Exhibit 4.1
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INDENTURE
Dated as of July 17, 1998
between
AMETEK, INC.,
as Issuer,
and
CHASE MANHATTAN TRUST COMPANY, NATIONAL ASSOCIATION,
as Trustee
________________
7.20% Senior Notes due 2008
CROSS-REFERENCE TABLE
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TIA Indenture
Section Section
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310(a)(1).............. 7.10
(a)(2).............. 7.10
(a)(3).............. N.A.
(a)(4).............. N.A.
(a)(5).............. 7.10
(b)................. 7.08; 7.10
(c)................. N.A.
311(a)................. 7.11
(b.................. 7.11
(c)................. N.A.
312(a)................. 2.05
(b)................. 10.03
(c)................. 10.03
313(a)................. 7.06
(b)(1).............. 7.06
(b)(2).............. 7.06; 7.07
(c)................. 7.05; 7.06; 10.02
(d)................. 7.06
314(a)................. 4.08; 4.10; 10.02
(b)................. N.A.
(c)(1).............. 4.08; 10.04
(c)(2).............. 10.04
(c)(3).............. 4.08; 10.04
(d)................. N.A.
(e)................. 10.05
(f)................. N.A.
315(a)................. 7.01(b)
(b)................. 7.05; 11.02
(c)................. 7.01(a)
(d)................. 7.01(c)
(e)................. 6.11
316(a)(last sentence).. 2.09
(a)(1)(A)........... 6.05
(a)(1)(B)........... 6.04
(a)(2).............. N.A.
(b)................. 6.07; 9.04
(c)................. 9.04
317(a)(1).............. 6.08
(a)(2).............. 6.09
(b)................. 2.04
318(a)................. 10.01
(c)................. 10.01
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"N.A." means Not Applicable.
NOTE: This Cross-Reference Table shall not, for any purpose,
be deemed to be a part of the Indenture.
TABLE OF CONTENTS
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ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions............................................ 1
SECTION 1.02. Incorporation by Reference of TIA...................... 11
SECTION 1.03. Rules of Construction.................................. 12
ARTICLE TWO
THE SECURITIES
SECTION 2.01. Form and Dating........................................ 12
SECTION 2.02. Execution and Authentication........................... 13
SECTION 2.03. Registrar and Paying Agent............................. 14
SECTION 2.04. Paying Agent To Hold Assets in Trust................... 15
SECTION 2.05. Securityholder Lists................................... 15
SECTION 2.06. Transfer and Exchange.................................. 15
SECTION 2.07. Replacement Securities................................. 16
SECTION 2.08. Outstanding Securities................................. 16
SECTION 2.09. Treasury Securities.................................... 17
SECTION 2.10. Temporary Securities................................... 17
SECTION 2.11. Cancellation........................................... 18
SECTION 2.12. Defaulted Interest..................................... 18
SECTION 2.13. CUSIP Number........................................... 18
SECTION 2.14. Deposit of Moneys...................................... 18
SECTION 2.15. Book-Entry Provisions for Global Securities............ 19
SECTION 2.16. Registration of Transfers and Exchanges................ 20
ARTICLE THREE
REDEMPTION
SECTION 3.01. Notices to Trustee..................................... 25
SECTION 3.02. Selection of Securities To Be Redeemed................. 25
SECTION 3.03. Notice of Redemption................................... 26
SECTION 3.04. Effect of Notice of Redemption......................... 27
SECTION 3.05. Deposit of Redemption Price............................ 27
SECTION 3.06. Securities Redeemed in Part............................ 27
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ARTICLE FOUR
COVENANTS
SECTION 4.01. Payment of Securities.................................. 28
SECTION 4.02. Maintenance of Office or Agency........................ 28
SECTION 4.03. Corporate Existence.................................... 28
SECTION 4.04. Payment of Taxes and Other Claims...................... 29
SECTION 4.05. Maintenance of Properties and Insurance................ 29
SECTION 4.06. Compliance Certificate; Notice of Default.............. 30
SECTION 4.07. Compliance with Laws................................... 31
SECTION 4.08. SEC Reports............................................ 31
SECTION 4.09. Waiver of Stay, Extension or Usury Laws................ 32
SECTION 4.10. Limitation on Liens.................................... 32
SECTION 4.11. Payments for Consent................................... 33
SECTION 4.12. Limitation on Sale/Leaseback Transactions.............. 33
SECTION 4.13. Future Guarantors...................................... 34
ARTICLE FIVE
SUCCESSOR CORPORATION
SECTION 5.01. Mergers, Consolidations and Sales of Assets............ 34
SECTION 5.02. Successor Corporation Substituted...................... 35
ARTICLE SIX
DEFAULT AND REMEDIES
SECTION 6.01. Events of Default...................................... 35
SECTION 6.02. Acceleration........................................... 37
SECTION 6.03. Other Remedies......................................... 38
SECTION 6.04. Waiver of Past Defaults................................ 38
SECTION 6.05. Control by Majority.................................... 39
SECTION 6.06. Limitation on Suits.................................... 39
SECTION 6.07. Rights of Holders To Receive Payment................... 40
SECTION 6.08. Collection Suit by Trustee............................. 40
SECTION 6.09. Trustee May File Proofs of Claim....................... 40
SECTION 6.10. Priorities............................................. 41
SECTION 6.11. Undertaking for Costs.................................. 41
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ARTICLE SEVEN
TRUSTEE
SECTION 7.01. Duties of Trustee...................................... 42
SECTION 7.02. Rights of Trustee...................................... 43
SECTION 7.03. Individual Rights of Trustee........................... 44
SECTION 7.04. Trustee's Disclaimer................................... 45
SECTION 7.05. Notice of Default...................................... 45
SECTION 7.06. Reports by Trustee to Holders.......................... 45
SECTION 7.07. Compensation and Indemnity............................. 46
SECTION 7.08. Replacement of Trustee................................. 47
SECTION 7.09. Successor Trustee by Merger, Etc....................... 48
SECTION 7.10. Eligibility; Disqualification.......................... 49
SECTION 7.11. Preferential Collection of Claims Against Company...... 49
ARTICLE EIGHT
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 8.01. Legal Defeasance and Covenant Defeasance............... 49
SECTION 8.02. Satisfaction and Discharge............................. 53
SECTION 8.03. Survival of Certain Obligations........................ 54
SECTION 8.04. Acknowledgment of Discharge by Trustee................. 54
SECTION 8.05. Application of Trust Assets............................ 54
SECTION 8.06. Repayment to the Company; Unclaimed Money.............. 55
SECTION 8.07. Reinstatement.......................................... 55
ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. Without Consent of Holders............................. 56
SECTION 9.02. With Consent of Holders................................ 57
SECTION 9.03. Compliance with TIA.................................... 58
SECTION 9.04. Revocation and Effect of Consents...................... 58
SECTION 9.05. Notation on or Exchange of Securities.................. 59
SECTION 9.06. Trustee To Sign Amendments, Etc........................ 59
ARTICLE TEN
MISCELLANEOUS
SECTION 10.01. TIA Controls........................................... 60
SECTION 10.02. Notices................................................ 60
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SECTION 10.03. Communications by Holders with Other Holders........... 61
SECTION 10.04. Certificate and Opinion as to Conditions Precedent..... 62
SECTION 10.05. Statements Required in Certificate or Opinion.......... 62
SECTION 10.06. Rules by Trustee, Paying Agent, Registrar.............. 63
SECTION 10.07. Legal Holidays......................................... 63
SECTION 10.08. Governing Law.......................................... 63
SECTION 10.09. No Adverse Interpretation of Other Agreements.......... 63
SECTION 10.10. No Recourse Against Others............................. 63
SECTION 10.11. Successors............................................. 63
SECTION 10.12. Duplicate Originals.................................... 64
SECTION 10.13. Severability........................................... 64
SIGNATURES............................................................. 65
Exhibit A - Form of Series A Security
Exhibit B - Form of Series B Security
Exhibit C - Form of Legend for Global Securities
Exhibit D - Transfer Certificate
Exhibit E - Transferee Certificate for Institutional Accredited Investors
Exhibit F - Transferee Certificate for Regulation S Transfers
Note: This Table of Contents shall not, for any purpose, be deemed to be a
of the Indenture.
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INDENTURE dated as of July 17, 1998, between AMETEK, INC., a Delaware
corporation (the "Company"), as Issuer, and CHASE MANHATTAN TRUST COMPANY,
NATIONAL ASSOCIATION, as Trustee (the "Trustee").
The Company has duly authorized the creation of an issue of 7.20%
Senior Notes due 2008, Series A, and 7.20% Senior Notes due 2008, Series B, to
be issued in exchange for the 7.20% Senior Notes due 2008, Series A, pursuant to
the Registration Rights Agreement (as defined herein) and, to provide therefor,
the Company has duly authorized the execution and delivery of this Indenture.
All things necessary to make the Securities, when duly issued and executed by
the Company and authenticated and delivered hereunder, the valid and binding
obligations of the Company and to make this Indenture a valid and binding
agreement of the Company have been done.
Each party hereto agrees as follows for the benefit of each other
party and for the equal and ratable benefit of the Holders of the Securities:
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.
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"Affiliate" means, with respect to any specified Person, any other
Person who directly or indirectly through one or more intermediaries controls,
or is controlled by, or is under common control with, such specified Person.
The term "control" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of a Person,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative of the
foregoing.
"Agent" means any Registrar, Paying Agent or co-Registrar.
"Attributable Liens" in respect of a Sale/Leaseback Transaction means,
as at the time of determination, the lesser of (a) the fair market value of the
assets subject to such Sale/Leaseback Transaction and (b) the present value
(discounted at the interest rate borne by the Securities, compounded semi-
annually) of the total obligations of the lessee
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for rental payments during the remaining term of the lease included in such
Sale/Leaseback Transaction (including any period for which such lease has been
extended).
"Bank Credit Agreements" means the Amended Credit Facility and any
other bank credit agreement or similar facility entered into in the future by
the Company or any Subsidiary, as any of the same may be amended, supplemented,
waived, modified, extended, renewed, refunded, restructured, restated,
refinanced or replaced from time to time.
"Bankruptcy Law" means Title 11, U.S. Code or any similar Federal,
state or foreign law for the relief of debtors.
"Board of Directors" means, as to any Person, the board of directors
of such Person or any duly authorized committee thereof.
"Board Resolution" means, with respect to any Person, a copy of a
resolution certified by the Secretary or an Assistant Secretary of such Person
to have been duly adopted by the Board of Directors of such Person and to be in
full force and effect on the date of such certification, and delivered to the
Trustee.
"Business Day" means each day which is not a Legal Holiday.
"Capital Lease" means an obligation that is required to be classified
and accounted for as a capital lease for financial reporting purposes in
accordance with GAAP, and the amount of Indebtedness represented by such
obligation shall be the capitalized amount of such obligation determined in
accordance with GAAP.
"Capital Stock" of any Person means any and all shares, interests,
rights to purchase, warrants, options, participations or other equivalents of or
interests in (however designated) equity of such Person, including any Preferred
Stock, but excluding any debt securities convertible into such equity.
"Code" has the meaning provided in Section 9.01.
"Company" means the party named as such in this Indenture until a
successor replaces it pursuant to this Indenture and thereafter means such
successor.
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"Consolidated Net Tangible Assets" means, as at the time of
determination, the aggregate amount of assets of the Company and the
Subsidiaries after deducting therefrom (i) all current liabilities of the
Company and the Subsidiaries, except for (a) notes and loans payable, (b)
current maturities of long-term debt (including debt having a maturity of less
than 12 months from the date of determination but which by its terms is
renewable or extendible beyond 12 months from the date of determination at the
option of the obligor) and (c) current maturities of obligations under Capital
Leases; and (ii) goodwill, trademarks, patents, minority interests of others and
other intangible assets, all as set forth on the most recent balance sheet of
the Company and its consolidated Subsidiaries and computed in accordance with
GAAP.
"Covenant Defeasance" has the meaning provided in Section 8.01.
"Custodian" means any receiver, trustee, assignee, liquidator,
sequestrator or similar official under any Bankruptcy Law.
"Default" means any event which is, or after notice or passage of time
or both would be, an Event of Default.
"Depository" means, with respect to the Securities issued in the form
of one or more Global Securities, The Depository Trust Company or another Person
designated as Depository by the Company, which must be a clearing agency
registered under the Exchange Act.
"Event of Default" has the meaning provided in Section 6.01.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
or any successor statute or statutes thereto.
"Exempted Debt" means the sum of the following as of the date of
determination: (i) Indebtedness of the Company and the Subsidiaries secured by
Liens not otherwise permitted by the first sentence under Section 4.10, and (ii)
Attributable Liens of the Company and the Subsidiaries in respect of
Sale/Leaseback Transactions entered into after the Issue Date, other than
Sale/Leaseback Transactions permitted by the limitation on Sale/Leaseback
Transactions set forth under Section 4.12. For purposes of determining whether
or not a Sale/Leaseback Transaction is "permitted" by Section 4.12, the last
paragraph under Section 4.10 (creating an exception for Exempted Debt) will be
disregarded.
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"fair market value" means, with respect to any asset or property, the
price which could be negotiated in an arm's-length, free market transaction, for
cash, between a willing seller and a willing and able buyer, neither of whom is
under undue pressure or compulsion to complete the transaction. Fair market
value shall be determined by the Board of Directors of the Company acting
reasonably and in good faith and shall be evidenced by a Board Resolution of the
Board of Directors of the Company delivered to the Trustee.
"Final Maturity Date" means July 15, 2008.
"GAAP" means generally accepted accounting principles in the United
States of America as in effect as of the Issue Date including those set forth in
(i) the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants, (ii) statements and
pronouncements of the Financial Accounting Standards Board and (iii) such other
statements by such other entity as approved by a significant segment of the
accounting profession.
"Global Security" means a security evidencing all or a part of the
Securities issued to the Depository in accordance with Section 2.01 and bearing
the legend prescribed in Exhibit C.
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"Guaranty" means any obligation, contingent or otherwise, of any
Person directly or indirectly guaranteeing any Indebtedness or other obligation
of any Person and any obligation, direct or indirect, contingent or otherwise,
of such Person (i) to purchase or pay (or advance or supply funds for the
purchase or payment of) such Indebtedness or other obligation of such Person
(whether arising by virtue of partnership arrangements, or by agreements to
keep-well, to purchase assets, goods, securities or services, to take-or-pay or
to maintain financial statement conditions or otherwise) or (ii) entered into
for the purpose of assuring in any other manner the obligee of such Indebtedness
or other obligation of the payment thereof or to protect such obligee against
loss in respect thereof (in whole or in part); provided, however, that the term
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"Guaranty" shall not include endorsements for collection or deposit in the
ordinary course of business. The term "Guaranty" used as a verb has a
corresponding meaning. The term "Guarantor" shall mean any Person Guaranteeing
any obligation.
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"Holder" or "Securityholder" means the Person in whose name a Security
is registered on the Registrar's books, which in the case of any Global
Security, shall be the Depository.
"Indebtedness" means, with respect to any Person, without duplication,
(i) any obligation of such Person relating to any indebtedness of such Person
(A) for borrowed money (whether or not the recourse of the lender is to the
whole of the assets of such Person or only to a portion thereof), (B) evidenced
by notes, debentures or similar instruments (including purchase money
obligations) given in connection with the acquisition of any property or assets
(other than trade accounts payable for inventory or similar property acquired in
the ordinary course of business), including securities, for the payment of which
such Person is liable, directly or indirectly, or the payment of which is
secured by a lien, charge or encumbrance on property or assets of such Person,
(C) for goods, materials or services purchased in the ordinary course of
business (other than trade accounts payable arising in the ordinary course of
business), (D) with respect to letters of credit or bankers' acceptances issued
for the account of such Person or performance, surety or similar bonds, (E) for
the payment of money relating to a Capital Lease obligation or (F) under
interest rate caps or similar agreements and foreign exchange contracts or
agreements; (ii) any liability of others of the kind described in the preceding
clause (i) which such Person has Guaranteed or which is otherwise its legal
liability; and (iii) any and all deferrals, renewals, extensions and refundings
of, or amendments, modification or supplements to, any liability of the kind
described in either of the preceding clauses (i) or (ii).
"Indenture" means this Indenture, as amended or supplemented from time
to time in accordance with the terms hereof.
"Initial Purchasers" means Salomon Brothers Inc, BancAmerica Xxxxxxxxx
Xxxxxxxx and BT Alex. Xxxxx Incorporated.
"Institutional Accredited Investor" means an institution that is an
"accredited investor" as that term is defined in Rule 501(a)(1), (2), (3) or (7)
under the Securities Act.
"Interest Payment Date" means the stated maturity of an installment of
interest on the Securities.
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"Issue Date" means the date on which the Securities are originally
issued.
"Legal Defeasance" has the meaning provided in Section 8.01.
"Legal Holiday" means a Saturday, a Sunday or a day on which banking
institutions are not required to be open in the State of New York.
"Lien" means any mortgage, pledge, security interest, encumbrance,
lien or charge of any kind (including any conditional sale or other title
retention agreement or lease in the nature thereof).
"Obligations" means all obligations for principal, premium, interest,
penalties, fees, indemnifications, reimbursements, damages and other liabilities
payable under the documentation governing any Indebtedness.
"Officer" means, with respect to any Person, the Chairman of the
Board, the Chief Executive Officer, the President, any Vice President, the Chief
Financial Officer, the Controller, or the Secretary of such Person.
"Officers' Certificate" means a certificate signed by two Officers of
the Company.
"Opinion of Counsel" means a written opinion from legal counsel which
and who are acceptable to the Trustee.
"Participants" has the meaning provided in Section 2.15.
"Paying Agent" has the meaning provided in Section 2.03.
