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Exhibit 4.1
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IDEX CORPORATION
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INDENTURE
Dated as of February 23, 1998
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Norwest Bank Minnesota,
National Association
Trustee
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TABLE OF CONTENTS
PAGE
ARTICLE I.DEFINITIONS AND INCORPORATION BY REFERENCE.................................1
Section 1.1 Definitions..............................................1
Section 1.2 Other Definitions........................................7
Section 1.3 Incorporation by Reference of Trust Indenture Act........8
Section 1.4 Rules of Construction....................................8
ARTICLE II.THE SECURITIES............................................................9
Section 2.1 Issuable in Series.......................................9
Section 2.2 Establishment of Terms of Series of Securities...........9
Section 2.3 Execution and Authentication............................11
Section 2.4 Registrar and Paying Agent..............................12
Section 2.5 Paying Agent to Hold Money in Trust.....................13
Section 2.6 Securityholder Lists....................................13
Section 2.7 Transfer and Exchange...................................14
Section 2.8 Mutilated, Destroyed, Lost and Stolen Securities........14
Section 2.9 Outstanding Securities..................................15
Section 2.10 Treasury Securities.....................................16
Section 2.11 Temporary Securities....................................16
Section 2.12 Cancellation............................................16
Section 2.13 Defaulted Interest......................................16
Section 2.14 Global Securities.......................................16
Section 2.15 CUSIP, ISIN and Common Code Numbers.....................18
ARTICLE III.REDEMPTION..............................................................18
Section 3.1 Notice to Trustee.......................................18
Section 3.2 Selection of Securities to be Redeemed..................19
Section 3.3 Notice of Redemption....................................19
Section 3.4 Effect of Notice of Redemption..........................20
Section 3.5 Deposit of Redemption Price.............................21
Section 3.6 Securities Redeemed in Part.............................21
ARTICLE IV.COVENANTS................................................................21
Section 4.1 Payment of Principal and Interest.......................21
Section 4.2 SEC Reports.............................................22
Section 4.3 Compliance Certificate..................................22
Section 4.4 Stay, Extension and Usury Laws..........................23
Section 4.5 Corporate Existence.....................................23
Section 4.6 Taxes...................................................23
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Section 4.7 Limitation on Secured Debt. ............................23
Section 4.8 Limitation on Sale and Leaseback........................25
Section 4.9 Offices For Payments, Etc...............................27
Section 4.10 Appointment To Fill A Vacancy In Office Of Trustee. ....28
Section 4.11 Paying Agents...........................................28
ARTICLE V.SUCCESSORS................................................................29
Section 5.1 When Company May Merge, Etc.............................29
Section 5.2 Successor Corporation Substituted.......................29
ARTICLE VI.DEFAULTS AND REMEDIES....................................................30
Section 6.1 Events of Default.......................................30
Section 6.2 Acceleration of Maturity; Rescission and Annulment......31
Section 6.3 Collection of Indebtedness and Suits for Enforcement
by Trustee..............................................32
Section 6.4 Trustee May File Proofs of Claim........................33
Section 6.5 Trustee May Enforce Claims Without Possession
of Securities...........................................34
Section 6.6 Application of Money Collected..........................34
Section 6.7 Limitation on Suits.....................................35
Section 6.8 Unconditional Right of Holders to Receive Principal
and Interest............................................35
Section 6.9 Restoration of Rights and Remedies......................35
Section 6.10 Rights and Remedies Cumulative..........................36
Section 6.11 Delay or Omission Not Waiver............................36
Section 6.12 Control by Holders......................................36
Section 6.13 Waiver of Past Defaults.................................37
Section 6.14 Undertaking for Costs...................................37
ARTICLE VII.TRUSTEE.................................................................37
Section 7.1 Duties of Trustee.......................................37
Section 7.2 Rights of Trustee.......................................39
Section 7.3 Individual Rights of Trustee............................39
Section 7.4 Trustee's Disclaimer....................................39
Section 7.5 Notice of Defaults......................................40
Section 7.6 Reports by Trustee to Holders...........................40
Section 7.7 Compensation and Indemnity..............................40
Section 7.8 Replacement of Trustee..................................41
Section 7.9 Successor Trustee by Merger, etc........................42
Section 7.10 Eligibility; Disqualification...........................42
Section 7.11 Preferential Collection of Claims Against Company.......42
ARTICLE VIII.SATISFACTION AND DISCHARGE; DEFEASANCE.................................42
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Section 8.1 Satisfaction and Discharge of Indenture.................42
Section 8.2 Application of Trust Funds; Indemnification.............44
Section 8.3 Legal Defeasance of Securities of any Series............44
Section 8.4 Covenant Defeasance.....................................46
Section 8.5 Repayment to Company....................................47
Section 8.6 Reinstatement of Company's Obligations..................47
ARTICLE IX.AMENDMENTS AND WAIVERS...................................................48
Section 9.1 Without Consent of Holders..............................48
Section 9.2 With Consent of Holders.................................48
Section 9.3 Limitations.............................................49
Section 9.4 Compliance with Trust Indenture Act.....................50
Section 9.5 Revocation and Effect of Consents.......................50
Section 9.6 Notation on or Exchange of Securities...................50
Section 9.7 Trustee Protected.......................................50
ARTICLE X.MISCELLANEOUS.............................................................51
Section 10.1 Trust Indenture Act Controls............................51
Section 10.2 Notices.................................................51
Section 10.3 Communication by Holders with Other Holders.............52
Section 10.4 Certificate and Opinion as to Conditions Precedent......52
Section 10.5 Statements Required in Certificate or Opinion...........52
Section 10.6 Rules by Trustee and Agents.............................52
Section 10.7 Legal Holidays..........................................53
Section 10.8 No Recourse Against Others..............................53
Section 10.9 Counterparts............................................53
Section 10.10 Governing Laws..........................................53
Section 10.11 No Adverse Interpretation of Other Agreements...........53
Section 10.12 Successors..............................................53
Section 10.13 Severability............................................53
Section 10.14 Table of Contents, Headings, Etc........................54
Section 10.15 Securities in a Foreign Currency or in ECU..............54
Section 10.16 Judgment Currency.......................................55
ARTICLE XI.SINKING FUNDS............................................................55
Section 11.1 Applicability of Article................................55
Section 11.2 Satisfaction of Sinking Fund Payments with Securities...56
Section 11.3 Redemption of Securities for Sinking Fund...............56
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IDEX CORPORATION
Reconciliation and tie between Trust Indenture Act of 1939 and
Indenture, dated as of February, 1998
Section 310(a)(1) ........................................... 7.10
(a)(2) ........................................... 7.10
(a)(3) ........................................... Not Applicable
(a)(4) ........................................... Not Applicable
(a)(5) ........................................... 7.10
(b) ........................................... 7.10
Section 311(a) ........................................... 7.11
(b) ........................................... 7.11
(c) ........................................... Not Applicable
Section 312(a) ........................................... 2.6
(b) ........................................... 10.3
(c) ........................................... 10.3
Section 313(a) ........................................... 7.6
(b)(1) ........................................... 7.6
(b)(2) ........................................... 7.6
(c)(1) ........................................... 7.6
(d) ........................................... 7.6
Section 314(a) ........................................... 4.2, 10.5
(b) ........................................... Not Applicable
(c)(1) ........................................... 10.4
(c)(2) ........................................... 10.4
(c)(3) ........................................... Not Applicable
(d) ........................................... Not Applicable
(e) ........................................... 10.5
(f) ........................................... Not Applicable
Section 315(a) ........................................... 7.1
(b) ........................................... 7.5
(c) ........................................... 7.1
(d) ........................................... 7.1
(e) ........................................... 6.14
Section 316(a) ........................................... 2.10
(a)(1)(A) ........................................... 6.12
(a)(1)(B) ........................................... 6.13
(b) ........................................... 6.8
Section 317(a)(1) ........................................... 6.3
(a)(2) ........................................... 6.4
(b) ........................................... 2.5
Section 318(a) ........................................... 10.1
Note: This reconciliation and tie shall not, for any purpose, be deemed to be
part of the Indenture.
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Indenture dated as of February 23, 1998 between IDEX Corporation, a
Delaware corporation ("Company"), and Norwest Bank Minnesota, National
Association ("Trustee").
Each party agrees as follows for the benefit of the other party and for
the equal and ratable benefit of the Holders of the Securities issued under
this Indenture.
ARTICLE I.
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1 Definitions.
"Additional Amounts" means any additional amounts which are required
hereby or by any Security, under circumstances specified herein or therein, to
be paid by the Company in respect of certain taxes imposed on Holders specified
therein and which are owing to such Holders.
"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" (including, with correlative meanings, the terms "controlled by" and
"under common control with"), as used with respect to any person, shall mean
the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such person, whether through the
ownership of voting securities or by agreement or otherwise.
"Agent" means any Registrar, Paying Agent or Service Agent.
"Authorized Newspaper" means a newspaper in an official language of the
country of publication customarily published at least once a day for at least
five days in each calendar week and of general circulation in the place in
connection with which the term is used. If it shall be impractical in the
opinion of the Trustee to make any publication of any notice required hereby in
an Authorized Newspaper, any publication or other notice in lieu thereof that
is made or given by the Trustee shall constitute a sufficient publication of
such notice.
"Bearer" means anyone in possession from time to time of a Bearer
Security.
"Bearer Security" means any Security, including any interest coupon
appertaining thereto, that does not provide for the identification of the
Holder thereof.
"Board of Directors" means the Board of Directors of the Company or any
duly authorized committee thereof.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been adopted by the
Board of Directors or pursuant to
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authorization by the Board of Directors and to be in full force and effect on
the date of the certificate and delivered to the Trustee.
"Business Day" means, unless otherwise provided by Board Resolution,
Officers' Certificate or supplemental indenture hereto for a particular Series,
any day except a Saturday, Sunday or a legal holiday in The City of New York or
the City of Chicago, Illinois on which banking institutions are authorized or
required by law, regulation or executive order to close.
"Capital Stock" means and includes any and all shares, interests,
participations or other equivalents (however designated) of ownership in a
corporation or other Person.
"Capitalization" means with respect to a Person the total of (a) Funded
Debt, (b) the par value or, in the case of Capital Stock with no par value, a
value stated on the books, of all outstanding shares of Capital Stock, (c) the
paid-in surplus and retained earnings (or minus the net surplus deficit, as the
case may be), (d) deferred taxes and deferred investment tax credits, (e)
Capitalized Rent and (f) minority interests in Subsidiaries, of such Person.
"Capitalized Rent" means the present value (discounted semi-annually at
a discount rate equal to the weighted average rate of interest borne by the
Securities then Outstanding) of the total net amount of rent payable for the
remaining term of any lease of property by the Company (including any period
for which such lease has been extended); provided, however, that no such rental
obligation shall be deemed to be Capitalized Rent unless the lease resulted
from a Sale and Leaseback Transaction. The total net amount of rent payable
under any lease for any period shall be the total amount of the rent payable by
the lessee with respect to such period but shall not include amounts required
to be paid on account of maintenance and repairs, insurance, taxes,
assessments, water rates, sewer rates and similar charges.
"Company" means the party named as such above until a successor
replaces it and thereafter means the successor.
"Company Order" means a written order signed in the name of the Company
by two Officers, one of whom must be the Company's principal executive officer,
principal financial officer or principal accounting officer.
"Company Request" means a written request signed in the name of the
Company by its Chairman of the Board, its President or a Vice President, and by
its Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary,
and delivered to the Trustee.
"Consolidated Capitalization" means the Capitalization of the Company
and its Subsidiaries determined on a consolidated basis as of the end of the
Company's then most recently reported fiscal year or quarter, as the case may
be, including minority interests in Subsidiaries.
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"Corporate Trust Office" means the office of the Trustee at which at
any particular time its corporate trust business shall be principally
administered.
"Debt" means with respect to a Person all obligations of such Person
for borrowed money and all such obligations of any other Person for borrowed
money guaranteed by such Person.
"Default" means any event which is, or after notice or passage of time
would be, an Event of Default.
"Depository" means, with respect to the Securities of any Series
issuable or issued in whole or in part in the form of one or more Global
Securities, the person designated as Depository for such Series by the Company,
which Depository shall be a clearing agency which (i) credits beneficial
interests in such Global Securities to its participating organizations through
a computerized book-entry system and (ii) if located in the United States, is
registered under the Exchange Act; and if at any time there is more than one
such person, "Depository" as used with respect to the Securities of any Series
shall mean the Depository with respect to the Securities of such Series.
"Discount Security" means any Security that provides for an amount less
than the stated principal amount thereof to be due and payable upon declaration
of acceleration of the maturity thereof pursuant to Section 6.2.
"Dollars" means the currency of The United States of America.
"ECU" means the European Currency Unit as determined by the Commission
of the European Union.
"Eligible Obligations" shall mean obligations as a result of the
deposit of which (along with the simultaneous deposit, if any, of money or U.S.
Government Obligations or Foreign Government Obligations or any of them) the
Securities will be rated in the highest generic long-term debt rating category
assigned by one or more nationally recognized rating agencies to debt with
respect to which the issuer thereof has been released from its obligations to
the same extent that the Company has been released from its obligations under
this Indenture pursuant to the defeasance provision of this Indenture.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Foreign Currency" means any currency or currency unit issued by a
government other than the government of The United States of America.
"Foreign Government Obligations" means with respect to Securities of
any Series that are denominated in a Foreign Currency, (i) direct obligations
of the government that issued or caused to be issued such currency for the
payment of which obligations its full faith and credit is pledged or (ii)
obligations of a person controlled or supervised by or acting as an agency or
instrumentality
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of such government the timely payment of which is unconditionally guaranteed as
a full faith and credit obligation by such government, which, in either case
under clauses (i) or (ii), are not callable or redeemable at the option of the
issuer thereof.
"Funded Debt" means any Debt maturing by its terms more than one year
from its date of issuance (notwithstanding that any portion of such Debt is
included in current liabilities).
"Global Security" or "Global Securities" means a Security or
Securities, as the case may be, in the form established pursuant to Section 2.2
evidencing all or part of a Series of Securities, issued to the Depository for
such Series or its nominee, and registered in the name of such Depository or
nominee.
