EXHIBIT T3C
-----------
INDENTURE
between
NIBCO INC.
and
FIFTH THIRD BANK, INDIANA, AS TRUSTEE
--------------------------
UNSECURED SUBORDINATED DEBENTURES
--------------------------
Dated as of ____________________, 2002
TABLE OF CONTENTS
-----------------
ARTICLE ONE
-----------
DEFINITIONS AND OTHER PROVISIONS
--------------------------------
OF GENERAL APPLICATION
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Page
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ARTICLE ONE
Definitions and Rules of Construction .................................................1
Section 1.1 Definitions ............................................................1
Section 1.2 Incorporation by Reference of Trust Indenture Act ......................6
ARTICLE TWO
Debenture Forms .......................................................................7
Section 2.1. Forms Generally ........................................................7
Section 2.2. Form of Debenture ......................................................7
Section 2.3. Form of Assignment .....................................................7
ARTICLE THREE
The Debentures ........................................................................7
Section 3.1 Title and Terms ........................................................7
Section 3.2. Denominations ..........................................................8
Section 3.3. Execution, Authentication and Delivery and Dating ......................8
Section 3.4. Registration, Transfer and Exchange ....................................9
Section 3.5 Mutilated, Destroyed, Lost and Stolen Debentures ..................10
Section 3.6. Interest Payments; Interest Rights Preserved ..........................11
Section 3.7. Persons Deemed Owners .................................................12
Section 3.8. Cancellation ..........................................................12
Section 3.9. Authentication and Delivery of Original Issue .........................12
ARTICLE FOUR
Satisfaction and Discharge ...........................................................12
Section 4.1. Satisfaction and Discharge of Indenture ...............................12
Section 4.2. Application of Trust Money ............................................14
ARTICLE FIVE
Remedies .............................................................................14
Section 5.1. Events of Default .....................................................14
Section 5.2. Acceleration of Maturity; Rescission and Annulment ....................15
Section 5.3. Collection of Indebtedness and Suits for Enforcement by Trustee .......16
Section 5.4. Trustee May File Proofs of Claim ......................................16
Section 5.5. Trustee May Enforce Claims Without Possession of Debentures ...........17
Section 5.6. Application of Money Collected ........................................17
Section 5.7. Limitation on Suits ...................................................18
Section 5.8. Unconditional Right of Debentureholders to Receive Principal and Interest
..............................................................................18
Section 5.9. Restoration of Rights and Remedies ....................................19
Section 5.10. Rights and Remedies Cumulative ........................................19
Section 5.11. Delay or Omission Not Waiver ..........................................19
Section 5.12. Control by Debentureholders ...........................................19
Section 5.13. Waiver of Past Defaults ...............................................20
Section 5.14. Undertaking for Costs .................................................20
ARTICLE SIX
The Trustee ..........................................................................20
Section 6.1. Duties of Trustee .....................................................20
Section 6.2. Rights of Trustee .....................................................21
Section 6.3. Individual Rights of Trustee ..........................................22
Section 6.4. Trustee's Disclaimer ..................................................22
Section 6.5. Notice of Defaults ....................................................22
Section 6.6. Reports by Trustee to Holders .........................................22
Section 6.7. Compensation and Indemnity ............................................22
Section 6.8. Replacement of Trustee ................................................23
Section 6.9. Successor Trustee by Merger, etc ......................................24
Section 6.10. Eligibility; Disqualification .........................................24
Section 6.11. Preferential Collection of Claims Against Company .....................24
ARTICLE SEVEN
Debentureholders' Lists and Reports by Trustee and Company ...........................24
Section 7.1. Company to Furnish Trustee Names and Addresses of Debentureholders
..............................................................................24
Section 7.2. Preservation of Information; Communication to Debentureholders ........25
Section 7.3. [Reserved] ............................................................26
Section 7.4. Reports by Company ....................................................26
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease .............................26
Section 8.1. Company May Consolidate, etc., only on Certain Terms ..............26
Section 8.2. Successor Corporation Substituted .................................27
Section 8.3. Limitation on Lease of Properties as Entirety .....................27
ARTICLE NINE
Supplemental Indentures ..............................................................27
Section 9.1. Supplemental Indentures Without Consent of Debentureholders ...........27
Section 9.2. Supplemental Indentures With Consent of Debentureholders ..............28
Section 9.3. Execution of Supplemental Indentures ..................................29
Section 9.4. Effect of Supplemental Indentures .....................................29
Section 9.5. Conformity with Trust Indenture Act ...................................29
Section 9.6. Reference in Debentures to Supplemental Indentures ....................29
Section 9.7. Rights of Holders of Senior Debt ......................................30
ARTICLE TEN
Covenants ............................................................................30
Section 10.1. Payment of Principal and Interest .....................................30
Section 10.2. Maintenance of Office or Agency .......................................30
Section 10.3. Money for Debenture Payments to be Held in Trust ......................30
Section 10.4. Payment of Taxes and Other Claims .....................................31
Section 10.5. Maintenance of Properties .............................................32
Section 10.6. Maintenance of Consolidated Net Worth .................................32
Section 10.7. Statement as to Compliance ............................................32
Section 10.8. Corporate Existence ...................................................33
Section 10.9. Waiver of Certain Covenants ...........................................33
ARTICLE ELEVEN
Redemption of Debentures .............................................................33
Section 11.1. Right of Redemption ...................................................33
Section 11.2. Applicability of Article ..............................................33
Section 11.3. Election to Redeem; Notice to Trustee .................................33
Section 11.4. Selection by Trustee of Debenture to be Redeemed ......................34
Section 11.5. Notice of Redemption ..................................................34
Section 11.6. Deposit of Redemption Price ...........................................35
Section 11.7. Debentures Payable on Redemption Date .................................35
Section 11.8. Debentures Redeemed in Part ...........................................35
ARTICLE TWELVE
Subordination ........................................................................35
Section 12.1. Agreement to Subordinate ..............................................36
Section 12.2. Certain Definitions ...................................................36
Section 12.3. Liquidation, Dissolution, Bankruptcy ..................................37
Section 12.4. Default on Senior Debt ................................................37
Section 12.5. Acceleration of Debentures ............................................38
Section 12.6. When Distribution Must be Paid Over ...................................38
Section 12.7. Notice by Company .....................................................38
Section 12.8. Subrogation ...........................................................38
Section 12.9. Relative Rights .......................................................39
Section 12.10. Subordination May Not be Impaired by Company ..........................39
Section 12.11. Distribution or Notice to Representative ..............................39
Section 12.12. Rights of Trustee and Paying Agent ....................................39
ARTICLE THIRTEEN
Miscellaneous Provisions .............................................................39
Section 13.1. Compliance Certificates and Opinions ..................................39
Section 13.2. Form of Documents Delivered to Trustee ................................40
Section 13.3. Acts of Debentureholders ..............................................41
Section 13.4. Notices, etc., to Trustee and Company .................................41
Section 13.5. Notices to Debentureholders; Waiver ...................................42
Section 13.6. Conflict with Trust Indenture Act .....................................42
Section 13.7. Effect of Headings and Table of Contents ........................43
Section 13.8. Successors and Assigns ................................................43
Section 13.9. Separability Clause ...................................................43
Section 13.10. Benefits of Indenture .................................................43
Section 13.11. Governing Law .........................................................43
Section 13.12. Counterparts ..........................................................43
EXHIBIT A.................................................................................A-1
EXHIBIT B.................................................................................B-1
EXHIBIT C.................................................................................C-1
CROSS REFERENCE SHEET
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Trust Indenture Act Reflected in Indenture Provisions
------------------- ---------------------------------
Section Page
------- ----
Section 310(a)(1) 6.10 24
(a)(2) 6.10 24
(a)(3) Not Applicable ---
(a)(4) Not Applicable ---
(a)(5) 6.10 24
(b) 6.10; 6.8 24;23
(c) Not Applicable ---
Section 311(a) 6.11 24
(b) 6.11 24
(c) Not Applicable ---
Section 312(a) 7.1; 7.2(a) 24
(b) 7.2(b) 25
(c) 7.2(b) 25
Section 313(a)(1) 6.6 22
(a)(2) 6.6 22
(a)(3) 6.6 22
(a)(4) 6.6 22
(a)(5) 6.6 22
(a)(6) Not Applicable ---
(a)(7) 6.6 22
(a)(8) 6.6 22
(b)(1) Not Applicable ---
(b)(2) 6.6 22
(c) 6.6 22
(d) 6.6 22
Section 314(a) 7.4; 10.7 25;32
(b) Not Applicable ---
(c)(1) 13.1 39
(c)(2) 13.1 39
(c)(3) Not Applicable ---
(d) Not Applicable ---
(e) 13.1 39
Trust Indenture Act Reflected in Indenture Provisions
------------------- ---------------------------------
Section Page
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Section 315(a) 6.1 20
(b) 6.5; 13.5 22;42
(c) 6.1 20
(d) 6.1 20
(e) 5.14 20
Section 316(a)(last sentence) 1.1 1
(a)(1)(A) 5.12 19
(a)(1)(B) 5.13 19
(a)(2) Not Applicable ---
(b) 5.8 18
Section 317(a)(1) 5.3 15
(a)(2) 5.4 16
(b) 10.3 30
Section 318(a) 13.6 42
Note: This cross-reference sheet shall not, for any purpose, be deemed to be
part of the Indenture.
INDENTURE
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THIS INDENTURE dated as of the _____ day of ______________, 2002,
between NIBCO INC., an Indiana corporation (hereinafter called the "Company"),
having its principal office at 0000 Xxxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx, and
Fifth Third Bank, Indiana (hereinafter called the "Trustee");
W I T N E S S E T H:
WHEREAS, the Company has duly authorized the creation of an issue of its
Debentures (hereinafter called the `Debentures") having substantially the terms
and conditions and in the amount hereinafter set forth; and
WHEREAS, the Company has duly authorized the execution and delivery of
this Indenture; and
WHEREAS, all things have been done which are necessary to make the
Debentures, when executed and duly issued by the Company and authenticated and
delivered hereunder, the valid obligations of the Company, and to make this
Indenture a valid agreement of the Company, in accordance with its terms.
NOW, THEREFORE, this Indenture witnesseth:
For and in consideration of the premises and the purchase of the
Debentures by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Debentures, as follows:
ARTICLE ONE
Definitions and Rules of Construction
Section 1.1 Definitions.
(a) For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) "This 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
(2) All reference in this instrument to designated "Articles",
"Section", and other subdivisions are to the designated Articles,
Sections or other subdivisions of this instrument as originally
executed. The words "herein", "hereof" and "hereunder" and other words
of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision; and
(3) All terms not otherwise defined herein which are defined in
the Trust Indenture Act either directly or by reference therein, have
the meanings assigned to them therein; and
(4) All accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles; and
(5) The following terms shall have the following meanings and
shall include the plural as well as the singular:
"Act" when used with respect to any Debentureholder has the meaning
specified in Section 13.3.
"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.
"Authorized Newspaper" means a newspaper of general circulation in the
relevant area, printed in the English language and customarily published on each
business day, whether or not published on Saturdays, Sundays or holidays.
"Board of Directors" means either the board of directors of the Company
or any duly authorized committee of that board.
"Board Resolution" means a copy of the resolution certified by the
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.
"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 on such date.
"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," "Company Order" and "Company Consent" mean,
respectively, a written request, order or consent signed in the name of the
Company by its President, Vice President, or Secretary and delivered to the
Trustee.
"Debentureholder" means a Person in whose name a Debenture is registered
in the Debenture Register.
"Debenture Register" and "Debenture Registrar" have the respective
meanings specified in Section 3.4.
"Event of Default" has the meaning specified in Article Five.