"Permitted Liens" means (i) Liens securing Indebtedness arising under
Bank Credit Agreements; provided, however, that such Liens do not extend to or
cover any property or assets of the Company or the Subsidiaries other than the
capital stock of any Subsidiary and any proceeds thereof; (ii) Liens on any
asset of the Company or any Subsidiary, or any joint venture to which the
Company or any of the Subsidiaries is a party, created solely to secure
obligations incurred to finance the refurbishment, improvement or construction
of such asset, which obligations are incurred no later than 12 months after
completion of such refurbishment, improvement or construction,
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and all renewals, extensions, refinancings, replacements or refundings of such
obligations; (iii) (a) Liens given to secure the payment of the purchase price
incurred in connection with the acquisition (including acquisition through
merger or consolidation) of property (including shares of stock), including
Capital Lease transactions in connection with any such acquisition, and (b)
Liens existing on property (including shares of stock) at the time of
acquisition by the Company or a Subsidiary whether or not such existing Liens
were given to secure the payment of the purchase price of the property to which
they attach so long as such Liens do not extend to any other asset or property
of the Company or the Subsidiaries; provided, however, that with respect to
clause (a), the Liens shall be given within 12 months after such acquisition and
shall attach solely to the property acquired or purchased and any improvements
then or thereafter placed thereon; (iv) Liens in favor of customs and revenues
arising as a matter of law to secure payment of custom duties in connection with
the importation of goods; (v) Liens upon specific items of inventory or other
goods and proceeds of any Person securing such Person's obligations in respect
of bankers' acceptances issued or created for the account of such Person to
facilitate the purchase, shipment or storage of such inventory or other goods;
(vi) Liens securing reimbursement obligations with respect to letters of credit
that encumber documents and other property relating to such letters of credit
and the products and proceeds thereof; (vii) Liens encumbering customary initial
deposits and margin deposits and other Liens in the ordinary course of business,
in each case securing Indebtedness of the Company under interest swap
obligations and currency agreements and forward contracts, options, futures
contracts, futures options or similar agreements or arrangements designed to
protect the Company from fluctuations in interest rates, currencies or the price
of commodities; (viii) Liens arising out of conditional sale, title retention,
consignment or similar arrangements for the sale of goods entered into by the
Company or any Subsidiary in the ordinary course of business; (ix) Liens in
favor of the Company or any Subsidiary; (x) Liens to secure Indebtedness of
joint ventures in which the Company or any Subsidiary has an interest, to the
extent such Liens are solely on property or assets of, or equity interests in,
such joint ventures; and (xi) Liens on accounts receivable in connection with
the sale or other disposition for cash of such receivables pursuant to an asset
securitization facility or similar transaction.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization,
government or any agency or political subdivision thereof or any other entity.
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"Physical Securities" has the meaning provided in Section 2.01.
"Preferred Stock," as applied to the Capital Stock of any corporation,
means Capital Stock of any class or classes (however designated) which is
preferred as to the payment of dividends, or as to the distribution of assets
upon any voluntary or involuntary liquidation or dissolution of such
corporation, over shares of Capital Stock of any other class of such
corporation.
"principal" of a Security means the principal of the Security plus the
premium, if any, payable on the Security which is due or overdue or is to become
due at the relevant time.
"Private Placement Legend" means the legend initially set forth on the
Securities in the form set forth on Exhibit A.
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"Purchase Agreement" means the purchase agreement dated as of July 14,
1998 between the Company and the Initial Purchasers.
"Qualified Institutional Buyer" or "QIB" shall have the meaning
specified in Rule 144A under the Securities Act.
"Record Date" means the Record Dates specified in the Securities;
provided that if any such date is not a Business Day, the Record Date shall be
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the first day immediately preceding such specified day that is a Business Day.
"Redemption Date," when used with respect to any Security to be
redeemed, means the date fixed for such redemption pursuant to this Indenture
and the Securities.
"Redemption Price," when used with respect to any Security to be
redeemed, means the price fixed for such redemption, payable in immediately
available funds, pursuant to this Indenture and the Securities.
"Registrar" has the meaning provided in Section 2.03.
"Registration Rights Agreement" means the Registration Rights
Agreement dated as of the Issue Date between the Company and the Initial
Purchasers.
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"Regulation S" means Regulation S under the Securities Act.
"Responsible Officer" shall mean, when used with respect to the
Trustee, any officer in the Global Trust Services department of the Trustee
including any vice president, assistant vice president, assistant secretary,
treasurer, assistant treasurer, or any other officer of the Trustee who
customarily performs functions similar to those performed by the Persons who at
the time shall be such officers, respectively, or to whom any corporate trust
matter is referred because of such officer's knowledge of and familiarity with
the particular subject.
"Restricted Security" has the meaning set forth in Rule 144(a)(3)
under the Securities Act; provided that the Trustee shall be entitled to request
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and conclusively rely upon an Opinion of Counsel with respect to whether any
Security is a Restricted Security.
"Rule 144A" means Rule 144A under the Securities Act.
"Sale/Leaseback Transaction" means an arrangement relating to property
now owned or hereafter acquired whereby the Company or a Subsidiary transfers
such property to a Person and the Company or a Subsidiary leases it from such
Person.
"SEC" means the Securities and Exchange Commission.
"Securities" means the Series A Securities and the Series B Securities
treated as a single class of securities, as amended or supplemented from time to
time in accordance with the terms hereof, that are issued pursuant to this
Indenture.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations of the SEC promulgated thereunder.
"Series A Securities" means the 7.20% Senior Notes due 2008, Series A,
of the Company issued pursuant to this Indenture and sold pursuant to the
Purchase Agreement.
"Series B Securities" means the 7.20% Senior Notes due 2008, Series B,
of the Company to be issued in exchange for the Series A Securities pursuant to
the Registered Exchange Offer and the Registration Rights Agreement.
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"Significant Subsidiary" means, at any date of determination, (i) any
Subsidiary that, together with its Subsidiaries, (a) for the most recent fiscal
year of the Company accounted for more than 10.0% of the consolidated revenues
of the Company and the Subsidiaries or (b) as of the end of such fiscal year,
owned more than 10.0% of the consolidated assets of the Company and the
Subsidiaries, and (ii) for purposes of the provisions described under Article
Six hereof, any other Subsidiary that when aggregated with all other
Subsidiaries that are not otherwise Significant Subsidiaries and as to which any
event described in clauses (5), (6), (7) or (8) in Section 6.01 has occurred,
together with their respective Subsidiaries, would constitute a Significant
Subsidiary pursuant to clause (i) of this sentence, all as set forth on the
consolidated financial statements of the Company and the Subsidiaries for such
year prepared in conformity with GAAP.
"Stated Maturity" means, with respect to any security, the date
specified in such security as the fixed date on which the final payment of
principal of such security is due and payable, including pursuant to any
mandatory redemption provision (but excluding any provision providing for the
repurchase of such security at the option of the holder thereof upon the
happening of any contingency unless such contingency has occurred).
"Subsidiary" means, in respect of any Person, any corporation,
association, partnership or other business entity of which more than 50% of the
Voting Stock is at the time owned or controlled, directly or indirectly, by (i)
such Person, (ii) such Person and one or more Subsidiaries of such Person or
(iii) one or more Subsidiaries of such Person.
"Subsidiary Guarantor" means any subsidiary that has issued a
Subsidiary Guaranty.
"Subsidiary Guaranty" means a Guaranty by a Subsidiary Guarantor of
the Company's obligations with respect to the Securities.
"Surviving Entity" has the meaning provided in Section 5.01.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. (S)(S) 77aaa-
77bbbb), as amended, as in effect on the date of the execution of this Indenture
until such time as this Indenture is qualified under the TIA, and thereafter as
in effect on the date on which this Indenture is qualified under the TIA, except
as otherwise provided in Section 9.03.
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"Trustee" means the party named as such in this Indenture until a
successor replaces it in accordance with the provisions of this Indenture and
thereafter means such successor.
"U.S. Government Obligations" means direct obligations (or
certificates representing an ownership interest in such obligations) of the
United States of America (including any agency or instrumentality thereof) for
the payment of which the full faith and credit of the United States of America
is pledged and which are not callable at the issuer's option.
"U.S. Legal Tender" means such coin or currency of the United States
of America as at the time of payment shall be legal tender for the payment of
public and private debts.
"U.S. Physical Securities" shall have the meaning set forth in Section
2.01.
"Voting Stock" of a Person means all classes of Capital Stock or other
interests (including partnership interests) of such Person then outstanding and
normally entitled (without regard to the occurrence of any contingency) to vote
in the election of directors, managers or trustees thereof.
SECTION 1.02. Incorporation by Reference of TIA.
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Whenever this Indenture refers to a provision of the TIA, such
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 Holder or a Securityholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
-12-
"obligor" on the indenture securities means the Company, any Guarantor
and any other obligor on the Securities.
All other TIA terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by SEC rule and not
otherwise defined herein have the meanings assigned to them therein.
SECTION 1.03. Rules of Construction.
---------------------
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 GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and words in the
plural include the singular;
(5) provisions apply to successive events and transactions; and
(6) "herein," "hereof" and other words of similar import refer to
this Indenture as a whole and not to any particular Article, Section or
other subdivision.
ARTICLE TWO
THE SECURITIES
SECTION 2.01. Form and Dating.
---------------
The Series A Securities and the Trustee's certificate of
authentication thereof shall be substantially in the form of Exhibit A annexed
---------
hereto, which is hereby incorporated in and expressly made a part of this
Indenture. The Series B Securities and the Trustee's certificate of
authentication thereof shall be substantially in the form of Exhibit B annexed
---------
hereto, which is hereby incorporated in and expressly made a part of this
Indenture. The Securities may have notations, legends or endorsements
(including notations relating to any guarantees, stock exchange rule or usage).
The Company and the Trustee shall approve the form of the Securities and any
notation, legend or endorsement (including notations relating to any guarantees)
on them. Each Security shall be dated the date of its issuance and shall show
the date of its authentication.
-13-
Securities shall be issued initially in the form of one or more
permanent Global Securities in registered form, substantially in the form set
forth in Exhibit A, deposited with the Trustee, as custodian for the Depository,
---------
and shall bear the legend set forth on Exhibit C. The aggregate principal
---------
amount of the Global Securities may from time to time be increased or decreased
at the direction of the Company by adjustments made on the records of the
Trustee, as custodian for the Depository, as hereinafter provided.
SECTION 2.02. Execution and Authentication.
----------------------------
Two Officers, or an Officer and an Assistant Secretary, shall sign, or
one Officer shall sign and one Officer or an Assistant Secretary (each of whom
shall, in each case, have been duly authorized by all requisite corporate
actions) shall attest to, the Securities for the Company by manual or facsimile
signature. The Company's seal shall also be reproduced on the Securities.
If an Officer or Assistant Secretary whose signature is on a Security
was an Officer or Assistant Secretary at the time of such execution but no
longer holds that office at the time the Trustee authenticates the Security, the
Security shall be valid nevertheless.
A Security shall not be valid until an authorized signatory of the
Trustee manually signs the certificate of authentication on the Security. The
signature shall be conclusive evidence that the Security has been authenticated
under this Indenture.
The Trustee shall authenticate (i) Series A Securities for original
issue in the aggregate principal amount not to exceed $225,000,000 and (ii)
Series B Securities in the aggregate amount not to exceed $225,000,000, in each
case upon a written order of the Company in the form of an Officers' Certificate
and, in the case of the authentication of Series B Securities, an Opinion of
Counsel in a form reasonably required by the Trustee as to the compliance with
applicable law of the exchange of Series B Securities for Series A Securities.
The Officers' Certificate shall specify the amount of Securities to be
authenticated, the series of Securities and the date on which the Securities are
to be authenticated. The aggregate
-14-
principal amount of Securities outstanding at any time may not exceed
$275,000,000, except as provided in Section 2.07. Upon receipt of a written
order of the Company in the form of an Officers' Certificate, the Trustee shall
authenticate Securities in substitution for Securities originally issued to
reflect any name change of the Company.
The Trustee may appoint an authenticating agent reasonably acceptable
to the Company to authenticate Securities. Unless otherwise provided in the
appointment, 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 and Affiliates of the Company.
The Securities shall be issuable only in registered form without
coupons in denominations of $1,000 and any integral multiple thereof.
SECTION 2.03. Registrar and Paying Agent.
--------------------------
The Company shall maintain an office or agency in the Borough of
Manhattan, The City of New York, where (a) Securities other than those
represented by a Global Security may be presented or surrendered for
registration of transfer or for exchange ("Registrar"), (b) Securities other
than those represented by a Global Security may be presented or surrendered for
payment ("Paying Agent") and (c) notices and demands in respect of the
Securities and this Indenture may be served. The Registrar shall keep a
register of the Securities and of their transfer and exchange. The Company,
upon written notice to the Trustee, may have one or more co-Registrars and one
or more additional Paying Agents reasonably acceptable to the Trustee. The term
"Paying Agent" includes any additional Paying Agent. The Company initially
appoints the Trustee as Registrar and Paying Agent until such time as the
Trustee has resigned or a successor has been appointed. Neither the Company nor
any Affiliate of the Company may act as Paying Agent except as otherwise
expressly provided in the form of the Security.
To the extent the Company makes such payments directly to the Holders,
the Company shall simultaneously notify the Trustee thereof in writing.
-15-
SECTION 2.04. Paying Agent To Hold Assets in Trust.
------------------------------------
The Company shall require each Paying Agent other than the Trustee to
agree in writing that each Paying Agent shall hold in trust for the benefit of
Holders or the Trustee all assets held by the Paying Agent for the payment of
principal of, or interest on, the Securities, and shall notify the Trustee in
writing of any Default by the Company in making any such payment. The Company
at any time may require a Paying Agent to distribute all assets held by it to
the Trustee and account for any assets disbursed and the Trustee may at any
time, but shall be under no obligation to, during the continuance of any payment
Default, upon written request to a Paying Agent, require such Paying Agent to
distribute all assets held by it to the Trustee and to account for any assets
distributed. Upon distribution to the Trustee of all assets that shall have
been delivered by the Company to the Paying Agent, the Paying Agent shall have
no further liability for such assets.
SECTION 2.05. Securityholder Lists.
--------------------
At any time when Securities are not evidenced by a Global Security,
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 Holders. If the
Trustee is not the Registrar, the Company shall furnish to the Trustee before
each Record Date and at such other times as the Trustee may request in writing a
list as of such date and in such form as the Trustee may reasonably require of
the names and addresses of Holders, which list may be conclusively relied upon
by the Trustee.
SECTION 2.06. Transfer and Exchange.
---------------------
Subject to the provisions of Sections 2.15 and 2.16, when Securities
are presented to the Registrar or a co-Registrar with a request to register the
transfer of such Securities or to exchange such Securities for an equal
principal amount of Securities of other authorized denominations of the same
series, the Registrar or co-Registrar shall register the transfer or make the
exchange as requested if its requirements for such transaction are met;
provided, however, that the Securities surrendered for transfer or exchange
-------- -------
shall be duly endorsed or accompanied by a written instrument of transfer in
form satisfactory to the Company and the Registrar or co-Registrar, duly
executed by the Holder thereof or his attorney duly authorized in writing. To
permit registrations of transfers and exchanges, the Company shall execute and
the Trustee
-16-
shall authenticate Securities at the Registrar's or co-Registrar's written
request. No service charge shall be made for any registration of transfer or
exchange, 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 taxes or other governmental charge payable upon
exchanges or transfers pursuant to Section 2.02, 2.10, 3.06 or 9.05). The
Registrar or co-Registrar shall not be required to register the transfer of or
exchange of any Security (i) during a period beginning at the opening of
business 15 days before the mailing of a notice of redemption of Securities and
ending at the close of business on the day of such mailing and (ii) selected for
redemption in whole or in part pursuant to Article Three, except the unredeemed
portion of any Security being redeemed in part.
Any Holder of a Global Security shall, by acceptance of such Global
Security, agree that transfers of beneficial interests in such Global Security
may be effected only through a book-entry system maintained by the Depository
(or its agent), and that ownership of a beneficial interest in a Global Security
shall be required to be reflected in a book entry system.
SECTION 2.07. Replacement Securities.
----------------------
If a mutilated Security is surrendered to the Trustee or if the Holder
of a Security claims that the Security has been lost, destroyed or wrongfully
taken, the Company shall issue and the Trustee shall authenticate upon written
direction in the form of an Officers' Certificate from the Company a replacement
Security if the Trustee's requirements are met. If required by the Trustee or
the Company, such Holder must provide an indemnity bond or other indemnity,
sufficient in the judgment of both the Company and the Trustee, to protect the
Company, the Trustee and any Agent from any loss which any of them may suffer if
a Security is replaced. The Company may charge such Holder for its reasonable
out-of-pocket expenses in replacing a Security, including reasonable fees and
expenses of counsel. Every replacement Security is an additional obligation of
the Company.
SECTION 2.08. Outstanding Securities.
----------------------
Securities outstanding at any time are all the Securities that have
been authenticated by the Trustee except those cancelled by it, those delivered
to it for cancellation and those described in this Section as not outstanding.
Subject to Section 2.09, a Security does not cease to be outstanding because the
Company or any of its Affiliates holds the Security.
-17-
If a Security is replaced pursuant to Section 2.07 (other than a
mutilated Security surrendered for replacement), it ceases to be outstanding
unless the Trustee receives proof satisfactory to it that the replaced Security
is held by a bona fide purchaser. A mutilated Security ceases to be outstanding
---- ----
upon surrender of such Security and replacement thereof pursuant to Section
2.07.
If on a Redemption Date or the Final Maturity Date the Paying Agent
holds U.S. Legal Tender or U.S. Government Obligations sufficient to pay all of
the principal and interest due on the Securities payable on that date, then on
and after that date such Securities cease to be outstanding and interest on them
ceases to accrue.
SECTION 2.09. Treasury Securities.
-------------------
In determining whether the Holders of the required principal amount of
Securities have concurred in any direction, waiver or consent, Securities owned
by the Company or any of its respective Affiliates shall be disregarded, except
that, for the purposes of determining whether the Trustee shall be protected in
relying on any such direction, waiver or consent, only Securities that a
Responsible Officer of the Trustee actually knows are so owned shall be
disregarded.
The Trustee may require an Officers' Certificate listing Securities
owned by the Company or any of its respective Affiliates.
SECTION 2.10. Temporary Securities.