"Holder" or "Securityholder" means a person in whose name a Security is
registered or the holder of a Bearer Security.
"Indenture" means this Indenture as amended from time to time and shall
include the form and terms of particular Series of Securities established as
contemplated hereunder.
"interest" with respect to any Discount Security which by its terms
bears interest only after Maturity, means interest payable after Maturity.
"Lien" means any mortgage, pledge, security interest, lien, charge or
other encumbrance.
"Maturity," when used with respect to any Security or installment of
principal thereof or interest thereon, means the date on which the principal of
such Security or such installment of principal or interest becomes due and
payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption, notice of option to elect
repayment or otherwise.
"Officer" means the Chairman of the Board, any President, any Vice
President, the Treasurer, the Secretary, the Controller, any Assistant
Treasurer or any Assistant Secretary of the Company.
"Officers' Certificate" means a certificate signed by two Officers, one
of whom must be the Company's principal executive officer, principal financial
officer, principal accounting officer or Treasurer.
"Opinion of Counsel" means a written opinion of legal counsel who is
acceptable to the Trustee. The counsel may be an employee of or counsel to the
Company.
"Outstanding" when used with reference to Securities shall mean, as of
any particular time, all Securities authenticated and delivered by the Trustee
under this Indenture, except:
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(a) Securities theretofore canceled by the Trustee or delivered to
the Trustee for cancellation;
(b) Subject to Article VIII, Securities with respect to which the
provisions of Sections 8.1, 8.3 or 8.4 have been satisfied; provided that
if such securities, or portions thereof, are to be redeemed prior to the
maturity thereof, notice of such redemption shall have been given as
herein provided, or provision satisfactory to the Trustee shall have been
made for giving such notice; and
(c) Securities in substitution for which other Securities shall have
been authenticated and delivered pursuant to the terms of Section 2.8.
In determining whether the Holders of the requisite principal amount of
Outstanding Securities of any or all Series have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, the principal
amount of an Original Issue Discount Security that shall be deemed to be
Outstanding for such purposes shall be the amount of the principal thereof that
would be due and payable as of the date of such determination upon a
declaration of acceleration of the maturity thereof pursuant to Section 6.2.
"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.
"principal" of a Security means the principal of the Security plus,
when appropriate, the premium, if any, on, and any Additional Amounts in
respect of, the Security.
"Property" means any directly-held interest of a Person in any kind of
property or asset, whether real, personal or mixed and whether tangible or
intangible, and includes Capital Stock of a Subsidiary or other Person.
"Redemption Date" when used with respect to any Security to be redeemed
shall mean the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price" shall mean the amount payable for the redemption of
any Security on the Redemption Date, and shall always include interest accrued
and unpaid to the Redemption Date and any Additional Amounts payable with
respect thereto, unless otherwise specifically provided.
"Registered Security" means any Security registered on the Security
Register of the Company.
"Responsible Officer" means any officer of the Trustee in its Corporate
Trust Office and also means, with respect to a particular corporate trust
matter, any other officer to whom any
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corporate trust matter is referred because of his or her knowledge of and
familiarity with a particular subject.
"Sale and Leaseback Transaction" means any arrangement with any Person
other than a Tax Consolidated Subsidiary providing for the leasing (as lessee)
by the Company of any property (except for temporary leases for a term,
including any renewal thereof, of not more than three years (provided that any
such temporary lease may be for a term of up to five years if (a) the Board of
Directors reasonably finds such term to be in the best interest of the Company
and (b) the primary purpose of the transaction of which such lease is a part is
not to provide funds to or financing for the Company)), which property has been
or is to be sold or transferred by the Company (i) to any subsidiary of the
Company in contemplation of or in connection with such arrangement or (ii) to
such other Person.
"SEC" means the Securities and Exchange Commission.
"Secured Debt" means Debt of the Company or any Subsidiary secured by
any Lien on property (including Capital Stock or indebtedness of Subsidiaries
of the Company) owned by the Company or any Subsidiary.
"Securities" means the debentures, notes or other debt instruments of
the Company of any Series authenticated and delivered under this Indenture.
"Series" or "Series of Securities" means each Series of debentures,
notes or other debt instruments of the Company created pursuant to Sections 2.1
and 2.2 hereof.
"Significant Subsidiary" means (i) any direct or indirect Subsidiary of
the Company that would be a "significant subsidiary" as defined in Article 1,
Rule 1-02 of Regulation S-X, promulgated pursuant to the Securities Act of
1933, as amended, as such regulation is in effect on the date hereof, or (ii)
any group of direct or indirect Subsidiaries of the Company that, taken
together as a group, would be a "significant subsidiary" as defined in Article
1, Rule 1-02 of Regulation S-X, promulgated pursuant to the Securities Act of
1933, as amended, as such regulation is in effect on the date hereof.
"Stated Maturity" when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal of such Security or
such installment of principal or interest is due and payable.
"Subsidiary" means a Person which is consolidated with the Company in
accordance with generally accepted accounting principles.
"Tax Consolidated Subsidiary" means a subsidiary of the Company with
which, at the time a Sale and Leaseback Transaction is entered into by the
Company, the Company would be entitled to file a consolidated federal income
tax return.
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"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code Sections
77aaa-77bbbb) as in effect on the date of this Indenture; provided, however,
that in the event the Trust Indenture Act of 1939 is amended after such date,
"TIA" means, to the extent required by any such amendment, the Trust Indenture
Act as so amended.
"Trustee" means the person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each person who is then a Trustee hereunder,
and if at any time there is more than one such person, "Trustee" as used with
respect to the Securities of any Series shall mean the Trustee with respect to
Securities of that Series.
"U.S. Government Obligations" means securities which are (i) direct
obligations of The United States of America for the payment of which its full
faith and credit is pledged or (ii) obligations of a person controlled or
supervised by and acting as an agency or instrumentality of The United States
of America the payment of which is unconditionally guaranteed as a full faith
and credit obligation by The United States of America, and which in the case of
(i) and (ii) are not callable or redeemable at the option of the issuer
thereof, and shall also include a depository receipt issued by a bank or trust
company as custodian with respect to any such U.S. Government Obligation or a
specific payment of interest on or principal of any such U.S. Government
Obligation held by such custodian for the account of the holder of a depository
receipt, provided that (except as required by law) such custodian is not
authorized to make any deduction from the amount payable to the holder of such
depository receipt from any amount received by the custodian in respect of the
U.S. Government Obligation evidenced by such depository receipt.
Section 1.2 Other Definitions.
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TERM DEFINED IN
SECTION
"Bankruptcy Law" 6.1
"Custodian" 6.1
"Event of Default" 6.1
"Journal" 10.15
"Judgment Currency" 10.16
"Legal Holiday" 10.7
"mandatory sinking fund payment" 11.1
"Market Exchange Rate" 10.15
"New York Banking Day" 10.16
"optional sinking fund payment" 11.1
"Paying Agent" 2.4
"Registrar" 2.4
"Required Currency" 10.16
"Service Agent" 2.4
"successor person" 5.1
Section 1.3 Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the provision
is incorporated by reference in and made a part of this Indenture. The
following TIA terms used in this Indenture have the following meanings:
"Commission" means the SEC.
"indenture securities" means the Securities.
"indenture security holder" means a Securityholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means
the Trustee.
"obligor" on the indenture securities means the
Company and any successor obligor upon the Securities.
All other terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule under the
TIA and not otherwise defined herein are used herein as so defined.
Section 1.4 Rules of Construction.
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Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with generally accepted accounting
principles;
(3) references to "generally accepted accounting principles" shall
mean generally accepted accounting principles in effect as of the time
when and for the period as to which such accounting principles are to be
applied;
(4) "or" is not exclusive;
(5) words in the singular include the plural, and in the plural
include the singular; and
(6) provisions apply to successive events and transactions.
ARTICLE II.
THE SECURITIES
Section 1.5 Issuable in Series.
The aggregate principal amount of Securities that may be authenticated
and delivered under this Indenture is unlimited. The Securities may be issued
in one or more Series. All Securities of a Series shall be identical except as
may be set forth in a Board Resolution, a supplemental indenture or an
Officers' Certificate detailing the adoption of the terms thereof pursuant to
the authority granted under a Board Resolution. In the case of Securities of a
Series to be issued from time to time, the Board Resolution, Officers'
Certificate or supplemental indenture may provide for the method by which
specified terms (such as interest rate, maturity date, record date or date from
which interest shall accrue) are to be determined. Securities may differ
between Series in respect of any matters, provided that all Series of
Securities shall be equally and ratably entitled to the benefits of the
Indenture.
Section 1.6 Establishment of Terms of Series of Securities.
At or prior to the issuance of any Securities within a Series, the
following shall be established (as to the Series generally, in the case of
Subsection 2.2.1, and either as to such Securities within the Series or as to
the Series generally, in the case of Subsections 2.2.2 through 2.2.22) by a
Board Resolution, a supplemental indenture or an Officers' Certificate pursuant
to authority granted under a Board Resolution:
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1.6.1 the title of the Series (which shall distinguish the Securities
of that particular Series from the Securities of any other Series);
1.6.2 the price or prices (expressed as a percentage of the principal
amount thereof) at which the Securities of the Series will be issued;
1.6.3 any limit upon the aggregate principal amount of the Securities
of the Series which may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of the Series
pursuant to Section 2.7, 2.8, 2.11, 3.6 or 9.6);
1.6.4 the date or dates on which the principal of the Securities of the
Series is payable;
1.6.5 the rate or rates (which may be fixed or variable) per annum or,
if applicable, the method used to determine such rate or rates (including, but
not limited to, any commodity, commodity index, stock exchange index or
financial index) at which the Securities of the Series shall bear interest, if
any, the date or dates from which such interest, if any, shall accrue, the date
or dates on which such interest, if any, shall commence and be payable and any
regular record date for the interest payable on any interest payment date;
1.6.6 the place or places where the principal of, premium, if any, and
interest, if any, on the Securities of the Series shall be payable, or the
method of such payment, if by wire transfer, mail or other means;
1.6.7 if applicable, the period or periods within which, the price or
prices at which and the terms and conditions upon which the Securities of the
Series may be redeemed, in whole or in part, at the option of the Company;
1.6.8 the obligation, if any, of the Company to redeem or purchase the
Securities of the Series pursuant to any sinking fund or analogous provisions
or at the option of a Holder thereof and the period or periods within which,
the price or prices at which and the terms and conditions upon which Securities
of the Series shall be redeemed or purchased, in whole or in part, pursuant to
such obligation;
1.6.9 the dates, if any, on which and the price or prices at which the
Securities of the Series will be repurchased by the Company at the option of
the Holders thereof and other detailed terms and provisions of such repurchase
obligations;
1.6.10 if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which the Securities of the Series shall be
issuable;
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1.6.11 the forms of the Securities of the Series in bearer or fully
registered form, and whether the Securities will be issuable as Global
Securities;
1.6.12 if other than the principal amount thereof, the portion of the
principal amount of the Securities of the Series that shall be payable upon
declaration of acceleration of the maturity thereof pursuant to Section 6.2;
1.6.13 the currency of denomination of the Securities of the Series,
which may be Dollars or any Foreign Currency, including, but not limited to,
the ECU, and if such currency of denomination is a composite currency other
than the ECU, the agency or organization, if any, responsible for overseeing
such composite currency;
1.6.14 the designation of the currency, currencies or currency units in
which payment of the principal of, premium, if any, and interest, if any, on
the Securities of the Series will be made;
1.6.15 if payments of principal of, premium, if any, or interest, if
any, on the Securities of the Series are to be made in one or more currencies
or currency units other than that or those in which such Securities are
denominated, the manner in which the exchange rate with respect to such
payments will be determined;
1.6.16 the manner in which the amounts of payment of principal of,
premium, if any, or interest, if any, on the Securities of the Series will be
determined, if such amounts may be determined by reference to an index based on
a currency or currencies other than that in which the Securities are
denominated or designated to be payable or by reference to a commodity,
commodity index, stock exchange index or financial index;
1.6.17 the provisions, if any, relating to any security provided for
the Securities of the Series;
1.6.18 the provisions, if any, relating to the subordination the
Securities of the Series;
1.6.19 the provisions, if any, relating to restrictions on transfer of
the Securities of the Series;
1.6.20 any addition to or change in the Events of Default which applies
to any Securities of the Series and any change in the right of the Trustee or
the requisite Holders of such Securities to declare the principal amount
thereof due and payable pursuant to Section 6.2;
1.6.21 any addition to or change in the covenants set forth in Articles
IV or V which applies to Securities of the Series;
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1.6.22 any other terms of the Securities of the Series (which terms
shall not be inconsistent with the provisions of this Indenture, except as
permitted by Section 9.1, but which may modify or delete any provision of this
Indenture insofar as it applies to such Series); and
1.6.23 the Depository, if any, and any interest rate calculation
agents, exchange rate calculation agents or other agents with respect to
Securities of such Series if other than those appointed herein.
All Securities of any one Series need not be issued at the same time
and may be issued from time to time, consistent with the terms of this
Indenture, if so provided by or pursuant to the Board Resolution, supplemental
indenture or Officers' Certificate referred to above, and the authorized
principal amount of any Series may not be increased to provide for issuances of
additional Securities of such Series, unless otherwise provided in such Board
Resolution, supplemental indenture or Officers' Certificate.
Section 1.7 Execution and Authentication.
Two Officers shall sign the Securities for the Company by manual or
facsimile signature.
If an Officer whose signature is on a Security no longer holds that
office at the time the Security is authenticated, the Security shall
nevertheless be valid.
A Security shall not be valid until authenticated by the manual
signature of the Trustee or an authenticating agent. The signature shall be
conclusive evidence that the Security has been authenticated under this
Indenture.
The Trustee shall at any time, and from time to time, authenticate
Securities for original issue in the principal amount provided in the Board
Resolution, supplemental indenture hereto or Officers' Certificate, upon
receipt by the Trustee of a Company Order. Such Company Order may authorize
authentication and delivery pursuant to oral or electronic instructions from
the Company or its duly authorized agent or agents, which oral instructions
shall be promptly confirmed in writing. Each Security shall be dated the date
of its authentication unless otherwise provided by a Board Resolution, a
supplemental indenture hereto or an Officers' Certificate.