"Fixed Rate" means the fixed per annum rate of interest on any
Debenture, which rate shall equal 6.55% for Debentures with a five-year term,
7.09% for Debentures with a seven-year term, and 7.52% for Debentures with a
ten-year term.
"Holder" when used with respect to any Debenture means a
Debentureholder.
"Independent" when used with respect to any specified Person means such
a Person who (1) is in fact independent, (2) does not have any direct financial
interest or any material indirect financial interest in the Company or in any
other obligor upon the Debentures or in any Affiliate of the Company or of such
other obligor, and (3) is not connected with the Company or such other obligor
or any Affiliate of the Company or such other obligor, as an officer, employee,
promoter, underwriter, trustee, partner, director or person performing similar
functions. Whenever it is herein provided that any Independent Person*s opinion
or certificate shall be furnished to the Trustee, such Person shall be appointed
by Company Order and approved by the Trustee in the exercise of reasonable care,
and such opinion or certificate shall state that the signer has read this
definition and that the signer is Independent within the meaning thereof.
"Interest Payment Date" with respect to any Debenture means the date
specified in such Debenture as the date on which an installment of interest is
due and payable, or the next succeeding business day if such date is a Saturday,
Sunday, legal holiday or day on which banking institutions in Indianapolis,
Indiana are authorized by law to close.
"Maturity" when used with respect to any Debenture means the date on
which the principal of such Debenture becomes due and payable in full as therein
or herein provided, whether at the maturity date specified therein or by
declaration of acceleration, call for redemption (in full or in part) or
otherwise.
"Offering Circular" means the Company*s offering circular for
distribution to shareholders with respect to the offering of the Debentures in
exchange for shares of the Company's Common Stock, as the same may be
supplemented or amended from time to time.
"Officers* Certificate" means a certificate signed by the President or a
Vice President, and the Secretary of the Company, and delivered to the Trustee.
Wherever this Indenture requires that an Officers* Certificate be signed also by
an engineer or an accountant or other expert, such engineer, accountant or other
expert (except as otherwise expressly provided in this Indenture) may be in the
employ of the Company, and shall be acceptable to the Trustee in its reasonable
discretion.
"Opinion of Counsel" means a written opinion of counsel, who may (except
as otherwise expressly provided in this Indenture) be counsel for the Company,
and shall be acceptable to the Trustee in its reasonable discretion.
"Outstanding" when used with respect to Debentures means, as of the date
of determination, all Debentures therefore authenticated and delivered under
this Indenture, except:
(i) Debentures theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Debentures for whose payment or redemption money in
the necessary amount has been theretofore deposited with the
Trustee or any Paying Agent in trust for the Holders of such
Debentures, provided that, if such Debentures are to be
redeemed, notice of such redemption has been duly given pursuant
to this Indenture or provision therefore satisfactory to the
Trustee has been made; and
(iii) Debentures in exchange for or in lieu of which
other Debentures have been authenticated and delivered pursuant
to this Indenture;
provided, however, that in determining whether the Holders of the requisite
principal amount of Debentures Outstanding have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Debentures owned
by the Company or any other obligor upon the Debentures or any Affiliate of the
Company or such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Debentures which the Trustee knows to be so owned shall
be so disregarded. Debentures so owned which have been pledged in good faith may
be regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee*s right to so act with respect to any such Debentures and
that the pledgee is not the Company or any other obligor upon the Debentures or
any Affiliate of the Company or such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of or interest on any Debentures on behalf of the Company.
"Person" means any individual, corporation; limited liability company;
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Place of Payment" means a city or any political subdivision thereof
designated as such in Article Three.
"Predecessor Debentures" of any particular Debenture means every
previous Debenture evidencing all or a portion of the same debt as that
evidenced by such particular Debenture; and, for the purposes of this
definition, any Debenture authenticated and delivered under Section 3.5 in lieu
of a lost, destroyed or stolen Debenture shall be deemed to evidence the same
debt as the lost, destroyed or stolen Debenture.
"Redemption Date" when used with respect to any Debenture to be redeemed
means the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price" means the principal amount of Debentures to be
redeemed and accrued interest to the Redemption Date.
"Regular Record Date" for the interest payable on any Interest Payment
Date means the date specified in Article Three.
"Responsible Officer" when used with respect to the Trustee means the
chairman or vice-chairman of the board of directors, the chairman or
vice-chairman of the executive committee of the board of directors, 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 and 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.
"Senior Debt" means indebtedness of the Company to which the Debentures
are subordinate and junior in right of payment, as described more fully in
Article Twelve hereof. The Company*s outstanding debentures issued pursuant to
the Indenture dated as of February 28, 1986 shall not constitute Senior Debt but
shall be pari passu with the Debentures in right of payment.
"Special Record Date" for the payment of any Defaulted Payment (as
defined in Section 3.6) means a date fixed by the Trustee pursuant to Section
3.6.
"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
such successor Trustee.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939, as
in force at the date as of which this instrument was executed.
"Variable Rate" means the variable per annum rate of interest on any
Debenture, which rate shall equal the lesser of (i) fifteen percent (15%), and
(ii) one and three-quarters percent (1.75%) above the three-month LIBOR (London
InterBank Offer Rate) as reported in The Wall Street Journal on the most recent
date of publication preceding the last date of issuance of that particular
Debenture, provided that the Variable Rate shall be adjusted quarterly effective
as of the first day of each calendar quarter (each of said days herein referred
to as an "Adjustment Date").
"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 Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the provision
is incorporated by referenced and made a part of this Indenture.
The following TIA terms used in this Indenture have the following
meanings:
"indenture securities" means the Debentures;
"indenture security holder" means the Debentureholder;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee;
"obligor" on the Debentures means the Company and any successor obligor
on the Debentures.
All other terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by Commission rule under
the TIA have the meanings so assigned to them.
ARTICLE TWO
Debenture Forms
Section 2.1. Forms Generally.
The Debentures and the certificates of authentication, assignments, and
registration records thereon shall be in substantially the forms set forth in
this Article, 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, consistently herewith, be determined by the
officers executing such Debentures, as evidenced by their execution of the
Debentures. Any portion of the text of any Debenture may be set forth on the
reverse thereof, with an appropriate reference thereto on the face of the
Debenture.
The definitive Debentures shall be printed, or may be produced in any
other manner, all as determined by the officers executing such Debentures, as
evidenced by their execution of such Debentures.
Section 2.2. Form of Debenture.
(a) Form of Fixed Rate Debenture. The Fixed Rate Debenture shall be in
the form of Exhibit A, which is part of this Indenture.
(b) Form of Variable Rate Debenture. The Variable Rate Indenture shall
be in the form of Exhibit B, which is part of this Indenture.
Section 2.3. Form of Assignment. The Form of Assignment shall be in the
form of Exhibit C which is a part of this Indenture.
ARTICLE THREE
The Debentures
Section 3.1 Title and Terms.
Except for Debentures authenticated and delivered upon transfer of, or
in exchange for, or in lieu of other Debentures pursuant to Sections 3.4, 3.5,
9.6 or 11.8, the aggregate principal amount of Debentures which may be
authenticated and delivered under this Indenture, is limited to $25,000,000. The
Debentures may be issued from time to time in exchange for shares of the
Company's Class B Common Stock as such shares are tendered and accepted for
exchange pursuant to an exchange offer of the Company to its shareholders, as
described in the Offering Circular.
The Debentures may be issued only in registered form without coupons,
and shall be known and designated as the "Unsecured, Subordinated Debentures" of
the Company. Principal on any Debenture shall be payable in one installment on
the date of Maturity, unless paid earlier, in whole or in part, by declaration
of acceleration, redemption or otherwise. The Maturity Date of any Debenture
shall be the last day of the same month as the month in which that Debenture is
issued, in the fifth (5th), seventh (7th) or tenth (10th) year after issuance.
The year of maturity of any Debenture shall be selected irrevocably by the
original Holder prior to the issuance of that Debenture. Interest is payable in
consecutive monthly installments due on the last day of each month, commencing
on the last day of the month in which the Debenture is issued. Each Debenture
bears interest from the date of issuance at either the Fixed Rate or the
Variable Rate, as selected irrevocably by the original Holder thereof.
The principal, interest and the redemption price of the Debentures shall
be payable by check mailed to the Holder entitled to such payment at his address
as it appears on the Debenture Register, or, at the option of the original
Holder of each Debenture (unless the method of payment is subsequently changed
upon thirty (30) days written notice to the Company by the registered
Debentureholder entitled thereto), by electronic transfer to the account
provided to the Company and listed on the records of the Company.
The Debentures shall be redeemable at the option of the Company without
penalty or premium as provided in Article Eleven.
The Debentures shall be subordinated in right of payment to certain
other indebtedness of the Company as provided in Article Twelve. The Debentures
are unsecured debt obligations of the Company.
Section 3.2. Denominations.
The Debentures may be issued in any denominations as the Company may
from time to time authorize.
Section 3.3. Execution, Authentication and Delivery and Dating.
The Debentures shall be executed on behalf of the Company by its
President or one of its Vice Presidents and attested by its Secretary. The
signature of any of these officers on the Debentures may be manual or facsimile.
Debentures 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 Debentures or did not
hold such offices at the date of such Debentures.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Debentures executed by the Company to
the Trustee for authentication; and the Trustee shall authenticate and deliver
such Debentures as in this Indenture provided and not otherwise.
Each Debenture shall be dated the date of authentication of that
particular Debenture.
No Debenture shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose, unless there appears on such Debenture a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Debenture shall be conclusive evidence, and the only evidence, that such
Debenture has been duly authenticated and delivered hereunder.
Section 3.4. Registration, Transfer and Exchange.
The Company shall cause to be kept at the principal corporate trust
office of the Trustee a register (herein sometimes referred to as the "Debenture
Register") in which, subject to such reasonable regulations as it may prescribe,
the Company shall provide for the registration of Debentures and of transfers of
Debentures. Unless another person is appointed by the Company as Debenture
Registrar, the Company shall serve as Debenture Registrar for the purpose of
registering Debentures and transfers of Debentures as herein provided.
Without the prior written consent of the Company, a Debenture is
transferable only upon death or by operation law. Upon surrender for transfer of
any Debenture at the office or agency of the Company in the City of Elkhart,
Indiana, or Indianapolis, Indiana (the "Place of Payment"), the Company shall
execute, and the Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Debentures of any
authorized denominations, of a like aggregate principal amount.
At the option of the Holder, Debentures may be exchanged for other
Debentures of a like aggregate principal amount, upon surrender of the
Debentures to be exchanged at the office of the Company. Whenever any Debentures
are so surrendered for exchange, the Company shall execute, and the Trustee
shall authenticate and deliver, the Debentures which the Debentureholder making
the exchange is entitled to receive.
All Debentures issued upon any transfer or exchange of Debenture shall
be the valid obligations of the Company, evidencing the same debt, and entitled
to the same benefits under this Indenture, as the Debentures surrendered upon
such transfer or exchange.
Every Debenture presented or surrendered for transfer or exchange shall
(if so required by the Company or the Trustee) be duly endorsed, or be
accompanied by a written instrument or transfer in form satisfactory to the
Company and the Debenture Registrar duly executed, by the Holder thereof or his
attorney duly authorized in writing.
No service charge shall be made for any transfer or exchange of
Debentures, 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
transfer or exchange of Debentures.
The Company shall not be required (i) to issue, transfer or exchange any
Debenture during a period beginning at the opening of business 15 days before
the day of the mailing of a notice of redemption of Debentures selected for
redemption under Section 11.4 and ending at the close of business on the day of
such mailing, or (ii) to transfer or exchange any Debenture so selected for
redemption in whole or in part.
Section 3.5 Mutilated, Destroyed, Lost and Stolen Debentures.