--------------------
Until definitive Securities are ready for delivery, the Company may
prepare and the Trustee shall authenticate temporary Securities upon receipt of
a written order of the Company in the form of an Officers' Certificate. The
Officers' Certificate shall specify the amount of temporary Securities to be
authenticated and the date on which the temporary Securities are to be
authenticated. 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 shall authenticate upon receipt of a written order
of the Company pursuant to Section 2.02 definitive Securities in exchange for
temporary Securities.
-18-
SECTION 2.11. Cancellation.
------------
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 transfer, exchange or payment. The
Trustee, or at the direction of the Trustee, the Registrar or the Paying Agent,
and no one else, shall cancel and, at the written direction of the Company,
shall dispose of all Securities surrendered for transfer, exchange, payment or
cancellation. Subject to Section 2.07, the Company may not issue new Securities
to replace Securities that it has paid or delivered to the Trustee for
cancellation. If the Company shall acquire any of the Securities, such
acquisition shall not operate as a redemption or satisfaction of the
Indebtedness represented by such Securities unless and until the same are
surrendered to the Trustee for cancellation pursuant to this Section 2.11.
SECTION 2.12. Defaulted Interest.
------------------
If the Company defaults in a payment of interest on the Securities, it
shall pay interest on overdue principal and on overdue installments of interest
(without grace periods) from time to time on demand at the rate of 2% per annum
--- -----
in excess of the rate shown on the Security.
SECTION 2.13. CUSIP Number.
------------
The Company in issuing the Securities will use a "CUSIP" number, and
the Trustee shall use the CUSIP number in notices of redemption or exchange as a
convenience to Holders; provided that any such notice may state that no
--------
representation is made as to the correctness or accuracy of the CUSIP number
printed in the notice or on the Securities, and that reliance may be placed only
on the other identification numbers printed on the Securities.
SECTION 2.14. Deposit of Moneys.
-----------------
Prior to 11:00 a.m. New York City time on each Interest Payment Date
and the Final Maturity Date, the Company shall have either delivered by wire
transfer or check such interest or principal and interest, as the case may be to
Holders at such Holders registered address or deposited with the Paying Agent in
immediately available funds money sufficient to make cash payments, if any, due
on such Interest Payment Date or the Final Maturity Date, as the case may be, in
a timely manner which permits the Paying Agent to remit payment to the Holders
on such Interest Payment Date or the Final Maturity Date, as the case may be.
If the Company is to deliver funds by wire transfer, it shall give the Trustee
fifteen (15) days prior written notice.
-19-
SECTION 2.15. Book-Entry Provisions for Global Securities.
-----------
(a) The Global Securities initially shall (i) be registered in the
name of the Depository or the nominee of such Depository, (ii) be delivered to
the Trustee as custodian for such Depository and (iii) bear legends as set forth
in Exhibit C.
---------
Members of, or participants in, the Depository ("Participants") shall
have no rights under this Indenture with respect to any Global Security held on
their behalf by the Depository, or the Trustee as its custodian, or under the
Global Security, and the Depository shall be treated by the Company, the Trustee
and any agent of the Company or the Trustee as the absolute owner of the Global
Security for all purposes whatsoever. Notwithstanding the foregoing, nothing
herein shall prevent the Company, the Trustee or any agent of the Company or the
Trustee from giving effect to any written certification, proxy or other
authorization furnished by the Depository or impair, as between the Depository
and Participants, the operation of customary practices governing the exercise of
the rights of a Holder of any Security.
(b) Transfers of Global Securities shall be limited to transfers in
whole, but not in part, to the Depository, its successors or their respective
nominees. Except as provided below, owners of beneficial interests in Global
Securities will not be entitled to receive Physical Securities. Physical
Securities shall be transferred to all beneficial owners in exchange for their
beneficial interests in Global Securities only if (i) the Depository notifies
the Company that it is unwilling or unable to continue as Depository for any
Global Security and a successor depositary is not appointed by the Company
within 90 days of such notice, (ii) the Company in its discretion at any time
determines not to have all of the Securities represented by Global Securities or
(iii) an Event of Default has occurred and is continuing and the Registrar has
received a request from the Depository to issue Physical Securities.
(c) In connection with the transfer of Global Securities as an
entirety to beneficial owners pursuant to paragraph (b) of this Section 2.15,
the Global Securities shall be deemed to be surrendered to the Trustee for
cancellation, and the Company shall execute, and the Trustee shall upon written
instructions from the Company authenticate and deliver, to each beneficial owner
identified by the Depository in exchange for its beneficial interest in the
Global Securities, an equal aggregate principal amount of Physical Securities of
authorized denominations.
-20-
(d) Any Physical Security constituting a Restricted Security
delivered in exchange for an interest in a Global Security pursuant to paragraph
(b) or (d) of this Section 2.15 shall, except as otherwise provided by Section
2.16, bear the Private Placement Legend.
(e) The Holder of any Global Security may grant proxies and otherwise
authorize any Person, including Participants and Persons that may hold interests
through Participants, to take any action which a Holder is entitled to take
under this Indenture or the Securities.
SECTION 2.16. Registration of Transfers and Exchanges.
---------------------------------------
(a) Transfer and Exchange of Physical Securities. When Physical
--------------------------------------------
Securities are presented to the Registrar with a request:
(i) to register the transfer of the Physical Securities; or
(ii) to exchange such Physical Securities for an equal number of
Physical Securities of other authorized denominations,
the Registrar shall register the transfer or make the exchange as requested if
the requirements under this Indenture as set forth in this Section 2.16 for such
transactions are met; provided, however, that the Physical Securities presented
-------- -------
or surrendered for registration of transfer or exchange:
(I) shall be duly endorsed or accompanied by a written instrument of
transfer in form satisfactory to the Registrar or co-Registrar, duly
executed by the Holder thereof or his attorney duly authorized in writing;
and
(II) in the case of Physical Securities the offer and sale of which
have not been registered under the Securities Act, such Physical Securities
shall be accompanied, in the sole discretion of the Company, by the
following additional information and documents, as applicable:
-21-
(A) if such Physical Security is being delivered to the Registrar
by a holder for registration in the name of such holder, without
transfer, a certification from such holder to that effect (in
substantially the form of Exhibit D hereto); or
---------
(B) if such Physical Security is being transferred to a Qualified
Institutional Buyer in accordance with Rule 144A under the Securities
Act, a certification to that effect (in substantially the form of
Exhibit D hereto); or
---------
(C) if such Physical Security is being transferred to an
Institutional Accredited Investor, delivery of a certification to that
effect (in substantially the form of Exhibit D hereto) and a
---------
Transferee Certificate for Institutional Accredited Investors in
substantially the form of Exhibit E hereto; or
---------
(D) if such Physical Security is being transferred in reliance on
Regulation S, delivery of a certification to that effect (in
substantially the form of Exhibit D hereto) and a Transferee
---------
Certificate for Regulation S Transfers in substantially the form of
Exhibit F hereto and an Opinion of Counsel reasonably satisfactory to
---------
the Company to the effect that such transfer is in compliance with the
Securities Act; or
(E) if such Physical Security is being transferred in reliance on
Rule 144 under the Securities Act, delivery of a certification to that
effect (in substantially the form of Exhibit D hereto) and an Opinion
---------
of Counsel reasonably satisfactory to the Company to the effect that
such transfer is in compliance with the Securities Act; or
(F) if such Physical Security is being transferred in reliance on
another exemption from the registration requirements of the Securities
Act, a certification to that effect (in substantially the form of
Exhibit D hereto) and an Opinion of Counsel reasonably satisfactory to
---------
the Company to the effect that such transfer is in compliance with the
Securities Act.
-22-
(b) Restrictions on Transfer of a Physical Security for a Beneficial
----------------------------------------------------------------
Interest in a Global Security. A Physical Security may not be exchanged for a
-----------------------------
beneficial interest in a Global Security except upon satisfaction of the
requirements set forth below. Upon receipt by the Registrar of a Physical
Security, duly endorsed or accompanied by appropriate instruments of transfer,
in form satisfactory to the Registrar, together with:
(A) a certification, in substantially the form of Exhibit D
---------
hereto, that such Physical Security is being transferred to a
Qualified Institutional Buyer; and
(B) written instructions directing the Registrar to make, or to
direct the Depository to make, an endorsement on the Global Security
to reflect an increase in the aggregate amount of the Securities
represented by the Global Security,
then the Registrar shall cancel such Physical Security and cause, or direct the
Depository to cause, in accordance with the standing instructions and procedures
existing between the Depository and the Registrar, the number of Securities
represented by the Global Security to be increased accordingly. If no Global
Security is then outstanding, the Company shall issue and the Trustee shall upon
written instructions from the Company authenticate a new Global Security in the
appropriate amount.
(c) Transfer and Exchange of Global Securities. The transfer and
------------------------------------------
exchange of Global Securities or beneficial interests therein shall be effected
by the Depository, in accordance with this Indenture (including the restrictions
on transfer set forth herein) and the procedures of the Depository therefor.
(d) Transfer of a Beneficial Interest in a Global Security for a
------------------------------------------------------------
Physical Security.
-----------------
(i) Any Person having a beneficial interest in a Global Security
may upon request exchange such beneficial interest for a Physical Security.
Upon receipt by the Registrar of written instructions or such other form of
instructions as is customary for the Depository from the Depository or its
nominee on behalf of any Person having a beneficial interest in a Global
Security and upon receipt by the Trustee of a written order or such other
form of instructions as is customary for the Depository or the Person
designated by the Depository as having such a beneficial interest
containing registration instructions and, in the case of any such transfer
or exchange of a beneficial interest in Securities the offer and sale of
which have not been registered under the Securities Act, the following
additional information and documents:
-23-
(A) if such beneficial interest is being transferred to the
Person designated by the Depository as being the beneficial owner, a
certification from such Person to that effect (in substantially the
form of Exhibit D hereto); or
---------
(B) if such beneficial interest is being transferred to a
Qualified Institutional Buyer in accordance with Rule 144A under the
Securities Act, a certification to that effect (in substantially the
form of Exhibit D hereto); or
---------
(C) if such beneficial interest is being transferred to an
Institutional Accredited Investor, delivery of a certification to that
effect (in substantially the form of Exhibit D hereto) and a
---------
Certificate for Institutional Accredited Investors in substantially
the form of Exhibit E hereto; or
---------
(D) if such beneficial interest is being transferred in reliance
on Regulation S, delivery of a certification to that effect (in
substantially the form of Exhibit D hereto) and a Transferee
---------
Certificate for Regulation S Transfers in substantially the form of
Exhibit F hereto and an Opinion of Counsel reasonably satisfactory to
---------
the Company to the effect that such transfer is in compliance with the
Securities Act; or
(E) if such beneficial interest is being transferred in reliance
on Rule 144 under the Securities Act, delivery of a certification to
that effect (in substantially the form of Exhibit D hereto) and an
---------
Opinion of Counsel reasonably satisfactory to the Company to the
effect that such transfer is in compliance with the Securities Act; or
(F) if such beneficial interest is being transferred in reliance
on another exemption from the registration requirements of the
Securities Act, a certification to that effect (in substantially the
form of Exhibit D hereto) and an Opinion of Counsel reasonably
---------
satisfactory to the Company to the effect that such transfer is in
compliance with the Securities Act,
-24-
then the Registrar will cause, in accordance with the standing instructions
and procedures existing between the Depository and the Registrar, the
aggregate amount of the Global Security to be reduced and, following such
reduction, the Company will execute and, upon receipt of an authentication
order in the form of an Officers' Certificate, the Trustee will
authenticate and deliver to the transferee a Physical Security.
(ii) Securities issued in exchange for a beneficial interest in a
Global Security pursuant to this Section 2.16(d) shall be registered in
such names and in such authorized denominations as the Depository, pursuant
to instructions from its direct or indirect participants or otherwise,
shall instruct the Registrar in writing. The Registrar shall deliver such
Physical Securities to the Persons in whose names such Physical Securities
are so registered.
(e) Restrictions on Transfer and Exchange of Global Securities.
----------------------------------------------------------
Notwithstanding any other provisions of this Indenture, a Global Security may
not be transferred as a whole except by the Depository to a nominee of the
Depository or by a nominee of the Depository to the Depository or another
nominee of the Depository or by the Depository or any such nominee to a
successor Depository or a nominee of such successor Depository.
(f) Private Placement Legend. Upon the transfer, exchange or
------------------------
replacement of Securities not bearing the Private Placement Legend, the
Registrar shall deliver Securities that do not bear the Private Placement
Legend. Upon the transfer, exchange or replacement of Securities bearing the
Private Placement Legend, the Registrar shall deliver only Securities that bear
the Private Placement Legend unless, and the Trustee is hereby authorized to
deliver Securities without the Private Placement Legend if, (i) there is
delivered to the Trustee an Opinion of Counsel reasonably satisfactory to the
Company and the Trustee to the effect that neither such legend nor the related
restrictions on transfer are required in order to maintain compliance with the
provisions of the Securities Act or (ii) such Security has been sold pursuant to
an effective registration statement under the Securities Act.
-25-
(g) General. By its acceptance of any Security bearing the Private
-------
Placement Legend, each Holder of such a Security acknowledges the restrictions
on transfer of such Security set forth in this Indenture and in the Private
Placement Legend and agrees that it will transfer such Security only as provided
in this Indenture.
The Registrar shall retain copies of all letters, notices and other
written communications received pursuant to Section 2.15 or this Section 2.16.
The Company shall have the right to inspect and make copies of all such letters,
notices or other written communications at any reasonable time upon the giving
of reasonable written notice to the Registrar.
ARTICLE THREE
REDEMPTION
SECTION 3.01. Notices to Trustee.
------------------
If the Company elects to redeem Securities pursuant to Paragraph 5 of
the Securities, it shall notify the Trustee in writing of the Redemption Date,
the Redemption Price and the principal amount of Securities to be redeemed. The
Company shall give notice of redemption to Trustee at least 45 days but not more
than 60 days before the Redemption Date (unless a shorter notice shall be agreed
to by the Trustee in writing), together with an Officers' Certificate stating
that such redemption will comply with the conditions contained herein.
SECTION 3.02. Selection of Securities To Be Redeemed.
--------------------------------------
If fewer than all of the Securities are to be redeemed, the Trustee
shall select the Securities to be redeemed in compliance with the requirements
of the principal national securities exchange, if any, on which the Securities
are listed or, if the Securities are not listed on a national securities
exchange, on a pro rata basis, by lot or by such method as the Trustee shall
--------
deem fair and appropriate. If the Securities are listed on any national
securities exchange, the Company shall notify the Trustee in writing of the
requirements of such exchange in respect of any redemption. The Trustee shall
make the selection from the Securities outstanding and not previously called for
redemption and 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. No Security of $1,000
in original principal amount or less will be redeemed in part. The Trustee may
select for redemption portions (equal to $1,000 or any integral multiple
thereof) of the principal of Securities that have denominations larger than
$1,000. Provisions of this Indenture that apply to Securities called for
redemption also apply to portions of Securities called for redemption.
-26-
SECTION 3.03. Notice of Redemption.
--------------------
At least 30 days but not more than 60 days before a Redemption Date,
the Company shall mail or cause to be mailed a notice of redemption by first-
class mail, postage prepaid, to each Holder whose Securities are to be redeemed.
At the Company's written request, the Trustee shall give the notice of
redemption in the Company's name and at the Company's expense. Each notice for
redemption shall identify the Securities to be redeemed and shall state:
(1) the Redemption Date;
(2) the Redemption Price and the amount of accrued interest, if
any, to be paid;
(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 plus accrued interest, if
any;
(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 and
accrued interest, if any, to the Redemption Date upon surrender to the
Paying Agent of the Securities redeemed;
(6) if any Security is being redeemed in part, the portion of the
principal amount of such Security to be redeemed and that, after the
Redemption Date, and upon surrender of such Security, a new Security or
Securities in aggregate principal amount equal to the unredeemed portion
thereof will be issued;
(7) if fewer than all the Securities are to be redeemed, the
identification of the particular Securities (or portion thereof) to be
redeemed, as well as the aggregate principal amount of Securities to be
redeemed and the aggregate principal amount of Securities to be outstanding
after such partial redemption; and
-27-
(8) the Paragraph of the Securities pursuant to which the
Securities are to be redeemed.
SECTION 3.04. Effect of Notice of Redemption.
------------------------------
Once notice of redemption is mailed in accordance with Section 3.03,
Securities called for redemption become due and payable on the Redemption Date
and at the Redemption Price plus accrued interest, if any. Upon surrender to
the Paying Agent, such Securities called for redemption shall be paid at the
Redemption Price (which shall include accrued interest thereon to the Redemption
Date), but installments of interest, the maturity of which is on or prior to the
Redemption Date, shall be payable to Holders of record at the close of business
on the relevant Record Dates.
SECTION 3.05. Deposit of Redemption Price.
---------------------------
On or before the Redemption Date, the Company shall deposit with the
Paying Agent U.S. Legal Tender sufficient to pay the Redemption Price plus
accrued interest, if any, of all Securities to be redeemed on that date.
If the Company complies with the preceding paragraph, then, unless the
Company defaults in the payment of such Redemption Price plus accrued interest,
if any, interest on the Securities to be redeemed will cease to accrue on and
after the applicable Redemption Date, whether or not such Securities are
presented for payment.
SECTION 3.06. Securities Redeemed in Part.
---------------------------
Upon surrender of a Security that is to be redeemed in part, the
Trustee shall upon written instruction from the Company authenticate for the
Holder a new Security or Securities equal in principal amount to the unredeemed
portion of the Security surrendered.
-28-
ARTICLE FOUR
COVENANTS
SECTION 4.01. Payment of Securities.
---------------------
The Company shall pay the principal of and interest on the Securities
in the manner provided in the Securities. An installment of principal of or
interest on the Securities shall be considered paid on the date it is due if the
Trustee or Paying Agent holds on that date U.S. Legal Tender designated for and
sufficient to pay the installment.
The Company shall pay, to the extent such payments are lawful,
interest on overdue principal and it shall pay interest on overdue installments
of interest (without regard to any applicable grace periods) from time to time
on demand at the rate borne by the Securities plus 1% per annum. Interest will
be computed on the basis of a 360-day year comprised of twelve 30-day months.
SECTION 4.02. Maintenance of Office or Agency.