The aggregate principal amount of Securities of any Series outstanding
at any time may not exceed any limit upon the maximum principal amount for such
Series set forth in the Board Resolution, supplemental indenture hereto or
Officers' Certificate delivered pursuant to Section 2.2, except as provided in
Section 2.8.
Prior to the issuance of Securities of any Series, the Trustee shall
have received and (subject to Section 7.2) shall be fully protected in relying
on: (a) the Board Resolution, supplemental indenture hereto or Officers'
Certificate establishing the form of the Securities of that Series or of
Securities within that Series and the terms of the Securities of that Series or
of
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Securities within that Series and (b) an Officers' Certificate complying
with Section 10.4.
The Trustee shall have the right to decline to authenticate and deliver
any Securities of such Series: (a) if the Trustee, being advised by counsel,
determines that such action may not lawfully be taken; or (b) if the Trustee in
good faith by its board of directors or trustees, executive committee or a
trust committee of directors and/or vice-presidents shall determine that such
action would expose the Trustee to personal liability to Holders of any then
outstanding Series of Securities.
The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Securities. An authenticating agent may authenticate
Securities whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as an Agent to deal with the Company
or an Affiliate.
Section 1.8 Registrar and Paying Agent.
The Company shall maintain, with respect to each Series of Securities,
at the place or places specified with respect to such Series pursuant to
Section 2.2, an office or agency where Securities of such Series may be
presented or surrendered for payment ("Paying Agent"), where Securities of such
Series may be surrendered for registration of transfer or exchange
("Registrar") and where notices and demands to or upon the Company in respect
of the Securities of such Series and this Indenture may be served ("Service
Agent"). The Registrar shall keep a register with respect to each Series of
Securities and their transfer and exchange. The Company will give prompt
written notice to the Trustee of the name and address, and any change in the
name or address, of each Registrar, Paying Agent or Service Agent. If at any
time the Company shall fail to maintain any such required Registrar, Paying
Agent or Service Agent or shall fail to furnish the Trustee with the name and
address thereof, such presentations, surrenders, notices and demands may be
made or served at the Corporate Trust Office of the Trustee, and the Company
hereby appoints the Trustee as its agent to receive all such presentations,
surrenders, notices and demands.
The Company may also from time to time designate one or more
co-registrars, additional paying agents or additional service agents and may
from time to time rescind such designations; provided, however, that no such
designation or rescission shall in any manner relieve the Company of its
obligations to maintain a Registrar, Paying Agent and Service Agent in each
place so specified pursuant to Section 2.2 for Securities of any Series for
such purposes. The Company will give prompt written notice to the Trustee of
any such designation or rescission and of any change in the name or address of
any such co-registrar, additional paying agent or additional service agent. The
term "Registrar" includes any co-registrar; the term "Paying Agent" includes
any additional paying agent; and the term "Service Agent" includes any
additional service agent.
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The Company hereby appoints the Trustee the initial Registrar, Paying
Agent and Service Agent for each Series unless another Registrar, Paying Agent
or Service Agent, as the case may be, is appointed prior to the time Securities
of that Series are first issued.
Section 1.9 Paying Agent to Hold Money in Trust.
The Company shall require each Paying Agent other than the Trustee to
agree in writing that the Paying Agent will hold in trust, for the benefit of
Securityholders of any Series of Securities, or the Trustee, all money held by
the Paying Agent for the payment of principal of or interest on the Series of
Securities, and will notify the Trustee of any default by the Company in making
any such payment. While any such default continues, the Trustee may require a
Paying Agent to pay all money held by it to the Trustee. The Company at any
time may require a Paying Agent to pay all money held by it to the Trustee.
Upon payment over to the Trustee, the Paying Agent (if other than the Company
or a Subsidiary) shall have no further liability for the money. If the Company
or a Subsidiary acts as Paying Agent, it shall segregate and hold in a separate
trust fund for the benefit of Securityholders of any Series of Securities all
money held by it as Paying Agent.
Section 1.10 Securityholder Lists.
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
Securityholders of each Series of Securities issued in fully registered form
and shall otherwise comply with TIA Section 312(a). If the Trustee is not
the Registrar, the Company shall furnish to the Trustee at least ten days
before each interest payment date and at such other times as the Trustee may
request in writing a list, in such form and as of such date as the Trustee may
reasonably require, of the names and addresses of Securityholders of each
Series of Securities issued in fully registered form.
Section 1.11 Transfer and Exchange.
Where Securities of a Series are presented to the Registrar or a
co-registrar with a request to register a transfer or to exchange them for an
equal principal amount of Securities of the same Series, the Registrar shall
register the transfer or make the exchange if its requirements for such
transactions are met. To permit registrations of transfers and exchanges, the
Trustee shall authenticate Securities at the Registrar's request. No service
charge shall be made for any registration of transfer or exchange (except as
otherwise expressly permitted herein), but the Company may require payment of a
sum sufficient to cover any transfer tax or similar governmental charge payable
in connection therewith (other than any such transfer tax or similar
governmental charge payable upon exchanges pursuant to Sections 2.11, 3.6 or
9.6).
Neither the Company nor the Registrar shall be required to (a) issue,
register the transfer of, or exchange Securities of any Series for the period
beginning at the opening of business
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fifteen days immediately preceding the mailing of a notice of redemption of
Securities of that Series selected for redemption and ending at the close of
business on the day of such mailing, (b) register the transfer of or exchange
Securities of any Series selected, called or being called for redemption as a
whole or the portion being redeemed of any such Securities selected, called or
being called for redemption in part, or (c) transfer, register the transfer of,
or exchange Securities of any Series that contain transfer restrictions, unless
and until all such restrictions are removed or satisfied.
Section 1.12 Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of the same Series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence
to their satisfaction of the destruction, loss or theft of any Security and
(ii) such security or indemnity as may be required by them to save each of them
and any agent of either of them harmless, then, in the absence of notice to the
Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and upon its request the Trustee shall
authenticate and make available for delivery, in lieu of any such destroyed,
lost or stolen Security, a new Security of the same Series and of like tenor
and principal amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any Series issued pursuant to this Section in
lieu of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by anyone, and shall
be entitled to all the benefits of this Indenture equally and proportionately
with any and all other Securities of that Series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
Section 1.13 Outstanding Securities.
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The Securities outstanding at any time are all the Securities
authenticated by the Trustee except for those canceled by it, those delivered
to it for cancellation, those reductions in the interest on a Global Security
effected by the Trustee in accordance with the provisions hereof and those
described in this Section as not outstanding.
If a Security is replaced pursuant to Section 2.8, it ceases to be
outstanding until the Trustee receives proof satisfactory to it that the
replaced Security is held by a bona fide purchaser.
If the Paying Agent (other than the Company, a Subsidiary or an
Affiliate of any thereof) holds on the Maturity of Securities of a Series money
sufficient to pay such Securities payable on that date, then on and after that
date such Securities of the Series cease to be outstanding and interest on them
ceases to accrue.
A Security does not cease to be outstanding because the Company or an
Affiliate holds the Security.
In determining whether the Holders of the requisite principal amount of
outstanding Securities have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, the principal amount of a
Discount Security that shall be deemed to be outstanding for such purposes
shall be the amount of the principal thereof that would be due and payable as
of the date of such determination upon a declaration of acceleration of the
Maturity thereof pursuant to Section 6.2.
Section 1.14 Treasury Securities.
In determining whether the Holders of the required principal amount of
Securities of a Series have concurred in any request, demand, authorization,
direction, notice, consent or waiver, Securities of a Series owned by the
Company or an Affiliate shall be disregarded, except that for the purposes of
determining whether the Trustee shall be protected in relying on any such
request, demand, authorization, direction, notice, consent or waiver, only
Securities of a Series that the Trustee knows are so owned shall be so
disregarded.
Section 1.15 Temporary Securities.
Until definitive Securities are ready for delivery, the Company may
prepare and the Trustee shall authenticate temporary Securities upon a Company
Order. Temporary Securities shall be substantially in the form of definitive
Securities but may have variations that the Company considers appropriate for
temporary Securities. Without unreasonable delay, the Company shall prepare
and the Trustee upon request shall authenticate definitive Securities of the
same Series and date of maturity in exchange for temporary Securities. Until
so exchanged, temporary securities shall have the same rights under this
Indenture as the definitive Securities.
Section 1.16 Cancellation.
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The Company at any time may deliver Securities to the Trustee for
cancellation. The Registrar and the Paying Agent shall forward to the Trustee
any Securities surrendered to them for registration of transfer, exchange or
payment. The Trustee shall cancel all Securities surrendered for transfer,
exchange, payment, replacement or cancellation and shall destroy such canceled
Securities (subject to the record retention requirement of the Exchange Act)
and deliver a certificate of such destruction to the Company, unless the
Company otherwise directs. The Company may not issue new Securities to replace
Securities that it has paid or delivered to the Trustee for cancellation.
Section 1.17 Defaulted Interest.
If the Company defaults in a payment of interest on a Series of
Securities, it shall pay the defaulted interest, plus, to the extent permitted
by law, any interest payable on the defaulted interest, to the persons who are
Securityholders of the Series on a subsequent special record date. The Company
shall fix the record date and payment date. At least 30 days before the record
date, the Company shall mail to the Trustee and to each Securityholder of the
Series a notice that states the record date, the payment date and the amount of
interest to be paid. The Company may pay defaulted interest in any other
lawful manner.
Section 1.18 Global Securities.
1.18.1 Terms of Securities. A Board Resolution, a supplemental
indenture hereto or an Officers' Certificate shall establish whether the
Securities of a Series shall be issued in whole or in part in the form of one
or more Global Securities and the Depository for such Global Security or
Securities.
1.18.2 Transfer and Exchange. Notwithstanding any provisions to the
contrary contained in Section 2.7 of the Indenture and in addition thereto, any
Global Security held by a Depository in the United States shall be exchangeable
pursuant to Section 2.7 of the Indenture for Securities registered in the names
of Holders other than the Depository for such Security or its nominee only if
(i) such Depository notifies the Company that it is unwilling or unable to
continue as Depository for such Global Security or if at any time such
Depository ceases to be a clearing agency registered under the Exchange Act,
and, in either case, the Company fails to appoint a successor Depository within
90 days of such event, (ii) the Company executes and delivers to the Trustee an
Officers' Certificate to the effect that such Global Security shall be so
exchangeable or (iii) an Event of Default with respect to the Securities
represented by such Global Security shall have happened and be continuing. Any
Global Security that is exchangeable pursuant to the preceding sentence shall
be exchangeable for Securities registered in such names as the Depository shall
direct in writing in an aggregate principal amount equal to the principal
amount of the Global Security with like tenor and terms.
Except as provided in this Section 2.14.2, a Global Security held by a
Depository in the United States may not be transferred except as a whole by the
Depository with respect to such
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Global Security to a nominee of such Depository, by a nominee of such
Depository to such Depository or another nominee of such Depository or by the
Depository or any such nominee to a successor Depository or a nominee of such a
successor Depository.
1.18.3 Legend. Any Global Security issued hereunder to a Depository in
the United States shall bear a legend in substantially the following form:
"This Security is a Global Security within the meaning of the
Indenture hereinafter referred to and is registered in the name of the
Depository or a nominee of the Depository. Unless this certificate is
presented by an authorized representative of the Depository to the
Company or its agent for registration of transfer, exchange or payment,
and any certificate issued is registered in the name of Cede & Co. or in
such other name as is requested by an authorized representative of the
Depository (and any payment is made to Cede & Co. or to such other entity
as is requested by an authorized representative of the Depository), any
transfer, pledge or other use hereof for value or otherwise by or to any
person is wrongful inasmuch as the registered owner hereof, Cede & Co.,
has an interest herein."
1.18.4 Acts of Holders. The Depository, as a Holder, may appoint
agents and otherwise authorize participants to give or take any request,
demand, authorization, direction, notice, consent, waiver or other action which
a Holder is entitled to give or take under the Indenture.
1.18.5 Payments. Notwithstanding the other provisions of this
Indenture, unless otherwise specified as contemplated by Section 2.2, payment
of the principal of, premium, if any, and interest, if any, on any Global
Security shall be made to the Holder thereof.
1.18.6 Consents, Declaration and Directions. Except as provided in
Section 2.14.5, the Company, the Trustee and any Agent shall treat a person as
the Holder of such principal amount of outstanding Securities of such Series
represented by a Global Security as shall be specified in a written statement
of the Depository with respect to such Global Security, for purposes of
obtaining any consents, declarations, waivers or directions required to be
given by the Holders pursuant to this Indenture.
Section 1.19 CUSIP, ISIN and Common Code Numbers.
The Company in issuing the Securities may use "CUSIP," "ISIN" or
"Common Code" numbers (if then generally in use), and, if so, the Trustee shall
use "CUSIP," "ISIN" or "Common Code" numbers in notices of redemption as a
convenience to Holders; provided that any such notice may state that no
representation is made as to the correctness of such numbers either as printed
on the Securities or as contained in any notice of a redemption and that
reliance may be placed only on the other elements of identification printed on
the Securities, and any such redemption shall not be affected by any defect in
or omission of such numbers.
ARTICLE III.
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REDEMPTION
Section 1.20 Notice to Trustee.
If the Company elects to redeem Securities pursuant to the optional
redemption provisions, if any, set forth in such Securities, it shall furnish
to the Trustee an Officers' Certificate setting forth the Redemption Date, the
principal amount of Securities to be redeemed and the Redemption Price.
If Securities of any Series by their terms are redeemable pursuant to
the operation of a sinking fund or pursuant to another mandatory redemption
provision of the Securities, the Company shall notify the Trustee by an
Officers' Certificate of the amount of the next sinking fund payment or amount
required to satisfy such mandatory redemption payment and the portion of such
payment which is to be satisfied by delivering and crediting Securities of the
same Series pursuant to Section 3.5
If the Company elects to reduce pursuant to the terms of such
Securities the principal amount of Securities to be redeemed, it shall notify
the Trustee by Officers' Certificate of the amount of the reduction and the
basis for it. If the Company elects to credit against any such redemption
Securities of the same Series it has not previously delivered to the Trustee
for cancellation, it shall deliver the Securities with such Officers'
Certificate.