If (i) any mutilated Debenture is surrendered to the Trustee, or the
Company, and the Trustee receives evidence to its satisfaction of the
destruction, loss or theft of any Debenture, and (ii) there is delivered to the
Company and the Trustee such security or indemnity as may be required by them to
save each of them harmless, then, in the absence of notice to the Company or the
Trustee that such Debenture has been acquired by a bona fide purchaser, the
Company shall execute and upon its request the Trustee shall authenticate and
deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or
stolen Debenture, a new Debenture of like tenor and principal amount, bearing a
number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Debenture has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Debenture, pay such Debenture.
Upon the issuance of any new Debenture 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 Debenture issued pursuant to this Section in lieu of any
destroyed, lost or stolen Debenture shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Debenture 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 Debentures 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 Debentures.
Section 3.6. Interest Payments; Interest Rights Preserved.
Interest on any Debenture 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 Debenture (or one or more Predecessor Debentures) is registered
at the close of business on the Regular Record Date for such payments, which
shall be the tenth (10th) business day before each Interest Payment Date.
Any interest on any Debenture which is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date (herein called
"Defaulted Payment") shall forthwith cease to be payable to the registered
Holder on the relevant Regular Record Date by virtue of having been such Holder;
and such Defaulted Payment may be paid by the Company, at its election in each
case, as provided in Clause (1) or Clause (2) below:
(1) The Company may elect to make payment of any Defaulted
Payment to the Persons in whose names the Debentures (or their
respective Predecessor Debentures) are registered at the close of
business on a Special Record Date for the payment of such Defaulted
Payment, which shall be fixed in the following manner. The Company shall
notify the Trustee in writing of the amount of Defaulted Payment
proposed to be paid on each Debenture 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 Payment 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 Payment as in this
Clause provided. Thereupon the Trustee shall fix a Special Record Date
for the payment of such Defaulted Payment which shall be not more than
15 nor 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
Payment and the Special Record Date therefor to be mailed, first class
postage pre-paid, to each Debentureholder at his address as it appears
in the Debenture Register, not less than 10 days prior to such Special
Record Date. At the written direction of the Company, the Trustee shall,
in the name and at the expense of the Company, cause a similar notice to
be published at least once in an Authorized Newspaper in the Place of
Payment, but such publication shall not be a condition precedent to the
establishment of such Special Record Date. Notice of the proposed
payment of such Defaulted Payment and the Special Record Date therefor
having been mailed as aforesaid, such Defaulted Payment shall be paid to
the Persons in whose names the Debentures (or their respective
Predecessor Debentures) are registered 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 Payment in any
other lawful manner if, after notice given by the Company to the Trustee
of the proposed payment pursuant to this Clause, such payment shall be
deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Debenture
delivered under this Indenture upon transfer of or in exchange for or in lieu of
any other Debenture shall carry the rights to interest accrued and unpaid, and
to accrue, which were carried by such other Debenture.
Section 3.7. Persons Deemed Owners.
The Company, the Trustee and any agent of the Company or the Trustee may
treat the Person in whose name any Debenture is registered as the owner of such
Debenture for the purpose of receiving payment of principal of and (subject to
Section 3.6) interest on, such Debenture and for all other purposes whatsoever,
whether or not such Debenture 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 3.8. Cancellation.
All Debentures surrendered for payment, redemption, transfer, or
exchange shall, if surrendered to any Person other than the Trustee, be
delivered to the Trustee and, if not already cancelled, shall be promptly
cancelled by it. The Company may at any time deliver to the Trustee for
cancellation any Debentures previously authenticated and delivered hereunder
which the Company may have acquired in any manner whatsoever, and all Debentures
so delivered shall be promptly cancelled by the Trustee. No Debentures shall be
authenticated in lieu of or in exchange for any Debentures cancelled as provided
in this Section, except as expressly permitted by this Indenture. All cancelled
Debentures held by the Trustee shall be disposed of as directed by a Company
Order.
Section 3.9. Authentication and Delivery of Original Issue.
Upon the execution and delivery of this Indenture, and from time to time
thereafter, registered Debentures up to the aggregate principal amount specified
in Section 3.1 may be executed by the Company and delivered to the Trustee for
authentication, and shall thereupon be authenticated and delivered by the
Trustee upon Company Order, without any further action by the Company.
ARTICLE FOUR
Satisfaction and Discharge
Section 4.1. Satisfaction and Discharge of Indenture.
This Indenture shall cease to be of further effect (except as to any
transfer or exchange of Debentures herein expressly provided for), and the
Trustee, on demand of and at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture, when
(1) either
(A) all Debentures theretofore authenticated and
delivered (other than (i) Debentures which have been destroyed,
lost or stolen and which have been replaced or paid as provided
in Section 3.5, and (ii) Debentures 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 cancelled or for cancellation; or
(B) all such Debentures not theretofore delivered to the
Trustee cancelled or for cancellation
(i) have become due and payable at their
Maturity, or
(ii) will become due and payable at their
Maturity within 1 year, or
(iii) are to be called for redemption within 1
year under arrangements satisfactory to the Trustee for
the giving of notice of redemption by the Trustee in the
name, and at the expense of the Company, and the
Company, in the case of (i), (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee as
trust funds in trust for the purpose an amount
sufficient to pay and discharge the entire indebtedness
on such Debentures not theretofore delivered to the
Trustee cancelled or for cancellation, for principal and
interest to the date of such deposit (in the case of
Debentures which have become due and payable), or to the
Maturity, as the case may be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel each stating that all conditions
precedent 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 shall survive.
Section 4.2. Application of Trust Money.
All money deposited with the Trustee pursuant to Section 4.1 shall be
held in trust and applied by it, in accordance with the provisions of the
Debentures 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
interest for whose payment such money has been deposited with the Trustee; but
such money need not be segregated from other funds except to the extent required
by law.
ARTICLE FIVE
Remedies
Section 5.1. Events of Default.
"Event of Default," wherever used herein means any one of the following
events, (whether such Event of Default occurs for any reason and whether it
shall be voluntary or involuntary or be effected by operation of law 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 due and payable upon
any Debenture and continuance of such default for a period of five (5)
days; or
(2) default in the payment of any principal due and payable upon
any Debenture; or
(3) default in the performance, or breach, of any other covenant
or warranty of the Company in this Indenture and continuance of such
default or breach for a period of 30 days after there has been given, by
registered or certified mail, to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 10% in principal
amount of the Outstanding Debentures, 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
(4) the entry of a decree or order by a court having
jurisdiction in the premises 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 the Federal Bankruptcy Code or any other applicable
Federal or State law, or appointing a 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 unstayed in and in effect for a period of 60 consecutive days; or
(5) the institution by the Company of proceedings to be
adjudicated a bankrupt or insolvent, or the consent by it to the
institution of bankruptcy or insolvency proceedings against it, or the
filing by it of a petition or answer or consent seeking reorganization
or relief under the Federal Bankruptcy Code or any other applicable
Federal or State law, or the consent by it to the filing of any such
petition or to the appointment of a receiver, liquidator, assignee,
trustee, sequestrator (or other 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.
Section 5.2. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default occurs and is continuing, then and in every such
case the Trustee or the Holders of not less that 25% in principal amount of the
Debentures Outstanding may declare the principal of all the Debentures to be due
and payable immediately, by a notice in writing to the Company (and to the
Trustee if given by Debentureholders), and upon any such declaration such
principal shall become immediately due and payable. At any time after such a
declaration of acceleration 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
Debentures Outstanding, 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 installments of interest on all
Debentures,
(B) all overdue principal on any Debentures, due
otherwise than by such declaration of acceleration, and interest
thereon at the rate borne by the Debentures, and
(C) 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, other than the non-payment of the
principal of Debentures which has become due solely by such
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.
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 installment of
interest of any Debenture when such interest becomes due and payable, or
(2) default is made in the payment of the principal of any
Debenture when such principal becomes due and payable,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Debentures, the whole amount then due and payable on such
Debentures for principal and interest, with interest upon the overdue principal
at the rate borne by the Debentures; 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 amount forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Company or any other obligor upon the Debentures 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 the Debentures, wherever
situated.
If an Event of Default occurs and is continuing, the Trustee may in its
discretion proceed to protect and enforce its rights and the rights of the
Debentureholders 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 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
Debentures or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Debentures
shall then be due and payable as therein expressed or by declaration of
acceleration 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 interest owing and unpaid in respect of the Debentures 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 Debentureholders 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 receiver, assignee, trustee, liquidator, sequestrator (or other similar
official) in any such judicial proceeding is hereby authorized by each
Debentureholder 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
Debentureholders, to pay to the Trustee any amount due to 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 Debentureholder any
plan of reorganization, arrangement, adjustment or composition affecting the
Debentures or the rights of any Holder thereof, or to authorize the Trustee to
vote in respect of the claim of any Debentureholder in any such proceeding.
Section 5.5. Trustee May Enforce Claims Without Possession of
Debentures.
All rights of action and claims under this Indenture or the Debentures
may be prosecuted and enforced by the Trustee without the possession of any of
the Debentures 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 Debentures 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 interest, upon
presentation of the Debentures 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 to the Trustee under
Section 6.7;
Second: To the payment of the amounts then due and unpaid upon
the Debentures for principal and interest, in respect of which or for
the benefit of which such money has been collected, ratably, without
preference or priority of any kind, according to the amounts due and
payable on such Debentures for principal and interest, respectively.
Section 5.7. Limitation on Suits.
No Holder of any Debenture 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;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Debentures shall have made written request to the Trustee to
institute proceeding 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 Debentures;
it being understood and intended that no one or more Holders of Debentures 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 Holders of Debentures, or to obtain or to seek to obtain priority or
preference over any other Holders or to enforce any right under this Indenture,
except in the manner herein provided and for the equal and ratable benefit of
all the Holders of Debentures.
Section 5.8. Unconditional Right of Debentureholders to Receive
Principal and Interest.
Subject to Article Twelve hereof, but notwithstanding any other
provision in this Indenture, the Holder of any Debenture shall have the right
which is absolute and unconditional to receive payment of the principal of and,
subject to Section 3.6, interest on such Debenture on the respective Interest
Payment Dates expressed in such Debenture (or, in the case of redemption, on the
Redemption Date, and in the case of declaration, on the respective due date) and
to institute suit for the enforcement of any such payment, and such right shall
not be impaired without the consent of such Holder.
Section 5.9. Restoration of Rights and Remedies.
If the Trustee or any Debentureholder 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 Debentureholder, then and in every such case the Company,
the Trustee and the Debentureholders shall, subject to any determination in such
proceedings, be restored severally and respectively to their former positions
hereunder, and thereafter all rights and remedies of the Trustee and the
Debentureholders shall continue as though no such proceeding had been
instituted.
Section 5.10. Rights and Remedies Cumulative.
No right or remedy herein conferred upon or reserved to the Trustee or
to the Debentureholders 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 Debenture to
exercise any right or remedy occurring upon any Event of Default shall impair
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 Debentureholders may be exercised from time to time, and
as often as may be deemed expedient, by the Trustee or by the Debentureholders,
as the case may be.
Section 5.12. Control by Debentureholders.
The Holders of a majority in principal amount of the Outstanding
Debentures shall have the right to direct the time, method and place of
conducting any proceedings for any remedy available to the Trustee or exercising
any trust or power conferred on the Trustee, provided that
(1) such direction shall not be in conflict with any rule or 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 a majority of principal amount of the Outstanding
Debentures may on behalf of the Holders of all the Debentures waive any past
default hereunder and its consequences, except a default
(1) in the payment of the principal of or interest on any
Debenture, 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 Debenture 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 Debenture 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 claim 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 Debentureholder, or group of
Debentureholders, holding in the aggregate more than 10% in principal amount of
the Outstanding Debentures, or to any suit instituted by any Debentureholder for
the enforcement of the payment of the principal of or interest on any Debenture
on or after the respective Interest Payment Dates expressed in such Debenture or
at the Maturity thereof.
