as the Trustee
shall deem most effectual to protect and enforce any such rights, whether
for the specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein, or to
enforce any other proper remedy.
SECTION 5.4 Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment,
composition or other judicial proceeding relative to the Company or any
other obligor upon the Securities or the property of the Company or of
such other obligor or their creditors, the Trustee (irrespective of
whether the principal of the Securities shall then be due and payable as
therein expressed or by declaration or otherwise and irrespective of
whether the Trustee shall have made any demand on the Company for the
payment of overdue principal or interest) shall be entitled and empowered,
by intervention in such proceeding or otherwise,
(i) to file and prove a claim for the whole amount of
principal (and premium, if any) and interest owing and unpaid in
respect of the Securities and to file such other papers or documents
as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and
counsel) and of the Holders allowed in such judicial proceeding, and
(ii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the
same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator
or other similar official in any such judicial proceeding is hereby
authorized by each Holder to make such payments to the Trustee and, in the
event that the Trustee shall consent to the making of such payments
directly to the Holders, to pay to the Trustee any amount due it for the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee
under Section 6.7.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any
Holder any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or the rights of any Holder thereof or to
authorize the Trustee to vote in respect of the claim of any Holder in any
such proceeding.
SECTION 5.5 Trustee May Enforce Claims Without Possession of
Securities.
All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without the
possession of any of the Securities or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the
Trustee shall be brought in its own name as trustee of an express trust,
and any recovery of judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, be for the ratable benefit of the Holders
of the Securities in respect of which such judgment has been recovered.
SECTION 5.6 Application of Money Collected.
Any money collected by the Trustee pursuant to this Article
shall be applied in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such money on account of
principal (or premium, if any) or interest, upon presentation of the
Securities and the notation thereon of the payment if only partially paid
and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 6.7;
SECOND: To the payment of amounts then due and unpaid to the
holders of Senior Indebtedness, to the extent required by Article
XIII;
THIRD: 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 the 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;
FOURTH: 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 the 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 instalment of
interest over any other instalment 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
FIFTH: To the payment of the remainder, if any, to the Company
or any other person lawfully entitled thereto.
SECTION 5.7 Limitation on Suits.
No Holder of any Security of any series shall have any right to
institute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless
(1) such Holder has previously given written notice to
the Trustee of a continuing Event of Default with respect to
the Securities of that series;
(2) the Holders of not less than 25% in principal amount
of the Outstanding Securities of that series shall have made
written request to the Trustee to institute proceedings in
respect of such Event of Default in its own name as Trustee
hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and
liabilities to be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute
any such proceeding; and
(5) no direction inconsistent with such written request
has been given to the Trustee during such 60-day period by the
Holders of a majority in principal amount of the Outstanding
Securities of that series;
it being understood and intended that no one or more of 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 5.8 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 3.7) 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 5.9 Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has
been discontinued or abandoned for any reason, or has been determined
adversely to the Trustee or to such Holder, then and in every such case,
subject to any determination in such proceeding, the Company, the Trustee
and the Holders shall be restored severally and respectively to their
former positions hereunder and thereafter all rights and remedies of the
Trustee and the Holders shall continue as though no such proceeding had
been instituted.
SECTION 5.10 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 3.6, no right or remedy herein conferred upon or
reserved to the Trustee or to the Holders is intended to be exclusive of
any other right or remedy, and every right and remedy shall, to the extent
permitted by law, be cumulative and in addition to every other right and
remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder,
or otherwise, shall not prevent the concurrent assertion or employment of
any other appropriate right or remedy.
SECTION 5.11 Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any
Securities to exercise any right or remedy accruing upon any Event of
Default shall impair any such right or remedy or constitute a waiver of
any such Event of Default or an acquiescence therein. Every right and
remedy given by this Article or by law to the Trustee or to the Holders
may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders, as the case may be.
SECTION 5.12 Control by Holders.
The Holders of a majority in principal amount of the
Outstanding Securities of any series shall have the right to direct the
time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred on
the Trustee, with respect to the Securities of such series, provided that
(1) such direction shall not be in conflict with any rule of
law or with this Indenture, and
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
SECTION 5.13 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 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 5.14 Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any
Security by his acceptance thereof shall be deemed to have agreed, that
any court may in its discretion require, in any suit for the enforcement
of any right or remedy under this Indenture, or in any suit against the
Trustee for any action taken 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, to any suit
instituted by any Holder, or group of Holders, holding in the aggregate
more than 10% in principal amount of the Outstanding Securities of any
series, or to any suit instituted by any Holder for the enforcement of the
payment of the principal of (or premium, if any) or interest, if any, on
any Security on or after the Stated Maturity or Maturities expressed in
such Security (or, in the case of redemption, on or after the Redemption
Date).
ARTICLE VI
THE TRUSTEE
SECTION 6.1 Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties and
only such duties as are specifically set forth in this
Indenture, and no implied covenants or obligations shall be
read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee
may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture; but in the
case of any such certificates or opinions which by any
provision hereof are specifically required to be furnished to
the Trustee, the Trustee shall be under a duty to examine the
same to determine whether or not they conform to the
requirements of this Indenture.
(b) In case an Event of Default has occurred and is
continuing, the Trustee shall exercise such of the rights and powers
vested in it by this Indenture, and use the same degree of care and
skill in their exercise, as a prudent man would exercise or use
under the circumstances in the conduct of his own affairs.
(c) No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own negligent action, its
own negligent failure to act, or its own wilful misconduct, except
that
(1) this Subsection shall not be construed to limit the
effect of Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless it
shall be proved that the Trustee was negligent in ascertaining
the pertinent facts;
(3) the Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of a majority in
principal amount of the Outstanding Securities of any series,
determined as provided in Section 5.12, relating to the time,
method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power
conferred upon the Trustee, under this Indenture with respect
to the Securities of such series; and
(4) no provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers,
if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk
or liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting the
liability of or affording protection to the Trustee shall be subject
to the provisions of this Section.
SECTION 6.2 Notice of Defaults.
Within 90 days after the occurrence of any default hereunder
with respect to the Securities of any series, the Trustee shall transmit
by mail to all Holders of Securities of such series, as their names and
addresses appear in the Security Register, notice of such default
hereunder known to the Trustee, unless such default shall have been cured
or waived; provided, however, that, except in the case of a default in the
payment of the principal of (or premium, if any) or interest, if any, on
any Security of such series or in the payment of any sinking fund
instalment with respect to Securities of such series, the Trustee shall be
protected in withholding such notice if and so long as the board of
directors, the executive committee or a trust committee of directors or
Responsible Officers of the Trustee in good faith determine that the
withholding of such notice is in the interest of the Holders of Securities
of such series; and provided, further, that in the case of any default of
the character specified in Section 5.1(4) with respect to Securities of
such series, no such notice to Holders shall be given until at least 30
days after the occurrence thereof. For the purpose of this Section, the
term "default" means any event which is, or after notice or lapse of time
or both would become, an Event of Default with respect to Securities of
such series.
SECTION 6.3 Certain Rights of Trustee.
Subject to the provisions of Section 6.1:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or
other paper or document believed by it to be genuine and to have
been signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company
Order and any resolution of the Board of Directors may be
sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or
established prior to taking, suffering or omitting any action
hereunder, the Trustee (unless other evidence be herein specifically
prescribed) may, in the absence of bad faith on its part, rely upon
an Officers' Certificate;
(d) the Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken
or omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the
request or direction of any of the Holders pursuant to this
Indenture, unless such Holders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such
request or direction;
(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Trustee, in its
discretion, may make such further inquiry or investigation into such
facts or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it shall be
entitled upon so reasonable request to examine the books, records
and premises of the Company, personally or by agent or attorney; and
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or
attorney appointed with due care by it hereunder.
SECTION 6.4 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 neither the Trustee nor any Authenticating Agent
assumes any responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of
the Securities. Neither the Trustee nor any Authenticating Agent shall be
accountable for the use or application by the Company of Securities or the
proceeds thereof.
SECTION 6.5 May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any
Security Registrar or any other agent of the Company, in its individual or
any other capacity, may become the owner or pledgee of Securities and,
subject to Sections 6.8 and 6.13, may otherwise deal with the Company with
the same rights it would have if it were not Trustee, Authenticating
Agent, Paying Agent, Security Registrar or such other agent.
SECTION 6.6 Money Held in Trust.
Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The
Trustee shall be under no liability for interest on any money received by
it hereunder except as otherwise agreed with the Company.
SECTION 6.7 Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder ( which
compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the
Trustee in accordance with any provision of this Indenture
(including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such
expense, disbursement or advance as may be attributable to its
negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without
negligence or bad faith on its part, arising out of or in
connection with the acceptance or administration of the trust
or trusts hereunder, including the costs and expenses of
defending itself against any claim or liability in connection
with the exercise or performance of any of its powers or duties
hereunder.
SECTION 6.8 Disqualification; Conflicting Interests.
(a) If the Trustee has or shall acquire any conflicting
interest, as defined in this Section, with respect to the Securities
of any series, it shall, within 90 days after ascertaining that it
has such conflicting interest, either eliminate such conflicting
interest or resign with respect to the Securities of that series in
the manner and with the effect hereinafter specified in this
Article.
(b) In the event that the Trustee shall fail to comply with
the provisions of subsection (a) of this Section with respect to the
Securities of any series, the Trustee shall, within 10 days after
the expiration of such 90 day period, transmit by mail to all
Holders of Securities of that series, as their names and addresses
appear in the Security Register, notice of such failure.