The Company shall provide to the Trustee each notice or Officers'
Certificate provided for in this Section at least 45 days (unless a shorter
period shall be satisfactory to the Trustee) but not more than 60 days before
the applicable Redemption Date.
If the Registrar is not the Trustee, the Company shall, concurrently
with each notice of redemption or repurchase, cause the Registrar to deliver to
the Trustee a certificate (upon which the Trustee may rely) setting forth the
principal amounts of Securities held by each Holder.
Section 1.21 Selection of Securities to be Redeemed.
Unless otherwise indicated for a particular Series by a Board
Resolution, a supplemental indenture or an Officers' Certificate, if less than
all the Securities of a Series are to be redeemed, the Trustee shall select the
Securities of the Series to be redeemed on a pro rata basis or in any manner
that the Trustee deems fair and appropriate. The Trustee shall make the
selection from Securities of the Series outstanding not previously called for
redemption. The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Security selected
for partial redemption, the principal amount thereof to be redeemed. The
Trustee may select for redemption portions of the principal of Securities of
the Series that have denominations larger than $1,000. Securities of the
Series and portions of them it selects shall be in amounts of $1,000 or whole
multiples of $1,000 or, with respect to Securities of any Series issuable in
other denominations pursuant to Section 2.2.10, the minimum principal
denomination for each Series and integral multiples thereof. Provisions of
this Indenture that apply to Securities
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of a Series called for redemption also apply to portions of Securities of that
Series called for redemption.
Section 1.22 Notice of Redemption.
The Company shall give notice of a redemption at least 30 days but not
more than 60 days before the Redemption Date, with respect to Registered
Securities, by mailing a notice of redemption to each Holder of Registered
Securities of such Series to be redeemed at such Holder's address as it appears
on the Securities register maintained by the Registrar and, with respect to
Bearer Securities, by publishing in an Authorized Newspaper notice of such
redemption on two separate days.
The notice shall identify the Securities to be redeemed and shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) the name and address of the Paying Agent;
(4) that Securities called for redemption must be
surrendered to the Paying Agent to collect the Redemption
Price;
(5) that, unless the Company defaults in making the
redemption payment, interest on Securities called for
redemption ceases to accrue on and after the Redemption Date
and the only remaining right of the Holders of such Securities
is to receive payment of the Redemption Price upon surrender
to the Paying Agent of the Securities to be redeemed;
(6) if any Security is to be redeemed in part, the
portion of the principal amount (equal to $1,000 or any
integral multiple thereof) of such Security to be redeemed and
that, on or after the Redemption Date, upon surrender of such
Security, a new Security or Securities of the same Series in
aggregate principal amount equal to the unredeemed portion
thereof will be issued without charge to the Securityholder;
(7) if less than all of the Securities of a Series
are to be redeemed, the identification of the particular
Securities of such Series (or portion thereof) to be redeemed,
as well as the aggregate principal amount of Securities of
such Series to be redeemed and the aggregate principal amount
of Securities of such Series estimated to be outstanding after
such partial redemption; and
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(8) the CUSIP number of the Securities, if any. The
Trustee shall not be responsible for the correctness or
accuracy of any such CUSIP number.
At the Company's request, the Trustee shall give the notice of
redemption in the name and at the expense of the Company. In such event, the
Company shall provide the Trustee with the information required by this Section
and shall provide notice of such redemption to the Trustee at least 45 days
prior to the Redemption Date (unless a shorter period shall be satisfactory to
the Trustee). If such notice is given by the Company, the Company shall
provide a copy of such notice given to the Holders to the Trustee and any
Paying Agent at least 2 days prior to the date such notice is given to such
Holders, but in any event at least 15 days prior to the Redemption Date (unless
a shorter period shall be satisfactory to the Trustee).
Section 1.23 Effect of Notice of Redemption.
Once notice of redemption is mailed, Securities of the Series called
for redemption become due and payable on the Redemption Date at the Redemption
Price. Upon surrender to any Paying Agent, such Securities shall be paid at
the Redemption Price, plus accrued interest to the Redemption Date and any
Additional Amounts with respect thereto; provided, however, that if the Stated
Maturity with respect to an interest payment on any such Security occurs on or
prior to the Redemption Date, such interest and any Additional Amounts shall be
payable, in the case of Bearer Securities, to bearers of the coupons for such
interest and Additional Amounts upon surrender thereof and, in the case of
Registered Securities, to the Holders of such Series of Securities, registered
as such, at the close of business on the relevant record date for the payment
of such installment of interest and Additional Amounts.
Notice of redemption shall be deemed to be given when mailed or first
published, as the case may be, whether or not the Holder receives the notice.
In any event, failure to give such notice, or any defect therein, shall not
affect the validity of the proceedings for the redemption of the Securities.
Section 1.24 Deposit of Redemption Price.
On or prior to the Redemption Date, the Company shall irrevocably
deposit with the Trustee or with the Paying Agent (or if the Company or a
Subsidiary of the Company is acting as the Paying Agent, set aside, segregate
and hold in trust, as provided herein) in immediately available funds money
sufficient to pay the Redemption Price of and accrued and unpaid interest, if
any, on all Securities to be redeemed on that date.
If the Company complies with the preceding paragraph, interest on the
Securities to be redeemed will cease to accrue on the applicable Redemption
Date, whether or not such Securities are presented for payment. If any
Security called for redemption shall not be so paid upon surrender for
redemption because of the failure of the Company to comply with the preceding
paragraph, interest will be paid on the unpaid principal, from the Redemption
Date until such principal is paid,
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and, to the extent lawful, on any interest not paid on such unpaid principal,
in each case at the rate provided in the Securities for the applicable Series.
If any Security by its terms permits any sinking fund payment
obligation to be satisfied by delivering and crediting Securities, the Company
shall deliver such Securities to the Trustee for crediting against such payment
obligation in accordance with the terms of such Securities and this Indenture.
Section 1.25 Securities Redeemed in Part.
Upon surrender of a Security that is redeemed in part, the Company
shall issue and the Trustee shall authenticate for the Holder at the expense of
the Company a new Security of the same Series equal in principal amount to the
unredeemed portion of the Security surrendered.
If a Security in global form is surrendered upon redemption in part,
the Company shall execute, and the Trustee shall authenticate and deliver to
the Depository for such Security, upon receipt of a Company Order to the
Trustee with respect thereto, without service charge, a new Security in global
form in a denomination equal to and in exchange for the unredeemed portion of
the principal of the Security in global form so surrendered.
ARTICLE IV.
COVENANTS
Section 1.26 Payment of Principal and Interest.
The Company will punctually pay the principal of, interest and
Additional Amounts, if any, on the Securities on the dates and in the manner
provided in the Securities, any coupons appertaining thereto and this
Indenture. Principal, interest and any Additional Amounts shall be considered
paid on the date due if the Paying Agent (other than the Company or any of its
Subsidiaries) holds on that date money sufficient to pay all principal,
interest and any Additional Amounts then due.
Any interest due on and any Additional Amounts payable in respect of
Bearer Securities on or before their Maturity, in respect of the principal of
such a Security, shall be payable only upon presentation and surrender of those
coupons evidencing such interest installments as have become due.
The Company shall pay interest on overdue principal and, to the extent
lawful, interest on overdue installments of interest or Additional Amounts, if
any, at the rate borne by such Securities.
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In the event a Bearer Security of any Series is surrendered or
exchanged for a Registered Security of such Series after the close of business
(at an office or agency in a place of payment for such Series) on any record
date established to determine the Person to whom interest or any Additional
Amounts are payable on the next following interest payment date therefor and
before the opening of business (at such office or agency) on such subsequent
interest payment date, such Bearer Security shall be surrendered without the
coupon relating to such subsequent interest payment date, and interest will not
be payable on such subsequent interest payment date in respect of the
Registered Security issued in exchange of such Bearer Security, but will be
payable only to the Holder of such coupon when due in accordance with the
provisions of this Indenture.
Section 1.27 SEC Reports.
The Company shall deliver to the Trustee within 15 days after it files
them with the SEC 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 SEC may by rules and regulations prescribe) which the Company
is required to file with the SEC pursuant to Section 13 or 15(d) of the
Exchange Act. The Company also shall comply with the other provisions of TIA
Section 314(a).
Section 1.28 Compliance Certificate.
The Company shall deliver to the Trustee, within 90 days after the end
of each fiscal year of the Company, an Officers' Certificate stating that a
review of the activities of the Company and its Subsidiaries during the
preceding fiscal year has been made under the supervision of the signing
Officers with a view to determining whether the Company has kept, observed,
performed and fulfilled its obligations under this Indenture, and further
stating, as to each such Officer signing such certificate, that to the best of
his knowledge the Company has kept, observed, performed and fulfilled each and
every covenant contained in this Indenture and is not in default in the
performance or observance of any of the terms, provisions and conditions hereof
(or, if a Default or Event of Default shall have occurred, describing all such
Defaults or Events of Default of which he may have knowledge).
The Company will, so long as any of the Securities are outstanding,
deliver to the Trustee, forthwith upon becoming aware of any Default or Event
of Default, an Officers' Certificate specifying such Default or Event of
Default and what action the Company is taking or proposes to take with respect
thereto.
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Section 1.29 Stay, Extension and Usury Laws.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay, extension or usury law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture or the Securities; and the Company (to the
extent it may lawfully do so) hereby expressly waives all benefit or advantage
of any such law and covenants that it will not, by resort to any such law,
hinder, delay or impede the execution of any power herein granted to the
Trustee, but will suffer and permit the execution of every such power as though
no such law has been enacted.
Section 1.30 Corporate Existence.
Subject to Article V, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence and the corporate, partnership or other existence of each Significant
Subsidiary in accordance with the respective organizational documents of each
Significant Subsidiary and the rights (charter and statutory), licenses and
franchises of the Company and its Significant Subsidiaries; provided, however,
that the Company shall not be required to preserve any such right, license or
franchise, or the corporate, partnership or other existence of any Significant
Subsidiary, 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 its Subsidiaries taken as a whole and that the loss thereof is not adverse
in any material respect to the Holders.
Section 1.31 Taxes.
The Company shall, and shall cause each of its Significant Subsidiaries
to, pay prior to delinquency all taxes, assessments and governmental levies,
except as contested in good faith and by appropriate proceedings.
Section 1.32 Limitation on Secured Debt.
So long as any of the Securities remain Outstanding, the Company will
not, nor will it permit its Subsidiaries to, create or incur any Secured Debt
without in any such case effectively providing concurrently with the creation
or incurrence of any such Secured Debt that the Securities then Outstanding
(together with, if the Company shall so determine, any other Debt of or
guaranteed by the Company ranking equally with the Securities and then existing
or thereafter created) shall be secured equally and ratably with (or, at the
option of the Company, prior to) such Secured Debt, unless immediately after
the incurrence of such Secured Debt (and after giving effect to the application
of the proceeds, if any, therefrom), the aggregate principal amount of all such
Secured Debt, together with the aggregate amount of Capitalized Rent in respect
of Sale and Leaseback Transactions (other than Sale and Leaseback Transactions
described in clauses (a) to (e), inclusive,
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of Section 4.8), would not exceed 10% of Consolidated Capitalization; provided,
however, that the foregoing restrictions shall not apply to, and there shall be
excluded in computing Secured Debt for the purpose of such restrictions,
Secured Debt secured by:
(1) Liens on property existing at the time of acquisition of such property
by the Company or a Subsidiary, or Liens to secure the payment of all or any
part of the purchase price of property acquired or constructed by the Company
or a Subsidiary (including any improvements to existing property) created at
the time of or within 120 days following the acquisition or construction of
such property by the Company, or Liens to secure any Secured Debt incurred
by the Company or a Subsidiary prior to, at the time of or within 120 days
following the acquisition of such property which Secured Debt is incurred for
the purpose of financing all or any part of purchase price thereof; provided,
however, that in the case of any such acquisition, the Lien shall not apply
to any property theretofore owned by the Company or a Subsidiary (including
property transferred by the Company to any Subsidiary in contemplation of or
in connection with the creation of such Lien) or to any property of the
Company or a Subsidiary other than the property so acquired (other than, in
the case of construction or improvement, any theretofore unimproved real
property or portions thereof on which the property so constructed, or the
improvement, is located);
(2) Liens on property of a Person (i) existing at the time such Person is
merged into or consolidated with the Company or a Subsidiary or at the time
of a sale, lease or other disposition of the properties of a Person as an
entirety or substantially as an entirety to the Company or a Subsidiary, (ii)
resulting from such merger, consolidation, sale, lease or disposition by
virtue of any Lien on property granted by the Company or a Subsidiary prior
to such merger, consolidation, sale, lease or disposition (and not in
contemplation thereof or in connection therewith) which applies to
after-acquired property of the Company or a Subsidiary or (iii) resulting
from such merger, consolidation, sale, lease or disposition pursuant to a
Lien or contractual provision granted or entered into by such Person prior to
such merger, consolidation, sale, lease or disposition (and not at the
request of the Company); provided, however, that any such Lien referred to
in clause (i) shall not apply to any property
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of the Company or a Subsidiary other than the property subject thereto at the
time such Person or properties were acquired and any such Lien referred to
in clause (ii) or (iii) shall not apply to any property of the Company or a
Subsidiary other than the property so acquired;
(3) Liens existing on the date of this Indenture;
(4) Liens in favor of a government or governmental entity to secure
partial progress, advance or other payments, or other obligations, pursuant
to any contract or statute or to secure any Debt incurred for the purpose of
financing all or any part of the cost of acquiring, constructing or improving
the property subject to such Liens (including, without limitation, Liens
incurred in connection with pollution control, industrial revenue, private
activity bond or similar financing);
(5) Liens arising by reason of deposits with, or the giving of any form
of security to, any governmental agency or any body created or approved by
law or governmental regulation, which Lien is required by law or governmental
regulation as a condition to the transaction of any business or the exercise
of any privilege, franchise, license or permit;
(6) Liens for taxes, assessments or governmental charges or levies not yet
delinquent or governmental charges or levies already delinquent, the validity
of which charge or levy is being contested in good faith and for which any
reserves required in accordance with generally accepted accounting principles
have been established;
(7) Liens (including judgment liens) arising in connection with legal
proceedings so long as such proceedings are being contested in good faith
and, in the case of judgment liens, execution thereon is stayed and for which
any reserves required in accordance with generally accepted accounting
principles have been established; and
(8) any extension, renewal or replacement (or successive extensions,
renewals or replacements) in whole or in part of any Lien referred to in the
foregoing clauses (a) to (g), inclusive; provided, however, that the
principal amount of Secured Debt secured thereby shall not exceed the
principal amount of Secured Debt secured thereby at the time of such
extension, renewal or replacement, and that such extension, renewal or
replacement shall be limited to all or a part of the property which secured
the Lien so extended, renewed or replaced (plus improvements to such
property).