-------------------------------
The Company shall maintain in the Borough of Manhattan, The City of
New York, the office or agency required under Section 2.03. The Company shall
give prompt written notice to the Trustee of the location, and any change in the
location, of such office or agency. If at any time the Company shall fail to
maintain any such required office or agency or shall fail to furnish the Trustee
with the address thereof, such presentations, surrenders, notices and demands
may be made or served at the address of the Trustee set forth in Section 10.02.
The Company hereby initially designates the office of the Trustee at 000 Xxxx
00xx Xxxxxx, 00xx Xxxxx, Xxxxxx Xxxxxxxxx Trust Services, Xxx Xxxx, Xxx Xxxx
00000, as its office or agency in the Borough of Manhattan, The City of New
York.
SECTION 4.03. Corporate Existence.
-------------------
Except as otherwise permitted by Article Five, the Company shall 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 of the Subsidiaries in accordance with the respective organizational
documents of each Subsidiary and the rights (charter and statutory) and material
franchises of the Company and each of its Subsidiaries; provided, however, that
-------- -------
the Company shall not be required to preserve any such right or franchise, or
the corporate existence of any Subsidiary, if the Board of Directors of the
Company 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, and will not be, adverse in any
material respect to the Holders.
-29-
SECTION 4.04. Payment of Taxes and Other Claims.
---------------------------------
The Company shall pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (i) all material taxes, assessments and
governmental charges levied or imposed upon it or any of the Subsidiaries or
upon the income, profits or property of it or any of the Subsidiaries and (ii)
all lawful claims for labor, materials and supplies which, in each case, if
unpaid, might by law become a material liability or Lien upon the property of it
or any of the Subsidiaries; provided, however, that the Company shall not be
-------- -------
required to pay or discharge or cause to be paid or discharged any such tax,
assessment, charge or claim whose amount, applicability or validity is being
contested in good faith by appropriate proceedings and for which appropriate
provision has been made.
SECTION 4.05. Maintenance of Properties and Insurance.
---------------------------------------
(1) The Company shall cause all material properties owned by or leased
by it or any of the Subsidiaries used or useful to the conduct of its business
or the business of any of the Subsidiaries to be improved or maintained and kept
in normal condition, repair and working order and supplied with all necessary
equipment and shall cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in its judgment may
be necessary, so that the business carried on in connection therewith may be
properly and advantageously conducted at all times; provided, however, that
-------- -------
nothing in this Section 4.05 shall prevent the Company or any of the
Subsidiaries from discontinuing the use, operation or maintenance of any of such
properties, or disposing of any of them, if such discontinuance or disposal is,
in the judgment of the Board of Directors of the Company or of the Board of
Directors of any Subsidiary, or of an officer (or other agent employed by the
Company or of any of the Subsidiaries) of the Company or any of its Subsidiaries
having managerial responsibility for any such property, desirable in the conduct
of the business of the Company or any Subsidiary, and if such discontinuance or
disposal is not adverse in any material respect to the Holders.
-30-
(2) The Company shall maintain, and shall cause each of the
Subsidiaries to maintain, insurance with responsible carriers against such risks
and in such amounts, and with such deductibles, retentions, self-insured amounts
and co-insurance provisions, as are customarily carried by similar businesses of
similar size, including property and casualty loss, workers' compensation and
interruption of business insurance.
SECTION 4.06. Compliance Certificate; Notice of Default.
-----------------------------------------
(1) The Company shall deliver to the Trustee, within 120 days after
the close of each fiscal year, an Officers' Certificate stating that a review of
the activities of the Company has been made under the supervision of the signing
officers with a view to determining whether it 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 during such preceding fiscal year has kept, observed, performed and
fulfilled each and every such covenant and no Default or Event of Default
occurred during such year and at the date of such certificate no Default or
Event of Default has occurred and is continuing or, if such signers do know of
such Default or Event of Default, the certificate shall describe its status with
particularity. The Officers' Certificate shall also notify the Trustee should
the Company elect to change the manner in which it fixes its fiscal year end.
(2) The annual financial statements delivered pursuant to Section 4.08
shall be accompanied by a written report of the Company's independent
accountants (who shall be a firm of established national reputation) that in
conducting their audit of such financial statements nothing has come to their
attention that would lead them to believe that the Company has violated any
provisions of Article Four, Five or Six of this Indenture insofar as they relate
to accounting matters or, if any such violation has occurred, specifying the
nature and period of existence thereof, it being understood that such
accountants shall not be liable directly or indirectly to any Person for any
failure to obtain knowledge of any such violation.
(3) The Company shall deliver to the Trustee, within 30 days of
becoming aware of any Default or Event of Default in the performance of any
covenant, agreement or condition contained in this Indenture, an Officers'
Certificate specifying the Default or Event of Default, describing its status
with particularity and what action the Company is taking or proposes to take in
respect thereof.
-31-
SECTION 4.07. Compliance with Laws.
--------------------
The Company shall comply, and shall cause each of the Subsidiaries to
comply, with all applicable statutes, rules, regulations, orders and
restrictions of the United States of America, all states and municipalities
thereof, and of any governmental department, commission, board, regulatory
authority, bureau, agency and instrumentality of the foregoing, in respect of
the conduct of their respective businesses and the ownership of their respective
properties, except for such noncompliances as would not in the aggregate have a
material adverse effect on the financial condition or results of operations of
the Company and the Subsidiaries taken as a whole.
SECTION 4.08. SEC Reports.
-----------
(1) The Company will file with the SEC all information documents and
reports to be filed with the SEC pursuant to Section 13 or 15(d) of the Exchange
Act, whether or not the Company is subject to such filing requirements so long
as the SEC will accept such filings. The Company (at its own expense) will file
with 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 files with the SEC pursuant to Section 13 or 15(d)
of the Exchange Act. Upon qualification of this Indenture under the TIA, the
Company shall also comply with the provisions of TIA (S) 314(a).
(2) At the Company's expense, regardless of whether the Company is
required to furnish such reports to its stockholders pursuant to the Exchange
Act, the Company shall cause its consolidated financial statements, comparable
to that which would have been required to appear in annual or quarterly reports,
to be delivered to the Trustee and the Holders. The Company will also make such
reports available to prospective purchasers of the Securities, securities
analysts and broker-dealers upon their request.
(3) For so long as any of the Securities remain outstanding the
Company will make available to any prospective purchaser of the Securities or
beneficial owner of the Securities in connection with any sale thereof the
information required by Rule 144A(d)(4) under the Securities Act during any
period when the Company is not subject to Section 13 or 15(d) under the Exchange
Act.
-32-
SECTION 4.09. Waiver of Stay, Extension or Usury Laws.
---------------------------------------
The Company covenants (to the extent that it may lawfully do so) that
it shall not at any time insist upon, plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay or extension law or any usury law
or other law that would prohibit or forgive the Company from paying all or any
portion of the principal of and/or interest on the Securities as contemplated
herein, wherever enacted, now or at any time hereafter in force, or which may
affect the covenants or the performance of this Indenture, and (to the extent
that it may lawfully do so) the Company hereby expressly waives all benefit or
advantage of any such law, and covenants that it will not hinder, delay or
impede the execution of any power herein granted to the Trustee, but will suffer
and permit the execution of every such power as though no such law had been
enacted.
SECTION 4.10. Limitation on Liens.
-------------------
The Company will not, and will not permit any Subsidiary to, directly
or indirectly, create, incur or suffer to exist any Lien on any of their
respective properties or assets, whether now owned or hereafter acquired, or any
proceeds therefrom or upon any income or profits therefrom, in order to secure
any Indebtedness, without contemporaneously therewith effectively providing that
the Securities shall be equally and ratably secured with respect to all such
Indebtedness until such time as all such Indebtedness is no longer secured by
such Lien, except: (i) Liens existing as of the Issue Date; (ii) Liens granted
after the Issue Date on any assets or properties of the Company or any of the
Subsidiaries created in favor of the Holder of the Securities; (iii) Liens
securing Indebtedness of the Company or any of the Subsidiaries which is
incurred to extend, renew or refinance Indebtedness which is secured by Liens
permitted to be incurred under this covenant; provided, however, that such Liens
-------- -------
do not extend to or cover any property or assets of the Company or any of the
Subsidiaries other than the property or assets securing the Indebtedness being
refinanced and the principal amount of such Indebtedness does not exceed the
principal amount of the Indebtedness being refinanced; (iv) Permitted Liens; and
(v) Liens created in substitution or as replacements for any Liens permitted by
the preceding clauses (i) through (iv), provided that, based on a good faith
--------
determination of an officer of the Company, the property or asset encumbered
under any such substitute or replacement Lien is substantially similar in nature
to the assets encumbered by the otherwise permitted Lien which is being
replaced.
-33-
Notwithstanding the foregoing, the Company or any Subsidiary may,
without securing any of the Securities, create, incur or suffer to exist Liens
which would otherwise be subject to the restriction set forth in the preceding
paragraph if, after giving effect thereto and at the time of determination,
Exempted Debt does not exceed 10% of Consolidated Net Tangible Assets.
SECTION 4.11. Payments for Consent.
--------------------
The Company will not, and will not cause or permit any of its
Subsidiaries to, directly or indirectly, pay or cause to be paid any
consideration, whether by way of interest, fee or otherwise, to any Holder of
any Securities for or as an inducement to any consent, waiver or amendment of
any of the terms or provisions of this Indenture or the Securities unless such
consideration is offered to be paid to all Holders of the Securities who so
consent, waive or agree to amend in the time frame set forth in solicitation
documents relating to such consent, waiver or agreement.
SECTION 4.12. Limitation on Sale/Leaseback Transactions.
-----------------------------------------
The Company will not, and will not permit any Subsidiary to, enter
into any Sale/Leaseback Transaction (except for Sale/Leaseback Transactions (i)
entered into prior to the Issue Date or (ii) involving the sale and leasing back
of any property or asset by a Subsidiary of the Company to the Company or (iii)
involving leases for less than three years or (iv) in which the lease for the
property or assets is entered into within 120 days after the later of the date
of acquisition, completion of construction or commencement of full operations of
such property or asset) unless (a) the Company or such Subsidiary would be
entitled under Section 4.12 hereof to create, incur or suffer to exist a Lien on
the property or asset to be leased in an amount at least equal to the
Attributable Liens in respect of such transaction without equally and ratably
securing the Securities, or (b) the proceeds of the sale of the assets to be
leased are at least equal to their fair market value and the proceeds are
applied within 180 days of such sale to the purchase or acquisition (or, in the
case of real property, the construction) of assets of the Company or a
Subsidiary.
-34-
SECTION 4.13. Future Guarantors.
-----------------
The Company shall cause each Subsidiary that at any time becomes an
obligor or guarantor with respect to any obligations under one or more Bank
Credit Agreements to execute and deliver to the Trustee a supplemental indenture
pursuant to which such Subsidiary will Guarantee payment of the Securities on
the same terms and conditions as those set forth in this Indenture. Each
Subsidiary Guaranty will be limited in amount to an amount not to exceed the
maximum amount that can be Guaranteed by the applicable Subsidiary Guarantor
without rendering such Subsidiary Guaranty voidable under applicable law
relating to fraudulent conveyance or fraudulent transfer or similar laws
affecting the rights of creditors generally. Each Subsidiary Guarantor will be
permitted to consolidate with or merge into or sell its assets to the Company or
another Subsidiary Guarantor without limitation, or with other Persons upon the
terms and conditions set forth in this Indenture. In the event all of the
Capital Stock of a Subsidiary Guarantor is disposed of by the Company, whether
by merger, consolidation, sale or otherwise, the Subsidiary Guaranty will be
released.
ARTICLE FIVE
SUCCESSOR CORPORATION
SECTION 5.01. Mergers, Consolidations and Sales of Assets.
-------------------------------------------
(a) The Company will not consolidate with or merge with or into, or
convey, transfer or lease, in one transaction or a series of related
transactions, all or substantially all of its assets to, any Person, unless:
(i) the resulting, surviving or transferee Person (the "Successor Company")
shall be a Person organized and validly existing under the laws of the United
States of America, any State thereof or the District of Columbia and the
Successor Company (if not the Company) shall expressly assume, by supplemental
indenture, executed and delivered to the Trustee (in form and substance
satisfactory to the Trustee), all the obligations of the Company under the
Securities and this Indenture; (ii) immediately after giving effect to such
transaction no Default shall have occurred and be continuing; and (iii) the
Company shall have delivered to the Trustee an Officers' Certificate and an
Opinion of Counsel, each stating that such consolidation, merger or transfer
such supplemental indenture (if any) comply with this Indenture.
-35-
SECTION 5.02. Successor Corporation Substituted.
---------------------------------
The Successor Company shall be the successor to the Company and shall
succeed to, and be substituted for, and may exercise every right and power of,
the Company under this Indenture, but the predecessor Company in the case of a
conveyance, transfer or lease shall not be released from the obligation to pay
the principal of and interest on the Securities.
ARTICLE SIX
DEFAULT AND REMEDIES
SECTION 6.01. Events of Default.
-----------------
An "Event of Default" occurs if:
(1) the Company fails to pay interest on any Security for a period
of 30 days after the same becomes due and payable; or
(2) the Company fails to pay the principal of any Security, when
such principal becomes due and payable, at its Stated Maturity, upon
optional redemption, upon required repurchase, upon declaration or
otherwise; or
(3) the Company fails to comply for 30 days after notice with any
obligations under Sections 4.10, 4.12 or 5.01; or
(4) the Company fails to comply with any of its agreements in the
Securities or this Indenture (other than those referred to in (i), (ii), or
(iii) above) and such failure continues for 60 days after the notice
specified below; or
(5) the Company or any Significant Subsidiary of the Company fails
to pay any Indebtedness within any applicable grace period after final
maturity or acceleration of any such Indebtedness by the holders thereof
because of a default and the total amount of such Indebtedness unpaid or
accelerated exceeds $25.0 million; or
(6) the Company or any Significant Subsidiary of the Company
pursuant to or within the meaning of any Bankruptcy Law:
-36-
(A) commences a voluntary case;
(B) consents to the entry of an order for relief against it in an
involuntary case in which it is the debtor;
(C) consents to the appointment of a Custodian of it or for any
substantial part of its property; or
(D) makes a general assignment for the benefit of its creditors;
or takes any comparable action under any foreign laws relating to
insolvency;
(7) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(A) is for relief against the Company or any Significant
Subsidiary of the Company in an involuntary case;
(B) appoints a Custodian of the Company or any Significant
Subsidiary of the Company or for any substantial part of the property
of the Company or Significant Subsidiary;
(C) orders the winding up or liquidation of the Company or any
Significant Subsidiary of the Company;
(or any similar relief is granted under any foreign laws) and the order or
decree remains unstayed and in effect for 60 days;
(8) the rendering of any judgment or decree for the payment of
money in excess of $25.0 million against the Company or any Significant
Subsidiary if such judgment or decree remains unpaid and outstanding for a
period of 60 days following such judgment and is not discharged, waived or
stayed within 60 days after such judgment or decree thereof; or
(9) a Subsidiary Guaranty ceases to be in full force and effect
(other than in accordance with the terms of such Subsidiary Guaranty or
this Indenture) or a Subsidiary Guarantor denies or disaffirms its
obligations under its Subsidiary Guaranty;
-37-
The foregoing will constitute Events of Default whatever the reason for any such
Event of Default and whether it is voluntary or involuntary or is effected by
operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body.
A Default under clause (3) or (4) of this Section 6.01 is not an Event
of Default until the Trustee or the Holders of at least 25% in principal amount
of the outstanding Securities notify the Company of the Default and the Company
does not cure such Default within the time specified after receipt of such
notice. Such notice must specify the Default, demand that it be remedied and
state that such notice is a "Notice of Default".
The Company shall deliver to the Trustee, within 30 days after the
occurrence thereof, written notice in the form of an Officers' Certificate of
any Event of Default under clause (5) of this Section 6.01 and any event which
with the giving of notice or the lapse of time would become an Event of Default
under clause (3), (4) or (8) of this Section 6.01, its status and what action
the Company is taking or proposes to take with respect thereto.
SECTION 6.02. Acceleration.
------------
If an Event of Default occurs and is continuing, the Trustee or the
Holders of at least 25% in aggregate principal amount of the outstanding
Securities may declare the principal of, and accrued but unpaid interest on all
the Securities to be due and payable, by a notice in writing to the Company (and
to the Trustee, if given by Holders) specifying the respective Event(s) of
Default and that it is a "notice of acceleration" and upon such declaration such
principal amount, premium, if any, and accrued and unpaid interest will become
immediately due and payable. Upon such a declaration, such principal and
interest shall be due and payable immediately. If an Event of Default specified
in clause (6) or (7) of Section 6.01 occurs and is continuing, the principal of,
and interest on, all the Securities then outstanding will 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 a declaration of acceleration with respect to the
Securities as described in the preceding paragraph, the Holders of a majority in
principal amount of the Securities then outstanding may rescind and cancel such
declaration and its consequences (a) if the rescission would not conflict with
any judgment or decree, (b) if all existing Events of Default have been cured or
waived except nonpayment of principal or interest that has become due solely
because of the acceleration, (c) to the extent the payment of such interest is
lawful, interest on overdue installments of interest and overdue principal,
which has become due otherwise than by such declaration of acceleration, has
been paid, (d) if the Company has paid the Trustee its reasonable compensation
and reimbursed the Trustee for its expenses, disbursements and advances and (e)
in the event of the cure or waiver of an Event of Default of the type described
in clauses (6) and (7) of the description of Events of Default above, the
Trustee shall have received an Officers' Certificate and an Opinion of Counsel
that such Event of Default has been cured or waived. No such rescission shall
affect any subsequent Default or impair any right consequent thereto.
-38-
SECTION 6.03. Other Remedies.
--------------
If an Event of Default occurs and is continuing, the Trustee may
pursue any available remedy by proceeding at law or in equity to collect the
payment of principal of or interest on the Securities or to enforce the
performance of any provision of the Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any
of the Securities or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Securityholder in exercising any right or remedy
accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative to the
extent permitted by law.
SECTION 6.04. Waiver of Past Defaults.