(c) For the purposes of this Section, the Trustee shall be
deemed to have a conflicting interest with respect to the Securities
of any series if
(1) the Trustee is trustee under this Indenture with
respect to the Outstanding Securities of any series other than
that series or is trustee under another indenture under which
any other securities, or certificates of interest or
participation in any other securities, of the Company are
outstanding, unless such other indenture is a collateral trust
indenture under which the only collateral consists of
Securities issued under this Indenture, provided that there
shall be excluded from the operation of this paragraph this
Indenture with respect to the Securities of any series other
than that series, and in addition, any other indenture or
indentures under which other securities, or certificates of
interest or participation in other securities, of the Company
are outstanding, if
(i) this Indenture and such other indenture or indentures
are wholly unsecured and such other indenture or indentures are
hereafter qualified under the Trust Indenture Act, unless the
Commission shall have found and declared by order pursuant to
Section 305(b) or Section 307(c) of the Trust Indenture Act that
differences exist between the provisions of this Indenture with
respect to Securities of that series and one or more other series or
the provisions of such other indenture or indentures which are so
likely to involve a material conflict of interest as to make it
necessary in the public interest or for the protection of investors
to disqualify the Trustee from acting as such under this Indenture
with respect to the Securities of that series and such other series
or under such other indenture or indentures, or
(ii) the Company shall have sustained the burden of proving,
on application to the Commission and after opportunity for hearing
thereon, that trusteeship under this Indenture with respect to the
Securities of that series and such other series or such other
indenture or indentures is not so likely to involve a material
conflict of interest as to make it necessary in the public interest
or for the protection of investors to disqualify the Trustee from
acting as such under this Indenture with respect to the Securities
of that series and such other series or under such other indenture
or indentures;
(2) the Trustee or any of its directors or executive
officers is an obligor upon the Securities or an underwriter
for the Company;
(3) the Trustee directly or indirectly controls or is
directly or indirectly controlled by or is under direct or
indirect common control with the Company or an underwriter for
the Company;
(4) the Trustee or any of its directors or executive
officers is a director, officer, partner, employee, appointee
or representative of the Company, or of an underwriter (other
than the Trustee itself) for the Company who is currently
engaged in the business of underwriting, except that (i) one
individual may be a director or an executive officer, or both,
of the Trustee and a director or an executive officer, or both,
of the Company but may not be at the same time an executive
officer of both the Trustee and the Company; (ii) if and so
long as the number of directors of the Trustee in office is
more than nine, one additional individual may be a director or
an executive officer, or both, of the Trustee and a director of
the Company; and (iii) the Trustee may be designated by the
Company or by any underwriter for the Company to act in the
capacity of transfer agent, registrar, custodian, paying agent,
fiscal agent, escrow agent or depositary, or in any other
similar capacity, or, subject to the provisions of paragraph
(1) of this Subsection, to act as trustee, whether under an
indenture or otherwise;
(5) 10% or more of the voting securities of the Trustee
is beneficially owned either by the Company or by any director,
partner or executive officer thereof, or 20% or more of such
voting securities is beneficially owned, collectively, by any
two or more of such persons; or 10% or more of the voting
securities of the Trustee is beneficially owned either by an
underwriter for the Company or by any director, partner or
executive officer thereof, or is beneficially owned,
collectively, by any two or more such persons;
(6) the Trustee is the beneficial owner of, or holds as
collateral security for an obligation which is in default (as
hereinafter in this Subsection defined), (i) 5% or more of the
voting securities, or 10% or more of any other class of
security, of the Company, not including the Securities issued
under this Indenture and securities issued under any other
indenture under which the Trustee is also trustee, or (ii) 10%
or more of any class of security of an underwriter for the
Company;
(7) the Trustee is the beneficial owner of, or holds as
collateral security for an obligation which is in default (as
hereinafter in this Subsection defined), 5% or more of the
voting securities of any person who, to the knowledge of the
Trustee, owns 10% or more of the voting securities of, or
controls directly or indirectly or is under direct or indirect
common control with, the Company;
(8) the Trustee is the beneficial owner of, or holds as
collateral security for an obligation which is in default (as
hereinafter in this Subsection defined), 10% or more of any
class of security of any person who, to the knowledge of the
Trustee, owns 50% or more of the voting securities of the
Company; or
(9) the Trustee owns, on May 15 in any calendar year, in
the capacity of executor, administrator, testamentary or inter
vivos trustee, guardian, committee or conservator, or in any
other similar capacity, an aggregate of 25% or more of the
voting securities, or of any class of security, of any person,
the beneficial ownership of a specified percentage of which
would have constituted a conflicting interest under paragraph
(6), (7) or (8) of this Subsection. As to any such securities
of which the Trustee acquired ownership through becoming
executor, administrator or testamentary trustee of an estate
which included them, the provisions of the preceding sentence
shall not apply, for a period of two years from the date of
such acquisition, to the extent that such securities included
in such estate do not exceed 25% of such voting securities or
25% of any such class of security. Promptly after May 15 in
each calendar year, the Trustee shall make a check of its
holdings of such securities in any of the above-mentioned
capacities as of such May 15. If the Company fails to make
payment in full of the principal of (or premium, if any) or
interest, if any, on any of the Securities when and as the same
becomes due and payable, and such failure continues for 30 days
thereafter, the Trustee shall make a prompt check of its
holdings of such securities in any of the above-mentioned
capacities as of the date of the expiration of such 30-day
period, and after such date, notwithstanding the foregoing
provisions of this paragraph, all such securities so held by
the Trustee, with sole or joint control over such securities
vested in it, shall, but only so long as such failure shall
continue, be considered as though beneficially owned by the
Trustee for the purposes of paragraphs (6), (7) and (8) of this
Subsection.
The specification of percentages in paragraphs (5) to (9),
inclusive, of this Subsection shall not be construed as indicating that
the ownership of such percentages of the securities of a person is or is
not necessary or sufficient to constitute direct or indirect control for
the purposes of paragraph (3) or (7) of this Subsection.
For the purposes of paragraphs (6), (7), (8) and (9) of this
Subsection only, (i) the terms "security" and "securities" shall include
only such securities as are generally known as corporate securities, but
shall not include any note or other evidence of indebtedness issued to
evidence an obligation to repay moneys lent to a person by one or more
banks, trust companies or banking firms, or any certificate of interest or
participation in any such note or evidence of indebtedness; (ii) an
obligation shall be deemed to be "in default" when a default in payment of
principal shall have continued for 30 days or more and shall not have been
cured; and (iii) the Trustee shall not be deemed to be the owner or holder
of (A) any security which it holds as collateral security, as trustee or
otherwise, for an obligation which is not in default as defined in clause
(ii) above, or (B) any security which it holds as collateral security
under this Indenture, irrespective of any default hereunder, or (C) any
security which it holds as agent for collection, or as custodian, escrow
agent or depositary, or in any similar representative capacity.
(d) For the purposes of this Section:
(1) The term "underwriter", when used with reference to
the Company, means every person who, within three years prior
to the time as of which the determination is made, has
purchased from the Company with a view to, or has offered or
sold for the Company in connection with, the distribution of
any security of the Company outstanding at such time, or has
participated or has had a direct or indirect participation in
any such undertaking, or has participated or has had a
participation in the direct or indirect underwriting of any
such undertaking, but such term shall not include a person
whose interest was limited to a commission from an underwriter
or dealer not in excess of the usual and customary
distributors' or sellers' commission.
(2) The term "director" means any director of a
corporation or any individual performing similar functions with
respect to any organization, whether incorporated or
unincorporated.
(3) The term "person" means an individual, a corporation,
a partnership, an association, a joint-stock company, a trust,
an unincorporated organization or a government or political
subdivision thereof. As used in this paragraph, the term
"trust" shall include only a trust where the interest or
interests of the beneficiary or beneficiaries are evidenced by
a security.
(4) The term "voting security" means any security
presently entitling the owner or holder thereof to vote in the
direction or management of the affairs of a person, or any
security issued under or pursuant to any trust, agreement or
arrangement whereby a trustee or trustees or agent or agents
for the owner or holder of such security are presently entitled
to vote in the direction or management of the affairs of a
person.
(5) The term "Company" means any obligor on the
Securities.
(6) The term "executive officer" means the president,
every vice president, every trust officer, the cashier, the
secretary and the treasurer of a corporation, and any
individual customarily performing similar functions with
respect to any organization whether incorporated or
unincorporated, but shall not include the chairman of the board
of directors.
(e) The percentages of voting securities and other securities
specified in this Section shall be calculated in accordance with the
following provisions:
(1) A specified percentage of the voting securities of
the Trustee, the Company or any other person referred to in
this Section (each of whom is referred to as a "person" in this
paragraph) means such amount of the outstanding voting
securities of such person as entitles the holder or holders
thereof to cast such specified percentage of the aggregate
votes which the holders of all the outstanding voting
securities of such person are entitled to cast in the direction
or management of the affairs of such person.
(2) A specified percentage of a class of securities of a
person means such percentage of the aggregate amount of
securities of the class outstanding.
(3) The term "amount", when used in regard to securities,
means the principal amount if relating to evidences of
indebtedness, the number of shares if relating to capital
shares and the number of units if relating to any other kind of
security.
(4) The term "outstanding" means issued and not held by
or for the account of the issuer. The following securities
shall not be deemed outstanding within the meaning of this
definition:
(i) securities of an issuer held in a sinking fund
relating to securities of the issuer of the same class;
(ii) securities of an issuer held in a sinking fund
relating to another class of securities of the issuer, if
the obligation evidenced by such other class of securities
is not in default as to principal or interest or
otherwise;
(iii) securities pledged by the issuer thereof as
security for an obligation of the issuer not in default as
to principal or interest or otherwise; and
(iv) securities held in escrow if placed in escrow
by the issuer thereof;
provided, however, that any voting securities of an issuer shall be deemed
outstanding if any person other than the issuer is entitled to exercise
the voting rights thereof.
(5) A security shall be deemed to be of the same class as
another security if both securities confer upon the holder or
holders thereof substantially the same rights and privileges;
provided, however, that, in the case of secured evidences of
indebtedness, all of which are issued under a single indenture,
differences in the interest rates or maturity dates of various
series thereof shall not be deemed sufficient to constitute
such series different classes and provided, further, that, in
the case of unsecured evidences of indebtedness, differences in
the interest rates or maturity dates thereof shall not be
deemed sufficient to constitute them securities of different
classes, whether or not they are issued under a single
indenture.
SECTION 6.9 Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be
a corporation organized and doing business under the laws of the United
States of America, any State thereof or the District of Columbia,
authorized under such laws to exercise corporate trust powers, having a
combined capital and surplus of at least $50,000,000 subject to
supervision or examination by Federal or State authority and, if there be
such a corporation willing and able to act as trustee on reasonable and
customary terms, having its Corporate Trust Office in the Borough of
Manhattan, The City of New York. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of
said supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. If at any time the Trustee shall
cease to be eligible in accordance with the provisions of this Section, it
shall resign immediately in the manner and with the effect hereinafter
specified in this Article.
SECTION 6.10 Resignation and Removal; Appointment of
Successor.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall
become effective until the acceptance of appointment by the
successor Trustee in accordance with the applicable requirements of
Section 6.11.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to
the Company. If the instrument of acceptance by a successor Trustee
required by Section 6.11 shall not have been delivered to the
Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor Trustee
with respect to the Securities of such series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series,
delivered to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 6.8(a)
after written request therefor by the Company or by any Holder
who has been a bona fide Holder of a Security for at least six
months, or
(2) the Trustee shall cease to be eligible under Section
6.9 and shall fail to resign after written request therefor by
the Company or by any such Holder, or
(3) the Trustee shall become incapable of acting or shall
be adjudged a bankrupt or insolvent or a receiver of the
Trustee or of its property shall be appointed or any public
officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation,
conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove
the Trustee with respect to all Securities, or (ii) subject to Section
5.14, any Holder who has been a bona fide Holder of a Security for at
least six months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the removal of
the Trustee with respect to all Securities and the appointment of a
successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of
Trustee for any cause, with respect to the Securities of one or more
series, the Company, by a Board Resolution, shall promptly appoint a
successor Trustee or Trustees with respect to the Securities of that
or those series (it being understood that any such successor Trustee
may be appointed with respect to the Securities of one or more or
all of such series and that at any time there shall be only one
Trustee with respect to the Securities of any particular series) and
shall comply with the applicable requirements of Section 6.11. If,
within one year after such resignation, removal or incapability, or
the occurrence of such vacancy, a successor Trustee with respect to
the Securities of any series shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding
Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon
its acceptance of such appointment in accordance with the applicable
requirements of Section 6.11, become the successor Trustee with
respect to the Securities of such series and to that extent
supersede the successor Trustee appointed by the Company. If no
successor Trustee with respect to the Securities of any series shall
have been so appointed by the Company or the Holders and accepted
appointment in the manner required by Section 6.11, any Holder who
has been a bona fide Holder of a Security of such series for at
least six months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of
such series.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series
and each appointment of a successor Trustee with respect to the
Securities of any series by mailing written notice of such event by
first-class mail, postage prepaid, to all Holders of Securities of
such series as their names and addresses appear in the Security
Register. Each notice shall include the name of the successor
Trustee with respect to the Securities of such series and the
address of its Corporate Trust Office.
SECTION 6.11 Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor
Trustee with respect to all Securities, every such successor Trustee
so appointed shall execute, acknowledge and deliver to the Company
and to the retiring Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the
retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested
with all the rights, powers, trusts and duties of the retiring
Trustee; but, on the request of the Company or the successor
Trustee, such retiring Trustee shall, upon payment of its charges,
execute and deliver an instrument transferring to such successor
Trustee all the rights, powers and trusts of the retiring Trustee
and shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee
hereunder.