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Section 1.33 Limitation on Sale and Leaseback.
So long as any of the Securities remain Outstanding, the Company will not,
nor will it permit its Subsidiaries to, enter into any Sale and Leaseback
Transaction unless immediately thereafter (and after giving effect to the
application of the proceeds, if any, therefrom), the aggregate amount of
Capitalized Rent in respect of Sale and Leaseback Transactions, together with
the aggregate principal amount of all Secured Debt (other than Secured Debt
described in clauses (a) to (h), inclusive, of Section 4.7), would not exceed
10% of Consolidated Capitalization; provided, however, that the foregoing
restrictions shall not apply to, and there shall be excluded in computing the
aggregate amount of Capitalized Rent for the purpose of such restrictions, the
following Sale and Leaseback Transactions:
(1) any Sale and Leaseback Transaction entered into to finance the
payment of all or any part of the purchase price of property acquired or
constructed by the Company or a Subsidiary (including any improvements to
existing property) or entered into prior to, at the time of or within 120
days after the acquisition or construction of such property, which Sale and
Leaseback Transaction is entered into for the purpose of financing all or
part of the purchase or construction price thereof; provided, however, that
in the case of any such acquisition, such Sale and Leaseback Transaction
shall not involve any property transferred by the Company to a Subsidiary in
contemplation of or in connection with such Sale and Leaseback Transaction or
involve any property of the Company or a Subsidiary other than the property
so acquired (other than, in the case of construction or improvement, any
theretofore unimproved real property or portion thereof on which the
property so constructed, or the improvement, is located);
(2) any Sale and Leaseback Transaction involving property of a Person
existing at the time such Person is merged into or consolidated with the
Company or a Subsidiary or at the time of a sale, lease or other disposition
of the properties of a Person as an entirety or substantially as an entirety
to the Company or a Subsidiary.
(3) any Sale and Leaseback Transaction in which the lessor is a government
or governmental entity and which Sale and Leaseback Transaction is entered
into to secure partial progress, advance or other payments, or other
obligations, pursuant to any contract or statute or to secure any Debt
incurred for the purpose of financing all or any part of the cost of
constructing or improving the property subject to such Sale and Leaseback
Transaction (including, without limitation, Sale and Leaseback Transactions
incurred in connection with pollution control, industrial revenue, private
activity bond or similar financing);
(4) any Sale and Leaseback Transaction involving the extension, renewal or
replacement (or successive extensions, renewals or replacements) in whole or
in part of a lease pursuant to a Sale and Leaseback Transaction referred to
in the foregoing clauses (a) to (c), inclusive; provided, however, that such
lease extension, renewal or replacement shall
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be limited to all or any part of the same property leased under the lease so
extended, renewed or replaced (plus improvements to such property); and
(5) any Sale and Leaseback Transaction the net proceeds of which are at
least equal to the fair value (as determined by the Board of Directors) of
the property leased pursuant to such Sale and Leaseback Transaction, so long
as within 120 days of the effective date of such Sale and Leaseback
Transaction, the Company or the Subsidiary applies (or irrevocably commits to
an escrow account for the purpose or purposes hereinafter mentioned) as
amount equal to the net proceeds of such Sale and Leaseback Transaction to
either (x) the purchase of other property having a fair value at least equal
to the fair value of the property leased in such Sale and Leaseback
Transaction and having a similar utility and function, or (y) the retirement
or repayment (other than any mandatory retirement or repayment at maturity)
of (i) Securities, (ii) other Funded Debt of the Company which ranks prior to
or on a parity with the Securities or (iii) indebtedness of any Subsidiary
maturing by its terms more than one year from its date of issuance
(notwithstanding that any portion of such indebtedness is included in current
liabilities) or preferred stock of any Subsidiary (other than any such
indebtedness owed to or preferred stock owned by the Company or any
Subsidiary); provided, however, that in lieu of applying an amount equivalent
to all or any part of such net proceeds to such retirement or repayment (or
committing such an amount to an escrow account for such purpose), the Company
or a Subsidiary may deliver to the Trustee Outstanding Securities and thereby
reduce the amount to be applied pursuant to (y) of this clause (e) by an
amount equivalent to the aggregate principal amount of the Securities so
delivered.
Section 1.34 Offices For Payments, Etc.
So long as any Registered Securities are outstanding hereunder, the
Company will maintain in the Borough of Manhattan, The City of New York, an
office or agency where the Registered Securities of each Series may be
presented for payment, exchange or transfer, as in this Indenture provided and
where notices and demands to or upon the Company in respect of the Securities
of any Series, the Coupons appertaining thereto or this Indenture may be
served.
In the event that the Company shall issue any Bearer Securities, it will
maintain one or more offices or agencies in a city or cities located outside
the United States (including any city in which such an office or agency is
required to be maintained under the rules of any stock exchange on which the
Securities of any Series are listed) where the Bearer Securities, if any, of
each Series and Coupons, if any, appertaining thereto may be presented for
payment. No payment on any Bearer Security or Coupon will be made upon
presentation of such Bearer Security or Coupon at an office or agency of the
Company within the United States, nor will any payment be made by transfer to
an account in, or by mail to an address in, the United States unless pursuant
to applicable United States laws and regulations then in effect such payment
can be made without adverse tax consequences to the Company. Notwithstanding
the foregoing, payments in Dollars on Bearer Securities of any Series and
Coupons appertaining thereto which are payable in Dollars may be made at an
office or
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agency of the Company maintained in the Borough of Manhattan, The
City of New York, if such payment in Dollars at each office or agency
maintained by the Company outside the United States for payment on such Bearer
Securities is illegal or effectively precluded by exchange controls or other
similar restrictions.
The Company shall give to the Trustee written notice of the location of
each such office or agency and of any change of location thereof. In case the
Company shall fail to maintain any office or agency required by this Section
4.9 to be located in the Borough of Manhattan, The City of New York, or shall
fail to give such notice of the location or of any change in the location of
any of the above offices or agencies, presentations and demands may be made and
notices may be served at the Corporate Trust Office of the Trustee.
The Company may from time to time designate one or more additional offices
or agencies where the Securities of any Series and any Coupons appertaining
thereto may be presented for payment, where the Securities of such Series may
be presented for exchange as in this Indenture provided and where the
Registered Securities of such Series may be presented for registration of
transfer as in this Indenture provided, and the Company may from time to time
rescind any such designation; provided, however, that no such designation or
rescission shall in any manner relieve the Company of its obligation to
maintain any office or agency required to be provided for in this Section. The
Company will give to the Trustee prompt written notice of any such designation
or rescission thereof.
Section 1.35 Appointment To Fill A Vacancy In Office Of Trustee.
The Company, whenever necessary to avoid or fill a vacancy in the office
of Trustee, will appoint, in the manner provided in Section 7.8, a Trustee, so
that there shall at all times be a Trustee with respect to each Series of
Securities hereunder.
Section 1.36 Paying Agents.
In the event the Company appoints a paying agent other than the Trustee
with respect to the Securities of any Series, it shall cause such paying agent
to execute and deliver to the Trustee an instrument in which such agent shall
agree with the Trustee, subject to the provisions of this Section:
(1) that it will hold all sums received by it as such agent for the
payment of the principal of or interest on the Securities of such Series
(whether such sums have been paid to it by the Company or by any other
obligor on the Securities of such Series) in trust for the benefit of the
Holders of the Securities of such Series and the Coupons appertaining
thereto, if any, or of the Trustee, and
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(2) that it will give the Trustee notice of any failure by the
Company (or by any other obligor on the Securities of such Series) to
make any payment of the principal of or interest on the Securities of
such Series when the same shall be due and payable, and
(3) that at any time during the continuance of any such failure
referred to in the foregoing paragraph (b), it will upon written request of
the Trustee forthwith pay to the Trustee all sums so held in trust by such
agent.
The Company shall, on or prior to the applicable Stated Maturities with
respect to principal of or interest on the Securities of any Series, deposit
with the paying agent a sum sufficient to pay such principal or interest so
maturing, and (unless such paying agent is the Trustee) the Company will
promptly notify the Trustee of any failure to take such action.
If the Company acts as its own paying agent with respect to the Securities
of any Series, it shall, on or before the applicable Stated Maturities with
respect to principal of or interest on the Securities of such Series, set
aside, segregate and hold in trust for the benefit of the Holders of the
Securities of such Series or the Coupons, if any, appertaining thereto, a sum
sufficient to pay such principal or interest so becoming due. The Company
shall promptly notify the Trustee of any failure to take such action.
Nothing in this Section 4.9 shall prevent the Company from satisfying,
discharging or defeasing its obligations hereunder pursuant to Article VIII.
ARTICLE V.
SUCCESSORS
Section 1.37 When Company May Merge, Etc.
The Company shall not consolidate with or merge into, or convey, transfer
or lease its properties and assets substantially as an entirety to any Person
(a "successor person"), unless:
(i) the successor person (if any) is a corporation, partnership or
trust organized and validly existing under the laws of the U.S., any State
or the District of Columbia and any successor person expressly assumes the
Company's obligations on the Securities and under this Indenture;
(ii) immediately after giving effect to the transaction, no Event of
Default, and no event which, after notice or lapse of time or both, would
become an Event of Default, shall have occurred and be continuing;
(iii) if properties or assets of the Company become subject to a
mortgage not otherwise permitted by this Indenture, the Company or such
successor person, as the case
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may be, takes such steps as shall be necessary effectively to secure the
Securities equally and ratably with (or prior to) all indebtedness secured
thereby; and
(iv) the Company has delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel stating compliance with these provisions.
Section 1.38 Successor Corporation Substituted.
Upon any consolidation or merger, or any sale, lease, conveyance or other
disposition of all or substantially all of the assets of the Company in
accordance with Section 5.1, the successor corporation formed by such
consolidation or into or with which the Company is merged or to which such
sale, lease, conveyance or other disposition 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 person has been named
as the Company herein; provided, however, that the predecessor Company in the
case of a sale, lease, conveyance or other disposition shall not be released
from the obligation to pay the principal of and interest, if any, on the
Securities.
ARTICLE VI.
DEFAULTS AND REMEDIES
Section 1.39 Events of Default.
"Event of Default," wherever used herein with respect to Securities of any
Series, means any one of the following events, unless in the establishing Board
Resolution, supplemental indenture or Officers' Certificate, it is provided
that such Series shall not have the benefit of said Event of Default:
(1) default in the payment of any interest on any Security of that
Series when it becomes due and payable, and continuance of such default for a
period of 30 days (unless the entire amount of such payment is deposited by
the Company with the Trustee or with a Paying Agent prior to the expiration
of such period of 30 days); or
(2) default in the payment of the principal of, or premium, if any, on,
any Security of that Series at its Maturity; or
(3) default in the deposit of any sinking fund payment, when and as due in
respect of any Security of that Series; or
(4) default in the performance or breach of any covenant or warranty of
the Company in this Indenture (other than a covenant or warranty that has
been included in this Indenture solely for the benefit of Series of
Securities other than that Series), which default continues uncured for a
period of 60 days after there has been given, by registered or certified
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mail, to the Company by the Trustee or to the Company and the Trustee by
the Holders of not less than 25% in principal amount of the outstanding
Securities of that Series a written notice specifying such default or
breach and requiring it to be remedied and stating that such notice is a
"Notice of Default" hereunder; or
(5) (i) a default occurs under any instrument (including this
Indenture) under which there is at the time outstanding, or by which
there may be secured or evidenced, any indebtedness of the Company for
money borrowed by the Company (other than non-recourse indebtedness)
which results in acceleration (whether by declaration or automatically)
of, or the non-payment at maturity (after giving effect to any applicable
grace period) of, such indebtedness in an aggregate amount exceeding
$15,000,000 or, if greater, 2% of Consolidated Capitalization, in which
case the Company shall immediately give notice to the Trustee of such
acceleration or non-payment and (ii) there shall have been a failure to
cure such default or to discharge all such defaulted indebtedness within
ten days after notice thereof to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 25% in principal
amount of the Securities then Outstanding (excluding, if such defaulted
indebtedness includes any Series of Securities, such Series of
Securities) and such acceleration shall not be rescinded or annulled;
provided, however, that it shall not constitute an Event of Default
hereunder as long as the Company is contesting any such default or
acceleration in good faith and by appropriate proceedings; or
(6) the Company or any of its Significant Subsidiaries pursuant to
or within the meaning of any Bankruptcy Law:
(1) commences a voluntary case,
(2) consents to the entry of an order for relief against it in
an involuntary case,
(3) consents to the appointment of a Custodian of it or for
all or substantially all of its property,
(4) makes a general assignment for the benefit of its creditors,
(5) generally is unable to pay its debts as the same become due,
(6) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(a) is for relief against the Company or any of its
Significant Subsidiaries in an involuntary case,
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(b) appoints a Custodian of the Company or any of its
Significant Subsidiaries or for all or substantially
all of its property, or
(c) orders the liquidation of the Company or any of its
Significant Subsidiaries,
and the order or decree remains unstayed and in effect for 60 days; or
(7) any other Event of Default provided with respect to Securities
of that Series, which is specified in a Board Resolution, a supplemental
indenture hereto or an Officers' Certificate, in accordance with Section
2.2.20.
The term "Bankruptcy Law" means Title 11, U.S. Code or any similar
Federal or State law for the relief of debtors. The term "Custodian" means any
receiver, trustee, assignee, liquidator or similar official under any
Bankruptcy Law.