ARTICLE SIX
The Trustee
Section 6.1. Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the Trustee
shall exercise its rights and powers 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.
(b) Except during the continuance of an Event of Default (i) the Trustee
need perform only those duties that are specifically set forth in this Indenture
and no others; and (ii) 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; provided however,
that the Trustee shall examine the certificates and opinions to determine
whether or not they conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liability for its own negligent
action, its own negligent failure to act or its own willful misconduct, except
that (i) this paragraph does not limit the effect of Paragraph (b) of this
Section; (ii) the Trustee shall not be liable for any error of judgment made in
good faith by a Trust Officer, unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts; and (iii) the Trustee shall not
be liable with respect to any action it takes or omits to take in good faith in
accordance with a direction received by it pursuant to Section 6.5.
(d) Every provision of this Indenture that in any way relates to the
Trustee is subject to Paragraphs (a), (b) and (c) of this Section.
(e) The Trustee shall not be liable for interest on any money received
by it except as the Trustee may agree with the Company.
(f) Money held in trust by the Trustee need not be segregated from other
funds except to the extent required by law.
(g) No provision of this Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur 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 to believe that repayment of such
funds or adequate indemnity against such risk or liability is not reasonably
assured to it.
(h) 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 and to the provisions of the TIA.
Section 6.2. Rights of Trustee.
(a) The Trustee may rely on any document believed by it to be genuine
and to have been signed or presented by the proper person. The Trustee need not
investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel. The Trustee shall not be liable
for any action it takes or omits to take in good faith in reliance on the
Certificate or Opinion.
(c) The Trustee may act through agents and shall not be responsible for
the misconduct or negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits to
take in good faith which it believes to be authorized or within its rights or
powers.
Section 6.3. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the owner
or pledgee of Debentures and may otherwise deal with the Company or an affiliate
with the same rights it would have if it were not Trustee. Any Agent may do the
same with like rights. Section 6.4.Trustees Disclaimer .
The Trustee makes no representation as to the validity or adequacy of
this Indenture or the Debentures, it shall not be accountable for the Company's
use of the proceeds from the Debentures, and it shall not be responsible for any
statement in the Debentures other than its authentication.
Section 6.5. Notice of Defaults.
If an Event of Default as defined in Section 6.1 occurs and is
continuing and is known to the Trustee, the Trustee must mail to each Holder
notice of the Event of Default within 90 days after it occurs. Except in the
case of an Event of Default in the payment of principal of or interest on any
Debenture, the Trustee may withhold notice if and so long as a committee of its
trust officers determines that withholding notice is not opposed to the interest
of the Holders.
Section 6.6. Reports by Trustee to Holders.
To the extent required by the TIA, within 60 days after January 1st of
each year (each date, a "Reporting Date"), the Trustee shall mail to Holders a
brief report dated as of such Reporting Date that complies with TIA Section
313(a). The Trustee also shall comply with TIA Section 313(b). A copy of each
report at the time of its mailing to Holders shall be filed with the Commission
and each stock exchange (if any) on which the Debentures are listed. The Company
agrees to notify promptly the Trustee whenever the Debentures become listed on
any stock exchange and of any delisting thereof.
Section 6.7. Compensation and Indemnity.
(a) The Company shall pay to the Trustee from time to time reasonable
compensation for its services. The Trustee's compensation shall not be limited
by any law on compensation of a trustee of an express trust. The Company shall
reimburse the Trustee upon request for all reasonable out-of-pocket expenses
incurred by it. Such expenses shall include the reasonable compensation and
out-of-pocket expenses of the Trustee's agents and counsel.
(b) The Company shall indemnify the Trustee against any loss or
liability incurred by it. The Trustee shall notify the Company promptly of any
claim for which it may seek indemnity and the Company shall defend the claim.
The Trustee may have separate counsel but the fees and expenses of such counsel
shall be borne by the Trustee unless the Company shall not have promptly
employed counsel to assume the defense of the claim, in which event such fees
and expenses shall be borne by the Company. The Company shall have the right, in
its sole discretion, to satisfy or settle any claim for which indemnification
has been sought and is available hereunder as long as such satisfaction or
settlement is at no cost to the Trustee. The Company need not pay for any
settlement made without its consent or reimburse any expense or indemnify
against any loss or liability incurred by the Trustee through negligence or bad
faith.
(c) To secure the Company's payment obligations in this Section, the
Trustee shall have a lien prior to the Debentures on all money or property held
or collected by the Trustee, except that held in trust to pay principal and
interest on particular Debentures. When the Trustee incurs expenses or renders
services after an Event of Default specified in Sections 5.1(4) or 5.1(5)
occurs, the expenses and the compensation for the services are intended to
constitute expenses of administration under any Bankruptcy Law.
Section 6.8. Replacement of Trustee.
(a) A resignation or removal of the Trustee and appointment of a
successor Trustee shall become effective only upon the successor Trustee's
acceptance of appointment as provided in this Section. The Trustee may resign by
so notifying the Company. The Holders of a majority in principal amount of the
Debentures may remove the Trustee by so notifying the Trustee and the Company.
The Company may remove the Trustee if (i) the Trustee fails to comply with
Section 6.10; (ii) the Trustee is adjudged a bankrupt or an insolvent; (iii) a
receiver or public officer takes charge of the Trustee or its property; or (iv)
the Trustee becomes incapable of acting.
(b) If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall promptly appoint a successor
Trustee. Within one year after the successor Trustee takes office, the Holders
of a majority in principal amount of the Debentures may appoint a successor
Trustee to replace the successor Trustee appointed by the Company.
(c) If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or the
Holders of at least l0% in principal amount of the Debentures may petition any
court of competent jurisdiction for the appointment of a successor Trustee.
(d) If the Trustee fails to comply with Section 6.10, any Holder may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.
(e) A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon, the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Holders. The retiring Trustee shall promptly transfer all property
held by it as Trustee to the successor Trustee, subject to the lien provided for
in Paragraph 6.7(c).
Section 6.9. Successor Trustee by Merger, etc.
If the Trustee consolidates, merges or converts into, or transfers all
or substantially all of its corporate trust business to, another corporation,
the successor corporation without any further act shall be the successor
Trustee.
Section 6.10. Eligibility; Disqualification.
The Trustee shall at all times satisfy the requirements of TIA Section
310(a). The Trustee shall have a combined capital and surplus of at least
$25,000,000 as set forth in its most recent published annual report of
condition. The Trustee shall comply with TIA Section 310(b); provided, however,
that there shall be excluded from the operation of TIA Section 310(b)(1) any
indenture or indentures under which other securities or certificates of interest
or participation in other securities of the Company are outstanding if the
requirements for such exclusion set forth in TIA Section 310(b)(1) are met.
Section 6.11. Preferential Collection of Claims Against Company.
The Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated.
ARTICLE SEVEN
Debentureholders Lists and Reports by Trustee and Company
Section 7.1. Company to Furnish Trustee Names and Addresses of
Debentureholders.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
all Holders and shall otherwise comply with TIA ss. 312(a). If the Trustee is
not the Registrar, the company shall furnish to the Trustee not more than 5 days
after each Regular Record Date and at such other times as the Trustee may
request in writing, a list in such form and as of such Regular Record Date or
such other date as the Trustee may reasonably require of the names and addresses
of the Holders of Debentures and the Company shall otherwise comply with TIA ss.
312(a).
Section 7.2. Preservation of Information; Communication to
Debentureholders.
(a) If 3 or more Holders of Debentures (hereinafter referred to as
"applicants") apply in writing to the Trustee, and furnish to the Trustee
reasonable proof that each such applicant has owned a Debenture for a period of
at least 6 months preceding the date of such application, and such application
states that the applicants desire to communicate with other Holders of
Debentures with respect to their rights under this Indenture or under the
Debentures 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 5 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 of Debentures whose names and addresses appear in the
information preserved at the time by the Trustee in accordance with
Section 7.2(a) and as to the approximate cost of mailing to such
Debentureholders 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 Debentureholder 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 5 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 interests of the Holders
of Debentures 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 Debentureholders 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.
(b) Every Holder of Debentures, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the Trustee
shall be held accountable by reason of the disclosure of any such information as
to the names and addresses of the Holders of Debentures 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. [Reserved].
Section 7.4. Reports by Company.
(a) The Company shall file with the Trustee within 15 days after it
files them 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 by rules and regulations prescribe) which
the Company is required to file with the Commission pursuant to Section 13 or
15(d) of the Securities Exchange Act of 1934, as amended; or, if the Company is
not required to file information, documents or reports pursuant to either of
such sections, then to file with the Trustee and the Commission, in accordance
with rules and regulations prescribed 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, as
amended, if any, 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. The Company also shall comply with the other provisions of Section
314(a) of the TIA.
(b) The Company shall 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 conditions and covenants of this Indenture as may
be required from time to time by such rules and regulations.
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
Section 8.1. Company May Consolidate, etc., only on Certain Terms.
The Company shall not consolidate with or merge into any other
corporation or convey or transfer its properties and assets substantially as an
entirety to any Person; unless:
(1) the corporation formed by such consolidation or into which
the Company is merged or the Person which acquires by conveyance or
transfer the properties and assets of the Company substantially as an
entirety shall be a corporation organized and existing under the laws of
the United States of America or any State or the District of Columbia,
and shall expressly assume, by indenture supplemental hereto, executed
and delivered to the Trustee, in form satisfactory to the Trustee, the
due and punctual payment of the principal of and interest on all the
Debentures and the performance of every covenant of this Indenture on
the part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction, no
Event of Default, and no event which, after notice or lapse of time, or
both, would become an Event of Default, shall have happened and be
continuing; and
(3) the Company has delivered to the Trustee an Officers*
Certificate and an Opinion of Counsel each stating that such
consolidation, merger, conveyance or transfer and such supplemental
indenture comply with this Article and that all conditions precedent
herein provided for relating to such transaction have been satisfied.
Section 8.2. Successor Corporation Substituted.
Upon any consolidation or merger, or any conveyance or transfer of the
properties and assets of the Company substantially as an entirety in accordance
with Section 8.1, the successor corporation formed by such consolidation or into
which the Company is merged or to which such conveyance or transfer is made
shall succeed to, and be substituted for, and may exercise every right and power
of, the Company under this Indenture with the same effect as if such successor
corporation had been named as the Company herein, provided, however, that no
such conveyance or transfer shall have the effect of releasing the Person named
as the "Company" in the first paragraph of this instrument or any successor
corporation which shall theretofore have become such in the manner prescribed in
this Article from its liability as obligor and maker on any of the Debentures.
Section 8.3. Limitation on Lease of Properties as Entirety.
The Company shall not lease its properties and assets substantially as
an entirety to any Person.
ARTICLE NINE
Supplemental Indentures
Section 9.1. Supplemental Indentures Without Consent of
Debentureholders.
Subject to Section 9.7, without the consent of the Holders of any
Debentures, the Company, when authorized by a Board Resolution, and the Trustee,
at any time and from time to time, may enter into one or more indentures
supplemental hereto, in form satisfactory to the Trustee, for any of the
following purposes:
(1) to evidence the succession of another corporation to the
Company, and the assumption by any such successor of the covenants of
the Company herein and in the Debentures contained; or
(2) to add to the covenants of the Company, for the benefit of
the Holders of the Debentures, or to surrender any right or power herein
conferred upon the Company; or
(3) 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 which shall not be inconsistent
with the provisions of this Indenture, provided such action shall not
materially, adversely affect the interest of the Holders of the
Debentures; or
(4) to modify, eliminate or add to the provisions of this
Indenture to such extent as shall be necessary to effect the
qualification of this Indenture under the Trust Indenture Act, or under
any similar federal statute hereafter enacted, and to add to this
Indenture such other provisions as may be expressly permitted by the
Trust Indenture Act, excluding, however, the provisions referred to in
Section 316(a)(2) of the Trust Indenture Act as in effect at the date as
of which this instrument was executed or any corresponding provision in
any similar federal statute hereafter enacted.