(b) In case of the appointment hereunder of a successor
Trustee with respect to the Securities of one or more (but not all)
series, the Company, the retiring Trustee and each successor Trustee
with respect to the Securities of one or more series shall execute
and deliver an indenture supplemental hereto wherein each successor
Trustee shall accept such appointment and which (1) shall contain
such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights,
powers, trusts and duties of the retiring Trustee with respect to
the Securities of that or those series to which the appointment of
such successor Trustee relates, (2) if the retiring Trustee is not
retiring with respect to all Securities, shall contain such
provisions as shall be deemed necessary or desirable to confirm that
all the rights, powers, trusts and duties of the retiring Trustee
with respect to the Securities of that or those series as to which
the retiring Trustee is not retiring shall continue to be vested in
the retiring Trustee, and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than
one Trustee, it being understood that nothing herein or in such
supplemental indenture shall constitute such Trustees co-trustees of
the same trust and that each such Trustee shall be trustee of a
trust or trusts hereunder separate and apart from any trust or
trusts hereunder administered by any other such Trustee; and upon
the execution and delivery of such supplemental indenture the
resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such successor
Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates;
but, on request of the Company or any successor trustee, such
retiring Trustee shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring
Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company
shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all such rights,
powers and trusts referred to in paragraph (a) or (b) of this
Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless
at the time of such acceptance such successor Trustee shall be
qualified and eligible under this Article.
SECTION 6.12 Merger, Conversion, Consolidation or Succession
to Business.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the
Trustee shall be a party, or any corporation succeeding to all or
substantially all the corporate trust business of the Trustee, shall be
the successor of the Trustee hereunder, provided such corporation shall be
otherwise qualified and eligible under this Article, without the execution
or filing of any paper or any further act on the part of any of the
parties hereto. In case any Securities shall have been authenticated, but
not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such
Securities.
SECTION 6.13 Preferential Collection of Claims Against
Company.
(a) Subject to Subsection (b) of this Section, if the Trustee
shall be or shall become a creditor, directly or indirectly, secured
or unsecured, of the Company within four months prior to a default,
as defined in Subsection (c) of this Section, or subsequent to such
a default, then, unless and until such default shall be cured, the
Trustee shall set apart and hold in a special account for the
benefit of the Trustee individually, the Holders of the Securities
and the holders of other indenture securities, as defined in
Subsection (c) of this Section:
(1) an amount equal to any and all reductions in the
amount due and owing upon any claim as such creditor in respect
of principal or interest, effected after the beginning of such
four months' period and valid as against the Company and its
other creditors, except any such reduction resulting from the
receipt or disposition of any property described in paragraph
(2) of this Subsection, or from the exercise of any right of
set-off which the Trustee could have exercised if a petition in
bankruptcy had been filed by or against the Company upon the
date of such default; and
(2) all property received by the Trustee in respect of
any claims as such creditor, either as security therefor, or in
satisfaction or composition thereof, or otherwise, after the
beginning of such four months' period, or an amount equal to
the proceeds of any such property, if disposed of, subject,
however, to the rights, if any, of the Company and its other
creditors in such property or such proceeds.
Nothing herein contained, however, shall affect the right of
the Trustee:
(A) to retain for its own account (i) payments made on
account of any such claim by any person (other than the
Company) who is liable thereon, and (ii) the proceeds of the
bona fide sale of any such claim by the Trustee to a third
person, and (iii) distributions made in cash, securities or
other property in respect of claims filed against the Company
in bankruptcy or receivership or in proceedings for reorgani-
zation pursuant to the Federal Bankruptcy Act or applicable
State law;
(B) to realize, for its own account, upon any property
held by it as security for any such claim, if such property was
so held prior to the beginning of such four months' period;
(C) to realize, for its own account, but only to the
extent of the claim hereinafter mentioned, upon any property
held by it as security for any such claim, if such claim was
created after the beginning of such four months' period and
such property was received as security therefor simultaneously
with the creation thereof, and if the Trustee shall sustain the
burden of proving that at the time such property was so
received the Trustee had no reasonable cause to believe that a
default, as defined in Subsection (c) of this Section, would
occur within four months; or
(D) to receive payment on any claim referred to in
paragraph (B) or (C), against the release of any property held
as security for such claim as provided in paragraph (B) or (C),
as the case may be, to the extent of the fair value of such
property.
For the purposes of paragraphs (B), (C) and (D), property
substituted after the beginning of such four months' period for property
held as security at the time of such substitution shall, to the extent of
the fair value of the property released, have the same status as the
property released, and, to the extent that any claim referred to in any of
such paragraphs is created in renewal of or in substitution for or for the
purpose of repaying or refunding any pre-existing claim of the Trustee as
such creditor, such claim shall have the same status as such pre-existing
claim.
If the Trustee shall be required to account, the funds and
property held in such special account and the proceeds thereof shall be
apportioned among the Trustee, the Holders and the holders of other
indenture securities in such manner that the Trustee, the Holders and the
holders of other indenture securities realize, as a result of payments
from such special account and payments of dividends on claims filed
against the Company in bankruptcy or receivership or in proceedings for
reorganization pursuant to the Federal Bankruptcy Act or applicable State
law, the same percentage of their respective claims, figured before
crediting to the claim of the Trustee anything on account of the receipt
by it from the Company of the funds and property in such special account
and before crediting to the respective claims of the Trustee and the
Holders and the holders of other indenture securities dividends on claims
filed against the Company in bankruptcy or receivership or in proceedings
for reorganization pursuant to the Federal Bankruptcy Act or applicable
State law, but after crediting thereon receipts on account of the
indebtedness represented by their respective claims from all sources other
than from such dividends and from the funds and property so held in such
special account. As used in this paragraph, with respect to any claim, the
term "dividends" shall include any distribution with respect to such
claim, in bankruptcy or receivership or proceedings for reorganization
pursuant to the Federal Bankruptcy Act or applicable State law, whether
such distribution is made in cash, securities or other property, but shall
not include any such distribution with respect to the secured portion, if
any, of such claim. The court in which such bankruptcy, receivership or
proceedings for reorganization is pending shall have jurisdiction (i) to
apportion among the Trustee, the Holders and the holders of other
indenture securities, in accordance with the provisions of this paragraph,
the funds and property held in such special account and proceeds thereof,
or (ii) in lieu of such apportionment, in whole or in part, to give to the
provisions of this paragraph due consideration in determining the fairness
of the distributions to be made to the Trustee and the Holders and the
holders of other indenture securities with respect to their respective
claims, in which event it shall not be necessary to liquidate or to
appraise the value of any securities or other property held in such
special account or as security for any such claim, or to make a specific
allocation of such distributions as between the secured and unsecured
portions of such claims, or otherwise to apply the provisions of this
paragraph as a mathematical formula.
Any Trustee which has resigned or been removed after the
beginning of such four months' period shall be subject to the provisions
of this Subsection as though such resignation or removal had not occurred.
If any Trustee has resigned or been removed prior to the beginning of such
four months' period, it shall be subject to the provisions of this
Subsection if and only if the following conditions exist:
(i) the receipt of property or reduction of claim, which
would have given rise to the obligation to account, if such Trustee
had continued as Trustee, occurred after the beginning of such four
months' period; and
(ii) such receipt of property or reduction of claim occurred
within four months after such resignation or removal.
(b) There shall be excluded from the operation of Subsection
(a) of this Section a creditor relationship arising from:
(1) the ownership or acquisition of securities issued
under any indenture, or any security or securities having a
maturity of one year or more at the time of acquisition by the
Trustee;
(2) advances authorized by a receiver or bankruptcy court
of competent jurisdiction or by this Indenture, for the purpose
of preserving any property which shall at any time be subject
to the lien of this Indenture or of discharging tax liens or
other prior liens or encumbrances thereon, if notice of such
advances and of the circumstances surrounding the making
thereof is given to the Holders at the time and in the manner
provided in this Indenture;
(3) disbursements made in the ordinary course of business
in the capacity of trustee under an indenture, transfer agent,
registrar, custodian, paying agent, fiscal agent or depositary,
or other similar capacity;
(4) an indebtedness created as a result of services
rendered or premises rented; or an indebtedness created as a
result of goods or securities sold in a cash transaction, as
defined in Subsection (c) of this Section;
(5) the ownership of stock or of other securities of a
corporation organized under the provisions of Section 25(a) of
the Federal Reserve Act, as amended, which is directly or
indirectly a creditor of the Company; and
(6) the acquisition, ownership, acceptance or negotiation
of any drafts, bills of exchange, acceptances or obligations
which fall within the classification of self-liquidating paper,
as defined in Subsection (c) of this Section.
(c) For the purposes of this Section only:
(1) the term "default" means any failure to make payment
in full of the principal of or interest on any of the
Securities or upon the other indenture securities when and as
such principal or interest becomes due and payable;
(2) the term "other indenture securities" means
securities upon which the Company is an obligor (as defined in
the Trust Indenture Act) outstanding under any other indenture
(i) under which the Trustee is also trustee, (ii) which
contains provisions substantially similar to the provisions of
this Section, and (iii) under which a default exists at the
time of the apportionment of the funds and property held in
such special account;
(3) the term "cash transaction" means any transaction in
which full payment for goods or securities sold is made within
seven days after delivery of the goods or securities in
currency or in checks or other orders drawn upon banks or
bankers and payable upon demand;
(4) the term "self-liquidating paper" means any draft,
bill of exchange, acceptance or obligation which is made,
drawn, negotiated or incurred by the Company for the purpose of
financing the purchase, processing, manufacturing, shipment,
storage or sale of goods, wares or merchandise and which is
secured by documents evidencing title to, possession of, or a
lien upon, the goods, wares or merchandise or the receivables
or proceeds arising from the sale of the goods, wares or
merchandise previously constituting the security, provided the
security is received by the Trustee simultaneously with the
creation of the creditor relationship with the Company arising
from the making, drawing, negotiating or incurring of the
draft, bill of exchange, acceptance or obligation;
(5) the term "Company" means any obligor upon the
Securities; and
(6) the term "Federal Bankruptcy Act" means the
Bankruptcy Act or Title 11 of the United States Code.
SECTION 6.14 Authenticating Agents.
From time to time the Trustee, in its sole discretion, may
appoint one or more Authenticating Agents with respect to one or more
series of Securities, which may include the Company or any Affiliate of
the Company, with power to act on the Trustee's behalf and subject to its
direction in the authentication and delivery of Securities of such series
or in connection with transfers and exchanges under Sections 3.4, 3.5,
3.6, and 11.7 as fully to all intents and purposes as though the
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 by an Authenticating Agent pursuant to this Section shall be
deemed to be authentication and delivery of such Securities "by the
Trustee". Each 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 or any Affiliate of the
Company, 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 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 the
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 may resign at any time by giving
written notice of resignation to the Trustee and to the Company. The
Trustee may at any time terminate the agency of any Authenticating Agent
by giving written notice of termination to such Authenticating Agent and
to the Company. Upon receiving such a notice of resignation or upon such a
termination, or in case at any time any Authenticating Agent shall cease
to be eligible under this Section, the Trustee may appoint a successor
Authenticating Agent which shall be acceptable to the Company and shall
mail notice of such appointment to all Holders of Securities of the 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 Agent. No successor Authenticating Agent shall be
appointed unless eligible under the provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent from
time to time reasonable compensation for its services, and the Trustee
shall be entitled to be reimbursed for such payments, subject to Section
6.7.
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.
,
--------------------------
as Trustee
By
------------------------
As Authenticating Agent
By
------------------------
Authorized Officer
The provisions of Sections 3.9, 6.4 and 6.5 shall be applicable
to any Authenticating Agent.
ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.1 Company to Furnish Trustee Names and Addresses
of Holders.
The Company will furnish or cause to be furnished to the
Trustee with respect to the Securities of each 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 the Trustee, a list,
in such form as the 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 the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request,
a list of similar form and content as of a date not more than 15
days prior to the time such list is furnished;
provided, however, that so long as the Trustee is Security Registrar for
any series of Securities, no such list shall be required to be furnished
with respect to any such series.
SECTION 7.2 Preservation of Information; Communications to
Holders.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders contained
in the most recent list furnished to the Trustee as provided in
Section 7.1 and the names and addresses of Holders received by the
Trustee in its capacity as Security Registrar. The Trustee may
destroy any list furnished to it as provided in Section 7.1 upon
receipt of a new list so furnished.
