As filed with the Securities and Exchange Commission on August 20, 1997
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
__________________________
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
__________________________
INGERSOLL-RAND COMPANY
(Exact name of Registrant as specified in its charter)
New Jersey 13-5156640
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
INGERSOLL-RAND FINANCING I INGERSOLL-RAND FINANCING II
A Delaware Statutory Business Trust A Delaware Statutory Business Trust
(I.R.S. Employer Identification (I.R.S. Employer Identification
Number Pending) Number Pending)
200 Chestnut Ridge Road
Woodcliff Lake, New Jersey 07675
(201) 573-0123
(Address, including zip code, and telephone number, including area code, of
principal executive offices)
-------------------------------------------
Patricia Nachtigal, Esq.
Vice President and General Counsel
Ingersoll-Rand Company
P.O. Box 8738
Woodcliff Lake, New Jersey 07675
(201) 573-0123
(Name, address, including zip code, and telephone number, including area
code, of agent for service)
-------------------------------------------
Copy to:
<PAGE>
John B. Tehan, Esq.
Simpson Thacher & Bartlett
425 Lexington Avenue
New York, New York 10017
(212) 455-2000
----------------------------------
Approximate date of commencement of proposed sale to the public: From
time to time after the effective date of this Registration Statement.
----------------------------------
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box: /x/
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, other than securities offered only in connection with dividend or
interest reinvestment plans, please check the following box: / /
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering: / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering: / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box: / /
------------------------------------
<PAGE>
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Maximum Proposed Maximum
Title of Each Class of Amount to be Offering Price per Aggregate Offering Amount of
Securities to be Registered Registered Unit<F1> Price<F1> Registration Fee
<S> <C> <C> <C> <C>
Common Stock, $2 par value per share<F2>
Preference Stock<F3> . . . . . . . . . .
Debt Securities<F4> . . . . . . . . . . .
Stock Purchase Contracts<F5> . . . . . .
Stock Purchase Units<F6> . . . . . . . .
Trust Preferred Securities of Ingersoll-
Rand Financing I<F7> . . . . . . . . . .
Trust Preferred Securities of Ingersoll-
Rand Financing II<F7> . . . . . . . . . .
Guarantees of Trust Preferred
Securities<F8> . . . . . . . . . . . . .
Total $600,000,000 100% <F9> $600,000,000 $181,818
<FN>
<F1> Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(o).
<F2> Subject to note (9) below, there are being registered hereunder an
indeterminate number of shares of Common Stock as may be sold, from time
to time, by the Company. There are also being registered hereunder an
indeterminate number of shares of Common Stock as shall be issuable upon
(i) conversion, redemption or exchange of Preference Stock or Debt
Securities registered hereby. The Common Stock being registered includes
associated Series A Preference Stock Purchase Rights or (ii) settlement
of the Stock Purchase Contracts or Stock Purchase Units.
<F3> Subject to note (9) below, there are being registered hereunder an
indeterminate number of shares of Preference Stock as may be sold, from
time to time, by the Company, and an indeterminate number of shares of
Preference Stock as shall be issuable upon conversion, redemption or
exchange of Debt Securities registered hereby.
<F4> Subject to note (9) below, there are being registered hereunder an
indeterminate principal amount of Debt Securities as may be sold from
time to time by the Company, and an indeterminate principal amount of
Debt Securities as shall be issuable upon conversion or exchange of
Preference Stock registered hereby. If any Debt Securities are being
issued at an original issue discount, then the offering price shall be
in such greater principal amount as shall result in an aggregate initial
offering price not to exceed $600,000,000 less the dollar amount of any
securities previously issued hereunder.
<F5> Subject to note (9) below, there are being registered hereunder an
indeterminate number of Stock Purchase Contracts as may be sold from
time to time by the Company.
<F6> Subject to note (9) below, there are being registered hereunder an
indeterminate number of Stock Purchase Units.
<F7> Subject to note (9) below, there are being registered hereunder an
indeterminate amount of Trust Preferred Securities.
<PAGE>
<F8> Subject to note (9) below, there are being registered hereunder an
indeterminate amount of Guarantees of Trust Preferred Securities as may
be sold from time to time. No separate consideration will be received
for any Trust Preferred Guarantees.
<F9> In no event will the aggregate initial offering price of all securities
issued from time to time pursuant to this Registration Statement exceed
$600,000,000. Any securities registered hereunder may be sold separately
or as units with other securities registered hereunder.
</TABLE>
------------------------------
Pursuant to Rule 429 under the Securities Act of 1933, as amended, the
Prospectus herein also relates to $150,000,000 aggregate principal amount of
unsold Debt Securities registered on Form S-3 (Registration No. 33-60249).
This Registration Statement also constitutes Post-Effective Amendment No. 1
to Registration Statement No. 33-60249, and upon the effectiveness of such
Post-Effective Amendment No. 1, this Registration Statement and Registration
Statement No. 33-60249 will relate to an aggregate of $750,000,000 of Common
Stock, Preference Stock, Debt Securities, Stock Purchase Contracts, Stock
Purchase Units and Trust Preferred Securities.