Section 9.2. Supplemental Indentures With Consent of Debentureholders.
Subject to Section 9.7, with the consent of the Holders of a majority in
principal amount of the Outstanding Debentures, by Act of said Holders delivered
to the Company and the Trustee, the Company, when authorized by a Board
Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders of the Debentures under this
Indenture; provided, however, that no such supplemental indenture shall, without
the consent of the Holder of each Outstanding Debenture affected thereby,
(1) change the due date of any installment of principal of or
interest on any Debenture, or reduce the principal amount thereof or the
interest thereon, or change the Place of Payment where, or the coin or
currency in which, any Debenture or the interest thereon is payable, or
impair the right to institute suit for the enforcement of any such
payment on or after the due date thereof (or, in the case of redemption,
on or after the Redemption Date, and in the case of declaration, on the
respective due date), or
(2) reduce the percentage in principal amount of the Outstanding
Debentures, 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 or Section
5.13, 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 Debenture affected thereby.
It shall not be necessary for any Act of Debentureholders 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 trust 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
(except to the extent required in the case of a supplemental indenture entered
into under Section 9.1(4)) 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 Debentures 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 Debentures to Supplemental Indentures.
Debentures 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 Debentures so modified as to conform, in the opinion of the Trustee and the
Board of Directors, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee in
exchange for Outstanding Debentures.
Section 9.7. Rights of Holders of Senior Debt.
No supplemental indenture of any sort shall be entered into pursuant to
this Article Nine which modifies the provisions of Article Twelve or changes the
due date of any installment of principal of, redemption of, or interest on any
Debenture without the consent of the holders of Senior Debt, as required by the
terms of the instrument creating or governing the affected Senior Debt, which
consent may be given by the Representative (as defined in Section 12.2), on
behalf of the holders of such Senior Debt if such instrument allows.
ARTICLE TEN
Covenants
Section 10.1. Payment of Principal and Interest.
The Company will duly and punctually pay the principal of and interest
on the Debentures in accordance with the terms of the Debentures and this
Indenture.
Section 10.2. Maintenance of Office or Agency.
The Company will maintain an office or agency in the Place of Payment
(which may be the office of the Trustee or Paying Agent) where Debentures may be
presented or surrendered for payment, where Debentures may be surrendered for
transfer or exchange and where notices and demands to or upon the Company in
respect of the Debentures and this Indenture may be served. The Company will
give prompt written notice to the Trustee of the location, and of any change in
the location of such office or agency. If at any time the Company shall fail to
maintain such 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 principal corporation trust office of the Trustee, and the
Company hereby appoints the Trustee its agent to receive all such presentations,
surrenders, notices and demands.
Section 10.3. Money for Debenture Payments to be Held in Trust.
If the Company shall at any time act as its own Paying Agent, it will,
on or before each due date of the principal of or interest on any of the
Debentures, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal or interest so becoming due until
such sums shall be paid to such Persons or otherwise disposed of as herein
provided, and will promptly notify the Trustee of its action or failure so to
act.
Whenever the Company shall have one or more Paying Agents, it will,
prior to each due date of the principal of or interest on, any Debentures,
deposit with a Paying Agent a sum sufficient to pay the principal or interest,
so becoming due, such sum to be held in trust for the benefit of the Persons
entitled to such principal 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 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 principal of or
interest on Debentures 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 Debentures) in the making of any such payment
of principal or interest; 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 or interest on any
Debentures and remaining unclaimed for 6 years after such principal 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 Debentures 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,
shall, at the written direction of the Company and at the expense of the
Company, cause to be published once, in an Authorized Newspaper in the Place of
Payment, 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. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (1) all taxes, assessments and
governmental charges levied or imposed upon it or upon its income, profits or
property, and (2) all lawful claims for labor, materials, and supplies which, if
unpaid, might by law become a lien upon its property; provided, however, that
the Company shall not be required to pay or discharge or cause to be paid or
discharged any such tax, assessment, charge or claim whose amount, applicability
or validity is being contested in good faith by appropriate proceedings.
Section 10.5. Maintenance of Properties.
The Company will cause all its properties used or useful in the conduct
of its business to be maintained and kept in good condition, repair and working
order and supplied with all necessary equipment and will cause to be made all
necessary repairs, renewals, replacements, betterments and improvements thereof,
all as in the judgment of the Company may be necessary so that the business
carried on in connection therewith may be properly and advantageously conducted
at all times; provided, however, that nothing in this Section shall prevent the
Company from discontinuing the operation and maintenance of any of its
properties if such discontinuance is, in the judgment of the Company, desirable
in the conduct of its business and not disadvantageous in any material respect
to the Debentureholders.
Section 10.6. Maintenance of Consolidated Net Worth.
So long as any Debentures remain Outstanding, the Company shall at all
times maintain consolidated net worth in an amount equal to the principal amount
of the Outstanding Debentures and any outstanding debentures issued pursuant to
the Indenture dated as of February 28, 1986. For purposes of the application of
this Section, the Company*s consolidated net worth shall be determined by the
Company*s independent certified public accountants in conformity with generally
accepted accounting principles.
Section 10.7. Statement as to Compliance.
The Company will deliver to the Trustee, within 120 days after the end
of each fiscal year, a written statement signed by the President or a Vice
President and by the Treasurer, an Assistant Treasurer, the Controller or an
Assistant Controller of the Company, stating as to each signer thereof, that
(1) a review of the activities of the Company during such year
and of performance under this Indenture has been made under his
supervision; and
(2) to the best of his knowledge, based on such review, the
Company has fulfilled all its obligations under this Indenture
throughout such year, or, if there has been a default in the fulfillment
of any such obligation, specifying each such default known to him and
the nature and status thereof.
Section 10.8. Corporate Existence.
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence, rights (charter and statutory) and franchises; provided, however,
that the Company shall not be required to preserve any right or franchise if the
Board of Directors shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company and that the loss
thereof is not disadvantageous in any material respect to the Debentureholders.
Section 10.9. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any
covenant or condition set forth in Section 10.2 or Sections 10.4 through 10.8 of
this Article Ten, if before or after the time for such compliance the Holders of
at least a majority in principal amount of the Debentures at the time
Outstanding, shall, by Act of such Debentureholders, either waive such
compliance in such instance or generally waive compliance with such covenant or
condition, but no such waiver shall extend to or affect such covenant 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 covenants or condition shall remain in full force and
effect.
ARTICLE ELEVEN
Redemption of Debentures
Section 11.1. Right of Redemption.
At the option of the Company, each Debenture is subject to redemption,
either as a whole at one time or in part from time to time, on any Interest
Payment Date after that particular Debenture has been outstanding for at least
five (5) years. The Redemption Price of each Debenture (or portion thereof) so
to be redeemed, shall be the principal amount (or applicable portion thereof) of
such Debenture, together with accrued interest thereon to the date fixed for
redemption, without premium.
Section 11.2. Applicability of Article.
Redemption of Debentures at the election of the Company or otherwise, as
permitted or required by any provision of this Indenture, shall be made in
accordance with such provision and this Article.
Section 11.3. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Debentures shall be evidenced
by a Board Resolution. In case of any redemption at the election of the Company
of less than all of the Debentures, the Company shall, at least 45 days prior to
the Redemption Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee) notify the Trustee of such Redemption Date and of
the principal amount of Debentures to be redeemed.
Section 11.4. Selection by Trustee of Debenture to be Redeemed.
If less than all the Debentures are to be redeemed, the particular
Debentures to be redeemed shall be selected not more than 15 days prior to the
Redemption Date by the Trustee, from the eligible Outstanding Debentures not
previously called for redemption, by such method as the Trustee shall deem fair
and appropriate.
The Trustee shall promptly notify the Company in writing of the
Debentures selected for redemption and, in the case of any Debenture 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 Debentures shall relate,
in the case of any Debenture redeemed or to be redeemed only in part, to the
portion of the principal of such Debenture which has been or is to be redeemed.
Section 11.5. Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 days prior to the Redemption Date, to each
Holder of Debentures to be redeemed, at his address appearing in the Debenture
Register.
All notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) if less than all Outstanding Debentures are to be redeemed,
the identification (and, in the case of partial redemption, the
respective principal amounts) of the Debentures to be redeemed;
(4) that on the Redemption Date the Redemption Price will become
due and payable upon each such Debenture, and that interest thereon
shall cease to accrue from and after said date; and
(5) the place where such Debentures are to be surrendered for
payment of the Redemption Price, which shall be the office or agency of
the Company in the Place of Payment.
Notice of redemption of Debentures 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 11.6. Deposit of Redemption Price.
Prior to any Redemption Date, the Company shall deposit with the Trustee
or with a Paying Agent (or, if the Company is acting as its own Paying Agent,
segregate and hold in trust as provided in Section 10.3) an amount of money
sufficient to pay the Redemption Price of all the Debentures which are to be
redeemed on that date.
Section 11.7. Debentures Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Debentures 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) such Debentures
shall cease to bear interest. Upon surrender of such Debentures for redemption
in accordance with said notice, such Debentures shall be paid by the Company at
the Redemption Price. Installments of interest whose due date is on or prior to
the Redemption Date shall be payable to the Holders of such Debentures
registered as such on the relevant Record Dates according to their terms and the
provisions of Section 3.6.
If any Debenture called for redemption is received in the office of the
Paying Agent on or prior to the Redemption Date, but is not paid, the principal
shall, until paid, bear Interest from the Redemption Date at the rate borne by
the Debenture.
Section 11.8. Debentures Redeemed in Part.
Any Debenture which is to be redeemed only in part shall be, at the
option of the Company as set forth in the notice of redemption, either (i)
surrendered at the Place of Payment (with, if the Company or 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) in exchange for one or more new
Debentures which the Company shall execute and the Trustee shall authenticate
and deliver, without service charge, registered in the name of such Holder in
aggregate principal amount equal to the principal amount remaining unpaid of the
Debenture so surrendered, or (ii) submitted at the Place of Payment for notation
thereon of the payment of the portion of the principal thereof paid upon such
partial redemption.
ARTICLE TWELVE
Subordination
Section 12.1. Agreement to Subordinate.
The Company agrees, and each Holder by accepting a Debenture agrees,
that the Subordinated Debt is subordinated in right of payment, to the extent
and in the manner provided in this Article Twelve, to the prior payment in full
in cash of all Senior Debt, and that the subordination is for the benefit of the
holders of Senior Debt.
Section 12.2. Certain Definitions.
(a) "Indebtedness" means any indebtedness, contingent or otherwise, in
respect of borrowed money (whether or not the recourse of the lender is to the
whole of the assets of the borrower or only to a portion thereof), or evidenced
by bonds, notes, debentures or similar instruments or letters of credit, or
representing the balance deferred and unpaid of the purchase price of any
property or interest therein, except any such balance that constitutes a trade
payable, if and to the extent such indebtedness would appear as a liability upon
a balance sheet of the borrower prepared on a consolidated basis in accordance
with generally accepted accounting principles.
(b) "Representative" means the indenture trustee or other trustee, agent
or representative for an issue of Senior Debt.