(b) If three or more Holders (herein referred to as
"applicants") apply in writing to the Trustee, and furnish to the
Trustee reasonable proof that each such applicant has owned a
Security for a period of at least six months preceding the date of
such application, and such application states that the applicants
desire to communicate with other Holders with respect to their
rights under this Indenture or under the Securities and is
accompanied by a copy of the form of proxy or other communication
which such applicants propose to transmit, then the Trustee shall,
within five business days after the receipt of such application, at
its election, either
(i) afford such applicants access to the information
preserved at the time by the Trustee in accordance with Section
7.2(a), or
(ii) inform such applicants as to the approximate number of
Holders whose names and addresses appear in the information pre-
served at the time by the Trustee in accordance with Section 7.2(a),
and as to the approximate cost of mailing to such Holders the form
of proxy or other communication, if any, specified in such
application.
If the Trustee shall elect not to afford such applicants access
to such information, the Trustee shall, upon the written request of such
applicants, mail to each Holder whose name and address appear in the
information preserved at the time by the Trustee in accordance with
Section 7.2(a) a copy of the form of proxy or other communication which is
specified in such request, with reasonable promptness after a tender to
the Trustee of the material to be mailed and of payment, or provision for
the payment, of the reasonable expenses of mailing, unless within five
days after such tender the Trustee shall mail to such applicants and file
with the Commission, together with a copy of the material to be mailed, a
written statement to the effect that, in the opinion of the Trustee, such
mailing would be contrary to the best interest of the Holders or would be
in violation of applicable law. Such written statement shall specify the
basis of such opinion. If the Commission, after opportunity for a hearing
upon the objections specified in the written statement so filed, shall
enter an order refusing to sustain any of such objections or if, after the
entry of an order sustaining one or more of such objections, the
Commission shall find, after notice and opportunity for hearing, that all
the objections so sustained have been met and shall enter an order so
declaring, the Trustee shall mail copies of such material to all such
Holders with reasonable promptness after the entry of such order and the
renewal of such tender; otherwise the Trustee shall be relieved of any
obligation or duty to such applicants respecting their application.
(c) Every Holder of Securities, by receiving and holding the
same, agrees with the Company and the Trustee that neither the
Company nor the Trustee nor any agent of either of them shall be
held accountable by reason of the disclosure of any such information
as to the names and addresses of the Holders in accordance with
Section 7.2(b), regardless of the source from which such information
was derived, and that the Trustee shall not be held accountable by
reason of mailing any material pursuant to a request made under
Section 7.2(b).
SECTION 7.3 Reports by Trustee.
(a) Within 60 days after the first May 15 which occurs not
less than 60 days following the first date of issuance of Securities
of any series under this Indenture and within 60 days after May 15
in every year thereafter, the Trustee shall transmit by mail to all
Holders, as their names and addresses appear in the Security
Register, a brief report dated as of such May 15 with respect to:
(1) its eligibility under Section 6.9 and its
qualifications under Section 6.8, or in lieu thereof, if to the
best of its knowledge it has continued to be eligible and
qualified under said Sections, a written statement to such
effect;
(2) the character and amount of any advances (and if the
Trustee elects so to state, the circumstances surrounding the
making thereof) made by the Trustee (as such) which remain
unpaid on the date of such report, and for the reimbursement of
which it claims or may claim a lien or charge, prior to that of
the Securities, on any property or funds held or collected by
it as Trustee, except that the Trustee shall not be required
(but may elect) to report such advances if such advances so
remaining unpaid aggregate not more than 1/2 of 1% of the
principal amount of the Securities Outstanding on the date of
such report;
(3) the amount, interest rate and maturity date of all
other indebtedness owing by the Company (or by any other
obligor on the Securities) to the Trustee in its individual
capacity, on the date of such report, with a brief description
of any property held as collateral security therefor, except an
indebtedness based upon a creditor relationship arising in any
manner described in Section 6.13(b)(2), (3), (4) or (6);
(4) the property and funds, if any, physically in the
possession of the Trustee as such on the date of such report;
(5) any additional issue of Securities which the Trustee
has not previously reported; and
(6) any action taken by the Trustee in the performance of
its duties hereunder which it has not previously reported and
which in its opinion materially affects the Securities, except
action in respect of a default, notice of which has been or is
to be withheld by the Trustee in accordance with Section 6.2.
(b) The Trustee shall transmit by mail to all Holders, as
their names and addresses appear in the Security Register, a brief
report with respect to the character and amount of any advances (and
if the Trustee elects so to state, the circumstances surrounding the
making thereof) made by the Trustee (as such) since the date of the
last report transmitted pursuant to Subsection (a) of this Section
(or if no such report has yet been so transmitted, since the date of
execution of this instrument) for the reimbursement of which it
claims or may claim a lien or charge, prior to that of the
Securities, on property or funds held or collected by it as Trustee
and which it has not previously reported pursuant to this
Subsection, except that the Trustee shall not be required (but may
elect) to report such advances if such advances remaining unpaid at
any time aggregate 10% or less of the principal amount of the
Securities Outstanding at such time, such report to be transmitted
within 90 days after such time.
(c) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock
exchange upon which any Securities are listed, with the Commission
and with the Company. The Company will notify the Trustee when any
Securities are listed on any stock exchange.
SECTION 7.4 Reports by Company.
The Company shall:
(1) file with the Trustee, within 15 days after the
Company is required to file the same with the Commission,
copies of the annual reports and of the information, documents
and other reports (or copies of such portions of any of the
foregoing as the Commission may from time to time by rules and
regulations prescribe) which the Company may be required to
file with the Commission pursuant to Section 13 or Section
15(d) of the Securities Exchange Act of 1934; or, if the
Company is not required to file information, documents or
reports pursuant to either of said Sections, then it shall file
with the Trustee and the Commission, in accordance with rules
and regulations prescribed from time to time by the Commission,
such of the supplementary and periodic information, documents
and reports which may be required pursuant to Section 13 of the
Securities Exchange Act of 1934 in respect of a security listed
and registered on a national securities exchange as may be
prescribed from time to time in such rules and regulations;
(2) file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from time to
time by the Commission, such additional information, documents
and reports with respect to compliance by the Company with the
conditions and covenants of this Indenture as may be required
from time to time by such rules and regulations; and
(3) transmit by mail to all Holders, as their names and
addresses appear in the Security Register, within 30 days after
the filing thereof with the Trustee, such summaries of any
information, documents and reports required to be filed by the
Company pursuant to paragraphs (1) and (2) of this Section as
may be required by rules and regulations prescribed from time
to time by the Commission.
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, SALE OR LEASE
SECTION 8.1 Company May Consolidate, Etc., on Certain Terms.
Nothing contained in this Indenture or in any of the Securities
shall prevent any consolidation or merger of the Company with or into any
other corporation or corporations (whether or not affiliated with the
Company), or successive consolidations 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,
and the Company hereby covenants and agrees, that upon any such
consolidation, 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 satisfactory in form to the Trustee, executed and
delivered to the Trustee by the corporation (if other than the Company)
formed by such consolidation, 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. The Company will not so
consolidate 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, 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.
SECTION 8.2 [Intentionally Omitted]
SECTION 8.3 Successor Corporation to be Substituted.
In case of any such consolidation, merger, sale or conveyance
and upon the assumption by the successor corporation, by supplemental
indenture, executed and delivered to the Trustee and satisfactory in form
to the Trustee, of the due and punctual payment of the principal of and
premium, if any, and interest, if any, on all of the Securities and the
due and punctual performance of all of the covenants and conditions of
this Indenture to be performed by the Company, such successor corporation
shall succeed to and be substituted for the Company, with the same effect
as if it had been named herein as the party of the first part, and the
Company shall thereupon be relieved of any further obligation or
liabilities hereunder or upon the Securities, and the Company as the
predecessor corporation may thereupon or at any time thereafter be
dissolved, wound up or liquidated. Such successor corporation thereupon
may cause to be signed, and may issue either in its own name or in the
name of Ingersoll-Rand Company any or all of the Securities of any series
issuable hereunder which theretofore shall not have been signed by the
Company and delivered to the Trustee; and, upon the order of such
successor corporation instead of the Company and subject to all the terms,
conditions and limitations in this Indenture prescribed, the Trustee shall
authenticate and shall deliver Securities of any series which previously
shall have been signed and delivered by the officers of the Company to the
Trustee for authentication, and any Securities which such successor
corporation thereafter shall cause to be signed and delivered to the
Trustee for that purpose. All the Securities of any series so issued
shall in all respects have the same legal rank and benefit under this
Indenture as the Securities of such series theretofore or thereafter
issued in accordance with the terms of this Indenture as though all of
such Securities had been issued at the date of the execution hereof.
In case of any such consolidation, merger, sale, conveyance or
lease such changes in phraseology and form (but not in substance) may be
made in the Securities thereafter to be issued as may be appropriate.
SECTION 8.4 Opinion of Counsel to be Given Trustee.
The Trustee, subject to Section 6.1, shall be entitled to
receive an Opinion of Counsel as conclusive evidence that any such
consolidation, merger, sale, conveyance or lease and any such assumption
complies with the provisions of this Article.
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1 Supplemental Indentures without Consent of
Holders.
Without the consent of any Holders, the Company, when
authorized by or pursuant to a Board Resolution, and the Trustee, at any
time and from time to time, may enter into one or more indentures
supplemental hereto, in form satisfactory to the Trustee, for any of the
following purposes:
(1) to evidence the succession of another corporation to
the Company and the assumption by any such successor of the
covenants of the Company herein and in the Securities; or
(2) to add to the covenants of the Company for the
benefit of the Holders of all or any series of Securities (and
if such covenants are to be for the benefit of less than all
series of Securities, stating that such covenants are expressly
being included solely for the benefit of such series) or to
surrender any right or power herein conferred upon the Company;
or
(3) to add any additional Events of Default; or
(4) to add to or change any of the provisions of this
Indenture to such extent as shall be necessary to permit or
facilitate the issuance of Securities in bearer form,
registrable or not registrable as to principal, and with or
without interest coupons; or
(5) to change or eliminate any of the provisions of this
Indenture, provided that any such change or elimination shall
become effective only when there is no Security Outstanding of
any series created prior to the execution of such supplemental
indenture which is entitled to the benefit of such provision;
or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any
series as permitted by Sections 2.1 and 3.1; or
(8) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to
the Securities of one or more series and to add to or change
any of the provisions of this Indenture as shall be necessary
to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, pursuant to the
requirements of Section 6.11(b); or
(9) 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
(10) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other
provision herein, or to make any other provisions with respect
to matters or questions arising under this Indenture, provided
such action shall not adversely affect the interests of the
Holders of Securities of any series in any material respect.
SECTION 9.2 Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in
aggregate principal amount of the Outstanding Securities of all series
affected by such supplemental indenture (voting as one class), by Act of
said Holders delivered to the Company and the Trustee, the Company, when
authorized by or pursuant to a Board Resolution, and the Trustee may enter
into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of
the provisions of this Indenture or of modifying in any manner the rights
of the Holders of Securities of such series under this Indenture;
provided, however, that no such supplemental indenture shall, without the
consent of the Holder of each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or
any instalment of principal of or interest, 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 5.2, or change any Place of Payment where, or the coin
or currency in which, any Security or any premium or the
interest thereon is payable, or impair the right to institute
suit for the enforcement of any such payment on or after the
Stated Maturity thereof (or, in the case of redemption, on or
after the Redemption Date), or
(2) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose
Holders is required for any such supplemental indenture, or the
consent of whose Holders is required for any waiver (of
compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences) provided for in this
Indenture, or
(3) modify any of the provisions of this Section, Section
5.13 or Section 10.8, 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 10.8, or the deletion of this proviso, in accordance
with the requirements of Sections 6.11(b) and 9.1(8), or
(4) modify any of the subordination provisions applicable
to any series of Securities in a manner adverse to the Holders
of such series of Securities.
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Securities, or which
modifies the rights of the Holders of Securities of such series with
respect to such covenant or other provision, shall be deemed not to affect
the rights under this Indenture of the Holders of Securities of any other
series.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the
substance thereof.