Section 1.40 Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Securities of any Series at the
time outstanding occurs and is continuing (other than an Event of Default
referred to in Section 6.1(f) or (g)) then in every such case the Trustee or
the Holders of not less than 25% in principal amount of the outstanding
Securities of that Series may declare the principal amount (or, if any
Securities of that Series are Discount Securities, such portion of the
principal amount as may be specified in the terms of such Securities) of and
accrued and unpaid interest, if any, on all of the Securities of that Series to
be due and payable immediately, by a notice in writing to the Company (and to
the Trustee if given by Holders), and upon any such declaration such principal
amount (or specified amount) and accrued and unpaid interest, if any, shall
become immediately due and payable. If an Event of Default specified in
Section 6.1(f) or (g) shall occur, the principal amount (or specified amount)
of and accrued and unpaid interest, if any, on all outstanding Securities shall
ipso facto become and be immediately due and payable without any declaration or
other act on the part of the Trustee or any Holder.
At any time after such a declaration of acceleration with respect to any
Series has been made and before a judgment or decree for payment of the money
due has been obtained by the Trustee as hereinafter in this Article provided,
the Holders of 25% in principal amount of the outstanding Securities of that
Series, by written notice to the Company and the Trustee, may rescind and annul
such declaration and its consequences if:
(1) the Company has paid or deposited with the Trustee a sum sufficient
to pay
(1) all overdue interest, if any, on all Securities of that Series,
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(2) the principal of any Securities of that Series which have
become due otherwise than by such declaration of acceleration and interest
thereon at the rate or rates prescribed therefor in such Securities,
(3) to the extent that payment of such interest is lawful, interest
upon any overdue principal and overdue interest at the rate or rates
prescribed therefor in such Securities, and
(4) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel;
and
(2) all Events of Default with respect to Securities of that Series,
other than the non-payment of the principal of Securities of that Series
which have become due solely by such declaration of acceleration, have been
cured or waived as provided in Section 6.13.
No such rescission shall affect any subsequent Default or impair any right
consequent thereon.
Section 1.41 Collection of Indebtedness and Suits for Enforcement by
Trustee.
The Company covenants that if
(1) default is made in the payment of any interest on any Security when
such interest becomes due and payable and such default continues for a period
of 30 days, or
(2) default is made in the payment of principal of any Security at the
Maturity thereof, or
(3) default is made in the deposit of any sinking fund payment when and as
due by the terms of a Security,
then, the Company will, upon demand of the Trustee, pay to it, for the benefit
of the Holders of such Securities, the whole amount then due and payable on
such Securities for principal and interest and, to the extent that payment of
such interest shall be legally enforceable, interest on any overdue principal
or any overdue interest, at the rate or rates prescribed therefor in such
Securities, and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
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If the Company fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon such Securities and collect the
moneys adjudged or deemed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon such Securities, wherever
situated.
If an Event of Default with respect to any Securities of any Series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such Series
by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
Section 1.42 Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of overdue principal or interest) shall be entitled
and empowered, by intervention in such proceeding or otherwise,
(1) to file and prove a claim for the whole amount of principal and
interest owing and unpaid in respect of the Securities and to file such other
papers or documents as may be necessary or advisable in order to have the
claims of the Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel)
and of the Holders allowed in such judicial proceeding, and
(2) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same, and any custodian,
receiver, assignee, trustee, liquidator, sequestrator or other similar
official in any such judicial proceeding is hereby authorized by each Holder
to make such payments to the Trustee and, in the event that the Trustee shall
consent to the making of such payments directly to the Holders, to pay to the
Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any
other amounts due the Trustee under Section 7.7.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
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Section 1.43 Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities may
be prosecuted and enforced by the Trustee without the possession of any of the
Securities or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Trustee shall be brought in its own name
as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
Section 1.44 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 Securities and the notation thereon of the payment if
only partially paid and upon surrender thereof if fully paid:
First: To the payment of all amounts due the Trustee under Section 7.7; and
Second: To the payment of the amounts then due and unpaid for principal of
and interest on the Securities in respect of which or for the benefit of
which such money has been collected, ratably, without preference or priority
of any kind (subject to any subordination provisions applicable to the
Securities of any Series), according to the amounts due and payable on such
Securities for principal and interest, respectively; and
Third: To the Company.
Section 1.45 Limitation on Suits.
No Holder of any Security of any Series shall have any right to institute
any proceeding, judicial or otherwise, with respect to this Indenture, or for
the appointment of a receiver or trustee, or for any other remedy hereunder,
unless
(1) such Holder has previously given written notice to the Trustee of a
continuing Event of Default with respect to the Securities of that Series;
(2) the Holders of not less than 25% in principal amount of the
outstanding Securities of that Series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default
in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
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(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 25% in principal
amount of the outstanding Securities of that Series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all such
Holders.
Section 1.46 Unconditional Right of Holders to Receive Principal and
Interest.
Notwithstanding any other provision in this Indenture, the Holder of any
Security shall have the right, which is absolute and unconditional, to receive
payment of the principal of, premium, if any, and interest, if any, on, such
Security on the Stated Maturity or Stated Maturities expressed in such Security
(or, in the case of redemption, on the redemption date) and to institute suit
for the enforcement of any such payment, and such rights shall not be impaired
without the consent of such Holder.
Section 1.47 Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder, then and in every such case, subject to any determination in
such proceeding, the Company, the Trustee and the Holders shall be restored
severally and respectively to their former positions hereunder and thereafter
all rights and remedies of the Trustee and the Holders shall continue as though
no such proceeding had been instituted.
Section 1.48 Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities in Section 2.8, no right or
remedy herein conferred upon or reserved to the Trustee or to the Holders is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at
law or in equity or otherwise. The assertion or employment of any right or
remedy hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
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Section 1.49 Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Securities to
exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default or
an acquiescence therein. Every right and remedy given by this Article or by
law to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case
may be.
Section 1.50 Control by Holders.
The Holders of 25% in principal amount of the outstanding Securities of
any Series shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, with respect to the
Securities of such Series, provided that
(1) such direction shall not be in conflict with any rule of law or with
this Indenture,
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction, and
(3) subject to the provisions of Section 6.1, the Trustee shall have the
right to decline to follow any such direction if the Trustee in good faith
shall, by a Responsible Officer of the Trustee, determine that the proceeding
so directed would involve the Trustee in personal liability.
Section 1.51 Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
outstanding Securities of any Series may on behalf of the Holders of all the
Securities of such Series waive any past Default hereunder with respect to such
Series and its consequences, except a Default in the payment of the principal
of, premium, if any, or interest, if any, on, any Security of such Series or,
if applicable, in respect of a covenant or provision which cannot be modified
or amended without the consent of the Holder of each outstanding Security of
such Series affected. Upon any such waiver, such Default shall cease to exist,
and any Event of Default arising therefrom shall be deemed to have been cured,
for every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other Default or impair any right consequent thereon.
Section 1.52 Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security by
his acceptance thereof shall be deemed to have agreed, that any court may in
its discretion require, in any suit for the enforcement of any right or remedy
under this Indenture, or in any suit against the Trustee for
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any action taken, suffered or omitted by it as Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of such suit, and that
such court may in its discretion assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in such suit, having due regard to
the merits and good faith of the claims or defenses made by such party
litigant; but the provisions of this Section shall not apply to any suit
instituted by the Company, to any suit instituted by the Trustee, to any suit
instituted by any Holder, or group of Holders, holding in the aggregate more
than 10% in principal amount of the outstanding Securities of any Series, or to
any suit instituted by any Holder for the enforcement of the payment of the
principal of or interest on any Security on or after the Stated Maturity or
Stated Maturities expressed in such Security (or, in the case of redemption,
on the redemption date).
ARTICLE VII.
TRUSTEE
Section 1.53 Duties of Trustee.
(1) If an Event of Default has occurred and is continuing, the Trustee
shall exercise the rights and powers vested in it by this Indenture and use
the same degree of care and skill in their exercise as a prudent person would
exercise or use under the circumstances in the conduct of his or her own
affairs.
(2) Except during the continuance of an Event of Default:
(1) The Trustee need perform only those duties that are specifically
set forth in this Indenture and no others.
(2) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon Officers' Certificates or Opinions
of Counsel furnished to the Trustee and conforming to the requirements of
this Indenture; however, in the case of any such Officers' Certificates or
Opinions of Counsel which by any provisions hereof are specifically
required to be furnished to the Trustee, the Trustee shall examine such
Officers' Certificates and Opinions of Counsel to determine whether or
not they conform to the requirements of this Indenture.
(3) 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:
(1) This paragraph does not limit the effect of paragraph (b)
of this Section.
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(2) The Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it is proved
that the Trustee was negligent in ascertaining the pertinent facts.
(3) The Trustee shall not be liable with respect to any action
taken, suffered or omitted to be taken by it with respect to
Securities of any Series in good faith in accordance with the
direction of the Holders of a majority in principal amount of the
outstanding Securities of such Series relating to the time, method
and place of conducting any proceeding for any remedy available to
the Trustee, or exercising any trust or power conferred upon the
Trustee, under this Indenture with respect to the Securities of
such Series.
(4) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraph (a), (b) and (c) of this Section.
(5) The Trustee may refuse to perform any duty or exercise any right
or power unless it receives indemnity satisfactory to it against any
loss, liability or expense.
(6) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the
Company. Money held in trust by the Trustee need not be segregated from
other funds except to the extent required by law.
(7) No provision of this Indenture shall require the Trustee to risk
its own funds or otherwise incur any financial liability in the
performance of any of its duties, or in the exercise of any of its rights
or powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk is not
reasonably assured to it.
(8) The Paying Agent, the Registrar and any authenticating agent
shall be entitled to the protections, immunities and standard of care as
are set forth in paragraphs (a), (b) and (c) of this Section with respect
to the Trustee.
Section 1.54 Rights of Trustee.
(1) The Trustee may rely on and shall be protected in acting or
refraining from acting upon 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.
(2) 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 such Officers' Certificate or Opinion of Counsel.
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(3) The Trustee may act through agents and shall not be responsible
for the misconduct or negligence of any agent appointed with due care.
No Depository shall be deemed an agent of the Trustee and the Trustee
shall not be responsible for any act or omission by any Depository.
(4) 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.
(5) The Trustee may consult with counsel and the advice of such
counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon.
(6) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or
direction of any of the Holders of Securities unless such Holders shall
have offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred by it in
compliance with such request or direction.
Section 1.55 Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Securities 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. The Trustee is also subject to Sections 7.10
and 7.11.
Section 1.56 Trustee's Disclaimer.
The Trustee makes no representation as to the validity or adequacy
of this Indenture or the Securities, it shall not be accountable for the
Company's use of the proceeds from the Securities, and it shall not be
responsible for any statement in the Securities other than its authentication.
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Section 1.57 Notice of Defaults.
If a Default or Event of Default occurs and is continuing with respect to
the Securities of any Series and if it is known to a Responsible Officer of the
Trustee, the Trustee shall mail to each Securityholder of the Securities of
that Series and, if any Bearer Securities are outstanding, publish on one
occasion in an Authorized Newspaper, notice of a Default or Event of Default
within 90 days after it occurs or, if later, after a Responsible Officer of the
Trustee has knowledge of such Default or Event of Default. Except in the case
of a Default or Event of Default in payment of principal of or interest on any
Security of any Series, the Trustee may withhold the notice if and so long as
its corporate trust committee or a committee of its Responsible Officers in
good faith determines that withholding the notice is in the interests of
Securityholders of that Series.
Section 1.58 Reports by Trustee to Holders.
Within 60 days after May 15 in each year, the Trustee shall transmit by
mail to all Securityholders, as their names and addresses appear on the
register kept by the Registrar and, if any Bearer Securities are outstanding,
publish once in an Authorized Newspaper, a brief report dated as of such May
15, in accordance with, and to the extent required under, TIA Section 313.
A copy of each report at the time of its mailing to Securityholders of any
Series shall be filed with the SEC and each stock exchange on which the
Securities of that Series are listed. The Company shall promptly notify the
Trustee when Securities of any Series are listed on any stock exchange.
Section 1.59 Compensation and Indemnity.
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
expenses of the Trustee's agents and counsel.
Except as set forth in the next paragraph, the Company shall indemnify the
Trustee against any loss, liability or expense (including the cost of defending
itself) incurred by it in the performance of its duties under this Indenture as
Trustee or Agent. The Trustee shall notify the Company promptly of any claim
for which it may seek indemnity. The Company shall defend the claim and the
Trustee shall cooperate in the defense. The Trustee may have separate counsel
and the Company shall pay the reasonable fees and expenses of such counsel.
The Company need not pay for any settlement made without its consent, which
consent shall not be unreasonably withheld. This indemnification shall apply
to officers, directors, employees, shareholders and agents of the Trustee.
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The Company need not reimburse any expense or indemnify against any loss
or liability incurred by the Trustee or by any officer, director, employee,
shareholder or agent of the Trustee through negligence or bad faith.
To secure the Company's payment obligations in this Section, the Trustee
shall have a lien prior to the Securities of any Series on all money or
property held or collected by the Trustee, except that held in trust to pay
principal and interest on particular Securities of that Series.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.1(f) or (g) occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
Section 1.60 Replacement of Trustee.
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 with respect to the Securities of one or more
Series by so notifying the Company. The Holders of a majority in principal
amount of the Securities of any Series may remove the Trustee with respect to
that Series by so notifying the Trustee and the Company. The Company may
remove the Trustee with respect to Securities of one or more Series if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged a bankrupt or an insolvent or an order for
relief is entered with respect to the Trustee under any Bankruptcy Law;
(3) a Custodian or public officer takes charge of the Trustee or its
property; or
(4) the Trustee becomes incapable of acting.
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 then outstanding Securities may
appoint a successor Trustee to replace the successor Trustee appointed by the
Company.
If a successor Trustee with respect to the Securities of any one or more
Series 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 10%
in principal amount of the Securities of the applicable Series may petition any
court of competent jurisdiction for the appointment of a successor Trustee.
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If the Trustee with respect to the Securities of any one or more Series
fails to comply with Section 7.10, any Securityholder of the applicable Series
may petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its appointment
to the retiring Trustee and to the Company. Immediately after that, the
retiring Trustee shall transfer all property held by it as Trustee to the
successor Trustee subject to the lien provided for in Section 7.7, 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
with respect to each Series of Securities for which it is acting as Trustee
under this Indenture. A successor Trustee shall mail a notice of its
succession to each Securityholder of each such Series and, if any Bearer
Securities are outstanding, publish such notice on one occasion in an
Authorized Newspaper. Notwithstanding replacement of the Trustee pursuant to
this Section 7.8, the Company's obligations under Section 7.7 hereof shall
continue for the benefit of the retiring trustee with respect to expenses and
liabilities incurred by it prior to such replacement.