(c) "Senior Debt" means the principal of and premium, if any, and
interest (including post-petition interest, if any) on, and fees, costs and
expenses, and any other payment due pursuant to the terms of instruments
creating or evidencing Indebtedness of the Company outstanding on the date of
this Indenture or Indebtedness thereafter created, incurred, assumed or
guaranteed by the Company and all renewals, extensions and refundings thereof,
unless in the instrument creating or evidencing such Indebtedness, it is
provided that such Indebtedness is not senior in right of payment to the
Debentures and specifically includes, without limitation, (i) any Indebtedness
outstanding pursuant to that Credit Agreement dated as of January 28, 1998 by
and among the Company, certain lenders and Bank One, Indiana, N.A., as agent for
certain lenders, as amended, modified, renewed, increased, restated or
refinanced from time to time, and (ii) Indebtedness under notes issued pursuant
to the Master Private Shelf Agreement dated as of October 6, 1993 between the
Company and The Prudential Insurance Company of America, as amended, modified,
renewed, increased, restated or refinanced from time to time. Notwithstanding
the foregoing, Senior Debt with respect to the Company shall not include the
Company's outstanding Debentures issued pursuant to the indenture between the
Company and KeyBank of Indiana (as successor trustee), dated February 28, 1986
(which rank equally with the Debentures covered by this Indenture), or any
Indebtedness of the Company to any subsidiary for money borrowed or advanced
from such subsidiary, or any Indebtedness representing the redemption price of
any capital stock.
(d) "Subordinated Debt" means the Indebtedness evidenced by the
Debentures, together with all interest, premium, fees, costs, charges, expenses
and all other payments due pursuant to the terms of the Debentures or this
Indenture.
(e) A distribution as referred to in this Article Twelve may consist of
cash, securities or other property.
Section 12.3. Liquidation, Dissolution, Bankruptcy.
Upon any distribution to creditors of the Company in a liquidation or
dissolution of the Company or in a bankruptcy, reorganization, insolvency,
receivership or similar proceeding relating to the Company or its property (i)
holders of Senior Debt shall be entitled to receive payment in full in cash of
the principal of and interest to the date of payment on, together with any
premium or other amounts required to be paid in respect of, the Senior Debt
before Holders shall be entitled to receive any payment of Subordinated Debt;
and (ii) until the Senior Debt is paid in full in cash, any distribution to
which Holders would be entitled but for this Article Twelve shall be made to
holders of Senior Debt as their interest may appear, except that
Debentureholders may receive securities that are subordinated to Senior Debt to
at least the same extent as the Debentures.
The holders of the Senior Debt are irrevocably authorized and empowered,
in the event of such liquidation or dissolution of the Company or in a
bankruptcy, reorganization, insolvency, receivership or similar proceeding
relating to the Company, to demand, xxx for, collect and receive every such
payment or distribution referred to above, give acquittance therefore, file
claims and proofs of claim in any statutory or non-statutory proceeding, vote
such claims in any such proceeding and take such other actions, in the name of
the holders of the Senior Debt or in the name of the Holders or otherwise, as
the holders of the Senior Debt may deem necessary or advisable for the
enforcement of the provisions of this Article Twelve. The Holders agree, in the
event of such liquidation or dissolution of the Company or in a bankruptcy,
reorganization, insolvency, receivership or similar proceeding relating to the
Company, to take such action as may be reasonably requested at any time and from
time to time by the holders of the Senior Debt to collect the Subordinated Debt
for the account of the holders of the Senior Debt and to file appropriate proofs
of claim in respect thereof and to execute and deliver such powers of attorney,
assignments or other instruments as the holders of the Senior Debt may
reasonably request in order to enable the holders of the Senior Debt to enforce
any and all claims upon or in respect of the Subordinated Debt and to collect
and receive any and all payments or distributions which may be payable or
deliverable at any time upon or in respect of the Subordinated Debt. Any and all
monies so collected or received by the holders of the Senior Debt shall be
retained indefeasibly by the holders of the Senior Debt for application to the
Senior Debt until the Senior Debt is fully, finally and irrevocably paid. In no
event shall the holders of the Senior Debt be liable to the Holders for any
failure to prove any Subordinated Debt, to exercise any right with respect
thereto or to collect any sums payable thereon.
Section 12.4. Default on Senior Debt.
The Company may not pay any payment on the Subordinated Debt and may not
acquire any Debentures for cash or property other than capital stock of the
Company if (i) there exists a default under any Senior Debt or there exists an
event (an "Unmatured Default") which but for the lapse of time or the giving of
notice, or both, would constitute a default under any Senior Debt or (ii) a
default or Unmatured Default under any Senior Debt would exist upon giving
effect to such payment or acquisition. The Company may resume payments on the
Subordinated Debt and may reacquire the Debentures, subject to the terms of the
Senior Debt and this Indenture, when (A) the subject default or Unmatured
Default is cured or waived in writing by the holders of the affected Senior Debt
or their Representative, or (B) 120 days pass after the occurrence of the
subject default or Unmatured Default, but only if (a) the subject default or
Unmatured Default is not the subject of judicial proceedings and (b) the holders
of the affected Senior Debt have not declared acceleration of their Senior Debt,
but in either case only if this Article Twelve otherwise permits the payment or
acquisition at that time.
Section 12.5. Acceleration of Debentures.
If payment of the Debentures is accelerated because of an Event of
Default, the Company shall promptly notify holders of Senior Debt of the
acceleration. The Company may pay the Debentures when 120 days pass after the
acceleration occurs if this Article Twelve otherwise permits the payment at that
time.
Except for scheduled payments of principal and interest on the
Debentures that are not prohibited under Section 12.4 and except as provided in
this Section 12.5, until the Senior Debt shall have been fully, finally and
irrevocably paid, (i) the Holders will not ask, demand, xxx for, take or receive
from the Company, and the Company will not make, give or permit, directly or
indirectly, by setoff, redemption, purchase or in any other manner, any payment
on or security for the whole or any part of the Subordinated Debt, and, without
the prior written consent of the holders of the Senior Debt, the Holders will
not take any action to enforce or collect amounts so owing against the Company
or act as a petitioning creditor in any bankruptcy proceeding filed against the
Company, (ii) the Holders shall not have any right to possess any assets of the
Company or to foreclose upon any such assets, whether by judicial action or
otherwise, and (iii) regardless of whether the Senior Debt is secured or
unsecured, the holders of the Senior Debt shall be subrogated to the Holders
with respect to such Holder's claims against the Company, and such Holder's
rights, liens and security interests, if any, in any of the Company's assets and
the proceeds thereof.
Section 12.6. When Distribution Must be Paid Over.
If a distribution is made to Debentureholders that because of this
Article Twelve should not have been made to them, the Holders who receive the
distribution shall hold it in trust for holders of Senior Debt and pay it over
to them as their interests may appear.
Section 12.7. Notice by Company .
The Company shall promptly notify the Trustee and the Paying Agent of
any facts known to the Company that would cause a payment of Subordinated Debt
to violate this Article Twelve.
Section 12.8. Subrogation.
After all Senior Debt is paid in full in cash and until the Subordinated
Debt is paid in full, Holders shall be subrogated to the rights of holders of
Senior Debt to receive distributions applicable to Senior Debt. A distribution
made under this Article Twelve to holders of Senior Debt which otherwise would
have been made to Debentureholders is not, as between the Company and
Debentureholders, a payment by the Company on Senior Debt.
Section 12.9. Relative Rights.
This Article Twelve defines the relative rights of Debentureholders and
holders of Senior Debt. Nothing in this Indenture shall (i) impair, as between
the Company and the Debentureholders, the obligation of the Company, which is
absolute and unconditional, to pay principal and interest on the Debentures in
accordance with their terms; or (ii) affect the relative rights of
Debentureholders and creditors of the Company other than holders of Senior Debt.
If the Company fails because of this Article Twelve to pay principal or interest
on a Debenture on the due date, the failure is still an event of Default.
Section 12.10. Subordination May Not be Impaired by Company.
No rights of any holder of Senior Debt to enforce the subordination of
the indebtedness evidenced by the Debentures shall be impaired by any act or
failure to act by the Company or by its failure to comply with this Indenture.
Section 12.11. Distribution or Notice to Representative.
Whenever a distribution is to be made or a notice given to holders of
Senior Debt, the distribution may be made and the notice given to their
Representative.
Section 12.12. Rights of Trustee and Paying Agent.
The Trustee or Paying agent may continue to make payments on the
Debentures until it receives notice satisfactory to it that payments may not be
made under this Article Twelve. The Company, an Agent, a Representative or a
holder of Senior Debt may give the notice. If an issue of Senior Debt has a
Representative, only the Representative may give the Notice. The Trustee in its
individual or any other capacity may hold Senior Debt with the same rights it
would have if it were not Trustee. Any Agent may do the same with like rights.
ARTICLE THIRTEEN
Miscellaneous Provisions
Section 13.1. 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 (other than certificates provided
pursuant to TIA 314(a)(4)) shall include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he
has made such examination or investigation as is necessary to enable him
to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 13.2.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 13.3. Acts of Debentureholders.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Debentureholders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Debentureholders in person or by duly
authorized agent; 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 Debentureholders
signing such instrument or instruments. Proof of execution of any such
instrument or appointment of 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 the certificate of any 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 an officer of a corporation or a member of a partnership, on
behalf of such corporation or partnership, 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 Debentures shall be proved by the Debenture
Register.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the Holder of any Debenture shall bind the Holder of
every Debenture issued upon the transfer thereof or in exchange therefor or in
lieu thereof, in respect of anything done 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 Debenture.
Section 13.4. Notices, etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Debentureholders 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 Debentureholder 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 principal corporate trust
office, or
(2) the Company by the Trustee or by any Debentureholder shall
be sufficient for every purpose hereunder if in writing and mailed,
first-class postage prepaid, to the Company addressed to it at the
address of its principal office specified in the first paragraph of this
instrument or at any other address previously furnished in writing to
the Trustee by the Company.
Section 13.5. Notices to Debentureholders; Waiver.
Where this Indenture provides for notice to Debentureholders 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 Debentureholder affected by such event, at his address as it appears in the
Debenture 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 Debentureholders is given by mail, neither the failure to mail such
notice, nor any defect in any notice so mailed, to any particular
Debentureholder shall affect the sufficiency of such notice with respect to
other Debentureholders. 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 Debentureholders shall be
equivalent of such notice. Waivers of notice by Debentureholders 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 publication of any Authorized
Newspaper, or by reason of any other cause, it shall be impossible to make
publication of any notice in an Authorized Newspaper or Authorized Newspapers as
required by this Indenture, then such method of publication or notification as
shall be made with the approval of the Trustee shall constitute a sufficient
publication of such notice.
Section 13.6. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies, or conflicts with the duties
imposed by operation of subsection (c) of TIA Section 318, the imposed duties
shall control.
Section 13.7. Effect of Headings and Table of Contents.
The Articles and Section headings herein are for convenience only and
shall not effect the construction hereof.
Section 13.8. 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 13.9. Separability Clause.
In case any provision in this Indenture or in the Debentures 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 13.10. Benefits of Indenture.
Nothing in this Indenture or in the Debentures, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder, the holders of Senior Debt and the Holders of Debentures, any benefit
or any legal or equitable right, remedy or claim under this Indenture.
Section 13.11. Governing Law.
This Indenture shall be construed in accordance with and governed by the
laws of the State of Indiana, regardless of the principles of conflict of laws.
Section 13.12. 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.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed and attested on this ____ day of __________, 2002.
NIBCO INC.
By:
--------------------------------------
Xxx Xxxxxx
Its: Chairman, President & Chief
Executive Officer
ATTEST:
By:
-----------------------------
Its:
-----------------------------
FIFTH THIRD BANK, INDIANA
as Trustee
By:
--------------------------------------
Its:
--------------------------------------
ATTEST:
By:
-----------------------------
Its:
-----------------------------
STATE OF INDIANA )
) SS:
COUNTY OF ELKHART )
On the ____ day of _______________, ____, before me personally came XXX
XXXXXX, to me known, who being by me duly sworn did depose and say that he is
the Chairman, President and Chief Executive Officer of NIBCO INC., the
corporation described in and which executed the foregoing instrument.