-----------------------
Subject to Sections 6.07 and 9.02, the Holders of not less than a
majority in principal amount of the outstanding Securities by notice in writing
to the Trustee may waive any past or existing Default or Event of Default and
its consequences, except (i) a Default in the payment of principal of or
interest on any Security as specified in clauses (1) and (2) of Section 6.01 or
(ii) a Default in respect of a provision that under Section 9.02 cannot be
amended without the consent of each Securityholder affected. When a Default or
Event of Default is waived, it is cured and any Event of Default arising
therefrom shall be deemed to have been cured, but no such waiver shall extend to
any subsequent or other Default or impair any consequent right.
-39-
SECTION 6.05. Control by Majority.
-------------------
The Holders of not less than a majority in principal amount of the
outstanding Securities may 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 it. Subject to Section 7.01, however, the Trustee may refuse
to follow any direction that conflicts with any law or this Indenture, that the
Trustee determines may be unduly prejudicial to the rights of another
Securityholder, or that may involve the Trustee in personal liability; provided
--------
that the Trustee may take any other action deemed proper by the Trustee which is
not inconsistent with such direction.
In the event the Trustee takes any action or follows any direction
pursuant to this Indenture, the Trustee shall be entitled to indemnification
from the Holders satisfactory to it in its sole discretion against any loss,
liability, cost or expense caused by taking such action or following such
direction.
SECTION 6.06. Limitation on Suits.
-------------------
A Securityholder may not pursue any remedy with respect to this
Indenture or the Securities unless:
(1) the Holder gives to the Trustee written notice stating that an
Event of Default is continuing;
(2) the Holder or Holders of at least 25% in principal amount of
the outstanding Securities make a written request to the Trustee to pursue
the remedy;
(3) such Holder or Holders offer to the Trustee reasonable security
or indemnity against any loss, liability or expense;
(4) the Trustee does not comply with the request within 60 days
after receipt of the request and the offer of security indemnity; and
(5) the Holder or Holders of a majority in principal amount of the
outstanding Securities do not give the Trustee a direction inconsistent
with such request within such 60-day period.
A Securityholder may not use this Indenture to prejudice the rights of
another Securityholder or to obtain a preference or priority over such other
Securityholder.
-40-
SECTION 6.07. Rights of Holders To Receive Payment.
------------------------------------
Notwithstanding any other provision of this Indenture, the right of
any Holder to receive payment of principal of, premium and interest on a
Security, on or after the respective due dates expressed in such Security, or to
bring suit for the enforcement of any such payment on or after such respective
dates, shall not be impaired or affected without the consent of the Holder.
SECTION 6.08. Collection Suit by Trustee.
--------------------------
If an Event of Default in payment of principal, premium or interest
specified in clause (1) or (2) of Section 6.01 occurs and is continuing, the
Trustee may recover judgment in its own name and as trustee of an express trust
against the Company or any other obligor on the Securities for the whole amount
of principal and accrued interest remaining unpaid, together with interest on
overdue principal and, to the extent that payment of such interest is lawful,
interest on overdue installments of interest, in each case at the rate per annum
borne by the Securities and 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.
SECTION 6.09. Trustee May File Proofs of Claim.
--------------------------------
The Trustee may file such proofs of claim and 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, legal
fees, disbursements and advances of the Trustee, its agents, nominees,
custodians, counsel, accountants and experts) and the Securityholders allowed in
any judicial proceedings relating to the Company, its creditors or its property
and shall be entitled and empowered to collect and receive any monies or other
property payable or deliverable on any such claims and to distribute the same,
and any Custodian in any such judicial proceedings is hereby authorized by each
Securityholder 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
Securityholders, to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, legal fees, disbursements and advances of the Trustee,
its agents, nominees, custodians and counsel, and any other amounts due the
Trustee under Section 7.07. Nothing herein contained shall be deemed to
authorize the Trustee to authorize or consent to or accept or adopt on behalf of
any Securityholder 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 Securityholder in
any such proceeding.
-41-
SECTION 6.10. Priorities.
----------
If the Trustee collects any money or property pursuant to this Article
Six, it shall pay out the money or property in the following order:
First: to the Trustee for amounts due under Section 7.07;
Second: if the Holders are forced to proceed against the Company or
any other obligor on the Securities directly without the Trustee, to
Holders for their collection costs;
Third: to Holders for amounts due and unpaid on the Securities for
principal, premium and interest, ratably, without preference or priority of
any kind, according to the amounts due and payable on the Securities for
principal, premium and interest, respectively; and
Fourth: to the Company, as their respective interests may appear.
The Trustee, upon prior notice to the Company, may fix a record date
and payment date for any payment to Securityholders pursuant to this Section
6.10.
SECTION 6.11. Undertaking for Costs.
---------------------
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees and expenses, against any party litigant in the suit, having due
regard to the merits and good faith of the claims or defenses made by the party
litigant. This Section 6.11 does not apply to a suit by the Trustee, a suit by
a Holder pursuant to Section 6.07, or a suit by a Holder or Holders of more than
10% in principal amount of the outstanding Securities.
-42-
ARTICLE SEVEN
TRUSTEE
SECTION 7.01. Duties of Trustee.
-----------------
(a) If an Event of Default actually known to a Responsible Officer of
the Trustee has occurred and is continuing, the Trustee shall exercise such of
the rights and powers vested in it by this Indenture and use the same degree of
care and skill in their exercise as a prudent person would exercise or use under
the circumstances in the conduct of his own affairs. Subject to such
provisions, the Trustee shall be under no obligation to exercise any of its
rights or powers under this Indenture at the request of any of the holders of
Securities, unless they shall have offered to the Trustee security and indemnity
satisfactory to it in its sole discretion.
(b) Except during the continuance of an Event of Default actually
known to a Responsible Officer of the Trustee:
(1) The Trustee need perform only those duties as are specifically
set forth herein and no others and no implied covenants or obligations
shall be read into this Indenture against the Trustee.
(2) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions and such
other documents delivered to it pursuant to Section 10.04 hereof furnished
to the Trustee and conforming to the requirements of this Indenture.
However, the Trustee shall examine the certificates and opinions to
determine whether or not they conform to the requirements of this
Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
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(1) This paragraph does not limit the effect of paragraph (b) of
this Section 7.01.
(2) The Trustee shall not be liable for any error of judgment made
in good faith by a Responsible Officer of the Trustee, 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 it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05.
(d) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder or to take or omit to take any action
under this Indenture or take any action at the request or direction of Holders
if it shall have reasonable grounds for believing that repayment of such funds
is not assured to it or it does not receive an indemnity satisfactory to it in
its sole discretion against such risk, liability, loss, fee or expense which
might be incurred by it in compliance with such request or direction.
(e) Every provision of this Indenture that in any way relates to the
Trustee is subject to this Section 7.01.
(f) 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.
SECTION 7.02. Rights of Trustee.
-----------------
Subject to Section 7.01:
(a) The Trustee may conclusively rely and shall be protected in
acting or refraining from acting on any document believed by it to be
genuine and to have been signed or presented by the proper Person. The
Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require
an Officers' Certificate and an Opinion of Counsel, which shall conform to
the provisions of Section 11.05. The Trustee shall not be liable for any
action it takes or omits to take in good faith in reliance on such
certificate or opinion.
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(c) The Trustee may act through its attorneys, agents, custodians and
nominees and shall not be responsible for the misconduct or negligence of
any attorney, agent, custodian or nominee (other than such a person who is
an employee of the Trustee) appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits
to take in good faith which it reasonably believes to be authorized or
within its rights or powers.
(e) The Trustee may consult with counsel and the advice or opinion of
such counsel as to matters of law shall be full and complete authorization
and protection from liability in respect of any action taken, omitted or
suffered by it hereunder in good faith and in accordance with the advice or
opinion of such counsel.
(f) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request, order or
direction of any of the Holders pursuant to the provisions of this
Indenture, unless such Holders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities which may
be incurred therein or thereby.
(g) The Trustee shall not be deemed to have notice or knowledge of
any matter unless a Responsible Officer assigned to and working in the
Trustee's Corporate Trust Administration has actual knowledge thereof or
unless written notice thereof is received by the Trustee, attention:
Corporate Trust Administration and such notice references the Securities
generally, the Company or this Indenture.
SECTION 7.03. 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, its
Subsidiaries and their respective Affiliates with the same rights it would have
if it were not Trustee. Any Agent may do the same with like rights. However,
the Trustee must comply with Sections 7.10 and 7.11.
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SECTION 7.04. Trustee's Disclaimer.
--------------------
The Trustee shall not be responsible for and 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 of the Company in this Indenture or
any document issued in connection with the sale of Securities or any statement
in the Securities other than the Trustee's certificate of authentication. The
Trustee makes no representations with respect to the effectiveness or adequacy
of this Indenture. The Trustee shall not be responsible for independently
ascertaining or maintaining such validity, if any, and shall be fully protected
in relying upon certificates and opinions delivered to it in accordance with the
terms of this Indenture.
SECTION 7.05. Notice of Default.
-----------------
If a Default or an Event of Default occurs and is continuing and a
Responsible Officer of the Trustee receives actual notice of such event, the
Trustee shall mail to each Securityholder, as their names and addresses appear
on the Securityholder list described in Section 2.05, notice of the uncured
Default or Event of Default within 30 days after the Trustee receives such
notice. Except in the case of a Default or an Event of Default in payment of
principal of, premium or interest on, any Security the Trustee may withhold the
notice if and so long as the board of directors, the executive committee, or a
trust committee of directors, of the Trustee in good faith determines that
withholding the notice is in the interest of the Securityholders.
SECTION 7.06. Reports by Trustee to Holders.
-----------------------------
This Section 7.06 shall not be operative as a part of this Indenture
until this Indenture is qualified under the TIA, and, until such qualification,
this Indenture shall be construed as if this Section 7.06 were not contained
herein.
Within 60 days after each May 15 of each year beginning with 1999, the
Trustee shall, to the extent that any of the events described in TIA (S) 313(a)
occurred within the previous twelve months, but not otherwise, mail to each
Securityholder a brief report dated as of such date that complies with TIA (S)
313(a). The Trustee also shall comply with TIA (S)(S) 313(b), 313(c) and
313(d).
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A copy of each report at the time of its mailing to Securityholders
shall be mailed to the Company and filed with the SEC and each securities
exchange, if any, on which the Securities are listed.
The Company shall notify a Responsible Officer of the Trustee if the
Securities become listed on any securities exchange or of any delisting thereof.
SECTION 7.07. Compensation and Indemnity.
--------------------------
The Company shall pay to the Trustee from time to time reasonable
compensation for its services hereunder. 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
disbursements, expenses and advances (including reasonable fees and expenses of
counsel) incurred or made by it in addition to the compensation for its
services, except any such disbursements, expenses and advances as may be
attributable to the Trustee's negligence or bad faith. Such expenses shall
include the reasonable compensation, legal fees, disbursements and expenses of
the Trustee's agents, accountants, experts, nominees, custodians and counsel and
any taxes or other expenses incurred by a trust created pursuant to Section 8.01
hereof.
The Company shall indemnify the Trustee, its directors, officers and
employees and each predecessor trustee for, and hold it harmless against, any
loss, liability or expense incurred by the Trustee without negligence or bad
faith on its part arising out of or in connection with the administration of
this trust and its duties under this Indenture, including the reasonable
expenses and attorneys' fees of defending itself against any claim of liability
arising hereunder. The Trustee shall notify the Company promptly of any claim
asserted against the Trustee for which it may seek indemnity. However, the
failure by the Trustee to so notify the Company shall not relieve the Company of
its obligations hereunder. The Company shall defend the claim and the Trustee
shall cooperate in the defense (and may employ its own counsel) at the Company's
expense. The Company need not pay for any settlement made without its written
consent, which consent shall not be unreasonably withheld or delayed. The
Company need not reimburse any expense or indemnify against any loss or
liability incurred by the Trustee as a result of the violation of this Indenture
by the Trustee if such violation arose from the Trustee's negligence or bad
faith.
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To secure the Company's payment obligations in this Section 7.07, the
Trustee shall have a senior claim prior to the Securities against all money or
property held or collected by the Trustee, in its capacity as Trustee.
When the Trustee incurs expenses or renders services after an Event of
Default specified in clause (6) or (7) of Section 6.01 occurs, the expenses
(including the reasonable fees and expenses of its agents and counsel) and the
compensation for the services shall be preferred over the status of the Holders
in a proceeding under any Bankruptcy Law and are intended to constitute expenses
of administration under any Bankruptcy Law. The Company's obligations under
this Section 7.07 and any claim arising hereunder shall survive the resignation
or removal of any Trustee, the discharge of the Company's obligations pursuant
to Article Eight and any rejection or termination under any Bankruptcy Law.
SECTION 7.08. Replacement of Trustee.
----------------------
The Trustee may resign at any time upon 30 days notice to the Company
in writing. The Holders of a majority in principal amount of the outstanding
Securities may remove the Trustee by so notifying the Company and the Trustee in
writing and may appoint a successor trustee with the Company's consent. The
Company may remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged a bankrupt or an insolvent;
(3) a receiver or other public officer takes charge of the Trustee
or its property; or
(4) the Trustee becomes legally incapable of acting with respect to
its duties hereunder.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall notify each Holder of such
event and 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 Securities may appoint a successor Trustee to replace the successor Trustee
appointed by the Company.
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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, after payment of all sums then owing to the
Trustee pursuant to Section 7.07, all property held by it as Trustee to the
successor Trustee, subject to the lien provided in Section 7.07, the resignation
or removal of the retiring Trustee shall become effective, and the successor
Trustee shall have all the rights, powers and duties of the Trustee under this
Indenture; provided, however, that no Trustee under this Indenture shall be
-------- -------
liable for any act or omission of any successor Trustee. A successor Trustee
shall mail notice of its succession to each Securityholder.
If a successor Trustee does not take office within 30 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 outstanding Securities may
petition any court of competent jurisdiction for the appointment of a successor
Trustee.
If the Trustee fails to comply with Section 7.10, any Securityholder
may petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
Notwithstanding replacement of the Trustee pursuant to this Section
7.08, the Company's obligations under Section 7.07 shall continue for the
benefit of the retiring Trustee and the Company shall pay to any such replaced
or removed Trustee all amounts owed under Section 7.07 upon such replacement or
removal.
SECTION 7.09. 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 resulting, surviving or transferee corporation without any
further act shall, if such resulting, surviving or transferee corporation is
otherwise eligible hereunder, be the successor Trustee. In case any Securities
shall have been authenticated, but not delivered, by the Trustee then in office,
any successor by merger, conversion or consolidation to such authenticating
Trustee may adopt such authentication and deliver the Securities so
authenticated with the same effect as if such successor Trustee had itself
authenticated such Securities.
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SECTION 7.10. Eligibility; Disqualification.
-----------------------------
This Indenture shall always have a Trustee who satisfies the
requirement of TIA (S)(S) 310(a)(1) and 310(a)(5). The Trustee shall have a
combined capital and surplus of at least $50,000,000 as set forth in its most
recent published annual report of condition. The Trustee shall comply with TIA
(S) 310(b); provided, however, that there shall be excluded from the operation
-------- -------
of TIA (S) 310(b)(1) any indenture or indentures under which other securities,
or certificates of interest or participation in other securities, of the Company
are outstanding, if the requirements for such exclusion set forth in TIA (S)
310(b)(1) are met.
SECTION 7.11. Preferential Collection of Claims Against Company.
----------------
The Trustee, in its capacity as Trustee hereunder, shall comply with
TIA (S) 311(a), excluding any creditor relationship listed in TIA (S) 311(b). A
Trustee who has resigned or been removed shall be subject to TIA (S) 311(a) to
the extent indicated.
ARTICLE EIGHT
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 8.01. Legal Defeasance and Covenant Defeasance.
----------------------------------------
(a) The Company may, at its option by Board Resolution, at any time,
with respect to the Securities, elect to have either paragraph (b) or paragraph
(c) below be applied to the outstanding Securities upon compliance with the
conditions set forth in paragraph (d).
(b) Upon the Company's exercise under paragraph (a) of the option
applicable to this paragraph (b), the Company shall be deemed to have been
released and discharged from its obligations with respect to the outstanding
Securities on the date the conditions set forth below are satisfied
(hereinafter, "Legal Defeasance"). For this purpose, such Legal Defeasance
means that the Company shall be deemed to have paid and discharged the entire
indebtedness represented by the outstanding Securities, which shall thereafter
be deemed to be "outstanding" only for the purposes of the Sections and matters
under this Indenture referred to in (i) and (ii) below, and to have
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satisfied all its other obligations under such Securities and this Indenture
insofar as such Securities are concerned, except for the following, which shall
survive until otherwise terminated or discharged hereunder: (i) the rights of
the Holders of outstanding Securities to receive payment in respect of the
principal of, premium, if any, and interest on such Securities when such
payments are due, (ii) the Company's obligations to issue temporary Securities,
register the transfer or exchange of any Securities, replace mutilated,
destroyed, lost or stolen Securities and maintain an office or agency for
payments in respect of the Securities, (iii) the rights, powers, trusts, duties
and immunities of the Trustee, and (iv) the defeasance provisions of this
Indenture. The Company may exercise its option under this paragraph (b)
notwithstanding the prior exercise of its option under paragraph (c) below with
respect to the Securities.
(c) Upon the Company's exercise under paragraph (a) of the option
applicable to this paragraph (c), the Company shall be released and discharged
from its obligations under any covenant contained in Article Five and in
Sections 4.03 through 4.13 with respect to the outstanding Securities on and
after the date the conditions set forth below are satisfied (hereinafter,
"Covenant Defeasance"), and the Securities shall thereafter be deemed to be not
"outstanding" for the purpose of any direction, waiver, consent or declaration
or act of Holders (and the consequences of any thereof) in connection with such
covenants, but shall continue to be deemed "outstanding" for all other purposes
hereunder. For this purpose, such Covenant Defeasance means that, with respect
to the outstanding Securities, the Company may omit to comply with and shall
have no liability in respect of any term, condition or limitation set forth in
any such covenant, whether directly or indirectly, by reason of any reference
elsewhere herein to any such covenant or by reason of any reference in any such
covenant to any other provision herein or in any other document and such
omission to comply shall not constitute a Default or an Event of Default under
Section 6.01(3) or (4), nor shall any event referred to in Section 6.01(5), (6),
(7) (but only with respect to a Significant Subsidiary) or (8) thereafter
constitute a Default or an Event of Default thereunder but, except as specified
above, the remainder of this Indenture and such Securities shall be unaffected
thereby. If the Company exercises its Legal Defeasance option or its Covenant
Defeasance option, each Subsidiary Guarantor will be released from all of its
obligations with respect to its Subsidiary Guaranty.