Section 1.61 Successor Trustee by Merger, etc.
If the Trustee consolidates with, 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 1.62 Eligibility; Disqualification.
This Indenture shall always have a Trustee who satisfies the requirements
of TIA Section 310(a)(1), (2) and (5). The Trustee shall always 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).
Section 1.63 Preferential Collection of Claims Against Company.
The Trustee is subject to 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 VIII.
SATISFACTION AND DISCHARGE; DEFEASANCE
Section 1.64 Satisfaction and Discharge of Indenture.
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This Indenture shall upon Company Order cease to be of further effect
(except as hereinafter provided in this Section 8.1), and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when
(1) either
(1) all Securities theretofore authenticated and delivered (other
than Securities that have been destroyed, lost or stolen and that have
been replaced or paid) have been delivered to the Trustee for
cancellation; or
(2) all such Securities not theretofore delivered to the Trustee for
cancellation
a. have become due and payable, or
b. will become due and payable at their Stated Maturity
within one year, or
c. are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the
giving of notice of redemption by the Trustee in the
name, and at the expense, of the Company, or
d. are deemed paid and discharged pursuant to Section
8.3, as applicable;
and the Company, in the case of (a), (b) or (c) above, has deposited or caused
to be deposited with the Trustee as trust funds in trust an amount sufficient
for the purpose of paying and discharging the entire indebtedness on such
Securities not theretofore delivered to the Trustee for cancellation, for
principal and interest to the date of such deposit (in the case of Securities
which have become due and payable on or prior to the date of such deposit) or
to the Stated Maturity or redemption date, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture
have been complied with.
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Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 7.7, and, if money
shall have been deposited with the Trustee pursuant to clause (a) of this
Section, the provisions of Sections 2.4, 2.7, 2.8, 8.1 8.2 and 8.5 shall
survive.
Section 1.65 Application of Trust Funds; Indemnification.
(1) Subject to the provisions of Section 8.5, all money deposited with the
Trustee pursuant to Section 8.1, all money and U.S. Government Obligations or
Foreign Government Obligations or Eligible Obligations deposited with the
Trustee pursuant to Section 8.3 or 8.4 and all money received by the Trustee
in respect of U.S. Government Obligations or Foreign Government Obligations
or Eligible Obligations deposited with the Trustee pursuant to Section 8.3 or
8.4, shall be held in trust and applied by it, in accordance with the
provisions of the Securities and this Indenture, to the payment, either
directly or through any Paying Agent (including the Company acting as its own
Paying Agent) as the Trustee may determine, to the persons entitled thereto,
of the principal and interest for whose payment such money has been deposited
with or received by the Trustee or to make mandatory sinking fund payments
or analogous payments as contemplated by Sections 8.3 or 8.4.
(2) The Company shall pay and shall indemnify the Trustee against any tax,
fee or other charge imposed on or assessed against U.S. Government
Obligations or Foreign Government Obligations or Eligible Obligations
deposited pursuant to Sections 8.3 or 8.4 or the interest and principal
received in respect of such obligations other than any payable by or on
behalf of Holders.
(3) The Trustee shall deliver or pay to the Company from time to time
upon Company Request any U.S. Government Obligations or Foreign Government
Obligations or Eligible Obligations or money held by it as provided in
Sections 8.3 or 8.4 which, in the opinion of a nationally recognized firm of
independent certified public accountants expressed in a written certification
thereof delivered to the Trustee, are then in excess of the amount thereof
which then would have been required to be deposited for the purpose for which
such U.S. Government Obligations or Foreign Government Obligations or
Eligible Obligations or money were deposited or received. This provision
shall not authorize the sale by the Trustee of any U.S. Government
Obligations or Foreign Government Obligations or Eligible Obligations held
under this Indenture.
Section 1.66 Legal Defeasance of Securities of any Series.
Unless this Section 8.3 is otherwise specified, pursuant to Section
2.2.20, to be inapplicable to Securities of any Series, the Company shall be
deemed to have paid and discharged the entire indebtedness on all the
outstanding Securities of such Series on the 91st day after the date of the
deposit referred to in subparagraph (d) hereof, and the provisions of this
Indenture, as it relates
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to such outstanding Securities of such Series, shall no longer be in effect
(and the Trustee, at the expense of the Company, shall, at Company Request,
execute proper instruments acknowledging the same), except as to:
(1) the rights of Holders of Securities of such Series to receive, from
the trust funds described in subparagraph (d) hereof, (i) payment of the
principal of and each installment of principal of and interest on the
outstanding Securities of such Series on the Stated Maturity of such
principal or installment of principal or interest and (ii) the benefit of any
mandatory sinking fund payments applicable to the Securities of such Series
on the day on which such payments are due and payable in accordance with the
terms of this Indenture and the Securities of such Series;
(2) the provisions of Sections 2.4, 2.7, 2.8, 8.2, 8.3 and 8.5; and
(3) the rights, powers, trust and immunities of the Trustee hereunder;
provided that, the following conditions shall have been satisfied:
(4) the Company shall have deposited or caused to be deposited irrevocably
with the Trustee as trust funds in trust for the purpose of making the
following payments, specifically pledged as security for and dedicated solely
to the benefit of the Holders of such Securities (i) in the case of
Securities of such Series denominated in Dollars, cash in Dollars (or such
other money or currencies as shall then be legal tender in the United States)
and/or U.S. Government Obligations or Eligible Obligations, or (ii) in the
case of Securities of such Series denominated in a Foreign Currency (other
than a composite currency), money and/or Foreign Government Obligations or
Eligible Obligations, which through the payment of interest and principal in
respect thereof, in accordance with their terms, will provide (and without
reinvestment and assuming no tax liability will be imposed on such Trustee),
not later than one day before the due date of any payment of money, an amount
in cash, sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, to pay and discharge each installment of principal
(including mandatory sinking fund or analogous payments) of and interest,
if any, on all the Securities of such Series on the dates such installments
of interest or principal are due;
(5) such deposit will not result in a breach or violation of, or
constitute a default under, this Indenture or any other agreement or
instrument to which the Company is a party or by which it is bound;
(6) no Default or Event of Default with respect to the Securities of such
Series shall have occurred and be continuing on the date of such deposit or
during the period ending on the 91st day after such date;
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(7) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel to the effect that (i) the Company has
received from, or there has been published by, the Internal Revenue Service a
ruling, or (ii) since the date of execution of this Indenture, there has been
a change in the applicable Federal income tax law, in either case to the
effect that, and based thereon such Opinion of Counsel shall confirm that,
the Holders of the Securities of such Series will not recognize income, gain
or loss for Federal income tax purposes as a result of such deposit,
defeasance and discharge and will be subject to Federal income tax on the
same amount and in the same manner and at the same times as would have been
the case if such deposit, defeasance and discharge had not occurred;
(8) the Company shall have delivered to the Trustee an Officers'
Certificate stating that the deposit was not made by the Company with the
intent of preferring the Holders of the Securities of such Series over
any other creditors of the company or with the intent of defeating,
hindering, delaying or defrauding any other creditors of the Company;
(9) such deposit shall not result in the trust arising from such deposit
constituting an investment company (as defined in the Investment Company Act
of 1940, as amended), or such trust shall be qualified under such Act or
exempt from regulation thereunder; and
(10) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to the defeasance contemplated by this
Section have been complied with.
Section 1.67 Covenant Defeasance.
Unless this Section 8.4 is otherwise specified pursuant to Section 2.2.20
to be inapplicable to Securities of any Series, on and after the 91st day after
the date of the deposit referred to in subparagraph (a) hereof, the Company may
omit to comply with any term, provision or condition set forth under Sections
4.2, 4.3, 4.4, 4.5, 4.6, 4.7, 4.8, 4.9 and 5.1 as well as any additional
covenants contained in a supplemental indenture hereto for a particular Series
of Securities or a Board Resolution or an Officers' Certificate delivered
pursuant to Section 2.2.20 (and the failure to comply with any such covenants
shall not constitute a Default or Event of Default under Section 6.1) and the
occurrence of any event described in clause (e) of Section 6.1 shall not
constitute a Default or Event of Default hereunder, with respect to the
Securities of such Series, provided that the following conditions shall have
been satisfied:
(1) With reference to this Section 8.4, the Company has deposited or
caused to be irrevocably deposited (except as provided in Section 8.2(c))
with the Trustee as trust funds in trust, specifically pledged as security
for, and dedicated solely to, the benefit of the Holders of such Securities
(i) in the case of Securities of such Series denominated in Dollars, cash in
Dollars (or such other money or currencies as shall then be legal tender in
the United States) and/or U.S. Government Obligations or Eligible
Obligations, or (ii) in the case of Securities of such Series denominated in
a Foreign Currency (other than a composite
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currency), money and/or Foreign Government Obligations or Eligible
Obligations, which through the payment of interest and principal in respect
thereof, in accordance with their terms, will provide (and without
reinvestment and assuming no tax liability will be imposed on such Trustee),
not later than one day before the due date of any payment of money, an amount
in cash, sufficient, in the opinion of a nationally recognized firm of
independent certified public accountants expressed in a written certification
thereof delivered to the Trustee, to pay principal, premium, if any, and
interest, if any, on and any mandatory sinking fund in respect of the
Securities of such Series on the dates such installments of interest or
principal are due;
(2) Such deposit will not result in a breach or violation of, or
constitute a default under, this Indenture or any other agreement or
instrument to which the Company is a party or by which it is bound;
(3) No Default or Event of Default with respect to the Securities of
such Series shall have occurred and be continuing on the date of such
deposit or during the period ending on the 91st day after such date;
(4) the Company shall have delivered to the Trustee an Opinion of Counsel
confirming that Holders of the Securities of such Series will not recognize
income, gain or loss for federal income tax purposes as a result of such
deposit and defeasance and will be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been the case
if such deposit and defeasance had not occurred;
(5) the Company shall have delivered to the Trustee an Officers'
Certificate stating the deposit was not made by the Company with the intent
of preferring the Holders of the Securities of such Series over any other
creditors of the Company or with the intent of defeating, hindering, delaying
or defrauding any other creditors of the Company; and
(6) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the defeasance contemplated by this
Section have been complied with.
Section 1.68 Repayment to Company.
The Trustee and the Paying Agent shall pay to the Company upon request any
money held by them for the payment of principal and interest that remains
unclaimed for two years. After that, Securityholders entitled to the money
must look to the Company for payment as general creditors unless an applicable
abandoned property law designates another person.
Section 1.69 Reinstatement of Company's Obligations.
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If the Trustee or Paying Agent is unable to apply any money, U.S.
Government Obligations, Foreign Government Obligations or Eligible Obligations
in accordance with Section 8.3 by reason of any legal proceeding or by reason
of any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, the Company's
obligations under this Indenture and the Securities of the applicable Series
shall be revived and reinstated as though no deposit had occurred pursuant to
Section 8.3 until such time as the Trustee or Paying Agent is permitted to
apply all such money, U.S. Government Obligations, Foreign Government
Obligations or Eligible Obligations in accordance with Section 8.3; provided,
however, that if the Company has made any payment of interest on, Additional
Amounts payable with respect to or principal of any Securities because of the
reinstatement of its obligations, the Company shall be subrogated to the rights
of the Holders of such Securities to receive such payment from the money, U.S.
Government Obligations, Foreign Government Obligations or Eligible Obligations
held by the Trustee or Paying Agent.
ARTICLE IX.
AMENDMENTS AND WAIVERS
Section 1.70 Without Consent of Holders.
The Company and the Trustee may amend or supplement this Indenture or the
Securities of one or more Series without the consent of any Securityholder:
(1) to cure any ambiguity, defect or inconsistency;
(2) to comply with Article V;
(3) to provide for uncertificated Securities in addition to or in place of
certificated Securities;
(4) to make any change that does not adversely affect the rights of any
Securityholder;
(5) to provide for the issuance of and establish the form and terms and
conditions of Securities of any Series as permitted by this Indenture;
(6) to evidence and provide for the acceptance of appointment by a
successor Trustee with respect to the Securities of one or more Series and to
add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee; or
(7) to comply with requirements of the SEC in order to effect or maintain
the qualification of this Indenture under the TIA.
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Section 1.71 With Consent of Holders.
Unless otherwise specified with respect to any Series of Securities, the
Company and the Trustee may enter into a supplemental indenture with the
written consent of the Holders of at least a majority in principal amount of
the outstanding Securities of each Series affected by such supplemental
indenture (including consents obtained in connection with a tender offer or
exchange offer for the Securities of such Series), for the purpose of adding
any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of any supplemental indenture or of modifying
in any manner the rights of the Securityholders of each such Series. Except as
provided in Section 6.13, the Holders of at least a majority in principal
amount of the outstanding Securities of each Series affected by such waiver by
notice to the Trustee (including consents obtained in connection with a tender
offer or exchange offer for the Securities of such Series) may waive compliance
by the Company with any provision of this Indenture or the Securities with
respect to such Series.
It shall not be necessary for the consent of the Holders of Securities
under this Section 9.2 to approve the particular form of any proposed
supplemental indenture or waiver, but it shall be sufficient if such consent
approves the substance thereof. After a supplemental indenture or waiver under
this section becomes effective, the Company shall mail to the Holders of
Securities affected thereby and, if any Bearer Securities affected thereby are
outstanding, publish on one occasion in an Authorized Newspaper, a notice
briefly describing the supplemental indenture or waiver. Any failure by the
Company to mail or publish such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such supplemental
indenture or waiver.
Section 1.72 Limitations.