----------------------------------------------
, Notary Public
Residing in ________________ County, IN
My Commission Expires:
STATE OF INDIANA )
) SS:
COUNTY OF ELKHART )
On the ____ day of ________________________, ____, before me personally
came _______________________, to me known, who being by me duly sworn did depose
and say that he is ______________________ of FIFTH THIRD BANK, INDIANA, the
corporation described in and which executed the foregoing instrument.
----------------------------------------------
, Notary Public
Residing in ________________ County, IN
My Commission Expires:
----------------------------
EXHIBIT A
FORM OF FIXED RATE DEBENTURE
REGISTERED
NIBCO INC.
UNSECURED, SUBORDINATED
DEBENTURE
NO. _________
Date of
$ Issuance:
-------------------------- ---------------------
Maturity Date:
----------------
FOR VALUE RECEIVED, the undersigned, NIBCO INC., a corporation organized
and existing under the laws of the State of Indiana (hereinafter called the
"Company," which term includes any successor corporation under the Indenture
hereinafter referred to), hereby promises to pay to the order of the registered
holder hereof, as hereinafter provided, the principal sum of
_______________________________________________________________________ Dollars
($_____________) on the Maturity Date specified above, plus interest from the
date this Debenture is issued (the "Date of Issuance") (computed on the basis of
a 360 day year, twelve 30 day months), on the principal balance hereof remaining
from time to time unpaid as herein described.
This Debenture bears interest at the fixed per annum rate of
________________ percent (_____%) (the "Fixed Rate"). Interest shall be payable
monthly on the last day of each month (an "Interest Payment Date"), commencing
with the last day of the month during which this Debenture is issued. The
Company promises to pay interest on overdue principal, and, to the extent
permitted by law, on overdue interest, at the Fixed Rate.
The interest payable hereon, and punctually paid or duly provided for on
any respective due date will, as provided in said Indenture, be paid to the
Person in whose name this Debenture (or one or more Predecessor Debentures, as
defined in said Indenture) is registered at the close of business on the Regular
Record Date for such payment, which shall be the tenth (10th) business day prior
to each Interest Payment Date. Any interest not so punctually paid or duly
provided for shall forthwith cease to be payable to the registered Holder on
such Regular Record Date, and may be paid to the Person in whose name this
Debenture (or one or more Predecessor Debentures) 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 Debentureholders not
less than 10 days prior to such Special Record Date, or may be paid, at any time
in any other lawful manner all as more fully provided in said Indenture. The
principal and the redemption price of the Debentures shall be payable at the
office or agency of the Trustee or Paying Agent in the City of Indianapolis,
Indiana or Elkhart, Indiana (herein called the "Place of Payment"). Interest on
the Debentures shall be mailed by check to the Holder entitled thereto at his
address as it appears in the Debenture Register or paid by electronic transfer
to the account specified in writing to the Company by the Holder, whichever is
selected by the original holder of this Debenture in the Letter of Transmittal
referred to below. Any request for a change in the method of payment must be
made to the Company in writing by the registered Debentureholder entitled
thereto at least thirty (30) days before the change in payment method is to
occur. All such payments shall be made in such coin or currency of the United
States of America as at the time of payment is legal tender for payment of
public and private debts, or, if paid by mail, shall be made by check.
This Debenture is one of a duly authorized issue of Debentures of the
Company designated as its Unsecured, Subordinated Debentures (herein called the
"Debentures"), limited in aggregate principal amount to $25,000,000, issued
under an Indenture dated ______________ , 2002 (herein called the "Indenture"),
between the Company and FIFTH THIRD BANK, INDIANA, 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 thereunder of the Company, the Trustee
and the Holders of the Debentures, and the terms upon which the Debentures are,
and are to be, authenticated and delivered. The Debentures may be issued from
time to time solely in exchange for shares of the Company's Class B Common Stock
tendered and accepted for exchange pursuant to an exchange offer of the Company
to its shareholders, as described in the Offering Circular and related Letter of
Transmittal dated __________________ , 2002.
The Debentures are redeemable prior to final maturity as a whole or from
time to time in part on any Interest Payment Date, at the option of the Company
upon the notice and in the manner and with the effect provided in the Indenture.
In case of redemption, the redemption price shall be the principal amount of the
Debentures to be redeemed (or the portion of such principal amount to be
redeemed) and accrued interest to the date fixed for redemption, without
premium. If notice of redemption of this Debenture (or of some portion of the
principal hereof) shall have been duly given and the Company shall have
deposited with the Trustee or a Paying Agent or segregated and held in trust the
entire amount necessary to redeem this Debenture (or the portion of the
principal hereof then to be redeemed) on the Redemption Date specified in such
notice of redemption and shall have complied with all other conditions of the
Indenture relative to such redemption, the Company shall thereupon be
discharged, from and after the redemption date specified in such notice, from
further liability (including liability to pay any interest) in respect of this
Debenture (or the portion of the principal hereof then to be redeemed). The
Indenture further provides that any money deposited with the Trustee or any
Paying Agent or held by the Company in trust for the payment of the principal of
or interest on this Debenture which remains unclaimed for six years after such
principal or interest has become due and payable shall be paid to the Company on
its request, or (if then held by the Company) shall be discharged from such
trust; and the holder of this Debenture shall hereafter as an unsecured general
creditor, look only to the Company for payment 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.
The Debenture is an unsecured debt obligation of the Company. The
indebtedness evidenced by the Debentures is subordinated in right of payment, to
the extent and in the manner provided in the Indenture, to the prior payment in
full in cash of all Senior Debt, and that the subordination is for the benefit
of the holders of Senior Debt. Senior Debt means the principal of and premium,
if any, and interest (including post-petition interest, if any) on, and fees,
costs and expenses, and any other payment due pursuant to the terms of
instruments creating or evidencing indebtedness of the Company outstanding on
the date of the Indenture or indebtedness thereafter created, incurred, assumed
or guaranteed by the Company and all renewals, extensions and refundings
thereof, unless in the instrument creating or evidencing such indebtedness, it
is provided that such indebtedness is not senior in right of payment to the
Debentures and such Senior Debt specifically includes, without limitation, (i)
any indebtedness outstanding pursuant to that Credit Agreement dated as of
January 28, 1998 by and among the Company, certain lenders and Bank One,
Indiana, N.A., as agent for certain lenders, as amended, modified, renewed,
increased, restated or refinanced from time to time and (ii) Indebtedness under
notes issued pursuant to the Master Private Shelf Agreement dated as of October
6, 1993 between the Company and The Prudential Insurance Company of America, as
amended, modified, renewed, increased, restated or refinanced from time to time.
Notwithstanding the foregoing, Senior Debt with respect to the Company shall not
include the Company's outstanding Debentures issued pursuant to the indenture
between the Company and KeyBank of Indiana (as successor trustee), dated
February 28, 1986 (which rank equally with the Debentures covered by this
Indenture), or any indebtedness of the Company to any subsidiary for money
borrowed or advanced from such subsidiary, or any indebtedness representing the
redemption price of any capital stock. Reference to the Indenture is hereby made
for the terms upon which the Debentures are subordinated to the Senior Debt.
Upon any distribution to creditors of the Company in a liquidation or
dissolution of the Company or in a bankruptcy, reorganization, insolvency,
receivership or similar proceeding relating to the Company or its property (i)
holders of Senior Debt shall be entitled to receive payment in full in cash of
the principal of and interest to the date of payment on, together with any
premium or other amounts required to be paid in respect of, the Senior Debt
before Holders shall be entitled to receive any payment on the Debentures; and
(ii) until the Senior Debt is paid in full in cash, any distribution to which
Holders would be entitled but for the subordination provisions of the Indenture
shall be made to holders of Senior Debt as their interest may appear, except
that Debentureholders may receive securities that are subordinated to Senior
Debt to at least the same extent as the Debentures.
The Company may not pay any payment with respect to the Debentures and
may not acquire any Debentures for cash or property other than capital stock of
the Company if (i) there exists a default under any Senior Debt or there exists
an event (an "Unmatured Default") which but for the lapse of time or the giving
of notice, or both, would constitute a default under any Senior Debt or (ii) a
default or Unmatured Default under any Senior Debt would exist upon giving
effect to such payment or acquisition. The Company may resume payments on the
Debentures and may reacquire the Debentures, subject to the terms of the Senior
Debt and this Indenture, when (A) the subject default or Unmatured Default is
cured or waived in writing by the holders of the affected Senior Debt or their
Representative, or (B) 120 days pass after the occurrence of the subject default
or Unmatured Default, but only if (a) the subject default or Unmatured Default
is not the subject of judicial proceedings and (b) the holders of the affected
Senior Debt have not declared acceleration of their Senior Debt, but in either
case only if the Indenture otherwise permits the payment or acquisition at that
time.
If payment of the Debentures is accelerated because of an Event of
Default, the Company must promptly notify holders of Senior Debt of the
acceleration. The Company may pay the Debentures when 120 days pass after the
acceleration occurs if the provisions of the Indenture otherwise permit the
payment at that time.
If an Event of Default, as defined in the Indenture, shall occur, the
principal of all the Debentures may be declared due and payable in the manner
and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Debentures under the Indenture at
any time by the Company with the consent of the Holders of a majority in
aggregate principal amount of the Debentures at the time Outstanding, as defined
in the Indenture. The Indenture also contains provisions permitting the Holders
of specified percentages in aggregate principal amount of the Debentures at the
time Outstanding, as defined in the Indenture, on behalf of the Holders of all
the Debentures, 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 Debenture shall
be conclusive and binding upon such Holder and upon all future Holders of this
Debenture and of any Debenture issued upon the transfer hereof or in exchange
here for or in lieu hereof whether or not notation of such consent or waiver is
made upon this Debenture.
No reference herein to the Indenture and no provision of this Debenture
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of and interest on this
Debenture at the times, place, and rate, and in the coin and currency, herein
prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, without the prior written consent of the Company this Debenture is
transferable only upon death or by operation of law and only on the Debenture
Register of the Company, upon surrender of this Debenture for transfer at the
office or agency of the Company in the Place of Payment, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Debenture Registrar duly executed by, the registered Holder
hereof or his attorney duly authorized in writing, and thereupon one or more new
Debentures, of authorized denominations and for the same aggregate principal
amount, will be issued to the designated transferee or transferees. In the case
of death, the Debenture may be transferred by the person(s) designated by the
deceased holder in writing and filed with the Company upon satisfactory proof of
the death of the holder and compliance with applicable laws governing the
release of property by taxing authorities and surrender of the Debenture with
endorsement accompanied by such other instruments, including indemnity bonds, as
may be requested by the Company of the person(s) succeeding to the decedent*s
interest in the Debentures.
The Debentures are issuable only as registered Debentures without
coupons. As provided in the Indenture and subject to certain limitations therein
set forth, Debentures are exchangeable for a like aggregate principal amount of
Debentures of a different authorized denomination, as requested by the Holder
surrendering the same.
No service charge will be made for any such 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.
The Company, the Trustee and any agent of the Company or the Trustee may
treat the Person in whose name this Debenture is registered as the owner hereof
for the purpose of receiving payment as herein provided and for all other
purposes whether or not this Debenture be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
Unless the certificate of authentication hereon has been executed by the
Trustee by manual signature, this Debenture 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 Debenture to be duly
executed.
Dated NIBCO INC.