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(d) The following shall be the conditions to application of either
paragraph (b) or paragraph (c) above to the outstanding Securities:
(1) The Company shall have irrevocably deposited in trust with the
Trustee, pursuant to an irrevocable trust and security agreement in form
and substance satisfactory to the Trustee, U.S. Legal Tender or U.S.
Government Obligations maturing as to principal and interest in such
amounts and at such times as are sufficient, without consideration of the
reinvestment of such interest and principal and after payment of all
Federal, state and local taxes or other charges or assessments in respect
thereof payable by the Trustee, in the opinion of a nationally recognized
firm of Independent public accountants expressed in a written certification
thereof (in form and substance reasonably satisfactory to the Trustee)
delivered to the Trustee, to pay the principal of, premium, if any, and
interest on all the outstanding Securities on the dates on which any such
payments are due and payable in accordance with the terms of this Indenture
and of the Securities;
(2) Such deposits shall not cause the Trustee to have a conflicting
interest as defined in and for purposes of the TIA;
(3) The Trustee shall have received Officers' Certificates stating
that No Default of Event of Default or event which with notice or lapse of
time or both would become a Default or an Event of Default with respect to
the Securities shall have occurred and be continuing on the date of such
deposit or, insofar as Section 6.01(6) or (7) is concerned, at any time
during the period ending on the 91st day after the date of such deposit (it
being understood that this condition shall not be deemed satisfied until
the expiration of such period);
(4) The Trustee shall have received Officers' Certificates stating
that such deposit will not result in a Default under this Indenture or a
breach or violation of, or constitute a default under, any other material
instrument or agreement to which the Company or any of its Subsidiaries is
a party or by which it or its property is bound;
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(5) (i) In the event the Company elects paragraph (b) hereof, the
Company shall deliver to the Trustee an Opinion of Counsel, in form and
substance reasonably satisfactory to the Trustee to the effect that (A) the
Company has received from, or there has been published by, the Internal
Revenue Service a ruling or (B) since the Issue Date, 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 state that
Holders of the Securities will not recognize income gain or loss for
Federal income tax purposes as a result of such deposit and the defeasance
contemplated hereby and will be subject to Federal income taxes in the same
manner and at the same times as would have been the case of such deposit
and defeasance had not occurred, or (ii) in the event the Company elects
paragraph (c) hereof, the Company shall deliver to the Trustee an Opinion
of Counsel, in form and substance reasonably satisfactory to the Trustee,
to the effect that, Holders of the Securities will not recognize income,
gain or loss for Federal income tax purposes as a result of such deposit
and the defeasance contemplated hereby and will be subject to Federal
income tax in the same amounts and in the same manner and at the same times
as would have been the case if such deposit and defeasance had not
occurred;
(6) The deposit shall not result in the Company, the Trustee or the
trust becoming or being deemed to be an "investment company" under the
Investment Company Act of 1940, as amended;
(7) The Company shall have delivered to the Trustee an Officers'
Certificate, in form and substance reasonably satisfactory to the Trustee,
stating that the deposit under clause (1) was not made by the Company or
any Subsidiary of the Company with the intent of defeating, hindering,
delaying or defrauding any other creditors of the Company or any Subsidiary
of the Company or others;
(8) The Company shall have delivered to the Trustee an Opinion of
Counsel, in form and substance reasonably satisfactory to the Trustee, to
the effect that, (A) the trust funds will not be subject to the rights of
holders of Indebtedness of the Company other than the Securities and (B)
assuming no intervening bankruptcy of the Company between the date of
deposit and the 91st day following the deposit and that no Holder of
Securities is an insider of the Company, after the passage of 90 days
following the deposit, the trust funds will not be subject to any
applicable bankruptcy, insolvency, reorganization or similar law affecting
creditors' rights generally; and
-53-
(9) The Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent specified herein relating to the defeasance contemplated by this
Section 8.01 have been complied with; provided, however, that no deposit
-------- -------
under clause (1) above shall be effective to terminate the obligations of
the Company under the Securities or this Indenture prior to 90 days
following any such deposit.
In the event all or any portion of the Securities are to be redeemed
through such irrevocable trust, the Company must make arrangements satisfactory
to the Trustee, at the time of such deposit, for the giving of the notice of
such redemption or redemptions by the Trustee in the name and at the expense of
the Company.
SECTION 8.02. Satisfaction and Discharge.
--------------------------
In addition to the Company's rights under Section 8.01, the Company
may terminate all of its obligations under this Indenture (subject to Section
8.03) when:
(1) all Securities theretofore authenticated and delivered (other
than Securities which have been destroyed, lost or stolen and which have
been replaced or paid as provided in Section 2.07) have been delivered to
the Trustee for cancellation; or
(2) all Securities not theretofore delivered to the Trustee for
cancellation (except lost, stolen or destroyed Securities which have been
replaced or paid) have been called for redemption pursuant to the terms of
the Securities or have otherwise become due and payable and the Company has
irrevocably deposited or caused to be deposited with the Trustee funds in
an amount sufficient to pay and discharge the entire Indebtedness on the
Securities not theretofore delivered to the Trustee for cancellation, for
principal of, premium, if any, and interest on the Securities to the date
of deposit together with irrevocable instructions from the Company
directing the Trustee to apply such funds to the payment thereof at
maturity or redemption, as the case may be; and
-54-
(3) the Company has paid or caused to be paid all other sums
payable hereunder and under the Securities by the Company; and
(4) there exists no Default or Event of Default under this
Indenture; and
(5) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent specified herein relating to the satisfaction and discharge of
this Indenture have been complied with.
SECTION 8.03. Survival of Certain Obligations.
-------------------------------
Notwithstanding the satisfaction and discharge of this Indenture and
of the Securities referred to in Section 8.01 or 8.02, the respective
obligations of the Company and the Trustee under Sections 2.02, 2.03, 2.04,
2.05, 2.06, 2.07, 2.10, 2.12, 2.13, 4.01, 4.02 and 6.07, Article Seven and
Sections 8.05, 8.06 and 8.07 shall survive until the Securities are no longer
outstanding, and thereafter the obligations of the Company and the Trustee under
Sections 7.07, 8.05, 8.06 and 8.07 shall survive. Nothing contained in this
Article Eight shall abrogate any of the rights, obligations or duties of the
Trustee under this Indenture.
SECTION 8.04. Acknowledgment of Discharge by Trustee.
--------------------------------------
Subject to Section 8.07, after (i) the conditions of Section 8.01 or
8.02 have been satisfied, (ii) the Company has paid or caused to be paid all
other sums payable hereunder by the Company and (iii) the Company has delivered
to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating
that all conditions precedent referred to in clause (i) above relating to the
satisfaction and discharge of this Indenture have been complied with, the
Trustee upon written request shall acknowledge in writing the discharge of the
Company's obligations under this Indenture except for those surviving
obligations specified in Section 8.03.
SECTION 8.05. Application of Trust Assets.
---------------------------
The Trustee shall hold any U.S. Legal Tender or U.S. Government
Obligations deposited with it in the irrevocable trust established pursuant to
Section 8.01. The Trustee shall apply the deposited U.S. Legal Tender or the
U.S. Government Obligations, together with earnings thereon, through the Paying
Agent, in accordance with this Indenture and the terms of the irrevocable trust
agreement established pursuant to Section 8.01, to the payment of principal of
and interest on the Securities. The U.S. Legal Tender or U.S. Government
Obligations so held in trust and deposited with the Trustee in compliance with
Section 8.01 shall not be part of the trust estate under this Indenture, but
shall constitute a separate trust fund for the benefit of all Holders entitled
thereto.
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SECTION 8.06. Repayment to the Company; Unclaimed Money.
------
Subject to Sections 7.07 and 8.01, the Trustee shall promptly pay to
the Company, upon receipt by the Trustee of an Officers' Certificate, any excess
money, determined in accordance with Section 8.01, held by it at any time. The
Trustee and the Paying Agent shall pay to the Company, upon receipt by the
Trustee or the Paying Agent, as the case may be, of an Officers' Certificate,
any money held by it for the payment of principal, premium, if any, or interest
that remains unclaimed for two years after payment to the Holders is required;
provided, however, that the Trustee and the Paying Agent before being required
-------- -------
to make any payment may, but need not, at the expense of the Company cause to be
published once in a newspaper of general circulation in the City of New York or
mail to each Holder entitled to such money notice that such money remains
unclaimed and that after a date specified therein, which shall be at least 2
years from the date of such publication or mailing, any unclaimed balance of
such money then remaining will be repaid to the Company. After payment to the
Company, Security holders entitled to money must look solely to the Company for
payment as general creditors unless an applicable abandoned property law
designates another Person, and all liability of the Trustee or Paying Agent with
respect to such money shall thereupon cease.
SECTION 8.07. Reinstatement.
-------------
If the Trustee or Paying Agent is unable to apply any money or U.S.
Government Obligations in accordance with this Indenture 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, then
and only then the Company's obligations under this Indenture and the Securities
shall be revived and reinstated as though no deposit had been made pursuant to
this Indenture until such time as the Trustee is permitted to apply all such
money or U.S. Government Obligations in accordance with this Indenture;
provided, however, that if the Company has made any payment of principal of,
-------- -------
premium, if any, or interest on 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 or U.S. Government
Obligations held by the Trustee or Paying Agent.
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ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. Without Consent of Holders.
--------------------------
The Company (when authorized by Board Resolutions), and the Trustee,
together, may amend or supplement this Indenture or the Securities without
notice to or consent of any Securityholder:
(1) to cure any ambiguity, defect or inconsistency;
(2) to evidence the succession in accordance with Article Five
hereof of another Person to the Company and the assumption by any such
successor of the covenants of the Company herein and in the Securities, as
the case may be;
(3) to provide for uncertificated Securities in addition to or in
place of certificated Securities (provided that the uncertificated
Securities are issued in registered form for purposes of Section 163(f) of
the U.S. Internal Revenue Code of 1986, as amended (the "Code"), or in a
manner such that the uncertificated Securities are described in Section
163(f)(d)(B) of the Code;
(4) to make any other change that does not materially adversely
affect the rights of any Securityholders hereunder;
(5) to comply with any requirements of the SEC in connection with
the qualification of this Indenture under the TIA;
(6) to add guarantees with respect to the Securities;
(7) to release any Subsidiary Guarantors pursuant to the terms of
this Indenture;
-57-
(8) to secure the Securities; or
(9) to add to the covenants of the Company for the benefit of the
Holders or to surrender any right or power conferred upon the Company
provided that the Company has delivered to the Trustee an Opinion of Counsel and
--------
an Officers' Certificate, each stating that such amendment or supplement
complies with the provisions of this Section 9.01.
SECTION 9.02. With Consent of Holders.
-----------------------
Subject to Section 6.07, the Company (when authorized by Board
Resolutions) and the Trustee, together, with the written consent of the Holder
or Holders of at least a majority in aggregate principal amount of the
outstanding Securities, may amend or supplement this Indenture, the Securities
without notice to any other Securityholders. Subject to Section 6.07, the
Holder or Holders of a majority in aggregate principal amount of the outstanding
Securities may waive compliance by the Company with any provision of this
Indenture or the Securities without notice to any other Securityholder. Without
the consent of each Securityholder affected, however, no amendment, supplement
or waiver, including a waiver pursuant to Section 6.04, may:
(1) reduce the principal amount of Securities whose Holders must
consent to an amendment, supplement or waiver of any provision of this
Indenture or the Securities;
(2) reduce the rate of or change or have the effect of changing the
time for payment of interest, including default interest, on any Security;
(3) reduce the principal of or extend the Stated Maturity of any
Security;
(4) reduce the premium payable upon the redemption of any Security
or change the time at which any Security may be redeemed in accordance with
Article Three;
(5) make any change in provisions of this Indenture protecting the
right of each Holder to receive payment of principal of and interest on
such Security on or after the due date thereof or to bring suit to enforce
such payment on or with respect to such Holder's Securities or any
Subsidiary Guaranty, or permitting Holders of a majority in principal
amount of the Securities to waive Defaults or Events of Default;
-58-
(6) make any changes in Section 6.04, 6.07 or this Section 9.02;
(7) make the principal of, premium or the interest on any Security
payable in money other than as provided for in this Indenture as in effect
on the date hereof; or
(8) affect the ranking of the Securities in a manner adverse to the
Holders.
It shall not be necessary for the consent of the Holders under this
Section 9.02 to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves the
substance thereof.
After an amendment, supplement or waiver under this Section 9.02
becomes effective, the Company shall mail to the Holders a notice briefly
describing the amendment, supplement or waiver. Any failure of the Company to
mail such notice, or any defect therein, shall not, however, in any way impair
or affect the validity of any such supplemental indenture.
SECTION 9.03. Compliance with TIA.
-------------------
From the date on which this Indenture is qualified under the TIA,
every amendment, waiver or supplement of this Indenture or the Securities shall
comply with the TIA as then in effect.
SECTION 9.04. Revocation and Effect of Consents.
---------------------------------
Until an amendment, waiver or supplement becomes effective, a consent
to it by a Holder 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 his Security by notice to the Trustee
or the Company received before the date on which the Trustee receives an
Officers' Certificate certifying that the Holders of the requisite principal
amount of Securities have consented (and not theretofore revoked such consent)
to the amendment, supplement or waiver.
-59-
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Holders entitled to consent to any amendment,
supplement or waiver. If a record date is fixed, then notwithstanding the last
sentence of the immediately preceding paragraph, those Persons who were Holders
at such record date (or their duly designated proxies), and only those Persons,
shall be entitled to revoke any consent previously given, whether or not such
Persons continue to be Holders after such record date. No such consent shall be
valid or effective for more than 90 days after such record date.
After an amendment, supplement or waiver becomes effective, it shall
bind every Securityholder, unless it makes a change described in any of clauses
(1) through (9) of Section 9.02, in which case, the amendment, supplement or
waiver shall bind only 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; provided that any such waiver
--------
shall not impair or affect the right of any Holder to receive payment of
principal of and interest on a Security, on or after the respective due dates
expressed in such Security, or to bring suit for the enforcement of any such
payment on or after such respective dates without the consent of such Holder.
SECTION 9.05. Notation on or Exchange of Securities.
-------------------------------------
If an amendment, supplement or waiver changes the terms of a Security,
the Trustee may require the Holder of the Security to deliver it to the Trustee.
The Trustee may place an appropriate notation on the Security about the changed
terms and return it to the Holder. Alternatively, if the Company or the Trustee
so determines, the Company in exchange for the Security shall issue and the
Trustee shall authenticate a new Security that reflects the changed terms.
SECTION 9.06. Trustee To Sign Amendments, Etc.
-------------------------------
The Trustee shall execute any amendment, supplement or waiver
authorized pursuant to this Article Nine; provided that the Trustee may, but
--------
shall not be obligated to, execute any such amendment, supplement or waiver
which affects the Trustee's own rights, duties or immunities under this
Indenture. The Trustee shall be entitled to receive, and shall be fully
protected in relying upon, an Opinion of Counsel and an Officers' Certificate
each stating that the execution of any amendment, supplement or waiver
authorized pursuant to this Article Nine is authorized or permitted by this
Indenture and constituted the legal, valid and binding obligations of the
Company enforceable in accordance with its terms. Such Opinion of Counsel shall
be at the expense of the Company, and the Trustee shall have a lien under
Section 7.07 for any such expense.
-60-
ARTICLE TEN
MISCELLANEOUS
SECTION 10.01. TIA Controls.
------------
If any provision of this Indenture limits, qualifies, or conflicts
with the duties imposed by operation of Section 318(c) of the TIA, the imposed
duties shall control.
SECTION 10.02. Notices.
-------
Any notices or other communications required or permitted hereunder
shall be in writing, and shall be sufficiently given if made by hand delivery,
by telex, by telecopier or registered or certified mail, postage prepaid, return
receipt requested, or nationally recognized overnight service addressed as
follows:
if to the Company:
AMETEK, Inc.
Xxxxxxx Xxxxxx
Xxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxx X. Xxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
if to the Trustee:
Chase Manhattan Trust Company, National Association
000 Xxxxxx Xxxxxx
0xx Xxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxxxxxx Xxxxxxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
-61-
Each of the Company and the Trustee by written notice to each other
such person may designate additional or different addresses for notices to such
person. Any notice or communication to the Company or the Trustee shall be
deemed to have been given or made as of the date so delivered if personally
delivered; when answered back, if telexed; when receipt is acknowledged, if
telecopied; and five (5) calendar days after mailing if sent by registered or
certified mail, postage prepaid (except that a notice of change of address shall
not be deemed to have been given until actually received by the addressee).
Any notice or communication mailed to a Securityholder shall be mailed
to him by first class mail or other equivalent means at his address as it
appears on the registration books of the Registrar and shall be sufficiently
given to him if so mailed within the time prescribed.
Failure to mail a notice or communication to a Securityholder or any
defect in it shall not affect its sufficiency with respect to other
Securityholders. If a notice or communication is mailed in the manner provided
above, it is duly given, whether or not the addressee receives it.
SECTION 10.03. Communications by Holders with Other Holders.
--------------------------------------------
Securityholders may communicate pursuant to TIA (S) 312(b) with other
Securityholders with respect to their rights under this Indenture and the
Securities. The Company, the Trustee, the Registrar and any other Person shall
have the protection of TIA (S) 312(c).
-62-
SECTION 10.04. 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 at the
request of the Trustee:
(1) an Officers' Certificate, in form and substance satisfactory to
the Trustee, 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 10.05. 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 the Officers'
Certificate required by Section 4.06, 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
(4) a statement as to whether or not, in the opinion of each such
person, such condition or covenant has been complied with; provided,
--------
however, that with respect to matters of fact an Opinion of Counsel may
-------
rely on an Officers' Certificate or certificates of public officials.