SECTION 9.3 Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by,
any supplemental indenture permitted by this Article or the modifications
thereby of the trusts created by this Indenture, the Trustee shall be
entitled to receive, and (subject to Section 6.1) shall be fully protected
in relying upon, an Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this Indenture. The
Trustee may, but shall not be obligated to, enter into any such
supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
SECTION 9.4 Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith, and
such supplemental indenture shall form a part of this Indenture for all
purposes; and every Holder of Securities theretofore or thereafter
authenticated and delivered hereunder shall be bound thereby.
SECTION 9.5 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 9.6 Reference in Securities to Supplemental
Indentures.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and
shall if required by the Trustee, bear a notation in form approved by the
Trustee as to any matter provided for in such supplemental indenture. If
the Company shall so determine, new Securities of any series so modified
as to conform, in the opinion of the Trustee and the Company, to any such
supplemental indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for Outstanding
Securities of such series.
SECTION 9.7 Effect on Senior Indebtedness.
No supplemental indenture shall directly or indirectly modify
or eliminate the provisions of Article XIII or the definition of "Senior
Indebtedness" in any manner which might terminate or impair the
subordination of the Securities to Senior Indebtedness without the prior
written consent of the Holders of the Senior Indebtedness.
ARTICLE X
COVENANTS
SECTION 10.1 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 10.2 Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any
series of Securities an office or agency where Securities of that series
may be presented or surrendered for payment, where Securities of that
series may be surrendered for registration of transfer or exchange and
where notices and demands to or upon the Company in respect of the
Securities of that series and this Indenture may be served. The Company
will give prompt written notice to the Trustee of the location, and any
change in the location, of such office or agency. If at any time the
Company shall fail to maintain any such required office or agency or shall
fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate
Trust Office of the Trustee, and the Company hereby appoints the Trustee
as its agent to receive all such presentations, surrenders, notices and
demands.
The Company may also from time to time designate one or more
other offices or agencies where the Securities of one or more series may
be presented or surrendered for any or all such purposes and may from time
to time rescind such designations; provided, however, that no such
designation or rescission shall in any manner relieve the Company of its
obligation to maintain an office or agency in each Place of Payment for
Securities of any series for such purposes. The Company will give prompt
written notice to the Trustee of any such designation or rescission and of
any change in the location of any such other office or agency.
SECTION 10.3 Money for Securities Payments to Be Held in
Trust.
If the Company shall at any time act as its own Paying Agent
with respect to any series of Securities, it will, on or before each due
date of the principal of (and premium, if any) or interest, if any, on any
of the Securities of that series, segregate and hold in trust for the
benefit of the persons entitled thereto a sum sufficient to pay the
principal (and premium, if any) or interest, if any, so becoming due until
such sums shall be paid to such persons or otherwise disposed of as herein
provided and will promptly notify the Trustee of its action or failure so
to act.
Whenever the Company shall have one or more Paying Agents for
any series of Securities, it will, prior to each due date of the principal
of (and premium, if any) or interest, if any, on any securities of that
series, deposit with a Paying Agent a sum sufficient to pay the principal
(and premium, if any) or interest so becoming due, such sum to be held in
trust for the benefit of the persons entitled to such principal, premium
or interest, and (unless such Paying Agent is the Trustee) the Company
will promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent for any series of
Securities other than the Trustee to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee,
subject to the provisions of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the
principal of (and premium, if any) or interest, if any, on
Securities of that series in trust for the benefit of the
persons entitled thereto until such sums shall be paid to such
persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company
(or any other obligor upon the Securities of that series) in
the making of any payment of principal (and premium, if any) or
interest, if any, on the Securities of that series; and
(3) at any time during the continuance of any such
default, upon the written request of the Trustee, forthwith pay
to the Trustee all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose,
pay, or by Company Order direct any Paying Agent to pay, to the Trustee
all sums held in trust by the Company or such Paying Agent, such sums to
be held by the Trustee upon the same trusts as those upon which such sums
were held by the Company or such Paying Agent; and, upon such payment by
any Paying Agent to the Trustee, such Paying Agent shall be released from
all further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the principal of
(and premium, if any) or interest, if any, on any Security of any series
and remaining unclaimed for three years after such principal (and premium,
if any) or interest has become due and payable shall be paid to the
Company on Company Request, or (if then held by the Company) shall be
discharged from such trust; and the Holder of such Security shall
thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent
with respect to such trust money, and all liability of the Company as
trustee thereof, shall thereupon cease; provided, however, that the
Trustee or such Paying Agent, before being required to make any such
repayment, may at the expense of the Company cause to be published once,
in a newspaper published in the English language, customarily published on
each Business Day and of general circulation in the 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.
SECTION 10.4 [Intentionally Omitted.]
SECTION 10.5 [Intentionally Omitted.]
SECTION 10.6 Defeasance of Certain Obligations.
The Company may omit to comply with any term, provision or
condition set forth in any specified covenant set forth in any
supplemental indenture, Board Resolution or Officers' Certificate
establishing any series of Securities with respect to the Securities of
any series, provided that the following conditions shall have been
satisfied:
(1) The Company has deposited or caused to be irrevocably
deposited (except as provided in Section 4.2(c) and the last
paragraph of Section 10.3) with the Trustee (specifying that
each deposit is pursuant to this Section 10.6) 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 (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 the Trustee, to pay and discharge (x) the
principal of (and premium, if any) and each instalment 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 instalment 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 shall have delivered to the 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 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
delivered to the 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 the Trustee give notice of such redemption in the
name and at the expense of the Company not less than 30 nor
more than 60 days prior to such Redemption Date in accordance
with Section 11.4.
SECTION 10.7 Statement by Officers as to Default.
The Company will deliver to the Trustee on or before May 15 in
each year ending after the date hereof, an Officers' Certificate stating
that in the course of the performance by each signer of his duties as an
officer of the Company he would normally have knowledge of any default by
the Company in the performance and observance of any of the covenants
contained in any specified covenant set forth in any supplemental
indenture, Board Resolution or Officers' Certificate establishing any
series of Securities, stating whether or not he has knowledge of any such
default and, if so, specifying each such default of which such signer has
knowledge and the nature thereof.
SECTION 10.8 Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with
any term, provision or condition set forth in any specified covenant set
forth in any supplemental indenture, Board Resolution or Officers'
Certificate establishing any series of Securities if before the time for
such compliance the Holders of not less than a majority in aggregate
principal amount of the Outstanding Securities of all series affected by
such omission (voting as one class ) shall, by Act of such Holders, either
waive such compliance in such instance or generally waive compliance with
such term, provision or condition, but no such waiver shall extend to or
affect such term, provision or condition except to the extent so expressly
waived, and, until such waiver shall become effective, the obligations of
the Company and the duties of the Trustee in respect of any such term,
provision or condition shall remain in full force and effect.
SECTION 10.9 Limitation on Other Senior Subordinated
Indebtedness.
Unless otherwise provided pursuant to Section 3.1 with respect
to the Securities of any series, the Company will not incur, create,
assume, guarantee or in any other manner become directly or indirectly
liable with respect to or responsible for, or permit to remain
outstanding, any new Indebtedness of the Company (the "New Indebtedness")
which is subordinated by the terms of the instrument creating or
evidencing such New Indebtedness in right of payment to any other
Indebtedness of the Company unless such New Indebtedness is expressly by
the terms of the instrument creating or evidencing such New Indebtedness
made (i) pari passu in right of payment with the Securities or (ii)
subordinate in right of payment to the Securities of such series. For
purposes of this provision, no Indebtedness shall be deemed to be
subordinated in right of payment to any other Indebtedness solely by
reason of the fact that such other Indebtedness is secured by any
mortgage, pledge, security interest or other lien.
ARTICLE XI
REDEMPTION OF SECURITIES
SECTION 11.1 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 3.1 for
Securities of any series) in accordance with this Article.
SECTION 11.2 Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be
evidenced by an Officers' 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 satisfactory to the Trustee),
notify the 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 elsewhere in this Indenture, the Company shall
furnish the Trustee with an Officers' Certificate evidencing compliance
with such restriction.
SECTION 11.3 Selection by Trustee of Securities to Be
Redeemed.
If less than all the Securities of any series are to be
redeemed, the particular Securities to be redeemed shall be selected not
more than 60 days prior to the Redemption Date by the Trustee, from the
Outstanding Securities of such series not previously called for
redemption, by such method as the Trustee shall deem fair and appropriate
and which may provide for the selection for redemption of portions (equal
to the minimum authorized denomination for Securities of that series or
any integral multiple thereof) 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 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 (b) an entity specifically identified in such
written statement which is an Affiliate of the Company.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities
selected for partial redemption, the principal amount thereof to be
redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of
Securities shall relate, in the case of any Securities redeemed or to be
redeemed only in part, to the portion of the principal amount of such
Securities which has been or is to be redeemed.
SECTION 11.4 Notice of Redemption.
Notice of redemption shall be given by first-class mail,
postage prepaid, mailed not less than 30 nor more than 60 days prior to
the Redemption Date, to each Holder of Securities to be redeemed, at his
address appearing in the Security Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any
series are to be redeemed, the identification (and, in the case
of partial redemption, the principal amounts) of the particular
Securities to be redeemed,
(4) that on the Redemption Date the Redemption Price will
become due and payable upon each such Security to be redeemed
and, if applicable, that interest thereon will cease to accrue
on and after said date,
(5) the place or places where such Securities are to be
surrendered for payment of the Redemption Price, and
(6) that the redemption is for a sinking fund, if such is
the case.
Notice of redemption of Securities to be redeemed at the
election of the Company shall be given by the Company or, at the Company's
request, by the Trustee in the name and at the expense of the Company.
SECTION 11.5 Deposit of Redemption Price.
At least one Business Day prior to any Redemption Date, the
Company shall deposit with the Trustee or with a Paying Agent (or, if the
Company is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 10.3) 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 4.1, 4.3 or 10.6).
SECTION 11.6 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 3.7.
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 11.7 Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be
surrendered at a Place of Payment therefor (with, if the Company or the
Trustee so requires, due endorsement by, or a written instrument of
transfer in form satisfactory to the Company and the Trustee duly executed
by, the Holder thereof or his attorney duly authorized in writing), and
the Company shall execute, and the Trustee shall authenticate and deliver
to the Holder of such Security without service charge, a new Security or
Securities of the same series, of any authorized denomination as requested
by such Holder, in aggregate principal amount equal to and in exchange for
the unredeemed portion of the principal of the Security so surrendered.
ARTICLE XII
SINKING FUNDS
SECTION 12.1 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 3.1 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 12.2. 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 12.2 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 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 the Trustee for cancellation pursuant to Section 3.9, (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 the Trustee at the sinking fund redemption price specified in
such Securities.
SECTION 12.3 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 an
Officers' Certificate (which need not contain the statements required by
Section 1.2) 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 (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 12.2, and will also deliver to the Trustee
any Securities to be so delivered. Such written statement shall be
irrevocable and upon its receipt by the 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 shall select the Securities to be redeemed upon such
sinking fund payment date in the manner specified in Section 11.3 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 11.4. Such
notice having been duly given, the redemption of such Securities shall be
made upon the terms and in the manner stated in Sections 11.5, 11.6 and
11.7.
The Trustee shall not redeem or cause to be redeemed any
Security of a 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, the 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 5.13 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 XIII
SUBORDINATION OF SECURITIES
Unless otherwise set forth in the supplemental indenture, Board
Resolution or Officers' Certificate pursuant to Section 3.1 establishing
the terms of a series of Securities, such series of Securities shall be
subject to the following provisions:
SECTION 13.1. Agreement to Subordinate.
The Company, for itself, its successors and assigns, covenants
and agrees, and each Holder of Securities by his acceptance thereof,
likewise covenants and agrees, that the payment of the principal of (and
premium, if any) and interest, if any, on each and all of the Securities
is hereby expressly subordinated, to the extent and in the manner
hereinafter set forth, in right of payment to the prior payment in full in
cash or cash equivalents or, as acceptable to the holders of Senior
Indebtedness, in any other manner, of all amounts payable under all
existing and future Senior Indebtedness.