--------------------------
By:
-------------------------------------
Attest:
--------------------------------
This is one of the Unsecured, Subordinated Debentures referred to in the
within-mentioned Indenture:
FIFTH THIRD BANK, INDIANA,
as Trustee
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
EXHIBIT B
FORM OF VARIABLE RATE DEBENTURE
REGISTERED
NIBCO INC.
UNSECURED, SUBORDINATED
DEBENTURE
NO. _________
Date of
$ Issuance:
-------------------------- ---------------------
Maturity Date:
----------------
FOR VALUE RECEIVED, the undersigned, NIBCO INC., a corporation organized
and existing under the laws of the State of Indiana (hereinafter called the
"Company," which term includes any successor corporation under the Indenture
hereinafter referred to), hereby promises to pay to the order of the registered
holder hereof, as hereinafter provided, the principal sum of
_______________________________________________________________________ Dollars
($_____________) on the Maturity Date specified above, plus interest from the
date this Debenture is issued (the "Date of Issuance") (computed on the basis of
a 360 day year, twelve 30 day months), on the principal balance hereof remaining
from time to time unpaid as herein described.
Until the first Adjustment Date (as defined below), the Debenture bears
interest at a per annum rate of _____%. Thereafter, this Debenture shall bear
interest at a variable per annum rate equal to the lessor of (i) fifteen percent
(15%) and (ii) one and three-quarters percent (1.75%) above the three-month
LIBOR (London InterBank Offer Rate) as reported in The Wall Street Journal on
the most recent publication preceding such Adjustment Date. The Company promises
to pay interest on overdue principal, and, to the extent permitted by law, on
overdue interest, at the rate applicable to this Debenture, adjusted quarterly
as described above.
The interest payable hereon, and punctually paid or duly provided for on
any respective due date will, as provided in said Indenture, be paid to the
Person in whose name this Debenture (or one or more Predecessor Debentures, as
defined in said Indenture) is registered at the close of business on the Regular
Record Date for such payment, which shall be the tenth (10th) business day prior
to each Interest Payment Date. Any interest not so punctually paid or duly
provided for shall forthwith cease to be payable to the registered Holder on
such Regular Record Date, and may be paid to the Person in whose name this
Debenture (or one or more Predecessor Debentures) 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 Debentureholders not
less than 10 days prior to such Special Record Date, or may be paid, at any time
in any other lawful manner all as more fully provided in said Indenture. The
principal and the redemption price of the Debentures shall be payable at the
office or agency of the Trustee or Paying Agent in the City of Indianapolis,
Indiana or Elkhart, Indiana (herein called the "Place of Payment"). Interest on
the Debentures shall be mailed by check to the Holder entitled thereto at his
address as it appears in the Debenture Register or paid by electronic transfer
to the account specified in writing to the Company by the Holder, whichever is
selected by the original holder of this Debenture in the Letter of Transmittal
referred to below. Any request for a change in the method of payment must be
made to the Company in writing by the registered Debentureholder entitled
thereto at least thirty (30) days before the change in payment method is to
occur. All such payments shall be made in such coin or currency of the United
States of America as at the time of payment is legal tender for payment of
public and private debts, or, if paid by mail, shall be made by check.
This Debenture is one of a duly authorized issue of Debentures of the
Company designated as its Unsecured, Subordinated Debentures (herein called the
"Debentures"), limited in aggregate principal amount to $25,000,000, issued
under an Indenture dated ______________ , 2002 (herein called the "Indenture"),
between the Company and FIFTH THIRD BANK, INDIANA, 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 thereunder of the Company, the Trustee
and the Holders of the Debentures, and the terms upon which the Debentures are,
and are to be, authenticated and delivered. The Debentures may be issued from
time to time solely in exchange for shares of the Company's Class B Common Stock
tendered and accepted for exchange pursuant to an exchange offer of the Company
to its shareholders, as described in the Offering Circular and related Letter of
Transmittal dated __________________ , 2002.
The Debentures are redeemable prior to final maturity as a whole or from
time to time in part on any Interest Payment Date, at the option of the Company
upon the notice and in the manner and with the effect provided in the Indenture.
In case of redemption, the redemption price shall be the principal amount of the
Debentures to be redeemed (or the portion of such principal amount to be
redeemed) and accrued interest to the date fixed for redemption, without
premium. If notice of redemption of this Debenture (or of some portion of the
principal hereof) shall have been duly given and the Company shall have
deposited with the Trustee or a Paying Agent or segregated and held in trust the
entire amount necessary to redeem this Debenture (or the portion of the
principal hereof then to be redeemed) on the Redemption Date specified in such
notice of redemption and shall have complied with all other conditions of the
Indenture relative to such redemption, the Company shall thereupon be
discharged, from and after the redemption date specified in such notice, from
further liability (including liability to pay any interest) in respect of this
Debenture (or the portion of the principal hereof then to be redeemed). The
Indenture further provides that any money deposited with the Trustee or any
Paying Agent or held by the Company in trust for the payment of the principal of
or interest on this Debenture which remains unclaimed for six years after such
principal or interest has become due and payable shall be paid to the Company on
its request, or (if then held by the Company) shall be discharged from such
trust; and the holder of this Debenture shall hereafter as an unsecured general
creditor, look only to the Company for payment 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.
The Debenture is an unsecured debt obligation of the Company. The
indebtedness evidenced by the Debentures is subordinated in right of payment, to
the extent and in the manner provided in the Indenture, to the prior payment in
full in cash of all Senior Debt, and that the subordination is for the benefit
of the holders of Senior Debt. Senior Debt means the principal of and premium,
if any, and interest (including post-petition interest, if any) on, fees, costs
and expenses, and any other payment due pursuant to the terms of instruments
creating or evidencing indebtedness of the Company outstanding on the date of
the Indenture or indebtedness thereafter created, incurred, assumed or
guaranteed by the Company and all renewals, extensions and refundings thereof,
unless in the instrument creating or evidencing such indebtedness, it is
provided that such indebtedness is not senior in right of payment to the
Debentures and such Senior Debt specifically includes, without limitation, (i)
any indebtedness outstanding pursuant to that Credit Agreement dated as of
January 28, 1998 by and among the Company, certain lenders and Bank One,
Indiana, N.A., as agent for certain lenders, as amended, modified, renewed,
increased, restated or refinanced from time to time and (ii) indebtedness under
notes issued pursuant to the Master Private Shelf Agreement dated as of October
6, 1993 between the Company and The Prudential Insurance Company of America, as
amended, modified, renewed, increased, restated or refinanced from time to time.
Notwithstanding the foregoing, Senior Debt with respect to the Company shall not
include the Company's outstanding Debentures issued pursuant to the indenture
between the Company and KeyBank of Indiana (as successor trustee), dated
February 28, 1986 (which rank equally with the Debentures covered by this
Indenture), or any indebtedness of the Company to any subsidiary for money
borrowed or advanced from such subsidiary, or any indebtedness representing the
redemption price of any capital stock. Reference to the Indenture is hereby made
for the terms upon which the Debentures are subordinated to the Senior Debt.
Upon any distribution to creditors of the Company in a liquidation or
dissolution of the Company or in a bankruptcy, reorganization, insolvency,
receivership or similar proceeding relating to the Company or its property (i)
holders of Senior Debt shall be entitled to receive payment in full in cash of
the principal of and interest to the date of payment on, together with any
premium or other amounts required to be paid in respect of, the Senior Debt
before Holders shall be entitled to receive any payment on the Debentures; and
(ii) until the Senior Debt is paid in full in cash, any distribution to which
Holders would be entitled but for the subordination provisions of the Indenture
shall be made to holders of Senior Debt as their interest may appear, except
that Debentureholders may receive securities that are subordinated to Senior
Debt to at least the same extent as the Debentures.
The Company may not pay any payment with respect to the Debentures and
may not acquire any Debentures for cash or property other than capital stock of
the Company if (i) there exists a default under any Senior Debt or there exists
an event (an "Unmatured Default") which but for the lapse of time or the giving
of notice, or both, would constitute a default under any Senior Debt or (ii) a
default or Unmatured Default under any Senior Debt would exist upon giving
effect to such payment or acquisition. The Company may resume payments on the
Debentures and may reacquire the Debentures, subject to the terms of the Senior
Debt and this Indenture, when (A) the subject default or Unmatured Default is
cured or waived in writing by the holders of the affected Senior Debt or their
Representative, or (B) 120 days pass after the occurrence of the subject default
or Unmatured Default, but only if (a) the subject default or Unmatured Default
is not the subject of judicial proceedings and (b) the holders of the affected
Senior Debt have not declared acceleration of their Senior Debt, but in either
case only if the Indenture otherwise permits the payment or acquisition at that
time.
If payment of the Debentures is accelerated because of an Event of
Default, the Company must promptly notify holders of Senior Debt of the
acceleration. The Company may pay the Debentures when 120 days pass after the
acceleration occurs if the provisions of the Indenture otherwise permit the
payment at that time.
If an Event of Default, as defined in the Indenture, shall occur, the
principal of all the Debentures may be declared due and payable in the manner
and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Debentures under the Indenture at
any time by the Company with the consent of the Holders of a majority in
aggregate principal amount of the Debentures at the time Outstanding, as defined
in the Indenture. The Indenture also contains provisions permitting the Holders
of specified percentages in aggregate principal amount of the Debentures at the
time Outstanding, as defined in the Indenture, on behalf of the Holders of all
the Debentures, 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 Debenture shall
be conclusive and binding upon such Holder and upon all future Holders of this
Debenture and of any Debenture issued upon the transfer hereof or in exchange
here for or in lieu hereof whether or not notation of such consent or waiver is
made upon this Debenture.
No reference herein to the Indenture and no provision of this Debenture
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of and interest on this
Debenture at the times, place, and rate, and in the coin and currency, herein
prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, without the prior written consent of the Company this Debenture is
transferable only upon death or by operation of law and only on the Debenture
Register of the Company, upon surrender of this Debenture for transfer at the
office or agency of the Company in the Place of Payment, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Debenture Registrar duly executed by, the registered Holder
hereof or his attorney duly authorized in writing, and thereupon one or more new
Debentures, of authorized denominations and for the same aggregate principal
amount, will be issued to the designated transferee or transferees. In the case
of death, the Debenture may be transferred by the person(s) designated by the
deceased holder in writing and filed with the Company upon satisfactory proof of
the death of the holder and compliance with applicable laws governing the
release of property by taxing authorities and surrender of the Debenture with
endorsement accompanied by such other instruments, including indemnity bonds, as
may be requested by the Company of the person(s) succeeding to the decedent*s
interest in the Debentures.
The Debentures are issuable only as registered Debentures without
coupons. As provided in the Indenture and subject to certain limitations therein
set forth, Debentures are exchangeable for a like aggregate principal amount of
Debentures of a different authorized denomination, as requested by the Holder
surrendering the same.
No service charge will be made for any such 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.
The Company, the Trustee and any agent of the Company or the Trustee may
treat the Person in whose name this Debenture is registered as the owner hereof
for the purpose of receiving payment as herein provided and for all other
purposes whether or not this Debenture be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
Unless the certificate of authentication hereon has been executed by the
Trustee by manual signature, this Debenture 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 Debenture to be duly
executed.
Dated NIBCO INC.
---------------------------
By:
-------------------------------------
Attest:
--------------------------------
This is one of the Unsecured, Subordinated Debentures referred to in the
within-mentioned Indenture:
FIFTH THIRD BANK, INDIANA,
as Trustee
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
EXHIBIT C
FORM OF ASSIGNMENT
FOR VALUE RECEIVED ______________________________________ does hereby
sell, assign and transfer unto ________________________________________ the
within Debenture, and does hereby irrevocably constitute and appoint
__________________________________ attorney to transfer the said Debenture on
the registry books of the within named Trustee with full power of substitution
in the premises.
Dated _____________________, _______
-----------------------------------
In Presence of:
----------------------------