-63-
SECTION 10.06. Rules by Trustee, Paying Agent, Registrar.
-----------------------------------------
The Trustee, Paying Agent or Registrar may make reasonable rules for
its functions.
SECTION 10.07. Legal Holidays.
--------------
If a payment date is not a Business Day, payment may be made on the
next succeeding day that is a Business Day with the same force and effect as if
made on such payment date.
SECTION 10.08. Governing Law.
-------------
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS
MADE AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAW. Each of the parties hereto agrees to submit to the
jurisdiction of the courts of the State of New York in any action or proceeding
arising out of or relating to this Indenture.
SECTION 10.09. No Adverse Interpretation of Other Agreements.
---------------------------------------------
This Indenture may not be used to interpret another indenture, loan or
debt agreement of any of the Company or any of its Subsidiaries. Any such
indenture, loan or debt agreement may not be used to interpret this Indenture.
SECTION 10.10. No Recourse Against Others.
--------------------------
A director, officer, employee, stockholder or incorporator, as such,
of the Company or any of its Subsidiaries shall not have any liability for any
obligations of the Company under the Securities or this Indenture or for any
claim based on, in respect of or by reason of such obligations or their
creations. Each Securityholder by accepting a Security waives and releases all
such liability. Such waiver and release are part of the consideration for the
issuance of the Securities.
SECTION 10.11. Successors.
----------
All agreements of the Company in this Indenture and the Securities
shall bind its successors. All agreements of the Trustee in this Indenture
shall bind its successor.
-64-
SECTION 10.12. Duplicate Originals.
-------------------
All parties may sign any number of copies of this Indenture. Each
signed copy or counterpart shall be an original, but all of them together shall
represent the same agreement.
SECTION 10.13. Severability.
------------
In case any one or more of the provisions in this Indenture or in the
Securities shall be held invalid, illegal or unenforceable, in any respect for
any reason, the validity, legality and enforceability of any such provision in
every other respect and of the remaining provisions shall not in any way be
affected or impaired thereby, it being intended that all of the provisions
hereof shall be enforceable to the full extent permitted by law.
-65-
SIGNATURES
----------
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed as of the date first written above.
AMETEK, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President &
Treasurer
CHASE MANHATTAN TRUST COMPANY, NATIONAL
ASSOCIATION, as Trustee
By: /s/ Xxxxxxxxx Xxxxxxxx
----------------------
Name: Xxxxxxxxx Xxxxxxxx
Title: Asst. Vice President
EXHIBIT A
---------
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR
SOLD EXCEPT AS SET FORTH BELOW. BY ITS ACQUISITION HEREOF, THE HOLDER (1)
REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE
144A UNDER THE SECURITIES ACT) OR (B) IT IS AN INSTITUTIONAL "ACCREDITED
INVESTOR" (AS DEFINED IN RULE 501(A)(1), (2), (3) OR (7) UNDER THE SECURITIES
ACT) (AN "ACCREDITED INVESTOR") OR (C) IT IS NOT A U.S. PERSON AND IS ACQUIRING
THIS SECURITY IN AN OFFSHORE TRANSACTION, (2) AGREES THAT IT WILL NOT WITHIN TWO
YEARS AFTER THE ORIGINAL ISSUANCE OF THIS SECURITY RESELL OR OTHERWISE TRANSFER
THIS SECURITY EXCEPT (A) TO THE ISSUER OR ANY SUBSIDIARY THEREOF, (B) INSIDE THE
UNITED STATES TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A
UNDER THE SECURITIES ACT, (C) INSIDE THE UNITED STATES TO AN ACCREDITED INVESTOR
THAT, PRIOR TO SUCH TRANSFER, FURNISHES TO THE TRUSTEE A SIGNED LETTER
CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH LETTER CAN
BE OBTAINED FROM THE TRUSTEE), (D) OUTSIDE THE UNITED STATES TO PERSONS OTHER
THAN U.S. PERSONS IN OFFSHORE TRANSACTIONS MEETING THE REQUIREMENTS OF RULE 904
UNDER REGULATION S UNDER THE SECURITIES ACT, (E) PURSUANT TO THE EXEMPTION FROM
REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), OR
(F) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND
(3) AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED
A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. AS USED HEREIN, THE TERMS
"OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S. PERSON" HAVE THE RESPECTIVE
MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.
A-1
AMETEK, INC.
7.20% Senior Notes
due July 15, 2008, Series A
CUSIP No.: 031100 AB 6
No. 1 $225,000,000
AMETEK, INC., a Delaware corporation (the "Company", which term
includes any successor corporation), for value received promises to pay to
CEDE&CO. or registered assigns, the principal sum of Two Hundred Twenty-Five
Million Dollars, on July 15, 2008.
Interest Payment Dates: January 15 and July 15, commencing January
15, 1999
Record Dates: January 1 and July 1
Reference is made to the further provisions of this Security contained
herein, which will for all purposes have the same effect as if set forth at this
place.
A-2
IN WITNESS WHEREOF, the Company has caused this Security to be signed
manually or by facsimile by its duly authorized officers.
Dated:
AMETEK, INC.
By:
--------------------------
Name:
Title:
By:
--------------------------
Name:
Title:
A-3
This is one of the 7.20% Senior Notes due 2008, Series A, described in
the within-mentioned Indenture.
Dated: CHASE MANHATTAN TRUST COMPANY,
NATIONAL ASSOCIATION, as Trustee
By:
-------------------------------
Authorized Signatory
A-4
(REVERSE OF SECURITY)
AMETEK, INC.
7.20% Senior Notes
due July 15, 2008, Series A
1. Interest.
--------
AMETEK, INC., a Delaware corporation (the "Company"), promises to pay
interest on the principal amount of this Security at the rate per annum shown
above. The Company will pay interest semi-annually on January 15 and July 15 of
each year (an "Interest Payment Date"), commencing January 15, 1999. Interest
on the Securities will accrue from the most recent date to which interest has
been paid or, if no interest has been paid, from July 17, 1998. Interest will
be computed on the basis of a 360-day year of twelve 30-day months.
The Company shall pay interest on overdue principal from time to time
on demand at the rate borne by the Securities plus 1% and on overdue
installments of interest (without regard to any applicable grace periods) to the
extent lawful.
2. Method of Payment.
-----------------
The Company shall pay interest on the Securities (except defaulted
interest) to the persons who are the registered Holders at the close of business
on the Record Date immediately preceding the Interest Payment Date even if the
Securities are cancelled on registration of transfer or registration of exchange
after such Record Date. Holders must surrender Securities to a Paying Agent to
collect principal payments. The Company shall pay principal and interest in
money of the United States that at the time of payment is legal tender for
payment of public and private debts ("U.S. Legal Tender"). However, the Company
may pay principal and interest by wire transfer of Federal funds, or interest by
check payable in such U.S. Legal Tender. The Company may deliver any such
interest payment to the Paying Agent or to a Holder at the Holder's registered
address.
3. Paying Agent and Registrar.
--------------------------
Initially, Chase Manhattan Trust Company, National Association (the
"Trustee") will act as Paying Agent and Registrar. The Company may change any
Paying Agent, Registrar or co-Registrar without notice to the Holders.
A-5
4. Indenture.
---------
The Company issued the Securities under an Indenture, dated as of July
17, 1998 (the "Indenture"), between the Company and the Trustee. Capitalized
terms herein are used as defined in the Indenture unless otherwise defined
herein. The terms of the Securities include those stated in the Indenture and
those made part of the Indenture by reference to the Trust Indenture Act of 1939
(15 U.S.C. (S)(S) 77aaa-77bbbb) (the "TIA"), as in effect on the date of the
Indenture until such time as the Indenture is qualified under the TIA, and
thereafter as in effect on the date on which the Indenture is qualified under
the TIA. Notwithstanding anything to the contrary herein, the Securities are
subject to all such terms, and Holders of Securities are referred to the
Indenture and the TIA for a statement of them. The Securities are limited in
aggregate principal amount to $275,000,000.
5. Optional Redemption.
-------------------
The Securities will be redeemable, as a whole or in part, at the
option of the Company, at any time or from time to time, at a redemption price
equal to the greater of (i) 100% of the principal amount of the Securities to be
redeemed and (ii) the sum of the present values of the Remaining Scheduled
Payments (as defined below) discounted, on a semi-annual basis (assuming a 360-
day year consisting of twelve 30-day months), at the Treasury Rate (as defined
below) plus 25 basis points, plus in the case of each of clauses (i) and (ii)
above accrued interest to the date of redemption.
"Treasury Rate" means, with respect to any redemption date, the rate
per annum equal to the semi-annual equivalent yield to maturity (computed as of
the second business day immediately preceding such redemption date) of the
Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue
(expressed as a percentage of its principal amount) equal to the Comparable
Treasury Price for such redemption date.
"Comparable Treasury Issue" means the fixed rate United States
Treasury security selected by an Independent Investment Banker as having a
maturity most comparable to the remaining term of the notes (and that is not
callable prior to maturity) that would be utilized, at the time of selection and
in accordance with customary financial practice, in pricing new issues of
corporate debt securities of comparable maturity to the remaining term of the
Securities. "Independent Investment Banker" means one of the Reference Treasury
Dealers appointed by the Company.
A-6
"Comparable Treasury Price" means, with respect to any redemption
date, (i) the average of the Reference Treasury Dealer Quotations for such
redemption date, after excluding the highest and lowest of such Reference
Treasury Dealer Quotations, or (ii) if the Trustee obtains fewer than three such
Reference Treasury Dealer Quotations, the average of all such quotations.
"Reference Treasury Dealer Quotations" means, with respect to each Reference
Treasury Dealer and any redemption date, the average, as determined by the
Trustee, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted in
writing to the Trustee by such Reference Treasury Dealer at 3:30 p.m., New York
City time, on the third Business Day preceding such redemption date.
"Reference Treasury Dealer" means Salomon Brothers Inc and any other
nationally recognized investment banking firm appointed by the Company that is a
primary U.S. Government securities dealer in New York City.
"Remaining Scheduled Payments" means, with respect to each Note to be
redeemed, the remaining scheduled payments of the principal thereof and interest
thereon that would be due after the related redemption date but for such
redemption; provided, however, that, if such redemption date is not an interest
payment date with respect to such Note, the amount of the next succeeding
scheduled interest payment thereon will be reduced by the amount of interest
accrued thereon to such redemption date.
6. Notice of Redemption.
--------------------
Notice of redemption will be mailed at least 30 days but not more than
60 days before the Redemption Date to each Holder of Securities to be redeemed
at such Holder's registered address. Securities in denominations of $1,000 may
be redeemed only in whole. The Trustee may select for redemption portions
(equal to $1,000 or any integral multiple thereof) of the principal of
Securities that have denominations larger than $1,000.
If any Security is to be redeemed in part only, the notice of
redemption that relates to such Security shall state the portion of the
principal amount thereof to be redeemed. A new Security in a principal amount
equal to the unredeemed portion thereof will be issued in the name of the Holder
thereof upon cancellation of the original Security. On and after the Redemption
Date, interest will cease to accrue on Securities or portions thereof called for
redemption.
A-7
7. Denominations; Transfer; Exchange.
---------------------------------
The Securities are in registered form, without coupons, in
denominations of $1,000 and integral multiples of $1,000. A Holder shall
register the transfer of or exchange Securities in accordance with the
Indenture. The Registrar may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents and to pay certain transfer
taxes or similar governmental charges payable in connection therewith as
permitted by the Indenture. The Registrar need not register the transfer of or
exchange any Securities or portions thereof selected for redemption, except the
unredeemed portion of any security being redeemed in part.
8. Persons Deemed Owners.
---------------------
The registered Holder of a Security shall be treated as the owner of
it for all purposes.
9. Unclaimed Funds.
---------------
If funds for the payment of principal or interest remain unclaimed for
two years, the Trustee and the Paying Agent will repay the funds to the Company
at its request. After that, all liability of the Trustee and such Paying Agent
with respect to such funds shall cease.
10. Legal Defeasance and Covenant Defeasance.
----------------------------------------
The Company may be discharged from its obligations under the Indenture
and the Securities except for certain provisions thereof, and may be discharged
from its obligations to comply with certain covenants contained in the Indenture
and the Securities, in each case upon satisfaction of certain conditions
specified in the Indenture.
11. Amendment; Supplement; Waiver.
-----------------------------
Subject to certain exceptions, the Indenture or the Securities may be
amended or supplemented with the written consent of the Holders of at least a
majority in aggregate principal amount of the Securities then outstanding, and
any existing Default or Event of Default or compliance with any provision may be
waived with the consent of the Holders of a majority in aggregate principal
amount of the Securities then outstanding. Without notice to or consent of any
Holder, the parties thereto may amend or supplement the Indenture or the
Securities to, among other things, cure any ambiguity, defect or inconsistency,
provide for uncertificated Securities in addition to or in place of certificated
Securities or comply with any requirements of the SEC in connection with the
qualification of the Indenture under the TIA, or make any other change that does
not materially adversely affect the rights of any Holder of a Security.
A-8
12. Restrictive Covenants.
---------------------
The Indenture contains certain covenants that, among other things,
limit the ability of the Company and certain of its subsidiaries to create
liens, enter into sale/leaseback transactions, merge or sell all or
substantially all of its assets. The limitations are subject to a number of
important qualifications and exceptions.
13. Defaults and Remedies.
---------------------
If an Event of Default occurs and is continuing, the Trustee or the
Holders of at least 25% in aggregate principal amount of Securities then
outstanding may declare all the Securities to be due and payable immediately in
the manner and with the effect provided in the Indenture. Holders of Securities
may not enforce the Indenture or the Securities except as provided in the
Indenture. The Trustee is not obligated to enforce the Indenture or the
Securities unless it has received indemnity satisfactory to it. The Indenture
permits, subject to certain limitations therein provided, Holders of a majority
in aggregate principal amount of the Securities then outstanding to direct the
Trustee in its exercise of any trust or power. The Trustee may withhold from
Holders of Securities notice of any continuing Default or Event of Default
(except a Default in payment of principal, premium or interest, including an
accelerated payment) if it determines that withholding notice is in their
interest.
14. Trustee Dealings with Company.
-----------------------------
The Trustee under the Indenture, in its individual or any other
capacity, may become the owner or pledgee of Securities and may otherwise deal
with the Company, its Subsidiaries and their respective Affiliates as if it were
not the Trustee.
15. No Recourse Against Others.
--------------------------
No stockholder, director, officer, employee or incorporator, as such,
of the Company shall have any liability for any obligation 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 Holder of a Security by
accepting a Security waives and releases all such liability. The waiver and
release are part of the consideration for the issuance of the Securities.
A-9
16. Authentication.
--------------
This Security shall not be valid until the Trustee or authenticating
agent signs the certificate of authentication on this Security.
17. Abbreviations and Defined Terms.
-------------------------------
Customary abbreviations may be used in the name of a Holder of a
Security or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
18. CUSIP Numbers.
-------------
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company has caused CUSIP numbers to be
printed on the Securities as a convenience to the Holders of the Securities. No
representation is made as to the accuracy of such numbers as printed on the
Securities and reliance may be placed only on the other identification numbers
printed hereon.
19. Registration Rights.
-------------------
Pursuant to the Registration Rights Agreement, the Company will be
obligated upon the occurrence of certain events to consummate an exchange offer
pursuant to which the Holder of this Security shall have the right to exchange
this Series A Security for the Company's 7.20% Senior Notes due 2008, Series B
(the "Series B Securities"), which have been registered under the Securities
Act, in like principal amount and having terms identical in all material
respects as the Series A Securities. The Holders shall be entitled to receive
certain additional interest payments in the event such exchange offer is not
consummated and upon certain other conditions, all pursuant to and in accordance
with the terms of the Registration Rights Agreement.
The Company will furnish to any Holder of a Security upon written
request and without charge a copy of the Indenture. Requests may be made to:
AMETEK, Inc., Xxxxxxx Xxxxxx, Xxxxx, Xxxxxxxxxxxx 00000, Attn: Xxxx X.
Xxxxxxxxx.
A-10
ASSIGNMENT FORM
I or we assign and transfer this Security to
----------------------------------------------------------------------------
----------------------------------------------------------------------------
(Print or type name, address and zip code of assignee or transferee)
----------------------------------------------------------------------------
(Insert Social Security or other identifying number of assignee or transferee)
and irrevocably appoint
------------------------------------------------------
agent to transfer this Security on the books of the Company. The agent may
substitute another to act for him.
Dated: Signed:
------------------ --------------------
(Sign exactly as name appears on
the other side of this Security)
Signature Guarantee:
----------------------------------------------
Participant in a recognized Signature Guarantee Medallion
Program (or other signature guarantor reasonably acceptable
to the Trustee)
A-11
EXHIBIT B
---------
[FORM OF SERIES B SECURITY]
AMETEK, INC.
7.20% Senior Notes
due July 15, 2008, Series B
CUSIP No.: [ ]
No. 1 $225,000,000
AMETEK, INC., a Delaware corporation (the "Company", which term
includes any successor corporation), for value received promises to pay to CEDE
& CO. or registered assigns, the principal sum of Two Hundred and Twenty-Five
Million Dollars, on July 15, 2008.
Interest Payment Dates: January 15 and July 15, commencing January
15, 1999
Record Dates: January 1 and July 1
Reference is made to the further provisions of this Security contained
herein, which will for all purposes have the same effect as if set forth at this
place.
IN WITNESS WHEREOF, the Company has caused this Security to be signed
manually or by facsimile by its duly authorized officers.
Dated:
AMETEK, INC.
By:
------------------------
Name:
Title:
By:
------------------------
Name:
Title:
B-1
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the 7.20% Senior Notes due 2008, Series B, described in
the within-mentioned Indenture.
Dated: CHASE MANHATTAN TRUST COMPANY,
NATIONAL ASSOCIATION, as Trustee
By:
--------------------------------
Authorized Signatory
B-2
(REVERSE OF SECURITY)
AMETEK, INC.