Without the consent of each Securityholder affected, an amendment or
waiver may not:
(1) change the amount of Securities whose Holders must consent to an
amendment, supplement or waiver;
(2) reduce the rate of or extend the time for payment of interest
(including default interest) on any Security;
(3) reduce the principal of, or premium, if any, on, or change the
Stated Maturity of, any Security or reduce the amount of, or postpone the
date fixed for, the payment of any sinking fund or analogous obligation;
(4) reduce the principal amount of Discount Securities payable upon
acceleration of the maturity thereof;
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(5) waive a Default or Event of Default in the payment of the principal of,
premium, if any, or interest, if any, on, any Security (except a rescission
of acceleration of the Securities of any Series by the Holders of at least a
majority in principal amount of the outstanding Securities of such Series and
a waiver of the payment default that resulted from such acceleration);
(6) make the principal of, premium, if any, or interest, if any, on, any
Security payable in any currency other than that stated in the Security;
(7) make any change in Sections 6.8, 6.13, 9.3 (this sentence), 10.15 or
10.16; or
(8) waive a redemption payment with respect to any Security or change any
of the provisions with respect to the redemption of any Securities.
Section 1.73 Compliance with Trust Indenture Act.
Every amendment to this Indenture or the Securities of one or more Series
shall be set forth in a supplemental indenture hereto that complies with the
TIA as then in effect.
Section 1.74 Revocation and Effect of Consents.
Until an amendment or waiver becomes effective, a consent to it by a
Holder of a Security is a continuing consent by the Holder and every subsequent
Holder of a Security or portion of a Security that evidences the same debt as
the consenting Holder's Security, even if notation of the consent is not made
on any Security. However, any such Holder or subsequent Holder may revoke the
consent as to his Security or portion of a Security if the Trustee receives the
notice of revocation before the date the amendment or waiver becomes effective.
Any amendment or waiver once effective shall bind every Securityholder of
each Series affected by such amendment or waiver unless it is of the type
described in any of clauses (a) through (g) of Section 9.3. In that case, the
amendment or waiver shall bind each Holder of a Security who has consented to
it and every subsequent Holder of a Security or portion of a Security that
evidences the same debt as the consenting Holder's Security.
Section 1.75 Notation on or Exchange of Securities.
The Trustee may place an appropriate notation about an amendment or waiver
on any Security of any Series thereafter authenticated. The Company in
exchange for Securities of that Series may issue and the Trustee shall
authenticate upon request new Securities of that Series that reflect the
amendment or waiver.
Section 1.76 Trustee Protected.
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In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby
of the trusts created by this Indenture, the Trustee shall be entitled to
receive, and (subject to Section 7.1) 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 shall sign all
supplemental indentures, except that the Trustee need not sign any supplemental
indenture that adversely affects its rights.
ARTICLE X.
MISCELLANEOUS
Section 1.77 Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies, or conflicts with
another provision which is required or deemed to be included in this Indenture
by the TIA, such required or deemed provision shall control.
Section 1.78 Notices.
Any notice or communication by the Company or the Trustee to the other is
duly given if in writing and delivered in person or mailed by first-class mail:
if to the Company: IDEX Corporation
000 Xxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000
(000) 000-0000
Attention: Xxxxx X. Xxxxxxxxx
if to the Trustee:
Norwest Bank Minnesota, National Association
0xx Xxxxxx & Xxxxxxxxx Xxx.
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Corporate Trust Services
The Company or the Trustee by notice to the other may designate additional
or different addresses for subsequent notices or communications.
Any notice or communication to a Securityholder shall be mailed by
first-class mail to his address shown on the register kept by the Registrar
and, if any Bearer Securities are outstanding, published in an Authorized
Newspaper. Failure to mail a notice or communication to a Securityholder of
any Series or any defect in it shall not affect its sufficiency with respect to
other Securityholders of that or any other Series.
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If a notice or communication is mailed or published in the manner provided
above, within the time prescribed, it is duly given, whether or not the
Securityholder receives it.
If the Company mails a notice or communication to Securityholders, it
shall mail a copy to the Trustee and each Agent at the same time.
Section 1.79 Communication by Holders with Other Holders.
Securityholders of any Series may communicate pursuant to TIA Section
312(b) with other Securityholders of that Series or any other Series with
respect to their rights under this Indenture or the Securities of that Series
or all Series. The Company, the Trustee, the Registrar and anyone else shall
have the protection of TIA Section 312(c).
Section 1.80 Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to take any
action under this Indenture, the Company shall furnish to the Trustee:
(1) an Officers' Certificate stating that, in the opinion of the signers,
all conditions precedent, if any, provided for in this Indenture relating to
the proposed action have been complied with; and
(2) an Opinion of Counsel stating that, in the opinion of such counsel,
all such conditions precedent have been complied with.
Section 1.81 Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture (other than a certificate provided
pursuant to TIA Section 314(a)(4)) shall comply with the provisions of TIA
Section 314(e) and shall include:
(1) a statement that the person making such certificate or opinion has
read such covenant or condition;
(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 such person, 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
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(4) a statement as to whether or not, in the opinion of such person,
such condition or covenant has been complied with.
Section 1.82 Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or a meeting of
Securityholders of one or more Series. Any Agent may make reasonable rules and
set reasonable requirements for its functions.
Section 1.83 Legal Holidays.
Unless otherwise provided by Board Resolution, Officers' Certificate or
supplemental indenture for a particular Series, a "Legal Holiday" is any day
that is not a Business Day. If a payment date is a Legal Holiday at a place of
payment, payment may be made at that place on the next succeeding day that is
not a Legal Holiday, and no interest shall accrue for the intervening period.
Section 1.84 No Recourse Against Others.
A director, officer, employee or stockholder, as such, of the Company
shall not have any liability for any obligations of the Company under the
Securities or the Indenture or for any claim based on, in respect of or by
reason of such obligations or their creation. Each Securityholder by accepting
a Security waives and releases all such liability. The waiver and release are
part of the consideration for the issue of the Securities.
Section 1.85 Counterparts.
This Indenture may be executed in any number of counterparts and by the
parties hereto in separate counterparts, each of which when so executed shall
be deemed to be an original and all of which taken together shall constitute
one and the same agreement.
Section 1.86 Governing Laws.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY THE LAWS OF THE
STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN SUCH
STATE, WITHOUT REGARD TO THE CONFLICT OF LAWS PROVISIONS THEREOF.
Section 1.87 No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan or
debt agreement of the Company or a Subsidiary. Any such indenture, loan or
debt agreement may not be used to interpret this Indenture.
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Section 1.88 Successors.
All agreements of the Company in this Indenture and the Securities shall
bind its successor. All agreements of the Trustee in this Indenture shall bind
its successor.
Section 1.89 Severability.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
Section 1.90 Table of Contents, Headings, Etc.
The Table of Contents, Cross-Reference Table, and headings of the Articles
and Sections of this Indenture have been inserted for convenience of reference
only, are not to be considered a part hereof, and shall in no way modify or
restrict any of the terms or provisions hereof.
Section 1.91 Securities in a Foreign Currency or in ECU.
Unless otherwise specified in a Board Resolution, a supplemental indenture
hereto or an Officers' Certificate delivered pursuant to Section 2.2 of this
Indenture with respect to a particular Series of Securities, whenever for
purposes of this Indenture any action may be taken by the Holders of a
specified percentage in aggregate principal amount of Securities of all Series
or all Series affected by a particular action at the time outstanding and, at
such time, there are outstanding Securities of any Series which are denominated
in a coin or currency other than Dollars (including ECUs), then the principal
amount of Securities of such Series which shall be deemed to be outstanding for
the purpose of taking such action shall be that amount of Dollars that could be
obtained for such amount at the Market Exchange Rate at such time. For
purposes of this Section 10.15, "Market Exchange Rate" shall mean the noon
Dollar buying rate in New York City for cable transfers of that currency as
published by the Federal Reserve Bank of New York; provided, however, in the
case of ECUs, Market Exchange Rate shall mean the rate of exchange determined
by the Commission of the European Union (or any successor thereto) as published
in the Official Journal of the European Union (such publication or any
successor publication, the "Journal"). If such Market Exchange Rate is not
available for any reason with respect to such currency, the Trustee shall use,
in its sole discretion and without liability on its part, such quotation of the
Federal Reserve Bank of New York or, in the case of ECUs, the rate of exchange
as published in the Journal, as of the most recent available date, or
quotations or, in the case of ECUs, rates of exchange from one or more major
banks in The City of New York or in the country of issue of the currency in
question or, in the case of ECUs, in Luxembourg or such other quotations or, in
the case of ECUs, rates of exchange as the Trustee, upon consultation with the
Company, shall deem appropriate. The provisions of this paragraph shall apply
in determining the equivalent principal amount in respect of Securities of a
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Series denominated in currency other than Dollars in connection with any action
taken by Holders of Securities pursuant to the terms of this Indenture.
All decisions and determinations of the Trustee regarding the Market
Exchange Rate or any alternative determination provided for in the preceding
paragraph shall be in its sole discretion and shall, in the absence of manifest
error, be conclusive to the extent permitted by law for all purposes and
irrevocably binding upon the Company and all Holders.
Section 1.92 Judgment Currency.
The Company agrees, to the fullest extent that it may effectively do so
under applicable law, that (a) if for the purpose of obtaining judgment in any
court it is necessary to convert the sum due in respect of the principal of or
interest or other amount on the Securities of any Series (the "Required
Currency") into a currency in which a judgment will be rendered (the "Judgment
Currency"), the rate of exchange used shall be the rate at which in accordance
with normal banking procedures the Trustee could purchase in The City of New
York the Required Currency with the Judgment Currency on the day on which final
unappealable judgment is entered, unless such day is not a New York Banking
Day, then, the rate of exchange used shall be the rate at which in accordance
with normal banking procedures the Trustee could purchase in The City of New
York the Required Currency with the Judgment Currency on the New York Banking
Day preceding the day on which final unappealable judgment is entered and (b)
its obligations under this Indenture to make payments in the Required Currency
(i) shall not be discharged or satisfied by any tender, any recovery pursuant
to any judgment (whether or not entered in accordance with subsection (a)), in
any currency other than the Required Currency, except to the extent that such
tender or recovery shall result in the actual receipt, by the payee, of the
full amount of the Required Currency expressed to be payable in respect of such
payments, (ii) shall be enforceable as an alternative or additional cause of
action for the purpose of recovering in the Required Currency the amount, if
any, by which such actual receipt shall fall short of the full amount of the
Required Currency so expressed to be payable, and (iii) shall not be affected
by judgment being obtained for any other sum due under this Indenture. For
purposes of the foregoing, "New York Banking Day" means any day except a
Saturday, Sunday or a legal holiday in The City of New York on which banking
institutions are authorized or required by law, regulation or executive order
to close.
ARTICLE XI.
SINKING FUNDS
Section 1.93 Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund for
the retirement of the Securities of a Series, except as otherwise permitted or
required by any form of Security of such Series issued pursuant to this
Indenture.
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The minimum amount of any sinking fund payment provided for by the terms
of the Securities of any Series is herein referred to as a "mandatory sinking
fund payment" and any other amount provided for by the terms of Securities of
such Series is herein referred to as an "optional sinking fund payment." If
provided for by the terms of Securities of any Series, the cash amount of any
sinking fund payment may be subject to reduction as provided in Section 11.2.
Each sinking fund payment shall be applied to the redemption of Securities of
any Series as provided for by the terms of the Securities of such Series.
Section 1.94 Satisfaction of Sinking Fund Payments with Securities.
The Company may, in satisfaction of all or any part of any sinking fund
payment with respect to the Securities of any Series to be made pursuant to the
terms of such Securities (1) deliver outstanding Securities of such Series to
which such sinking fund payment is applicable (other than any of such
Securities previously called for mandatory sinking fund redemption) and (2)
apply as credit Securities of such Series to which such sinking fund payment is
applicable and which have been redeemed either at the election of the Company
pursuant to the terms of such Series of Securities (except pursuant to any
mandatory sinking fund) or through the application of permitted optional
sinking fund payments or other optional redemptions pursuant to the terms of
such Securities, provided that such Securities have not been previously so
credited. Such Securities shall be received by the Trustee, together with an
Officers' Certificate with respect thereto, not later than 15 days prior to the
date on which the Trustee begins the process of selecting Securities for
redemption, and shall be credited for such purpose by the Trustee at the price
specified in such Securities for redemption through operation of the sinking
fund and the amount of such sinking fund payment shall be reduced accordingly.
If as a result of the delivery or credit of Securities in lieu of cash payments
pursuant to this Section 11.2, the principal amount of Securities of such
Series to be redeemed in order to exhaust the aforesaid cash payment shall be
less than $100,000, the Trustee need not call Securities of such Series for
redemption, except upon receipt of a Company Order that such action be taken,
and such cash payment shall be held by the Trustee or a Paying Agent and
applied to the next succeeding sinking fund payment, provided, however, that
the Trustee or such Paying Agent shall from time to time upon receipt of a
Company Order pay over and deliver to the Company any cash payment so being
held by the Trustee or such Paying Agent upon delivery by the Company to the
Trustee of Securities of that Series purchased by the Company having an unpaid
principal amount equal to the cash payment required to be released to the
Company.
Section 1.95 Redemption of Securities for Sinking Fund.
Not less than 45 days (unless otherwise indicated in the Board Resolution,
supplemental indenture hereto or Officers' Certificate in respect of a
particular Series of Securities) prior to each sinking fund payment date for
any Series of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing mandatory sinking fund
payment for that Series pursuant to the terms of that Series, the portion
thereof, if any, which is to be satisfied by payment of cash and the portion
thereof, if any, which is to be satisfied
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by delivering and crediting of Securities of that Series pursuant to Section
11.2, and the optional amount, if any, to be added in cash to the next ensuing
mandatory sinking fund payment, and the Company shall thereupon be obligated to
pay the amount therein specified. Not less than 30 days (unless otherwise
indicated in the Board Resolution, Officers' Certificate or supplemental
indenture in respect of a particular Series of Securities) before each such
sinking fund payment date the Trustee shall select the Securities to be
redeemed upon such sinking fund payment date in the manner specified in Section
3.2 and cause notice of the redemption thereof to be given in the name of and
at the expense of the Company in the manner provided in Section 3.3. Such
notice having been duly given, the redemption of such Securities shall be made
upon the terms and in the manner stated in Sections 3.4, 3.5 and 3.6.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed as of the day and year first above written.
IDEX Corporation
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Treasurer
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION
By: /s/ Xxxxxx X. Xxxxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Assistant Vice President
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