Unless otherwise provided in the supplemental indenture, Board
Resolution or Officers' Certificate pursuant to Section 3.1 hereof
establishing the terms of a series of Securities, "Senior Indebtedness"
means the principal of, premium, if any, and interest, if any, on any
Indebtedness of the Company, whether outstanding on the date of this
Indenture or thereafter created, incurred or assumed, unless, in the case
of any particular Indebtedness, the instrument creating or evidencing the
same or pursuant to which the same is outstanding expressly provides that
such Indebtedness shall not be senior in right of payment to the
Securities. Unless otherwise provided in the supplemental indenture,
Board Resolution or Officers' Certificate pursuant to Section 3.1 hereof
establishing the terms of a series of Securities, notwithstanding the
foregoing, "Senior Indebtedness" shall not include (a) Indebtedness
evidenced by the Securities, (b) Indebtedness that is, by the terms of the
instrument or agreement evidencing such Indebtedness or pursuant to which
such Indebtedness was issued, expressly subordinate in right of payment to
any other Indebtedness of the Company, and (c) Indebtedness for goods,
materials or services purchased in the ordinary course of business or
Indebtedness consisting of trade payables.
This Article XIII shall constitute a continuing offer to all
Persons who, in reliance upon such provisions, become holders of, or
continue to hold Senior Indebtedness; and such provisions are made for the
benefit of the holders of Senior Indebtedness; and such holders are made
obligees hereunder and they or each of them may enforce such provisions.
SECTION 13.2 Payment Over of Proceeds upon Dissolution, etc.
In the event of (a) any insolvency or bankruptcy case or
proceeding, or any receivership, liquidation, reorganization or other
similar case or proceeding in connection therewith, relating to the
Company or to its assets, or (b) any liquidation, dissolution or other
winding-up of the Company, whether voluntary or involuntary and whether or
not involving insolvency or bankruptcy, or (c) any assignment for the
benefit of creditors or any other marshalling of assets or liabilities of
the Company, then and in any such event (subject to the power of a court
of competent jurisdiction to make other equitable provision reflecting the
rights conferred in this Indenture upon the Senior Indebtedness and the
holders thereof with respect to the Securities and the Holders thereof by
a lawful plan of reorganization under applicable bankruptcy law):
(1) the holders of Senior Indebtedness shall be entitled to
receive payment in full, in cash or cash equivalents or, as acceptable to
the holders of Senior Indebtedness, in any other manner, of all Senior
Indebtedness (including principal, premium, if any and interest, if any,
and including, in the case of Designated Senior Indebtedness, any interest
accruing subsequent to the filing of a petition for bankruptcy at the rate
provided for in the documentation governing such Designated Senior
Indebtedness, to the extent that such interest is an allowed claim under
applicable law), or provision shall be made for such payment, before the
Holders of the Securities are entitled to receive any payment or
distribution of any kind or character (excluding securities of the Company
or any other person that are equity securities or are expressly
subordinated in right of payment to all Senior Indebtedness that may at
the time be outstanding, to substantially the same extent as, or to a
greater extent than, the Securities as provided in this Article; such
securities are hereinafter collectively referred to as "Permitted Junior
Securities") on account of principal of, premium, if any, or interest on
the Securities;
(2) any payment or distribution of assets of the Company of
any kind or character, whether in cash, property or securities (excluding
Permitted Junior Securities), by set-off or otherwise, to which the
Holders of the Securities or the Trustee would be entitled but for the
provisions of this Article XIII shall be paid by the liquidating trustee
or agent or other person making such payment or distribution, whether a
trustee in bankruptcy, a receiver or liquidating trustee or otherwise,
directly to the holders of Senior Indebtedness or their representative or
representatives or to the trustee or trustees under any indenture under
which any instruments evidencing any of such Senior Indebtedness may have
been issued, ratably according to the aggregate amounts remaining unpaid
on account of the Senior Indebtedness held or represented by each, to the
extent necessary to make payment in full, in cash or cash equivalents or,
as acceptable to the holders of Senior Indebtedness, in any other manner,
of all Senior Indebtedness remaining unpaid, after giving effect to any
concurrent payment or distribution to or for the holders of such Senior
Indebtedness; and
(3) in the event that, notwithstanding the foregoing provisions
of this Section 13.2, the Trustee or the Holder of any Security shall have
received any payment or distribution of assets of the Company of any kind
or character, whether in cash, property or securities, in respect of
principal of, premium, if any, or interest, if any, on the Securities
before all Senior Indebtedness is paid in full, in cash or cash
equivalents or, as acceptable to the holders of Senior Indebtedness, in
any other manner, or payment thereof provided for, then and in such event
such payment or distribution (excluding Permitted Junior Securities) shall
be paid over or delivered forthwith to the trustee in bankruptcy,
receiver, liquidating trustee, custodian, assignee, agent or other Person
making payment or distribution of assets of the Company for application to
the payment of all Senior Indebtedness remaining unpaid, ratably as
aforesaid, to the extent necessary to pay all Senior Indebtedness in full,
in cash or cash equivalents or, as acceptable to the holders of Senior
Indebtedness, in any other manner, after giving effect to any concurrent
payment or distribution to or for the holders of Senior Indebtedness.
The consolidation of the Company with, or the merger of the
Company with or into, another person or the liquidation or dissolution of
the Company following the conveyance, transfer, lease or other disposition
of its properties and assets substantially as an entirety to another
Person upon the terms and conditions set forth in Article VIII hereof
shall not be deemed a dissolution, winding-up, liquidation,
reorganization, assignment for the benefit of creditors or marshalling of
assets and liabilities of the Company for the purposes of this Article
XIII if the Person formed by such consolidation or the surviving entity of
such merger or the Person which acquires by conveyance, transfer, lease or
other disposition such properties and assets substantially as an entirety,
as the case may be, shall, as a part of such consolidation, merger,
conveyance, transfer, lease or other disposition, comply with the
conditions set forth in such Article VIII.
SECTION 13.3 No Payment on Securities in Event of Default on
Senior Indebtedness.
No payment by the Company on account of principal of, or
premium, if any, sinking funds or interest, if any, on the Securities
shall be made unless full payment of amounts then due for the principal
of, and premium, if any, sinking funds and interest, if any, on Senior
Indebtedness has been made or duly provided for in money or money's worth.
SECTION 13.4 Trustee's Relation to Senior Indebtedness.
With respect to the holders of Senior Indebtedness, the Trustee
undertakes to perform or to observe only such of its covenants and
obligations as are specifically set forth in this Article XIII, and no
implied covenants or obligations with respect to the holders of Senior
Indebtedness shall be read into this Indenture against the Trustee. The
Trustee shall not be deemed to owe any fiduciary duty to the holders of
Senior Indebtedness and the Trustee shall not be liable to any holder of
Senior Indebtedness if it shall mistakenly pay over or deliver to Holders
of Securities, the Company or any other Person moneys or assets to which
any holder of Senior Indebtedness shall be entitled by virtue of this
Article XIII or otherwise.
SECTION 13.5 Subrogation to Rights of Holders of Senior
Indebtedness.
Upon the payment in full of all Senior Indebtedness, the
Holders of the Securities shall be subrogated to the rights of the holders
of such Senior Indebtedness to receive payments and distributions of cash,
property and securities applicable to the Senior Indebtedness until the
principal of, premium, if any, and interest, if any, on the Securities
shall be paid in full in cash or cash equivalents. For purposes of such
subrogation, no payments or distributions to the holders of Senior
Indebtedness of any cash, property or securities to which the Holders of
the Securities or the Trustee would be entitled except for the provisions
of this Article XIII, and no payments over pursuant to the provisions of
this Article XIII to the holders of Senior Indebtedness by Holders of the
Securities or the Trustee shall, as among the Company, its creditors other
than holders of Senior Indebtedness, and the Holders of the Securities, be
deemed to be a payment or distribution by the Company to or on account of
the Senior Indebtedness.
SECTION 13.6 Provisions Solely To Define Relative Rights.
The provisions of this Article XIII are and are intended solely
for the purpose of defining the relative rights of the Holders of the
Securities on the one hand and the holders of Senior Indebtedness on the
other hand. Nothing contained in this Article XIII or elsewhere in this
Indenture or in the Securities is intended to or shall (a) impair, as
among the Company, its creditors other than holders of Senior Indebtedness
and the Holders of the Securities, the obligation of the Company, which is
absolute and unconditional, to pay to the Holders of the Securities the
principal of, premium, if any, and interest, if any, on the Securities as
and when the same shall become due and payable in accordance with their
terms; or (b) affect the relative rights of the Holders of the Securities
and creditors of the Company other than the holders of Senior
Indebtedness; or (c) prevent the Trustee or the Holder of any Security
from exercising all remedies otherwise permitted by applicable law upon a
Default or an Event of Default under this Indenture, subject to the
rights, if any, under this Article XIII of the holders of Senior
Indebtedness (1) in any case, proceeding, dissolution, liquidation or
other winding up, assignment for the benefit of creditors or other
marshalling of assets and liabilities of the Company referred to in
Section 13.2, to receive, pursuant to and in accordance with such Section,
cash, property and securities otherwise payable or deliverable to the
Trustee or such Holder, or (2) under the conditions specified in Section
13.3, to prevent any payment prohibited by such Section or enforce their
rights pursuant to Section 13.3.
The failure to make a payment on account of principal of, or
premium, if any, or interest, if any, on, or sinking funds, if any, in
respect of any Securities of any series by reason of any provision of this
Article XIII shall not be construed as preventing the occurrence of a
Default or an Event of Default with respect of the Securities of such
series.
SECTION 13.7 Trustee To Effectuate Subordination.
Each Holder of a Security by such Holder's acceptance thereof
authorizes and directs the Trustee on such Holder's behalf to take such
action as may be necessary or appropriate to effectuate the subordination
provided in this Article XIII and appoints the Trustee his
attorney-in-fact for any and all such purposes, including, in the event of
any dissolution, winding-up, liquidation or reorganization of the Company,
whether in bankruptcy, insolvency, receivership proceedings or otherwise,
the timely filing of a claim for the unpaid balance of the Indebtedness of
the Company owing to such Holder in the form required in such proceedings
and the causing of such claim to be approved. If the Trustee does not file
such a claim prior to 30 days before the expiration of the time to file
such a claim, the holders of Senior Indebtedness, or any Senior
Representative, may file such a claim on behalf of Holders of the
Securities.
SECTION 13.8 No Waiver of Subordination Provisions.
(a) No right of any present or future holder of any Senior
Indebtedness to enforce subordination as herein provided shall at any time
in any way be prejudiced or impaired by any act or failure to act on the
part of the Company or by any act or failure to act, in good faith, by any
such holder, or by any non-compliance by the Company with the terms,
provisions and covenants of this Indenture, regardless of any knowledge
thereof any such holder may have or be otherwise charged with.
(b) Without limiting the generality of Section 13.8(a), the
holders of Senior Indebtedness may, at any time and from time to time,
without the consent of or notice to the Trustee or the Holders of the
Securities, without incurring responsibility to the Holders of the
Securities and without impairing or releasing the subordination provided
in this Article XIII or the obligations hereunder of the Holders of the
Securities to the holders of Senior Indebtedness, do any one or more of
the following: (1) change the manner, place or terms of payment or extend
the time of payment of, or renew or alter, Senior Indebtedness or any
instrument evidencing the same or any agreement under which Senior
Indebtedness is outstanding; (2) sell, exchange, release or otherwise deal
with any property pledged, mortgaged or otherwise securing Senior
Indebtedness; (3) release any Person liable in any manner for the
collection or payment of Senior Indebtedness; and (4) exercise or refrain
from exercising any rights against the Company and any other Person;
provided, however, that in no event shall any such actions limit the right
of the Holders of the Securities of any series to take any action to
accelerate the maturity of such Securities pursuant to Article V hereof or
to pursue any rights or remedies hereunder or under applicable laws if the
taking of such action does not otherwise violate the terms of this
Indenture.