7.20% Senior Notes
due July 15, 2008, Series B
1. Interest.
--------
AMETEK, INC., a Delaware corporation (the "Company"), promises to pay
interest on the principal amount of this Security at the rate per annum shown
above. The Company will pay interest semi-annually on January 15 and July 15 of
each year (an "Interest Payment Date"), commencing January 15, 1999. Interest
on the Securities will accrue from the most recent date to which interest has
been paid or, if no interest has been paid, from July 17, 1998. Interest will
be computed on the basis of a 360-day year of twelve 30-day months.
The Company shall pay interest on overdue principal from time to time
on demand at the rate borne by the Securities plus 1% and on overdue
installments of interest (without regard to any applicable grace periods) to the
extent lawful.
2. Method of Payment.
-----------------
The Company shall pay interest on the Securities (except defaulted
interest) to the persons who are the registered Holders at the close of business
on the Record Date immediately preceding the Interest Payment Date even if the
Securities are cancelled on registration of transfer or registration of exchange
after such Record Date. Holders must surrender Securities to a Paying Agent to
collect principal payments. The Company shall pay principal and interest in
money of the United States that at the time of payment is legal tender for
payment of public and private debts ("U.S. Legal Tender"). However, the Company
may pay principal and interest by wire transfer of Federal funds, or interest by
check payable in such U.S. Legal Tender. The Company may deliver any such
interest payment to the Paying Agent or to a Holder at the Holder's registered
address.
3. Paying Agent and Registrar.
--------------------------
Initially, Chase Manhattan Trust Company, National Association (the
"Trustee") will act as Paying Agent and Registrar. The Company may change any
Paying Agent, Registrar or co-Registrar without notice to the Holders.
B-3
4. Indenture.
---------
The Company issued the Securities under an Indenture, dated as of July
17, 1998 (the "Indenture"), between the Company and the Trustee. Capitalized
terms herein are used as defined in the Indenture unless otherwise defined
herein. The terms of the Securities include those stated in the Indenture and
those made part of the Indenture by reference to the Trust Indenture Act of 1939
(15 U.S.C. (S)(S) 77aaa-77bbbb) (the "TIA"), as in effect on the date of the
Indenture until such time as the Indenture is qualified under the TIA, and
thereafter as in effect on the date on which the Indenture is qualified under
the TIA. Notwithstanding anything to the contrary herein, the Securities are
subject to all such terms, and Holders of Securities are referred to the
Indenture and the TIA for a statement of them. The Securities are limited in
aggregate principal amount to $275,000,000.
5. Optional Redemption.
-------------------
The Securities will be redeemable, as a whole or in part, at the
option of the Company, at any time or from time to time, at a redemption price
equal to the greater of (i) 100% of the principal amount of the Securities to be
redeemed and (ii) the sum of the present values of the Remaining Scheduled
Payments (as defined below) discounted, on a semi-annual basis (assuming a 360-
day year consisting of twelve 30-day months), at the Treasury Rate (as defined
below) plus 25 basis points, plus in the case of each of clauses (i) and (ii)
above accrued interest to the date of redemption.
"Treasury Rate" means, with respect to any redemption date, the rate
per annum equal to the semi-annual equivalent yield to maturity (computed as of
the second business day immediately preceding such redemption date) of the
Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue
(expressed as a percentage of its principal amount) equal to the Comparable
Treasury Price for such redemption date.
"Comparable Treasury Issue" means the fixed rate United States
Treasury security selected by an Independent Investment Banker as having a
maturity most comparable to the remaining term of the notes (and that is not
callable prior to maturity) that would be utilized, at the time of selection and
in accordance with customary financial practice, in pricing new issues of
corporate debt securities of comparable maturity to the remaining term of the
Securities. "Independent Investment Banker" means one of the Reference Treasury
Dealers appointed by the Company.
B-4
"Comparable Treasury Price" means, with respect to any redemption
date, (i) the average of the Reference Treasury Dealer Quotations for such
redemption date, after excluding the highest and lowest of such Reference
Treasury Dealer Quotations, or (ii) if the Trustee obtains fewer than three such
Reference Treasury Dealer Quotations, the average of all such quotations.
"Reference Treasury Dealer Quotations" means, with respect to each Reference
Treasury Dealer and any redemption date, the average, as determined by the
Trustee, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted in
writing to the Trustee by such Reference Treasury Dealer at 3:30 p.m., New York
City time, on the third Business Day preceding such redemption date.
"Reference Treasury Dealer" means Salomon Brothers Inc and any other
nationally recognized investment banking firm appointed by the Company that is a
primary U.S. Government securities dealer in New York City.
"Remaining Scheduled Payments" means, with respect to each Note to be
redeemed, the remaining scheduled payments of the principal thereof and interest
thereon that would be due after the related redemption date but for such
redemption; provided, however, that, if such redemption date is not an interest
payment date with respect to such Note, the amount of the next succeeding
scheduled interest payment thereon will be reduced by the amount of interest
accrued thereon to such redemption date.
6. Notice of Redemption.
--------------------
Notice of redemption will be mailed at least 30 days but not more than
60 days before the Redemption Date to each Holder of Securities to be redeemed
at such Holder's registered address. Securities in denominations of $1,000 may
be redeemed only in whole. The Trustee may select for redemption portions
(equal to $1,000 or any integral multiple thereof) of the principal of
Securities that have denominations larger than $1,000.
If any Security is to be redeemed in part only, the notice of
redemption that relates to such Security shall state the portion of the
principal amount thereof to be redeemed. A new Security in a principal amount
equal to the unredeemed portion thereof will be issued in the name of the Holder
thereof upon cancellation of the original Security. On and after the Redemption
Date, interest will cease to accrue on Securities or portions thereof called for
redemption.
B-5
7. Denominations; Transfer; Exchange.
---------------------------------
The Securities are in registered form, without coupons, in
denominations of $1,000 and integral multiples of $1,000. A Holder shall
register the transfer of or exchange Securities in accordance with the
Indenture. The Registrar may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents and to pay certain transfer
taxes or similar governmental charges payable in connection therewith as
permitted by the Indenture. The Registrar need not register the transfer of or
exchange any Securities or portions thereof selected for redemption, except the
unredeemed portion of any security being redeemed in part.
8. Persons Deemed Owners.
---------------------
The registered Holder of a Security shall be treated as the owner of
it for all purposes.
9. Unclaimed Funds.
---------------
If funds for the payment of principal or interest remain unclaimed for
two years, the Trustee and the Paying Agent will repay the funds to the Company
at its request. After that, all liability of the Trustee and such Paying Agent
with respect to such funds shall cease.
10. Legal Defeasance and Covenant Defeasance.
----------------------------------------
The Company may be discharged from its obligations under the Indenture
and the Securities except for certain provisions thereof, and may be discharged
from its obligations to comply with certain covenants contained in the Indenture
and the Securities, in each case upon satisfaction of certain conditions
specified in the Indenture.
11. Amendment; Supplement; Waiver.
-----------------------------
Subject to certain exceptions, the Indenture or the Securities may be
amended or supplemented with the written consent of the Holders of at least a
majority in aggregate principal amount of the Securities then outstanding, and
any existing Default or Event of Default or compliance with any provision may be
waived with the consent of the Holders of a majority in aggregate principal
amount of the Securities then outstanding. Without notice to or consent of any
Holder, the parties thereto may amend or supplement the Indenture or the
Securities to, among other things, cure any ambiguity, defect or inconsistency,
provide for uncertificated Securities in addition to or in place of certificated
Securities or comply with any requirements of the SEC in connection with the
qualification of the Indenture under the TIA, or make any other change that does
not materially adversely affect the rights of any Holder of a Security.
B-6
12. Restrictive Covenants.
---------------------
The Indenture contains certain covenants that, among other things,
limit the ability of the Company to create liens, enter into sale/leaseback
transactions, to consolidate, merge or sell all or substantially all of its
assets. The limitations are subject to a number of important qualifications and
exceptions.
13. Defaults and Remedies.
---------------------
If an Event of Default occurs and is continuing, the Trustee or the
Holders of at least 25% in aggregate principal amount of Securities then
outstanding may declare all the Securities to be due and payable immediately in
the manner and with the effect provided in the Indenture. Holders of Securities
may not enforce the Indenture or the Securities except as provided in the
Indenture. The Trustee is not obligated to enforce the Indenture or the
Securities unless it has received indemnity satisfactory to it. The Indenture
permits, subject to certain limitations therein provided, Holders of a majority
in aggregate principal amount of the Securities then outstanding to direct the
Trustee in its exercise of any trust or power. The Trustee may withhold from
Holders of Securities notice of any continuing Default or Event of Default
(except a Default in payment of principal, premium or interest, including an
accelerated payment) if it determines that withholding notice is in their
interest.
14. Trustee Dealings with Company.
-----------------------------
The Trustee under the Indenture, in its individual or any other
capacity, may become the owner or pledgee of Securities and may otherwise deal
with the Company, its Subsidiaries and their respective Affiliates as if it were
not the Trustee.
15. No Recourse Against Others.
--------------------------
No stockholder, director, officer, employee or incorporator, as such,
of the Company shall have any liability for any obligation 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 Holder of a Security by
accepting a Security waives and releases all such liability. The waiver and
release are part of the consideration for the issuance of the Securities.
B-7
16. Authentication.
--------------
This Security shall not be valid until the Trustee or authenticating
agent signs the certificate of authentication on this Security.
17. Abbreviations and Defined Terms.
-------------------------------
Customary abbreviations may be used in the name of a Holder of a
Security or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
18. CUSIP Numbers.
-------------
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company has caused CUSIP numbers to be
printed on the Securities as a convenience to the Holders of the Securities. No
representation is made as to the accuracy of such numbers as printed on the
Securities and reliance may be placed only on the other identification numbers
printed hereon.
The Company will furnish to any Holder of a Security upon written
request and without charge a copy of the Indenture. Requests may be made to:
AMETEK, Inc., Xxxxxxx Xxxxxx, Xxxxx, Xxxxxxxxxxxx 00000, Attn: Xxxx X.
Xxxxxxxxx.
B-8
ASSIGNMENT FORM
I or we assign and transfer this Security to
----------------------------------------------------------------------
-----------------------------------------------------------------------
(Print or type name, address and zip code of assignee or transferee)
----------------------------------------------------------------------------
(Insert Social Security or other identifying number of assignee or transferee)
and irrevocably appoint
------------------------------------------------------
agent to transfer this Security on the books of the Company. The agent may
substitute another to act for him.
Dated: Signed:
------------- ------------------
(Sign exactly as name appears on
the other side of this Security)
Signature Guarantee:
------------------------------------------------------
Participant in a recognized Signature Guarantee Medallion
Program (or other signature guarantor program reasonably
acceptable to the Trustee)
B-9
EXHIBIT C
---------
FORM OF LEGEND FOR GLOBAL SECURITIES
Any Global Security authenticated and delivered hereunder shall bear a
legend (which would be in addition to any other legends required in the case of
a Restricted Security) 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 A DEPOSITORY OR A
NOMINEE OF A DEPOSITORY OR A SUCCESSOR DEPOSITORY. THIS SECURITY IS NOT
EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN
THE DEPOSITORY OR ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED
IN THE INDENTURE, AND NO TRANSFER OF THIS SECURITY (OTHER THAN A TRANSFER
OF THIS SECURITY AS A WHOLE BY THE DEPOSITORY TO A NOMINEE OF THE
DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR ANOTHER
NOMINEE OF THE DEPOSITORY) MAY BE REGISTERED EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE
ISSUER 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 DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), 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.
C-1
EXHIBIT D
---------
CERTIFICATE TO BE DELIVERED UPON EXCHANGE
OR REGISTRATION OF TRANSFER OF SECURITIES
Re: 7.20% Senior Notes due 2008, Series A, and 7.20%
Senior Notes due 2008, Series B (the "Securities"),
of AMETEK, Inc.
---------------------------------------------------
This Certificate relates to $_______ principal amount of Securities
held in the form of* ___ a beneficial interest in a Global Security or* _______
Physical Securities by ______ (the "Transferor").
The Transferor:*
-- has requested by written order that the Registrar deliver in
exchange for its beneficial interest in the Global Security held by the
Depositary a Physical Security or Physical Securities in definitive, registered
form of authorized denominations and an aggregate number equal to its beneficial
interest in such Global Security (or the portion thereof indicated above); or
-- has requested that the Registrar by written order to exchange or
register the transfer of a Physical Security or Physical Securities.
In connection with such request and in respect of each such Security,
the Transferor does hereby certify that the Transferor is familiar with the
Indenture relating to the above captioned Securities and the restrictions on
transfers thereof as provided in Section 2.16 of such Indenture, and that the
transfer of this Securities does not require registration under the Securities
Act of 1933, as amended (the "Act") because*:
-- Such Security is being acquired for the Transferor's own account,
without transfer (in satisfaction of Section 2.16(a)(II)(A) or Section
2.16(d)(i)(A) of the Indenture).
-- Such Security is being transferred to a "qualified institutional
buyer" (as defined in Rule 144A under the Act), in reliance on Rule 144A.
D-1
-- Such Security is being transferred to an institutional "accredited
investor" (within the meaning of subparagraphs (a)(1), (2), (3) or (7) of Rule
501 under the Act.
-- Such Security is being transferred in reliance on Regulation S
under the Act
-- Such Security is being transferred in reliance on Rule 144 under
the Act.
-- Such Security is being transferred in reliance on and in
compliance with an exemption from the registration requirements of the Act other
than Rule 144A or Rule 144 or Regulation S under the Act to a person other than
an institutional "accredited investor."
______________________________
[INSERT NAME OF TRANSFEROR]
By:
--------------------------
[Authorized Signatory]
Date:
-----------------------
*Check applicable box.
D-2
EXHIBIT E
---------
Form of Certificate To Be
Delivered in Connection with
Transfers to Institutional Accredited Investors
-----------------------------------------------
_______________, ____
CHASE MANHATTAN TRUST COMPANY,
NATIONAL ASSOCIATION
000 Xxxxxx Xxxxxx
0xx Xxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Corporate Trust Administration
Re: AMETEK, Inc. (the "Company") Indenture
(the "Indenture") relating to 7.20%
Senior Notes due 2008, Series A, or
7.20% Senior Notes due 2008, Series B
--------------------------------------
Ladies and Gentlemen:
In connection with our proposed purchase of 7.20% Senior Notes due
2008, Series A, or 7.20% Senior Notes due 2008, Series B (the "Securities"), of
Ametek, Inc. (the "Company"), we confirm that:
1. We have received such information as we deem necessary in order to
make our investment decision.
2. We understand that any subsequent transfer of the Securities is
subject to certain restrictions and conditions set forth in the Indenture and
the undersigned agrees to be bound by, and not to resell, pledge or otherwise
transfer the Securities except in compliance with, such restrictions and
conditions and the Securities Act of 1933, as amended (the "Securities Act").
3. We understand that the offer and sale of the Securities have not
been registered under the Securities Act, and that the Securities may not be
offered or sold within the United States or to, or for the account or benefit
of, U.S. persons except as permitted in the following sentence. We agree, on
our own behalf and on behalf of any accounts for which we are acting as
hereinafter stated, that if we should sell any Securities, we will do so only
(A) to the Company or any subsidiary thereof, (B) inside the United States in
accordance with Rule 144A under the Securities Act to a "qualified
E-1
institutional buyer" (as defined therein), (C) inside the United States to an
institutional "accredited investor" (as defined below) that, prior to such
transfer, furnishes (or has furnished on its behalf by a U.S. broker-dealer) to
the Trustee a signed letter substantially in the form hereof, (D) outside the
United States in accordance with Regulation S under the Securities Act, (E)
pursuant to the exemption from registration provided by Rule 144 under the
Securities Act (if available), or (F) pursuant to an effective registration
statement under the Securities Act, and we further agree to provide to any
person purchasing Securities from us a notice advising such purchaser that
resales of the Securities are restricted as stated herein.
4. We understand that, on any proposed resale of Securities, we will
be required to furnish to the Trustee and the Company, such certification, legal
opinions and other information as the Trustee and the Company may reasonably
require to confirm that the proposed sale complies with the foregoing
restrictions. We further understand that the Securities purchased by us will
bear a legend to the foregoing effect.
5. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and have
such knowledge and experience in financial and business matters as to be capable
of evaluating the merits and risks of our investment in the Securities, and we
and any accounts for which we are acting are each able to bear the economic risk
of our or their investment, as the case may be.
6. We are acquiring the Securities purchased by us for our account or
for one or more accounts (each of which is an institutional "accredited
investor") as to each of which we exercise sole investment discretion.
E-2
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceeding or official inquiry with respect
to the matters covered hereby.
Very truly yours,
[Name of Transferor]
By:
-------------------------------
[Authorized Signatory]
E-3
EXHIBIT F
---------
Form of Certificate To Be
Delivered in Connection
with Regulation S Transfers
---------------------------
_______________, ____
CHASE MANHATTAN TRUST COMPANY,
NATIONAL ASSOCIATION
000 Xxxxxx Xxxxxx
0xx Xxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Corporate Trust Administration
Re: AMETEK, Inc. (the "Company") 7.20%
Senior Notes due 2008, Series A, and
7.20% Senior Notes due 2008, Series B
(the "Securities")
--------------------------------------
Dear Sirs:
In connection with our proposed sale of $____________ aggregate
principal amount of the Securities, we confirm that such sale has been effected
pursuant to and in accordance with Regulation S under the Securities Act of
1933, as amended (the "Securities Act"), and, accordingly, we represent that:
(1) the offer of the Securities was not made to a person in the United
States;
(2) either (a) at the time the buy offer was originated, the
transferee was outside the United States or we and any person acting on our
behalf reasonably believed that the transferee was outside the United States, or
(b) the transaction was executed in, on or through the facilities of a
designated off-shore securities market and neither we nor any person acting on
our behalf knows that the transaction has been pre-arranged with a buyer in the
United States;
(3) no directed selling efforts have been made in the United States in
contravention of the requirements of Rule 903(b) or Rule 904(b) of Regulation S,
as applicable;
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act; and
F-1
(5) we have advised the transferee of the transfer restrictions
applicable to the Securities.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby. Defined terms used herein without
definition have the respective meanings provided in Regulation S.
Very truly yours,
[Name of Transferor]
By:
------------------------
[Authorized Signatory]
F-2