SECTION 13.9 Notices to Trustee.
(a) The Company shall give prompt written notice to the
Trustee of any fact known to the Company which would prohibit the making
of any payment to or by the Trustee in respect of the Securities pursuant
to this Article XIII. Failure to give such notice shall not affect the
subordination of the Securities to Senior Indebtedness. Notwithstanding
the provisions of this Article XIII or any other provisions of this
Indenture, neither the Trustee nor any Paying Agent (other than the
Company) shall be charged with knowledge of the existence of any Senior
Indebtedness or of any event which would prohibit the making of any
payment of moneys to or by the Trustee or such Paying Agent, unless and
until the Trustee or such Paying Agent shall have received (in the case of
the Trustee, at its Corporate Trust Office) written notice thereof from
the Company or from the holder of any Senior Indebtedness or from the
trustee for any such holder, together with proof satisfactory to the
Trustee or such Paying Agent, as the case may be, of such holding of
Senior Indebtedness or of the authority of such trustee; provided,
however, that if at least two Business Days prior to the date upon which
by the terms hereof any such moneys may become payable for any purpose
(including, without limitation, the payment of either the principal of, or
premium, if any, or interest, if any, on any Security) the Trustee shall
not have received with respect to such moneys the notice provided for in
this Section 13.9, then, anything herein contained to the contrary
notwithstanding, the Trustee shall have full power and authority to
receive such moneys and to apply the same to the purpose for which they
were received, and shall not be affected by any notice to the contrary,
which may be received by it within two Business Days prior to such date.
(b) Subject to the provisions of Section 6.3, the Trustee
shall be entitled to rely on the delivery to it of a written notice by a
Person representing himself to be a holder of Senior Indebtedness (or a
trustee on behalf of such holder) to establish that such a notice has been
given by a holder of Senior Indebtedness or a trustee on behalf of any
such holder. In the event that the Trustee determines in good faith that
further evidence is required with respect to the right of any Person as a
holder of Senior Indebtedness (or a trustee on behalf of such holder) to
participate in any payment or distribution pursuant to this Article XIII,
the Trustee may request such Person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of Senior Indebtedness held
by such Person (or the amount of Senior Indebtedness as to which such
Person is trustee), the extent to which such Person is entitled to
participate in such payment or distribution and any other facts pertinent
to the rights of such Person under this Article XIII and, if such evidence
is not furnished, the Trustee may defer any payment to such Person pending
judicial determination as to the right of such Person to receive such
payment.
SECTION 13.10 Reliance on Judicial Order or Certificate of
Liquidating Agent.
Upon any payment or distribution of assets of the Company
referred to in this Article XIII, the Trustee, subject to the provisions
of Section 6.3, and the Holders shall be entitled to rely upon any order
or decree entered by any court of competent jurisdiction in which such
insolvency, bankruptcy, receivership, liquidation, reorganization,
dissolution, winding-up or similar case or proceeding is pending, or a
certificate of the trustee in bankruptcy, receiver, liquidating trustee,
custodian, assignee for the benefit of creditors, agent or other person
making such payment or distribution, delivered to the Trustee or to the
Holders, for the purpose of ascertaining the Persons entitled to
participate in such payment or distribution, the holders of Senior
Indebtedness and other Indebtedness of the Company, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all
other facts pertinent thereto or to this Article.
SECTION 13.11 Rights of Trustee as a Holder of Senior
Indebtedness; Preservation of Trustee's Rights.
The Trustee in its individual capacity shall be entitled to all
the rights set forth in this Article XIII with respect to any Senior
Indebtedness which may at any time be held by it, to the same extent as
any other holder of Senior Indebtedness, and nothing in this Indenture
shall deprive the Trustee of any of its rights as such holder. Nothing in
this Article XIII shall apply to claims of, or payments to, the Trustee
under or pursuant to Section 6.7.
SECTION 13.12 Article Applicable to Paying Agents.
In case at any time any Paying Agent other than the Trustee
shall have been appointed by the Company and be then acting hereunder, the
term "Trustee" as used in this Article XIII shall in such case (unless
otherwise expressly stated or the context otherwise requires) be construed
as extending to and including such Paying Agent within its meaning as
fully for all intents and purposes as if such Paying Agent were named in
this Article XIII in addition to or in place of the Trustee; provided,
however, that Section 13.12 shall not apply to the Company or any
Affiliate of the Company if it or such Affiliate acts as Paying Agent.
SECTION 13.13 No Suspension of Remedies.
Nothing contained in this Article XIII shall limit the right of
the Trustee or the Holders of Securities of any series to take any action
to accelerate the maturity of such Securities pursuant to Article V or to
pursue any rights or remedies hereunder or under applicable law, subject
to the rights, if any, under this Article XIII of the holders, from time
to time, of Senior Indebtedness.
Nothing contained in this Indenture or in any of the Securities
shall (a) affect the obligation of the Company to make, or prevent the
Company from making, at any time except as provided in Sections 13.2 and
13.3, payments of principal of, or premium, if any, or interest, if any,
on or sinking fund payments, if any, with respect to the Securities or (b)
prevent the application by the Trustee of any moneys deposited with it
hereunder to the payment of or on account of the principal of, or premium,
if any, or interest, if any, on, the Securities, unless the Trustee shall
have received at its Corporate Trust Office written notice of any event
prohibiting the making of such payment more than two Business Days prior
to the date fixed for such payment.
SECTION 13.14 Other Subordination Provisions.
Securities of any series may include such other subordination
provisions, including payment blockage provisions upon defaults other than
payment defaults, and definitions of "Senior Indebtedness and "Designated
Senior Indebtedness" as may be provided in the supplemental indenture or
provided in or pursuant to the Board Resolution or Officers' Certificate
under which such series of Securities is issued or in the form of Security
for such series.
IN WITNESS WHEREOF, the parties hereto have caused this In-
denture 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
By
-------------------------
Title:
-------------------
Attest:
-------------------------------
Title:
------------------------- ---------------------------
[Seal]
By
-------------------------
Title:
-------------------
Attest:
-------------------------------
Title:
-------------------------
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the ___ day of _______, 1997, 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 stud instrument is such corporate seal; that it was so affixed
by authority of the Board of Directors of said corporation, and that he
signed his name thereto by like authority.
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the ____ day of ______, 1997, before me personally came
_______________, to me known, who, being by me duly sworn, did depose and
say that he is _______________________________, one of the corporations
described in and which executed the foregoing instrument; that he knows
the seal of skid 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 stud corporation, and that he signed his name thereto by like
authority.
Exhibit 4.7
=========================================================================
INGERSOLL-RAND COMPANY
and
,
-------------------------
Trustee
-------------------------
INDENTURE
Dated as of , 1997
-------------------------
Senior Subordinated Debt Securities
=========================================================================
Reconciliation and tie between Trust Indenture Act of 1939 and
Indenture, dated as of , 1997.
Trust Indenture
Act Section Indenture Section
Section 310(a)(1) . . . . . . . . . . . . . . . . . . 6.9
(a)(2) . . . . . . . . . . . . . . . . . . . . . 6.9
(a)(3) . . . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(4) . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . 6.8
. . . . . . . . . . . . . . . . . . . . . . . . 6.10
Section 311(a) . . . . . . . . . . . . . . . . . . . 6.13(a)
(b) . . . . . . . . . . . . . . . . . . . . . . 6.13(b)
(b)(2) . . . . . . . . . . . . . . . . . . . . . 7.3(a)(2)
. . . . . . . . . . . . . . . . . . . . . . . . 7.3(b)
Section 312(a) . . . . . . . . . . . . . . . . . . . 7.1
. . . . . . . . . . . . . . . . . . . . . . . . 7.2(a)
(b) . . . . . . . . . . . . . . . . . . . . . . 7.2(b)
(c) . . . . . . . . . . . . . . . . . . . . . . 7.2(c)
Section 313(a) . . . . . . . . . . . . . . . . . . . 7.3(a)
(b)(1) . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b)(2) . . . . . . . . . . . . . . . . . . . . . 7.3(b)
(c) . . . . . . . . . . . . . . . . . . . . . . 7.3(a), 7.3(b)
(d) . . . . . . . . . . . . . . . . . . . . . . 7.3(c)
Section 314(a) . . . . . . . . . . . . . . . . . . . 7.4
(b) . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . . . . . . . . . . . . 1.2
(c)(2) . . . . . . . . . . . . . . . . . . . . . 1.2
(c)(3) . . . . . . . . . . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . . . . . . . . 1.2
Section 315(a) . . . . . . . . . . . . . . . . . . . 6.1(a)
(b) . . . . . . . . . . . . . . . . . . . . . . 6.2
7.3(a)(6)
(c) . . . . . . . . . . . . . . . . . . . . . . 6.1(b)
(d) . . . . . . . . . . . . . . . . . . . . . . 6.1(c)
(d)(1) . . . . . . . . . . . . . . . . . . . . . 6.1(a)(1)
(d)(2) . . . . . . . . . . . . . . . . . . . . . 6.1(c)(2)
(d)(3) . . . . . . . . . . . . . . . . . . . . . 6.1(c)(3)
(e) . . . . . . . . . . . . . . . . . . . . . . 5.14
Section 316(a)(1)(A) . . . . . . . . . . . . . . . . 5.2
5.12
(a)(1)(B) . . . . . . . . . . . . . . . . . . . 5.13
(a)(2) . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . 5.8
Section 317(a)(1) . . . . . . . . . . . . . . . . . . 5.3
(a)(2) . . . . . . . . . . . . . . . . . . . . . 5.4
(b) . . . . . . . . . . . . . . . . . . . . . . 10.3
Section 318(a) . . . . . . . . . . . . . . . . . . . 1.7
NOTE: This reconciliation and tie shall not, for any purpose, be deemed
to be a part of the Indenture.
TABLE OF CONTENTS
Page
RECITALS OF THE COMPANY . . . . . . . . . . 1
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION . . . . . . . . . . 1
SECTION 1.1 Definitions . . . . . . . . . . . . . . . . . . . . 1
Act . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Affiliate . . . . . . . . . . . . . . . . . . . . . . . 2
Authenticating Agent . . . . . . . . . . . . . . . . . 2
Board of Directors . . . . . . . . . . . . . . . . . . 2
Board Resolution . . . . . . . . . . . . . . . . . . . 2
Business Day . . . . . . . . . . . . . . . . . . . . . 2
Commission . . . . . . . . . . . . . . . . . . . . . . 2
Company . . . . . . . . . . . . . . . . . . . . . . . . 2
Company Request . . . . . . . . . . . . . . . . . . . . 2
Company Order . . . . . . . . . . . . . . . . . . . . . 2
Corporate Trust Office . . . . . . . . . . . . . . . . 2
Defaulted Interest . . . . . . . . . . . . . . . . . . 3
Designated Senior Indebtedness . . . . . . . . . . . . 3
Discharged . . . . . . . . . . . . . . . . . . . . . . 3
Event of Default . . . . . . . . . . . . . . . . . . . 3
Holder . . . . . . . . . . . . . . . . . . . . . . . . 3
Indenture . . . . . . . . . . . . . . . . . . . . . . . 3
interest . . . . . . . . . . . . . . . . . . . . . . . 3
Interest Payment Date . . . . . . . . . . . . . . . . . 3
Maturity . . . . . . . . . . . . . . . . . . . . . . . 3
Officers' Certificate . . . . . . . . . . . . . . . . . 3
Opinion of Counsel . . . . . . . . . . . . . . . . . . 3
Original Issue Discount Security . . . . . . . . . . . 3
Outstanding . . . . . . . . . . . . . . . . . . . . . . 4
Paying Agent . . . . . . . . . . . . . . . . . . . . . 4
Place of Payment . . . . . . . . . . . . . . . . . . . 4
Predecessor Security . . . . . . . . . . . . . . . . . 5
Redemption Date . . . . . . . . . . . . . . . . . . . . 5
Redemption Price . . . . . . . . . . . . . . . . . . . 5
Regular Record Date . . . . . . . . . . . . . . . . . . 5
Responsible Officer . . . . . . . . . . . . . . . . . . 5
Securities . . . . . . . . . . . . . . . . . . . . . . 5
Security Register . . . . . . . . . . . . . . . . . . . 5
Security Registrar . . . . . . . . . . . . . . . . . . 5
Senior Indebtedness . . . . . . . . . . . . . . . . . . 5
Senior Representative . . . . . . . . . . . . . . . . . 5
Special Record Date . . . . . . . . . . . . . . . . . . 5
Stated Maturity . . . . . . . . . . . . . . . . . . . . 5
Subsidiary . . . . . . . . . . . . . . . . . . . . . . 6
Trustee . . . . . . . . . . . . . . . . . . . . . . . . 6
Trust Indenture Act . . . . . . . . . . . . . . . . . . 6
U.S. Government Obligations . . . . . . . . . . . . . . 6
Vice President . . . . . . . . . . . . . . . . . . . . 6
SECTION 1.2 Compliance Certificates and Opinions . . . . . . 6
SECTION 1.3 Form of Documents Delivered to Trustee . . . . . 7
SECTION 1.4 Acts of Holders . . . . . . . . . . . . . . . . . 7
SECTION 1.5 Notices, Etc., to Trustee and Company . . . . . . 8
SECTION 1.6 Notice to Holders; Waiver . . . . . . . . . . . . 8
SECTION 1.7 Conflict with Trust Indenture Act . . . . . . . . 9
SECTION 1.8 Effect of Headings and Table of Contents . . . . 9
SECTION 1.9 Successors and Assigns . . . . . . . . . . . . . 9
SECTION 1.10 Separability Clause . . . . . . . . . . . . . . . 9
SECTION 1.11 Benefits of Indenture . . . . . . . . . . . . . . 9
SECTION 1.12 Governing Law . . . . . . . . . . . . . . . . . . 9
SECTION 1.13 Legal Holidays . . . . . . . . . . . . . . . . . 9
SECTION 1.14 Incorporators, Stockholders, Officers
and Directors of the Company Exempt from
Individual Liability. . . . . . . . . . . . . . 10
SECTION 1.15 Counterparts . . . . . . . . . . . . . . . . . . 10
SECTION 1.16 Currency Exchange . . . . . . . . . . . . . . . . 10
ARTICLE II
SECURITY FORMS . . . . . . . . . . . . 10
SECTION 2.1 Forms Generally . . . . . . . . . . . . . . . . . 10
SECTION 2.2 Form of Face of Security . . . . . . . . . . . . 11
SECTION 2.3 Form of Reverse of Security . . . . . . . . . . . 14
SECTION 2.4 Form of Trustee's Certificate of
Authentication. . . . . . . . . . . . . . . . . 19
ARTICLE III
THE SECURITIES . . . . . . . . . . . . 20
SECTION 3.1 Amount Unlimited; Issuable in Series . . . . . . 20
SECTION 3.2 Denominations . . . . . . . . . . . . . . . . . . 22
SECTION 3.3 Execution, Authentication, Delivery and Dating . 22
SECTION 3.4 Temporary Securities . . . . . . . . . . . . . . 23
SECTION 3.5 Registration, Registration of Transfer and
Exchange . . . . . . . . . . . . . . . . . . . 23
SECTION 3.6 Mutilated, Destroyed, Lost and Stolen
Securities . . . . . . . . . . . . . . . . . . 24
SECTION 3.7 Payment of Interest; Interest Rights Preserved . 25
SECTION 3.8 Persons Deemed Owners . . . . . . . . . . . . . . 26
SECTION 3.9 Cancellation . . . . . . . . . . . . . . . . . . 26
SECTION 3.10 Computation of Interest . . . . . . . . . . . . . 27
ARTICLE IV
SATISFACTION AND DISCHARGE . . . . . . . . . 27
SECTION 4.1 Satisfaction and Discharge of Indenture . . . . . 27
SECTION 4.2 Application of Trust Money . . . . . . . . . . . 28
SECTION 4.3 Satisfaction, Discharge and Defeasance of
Securities of any Series . . . . . . . . . . . 29
SECTION 4.4 Effect on Subordination Provisions . . . . . . . 30
ARTICLE V
REMEDIES . . . . . . . . . . . . . 31
SECTION 5.1 Events of Default . . . . . . . . . . . . . . . . 31
SECTION 5.2 Acceleration of Maturity; Rescission and
Annulment . . . . . . . . . . . . . . . . . . . 32
SECTION 5.3 Collection of Indebtedness and Suits for
Enforcement by Trustee . . . . . . . . . . . . 33
SECTION 5.4 Trustee May File Proofs of Claim . . . . . . . . 34
SECTION 5.5 Trustee May Enforce Claims Without Possession
of Securities. . . . . . . . . . . . . . . . . 35
SECTION 5.6 Application of Money Collected . . . . . . . . . 35
SECTION 5.7 Limitation on Suits . . . . . . . . . . . . . . . 36
SECTION 5.8 Unconditional Right of Holders to Receive
Principal, Premium and Interest . . . . . . . . 37
SECTION 5.9 Restoration of Rights and Remedies . . . . . . . 37
SECTION 5.10 Rights and Remedies Cumulative . . . . . . . . . 37
SECTION 5.11 Delay or Omission Not Waiver . . . . . . . . . . 37
SECTION 5.12 Control by Holders . . . . . . . . . . . . . . . 37
SECTION 5.13 Waiver of Past Defaults . . . . . . . . . . . . . 38
SECTION 5.14 Undertaking for Costs . . . . . . . . . . . . . . 38
ARTICLE VI
THE TRUSTEE . . . . . . . . . . . . . 38
SECTION 6.1 Certain Duties and Responsibilities . . . . . . . 38
SECTION 6.2 Notice of Defaults . . . . . . . . . . . . . . . 39
SECTION 6.3 Certain Rights of Trustee . . . . . . . . . . . . 40
SECTION 6.4 Not Responsible for Recitals or Issuance
of Securities . . . . . . . . . . . . . . . . . 41
SECTION 6.5 May Hold Securities . . . . . . . . . . . . . . . 41
SECTION 6.6 Money Held in Trust . . . . . . . . . . . . . . . 41
SECTION 6.7 Compensation and Reimbursement . . . . . . . . . 41
SECTION 6.8 Disqualification; Conflicting Interests . . . . . 42
SECTION 6.9 Corporate Trustee Required; Eligibility . . . . . 47
SECTION 6.10 Resignation and Removal; Appointment of
Successor . . . . . . . . . . . . . . . . . . . 47
SECTION 6.11 Acceptance of Appointment by Successor . . . . . 49
SECTION 6.12 Merger, Conversion, Consolidation or
Succession to Business . . . . . . . . . . . . 50
SECTION 6.13 Preferential Collection of Claims Against
Company . . . . . . . . . . . . . . . . . . . . 50
SECTION 6.14 Authenticating Agents . . . . . . . . . . . . . . 54
ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY . . . 56
SECTION 7.1 Company to Furnish Trustee Names and Addresses
of Holders . . . . . . . . . . . . . . . . . . 56
SECTION 7.2 Preservation of Information; Communications to
Holders . . . . . . . . . . . . . . . . . . . . 56
SECTION 7.3 Reports by Trustee . . . . . . . . . . . . . . . 57
SECTION 7.4 Reports by Company . . . . . . . . . . . . . . . 59
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, SALE OR LEASE . . . 59
SECTION 8.1 Company May Consolidate, Etc., on Certain Terms . 59
SECTION 8.2 . . . . . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 8.3 Successor Corporation to be Substituted . . . . . 60
SECTION 8.4 Opinion of Counsel to be Given Trustee . . . . . 61
ARTICLE IX
SUPPLEMENTAL INDENTURES . . . . . . . . . . 61
SECTION 9.1 Supplemental Indentures without Consent of
Holders . . . . . . . . . . . . . . . . . . . . 61
SECTION 9.2 Supplemental Indentures with Consent of
Holders . . . . . . . . . . . . . . . . . . . . 62
SECTION 9.3 Execution of Supplemental Indentures . . . . . . 63
SECTION 9.4 Effect of Supplemental Indentures . . . . . . . . 63
SECTION 9.5 Conformity with Trust Indenture Act . . . . . . . 63
SECTION 9.6 Reference in Securities to Supplemental
Indentures . . . . . . . . . . . . . . . . . . 63
SECTION 9.7 Effect on Senior Indebtedness . . . . . . . . . . 64
ARTICLE X
COVENANTS . . . . . . . . . . . . . 64
SECTION 10.1 Payment of Principal, Premium and Interest . . . 64
SECTION 10.2 Maintenance of Office or Agency . . . . . . . . . 64
SECTION 10.3 Money for Securities Payments to Be Held in Trust 64
SECTION 10.4 [Intentionally Omitted.] . . . . . . . . . . . . 66
SECTION 10.5 [Intentionally Omitted.] . . . . . . . . . . . . 66
SECTION 10.6 Defeasance of Certain Obligations . . . . . . . . 66
SECTION 10.7 Statement by Officers as to Default . . . . . . . 67
SECTION 10.8 Waiver of Certain Covenants . . . . . . . . . . . 67
SECTION 10.9 Limitation on Other Senior Subordinated
Indebtedness . . . . . . . . . . . . . . . . . 67
ARTICLE XI
REDEMPTION OF SECURITIES . . . . . . . . . 68
SECTION 11.1 Applicability of Article . . . . . . . . . . . . 68
SECTION 11.2 Election to Redeem; Notice to Trustee . . . . . . 68
SECTION 11.3 Selection by Trustee of Securities to Be
Redeemed . . . . . . . . . . . . . . . . . . . 68
SECTION 11.4 Notice of Redemption . . . . . . . . . . . . . . 69
SECTION 11.5 Deposit of Redemption Price . . . . . . . . . . . 69
SECTION 11.6 Securities Payable on Redemption Date . . . . . . 70
SECTION 11.7 Securities Redeemed in Part . . . . . . . . . . . 70
ARTICLE XII
SINKING FUNDS . . . . . . . . . . . . 70
SECTION 12.1 Applicability of Article . . . . . . . . . . . . 70
SECTION 12.2 Satisfaction of Sinking Fund Payments with
Securities . . . . . . . . . . . . . . . . . . 71
SECTION 12.3 Redemption of Securities for Sinking Fund . . . . 71
ARTICLE XIII
SUBORDINATION OF SECURITIES . . . . . . . . . 72
SECTION 13.1. Agreement to Subordinate . . . . . . . . . . . . 72
SECTION 13.2 Payment Over of Proceeds upon Dissolution, etc . 73
SECTION 13.3 No Payment on Securities in Event of Default on
Senior Indebtedness . . . . . . . . . . . . . . 74
SECTION 13.4 Trustee's Relation to Senior Indebtedness . . . . 74
SECTION 13.5 Subrogation to Rights of Holders of Senior
Indebtedness . . . . . . . . . . . . . . . . . 75
SECTION 13.6 Provisions Solely To Define Relative Rights . . . 75
SECTION 13.7 Trustee To Effectuate Subordination . . . . . . . 76
SECTION 13.8 No Waiver of Subordination Provisions . . . . . . 76
SECTION 13.9 Notices to Trustee . . . . . . . . . . . . . . . 76
SECTION 13.10 Reliance on Judicial Order or Certificate of
Liquidating Agent . . . . . . . . . . . . . . . 77
SECTION 13.11 Rights of Trustee as a Holder of Senior
Indebtedness; Preservation of
Trustee's Rights . . . . . . . . . . . . . . . 78
SECTION 13.12 Article Applicable to Paying Agents . . . . . . . 78
SECTION 13.13 No Suspension of Remedies . . . . . . . . . . . . 78
TESTIMONIUM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
SIGNATURES AND SEALS . . . . . . . . . . . . . . . . . . . . . . . . . 93
ACKNOWLEDGMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94