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this
Registration Statement shall thereafter become effective in accordance with
Section 8(a) of the Securities Act of 1933 or until this Registration
Statement shall become effective on such date as the Commission, acting
pursuant to Section 8(a), may determine.
----------------------------------
<PAGE>
__________________________________________________________________________
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statement
becomes effective. This prospectus shall not constitute an offer to sell or
the solicitation of an offer to buy nor shall there be any sale of these
securities in any State in which such offer, solicitation or sale would be
unlawful prior to registration or qualification under the securities laws of
any such State.
- ---------------------------------------------------------------------------
SUBJECT TO COMPLETION, DATED August 20, 1997
PROSPECTUS
$750,000,000
INGERSOLL-RAND COMPANY
Common Stock
Preference Stock
Debt Securities
Stock Purchase Contracts
Stock Purchase Units
INGERSOLL-RAND FINANCING I
INGERSOLL-RAND FINANCING II
Trust Preferred Securities, Guaranteed
To The Extent Set Forth Herein By
INGERSOLL-RAND COMPANY
---------------------------
Ingersoll-Rand Company ("Ingersoll-Rand" or the "Company") from time to
time may sell, up to an aggregate initial offering price of $750,000,000, in
each case on terms to be determined by market conditions at the time of sale,
its (i) common stock, $2 par value per share (the "Common Stock"), (ii)
preference stock, without par value, in one or more series (the "Preference
Stock"), (iii) debt securities in one or more series, which may be either
senior (the "Senior Debt Securities"), senior subordinated (the "Senior
Subordinated Debt Securities") or junior subordinated (the "Junior
Subordinated Debt Securities", and together with the Senior Debt Securities
and the Senior Subordinated Debt Securities, the "Debt Securities"), (iv)
Stock Purchase Contracts (the "Stock Purchase Contracts") to purchase Common
Stock and (v) Stock Purchase Units (the "Stock Purchase Units"), each
representing ownership of a Stock Purchase Contract and Debt Securities or
Trust Preferred Securities (as defined) or debt obligations of third parties,
including U.S. Treasury Securities, securing the holder's obligation to
purchase the Common Stock under the Stock Purchase Contract.
Ingersoll-Rand Financing I and Ingersoll-Rand Financing II, each of
which is a statutory business trust created under the laws of the State of
Delaware (each a "Trust" or an "Ingersoll-Rand Trust"), the Trust Common
Securities (as defined herein) of which will be wholly-owned by the Company
at the time of issuance of any Trust Preferred Securities, may offer
preferred securities representing undivided beneficial ownership interests in
the assets of the respective Ingersoll-Rand Trust (the "Trust Preferred
Securities"). The payment of periodic cash distributions with respect to
Trust Preferred Securities of each of the Ingersoll-Rand Trusts out of moneys
held by each of the Ingersoll-Rand Trusts, and payments on liquidation,
redemption or otherwise with respect to such Trust Preferred Securities, will
be guaranteed by the Company to the extent described herein (each a "Trust
<PAGE>
Preferred Guarantee"). See "Description of Trust Preferred Guarantees." The
Company's obligations under the Trust Preferred Guarantees are subordinate
and junior in right of payment to all other liabilities of the Company and
rank pari passu with the most senior Preference Stock, if any, issued from
time to time by the Company. In the event an Ingersoll-Rand Trust issues
Trust Preferred Securities or Trust Common Securities, the proceeds to such
Ingersoll-Rand Trust from such offering will be invested in Junior
Subordinated Debt Securities (the "Corresponding Junior Subordinated Debt
Securities"), which will be issued and sold in one or more series by the
Company to such Ingersoll-Rand Trust or the trustee of such trust and which
will have terms corresponding to the terms of the related Trust Preferred
Securities (the "Related Trust Preferred Securities"). The Corresponding
Junior Subordinated Debt Securities purchased by an Ingersoll-Rand Trust may
be subsequently distributed pro rata to holders of the Related Trust
Preferred Securities or Trust Common Securities in connection with the
dissolution of such Ingersoll-Rand Trust upon the occurrence of certain
events as may be described in the related Prospectus Supplement. The Trust
Preferred Securities, together with the Common Stock, the Preference Stock,
the Debt Securities, the Stock Purchase Contracts, the Stock Purchase Units
and the Trust Preferred Guarantees, are collectively referred to as the
"Securities."
With respect to each series of Securities, a supplement to this
Prospectus will be delivered (a "Prospectus Supplement") together with this
Prospectus setting forth the terms of such Securities, including, where
applicable, the specific designation, aggregate principal amount,
denominations, maturity, interest rate (which may be fixed or variable) and
time of payment of interest, if any, coin or currency in which principal,
premium, if any, and interest, if any, will be payable, any terms for
redemption, any terms for sinking fund payments, whether the Debt Securities
will be subordinated, the initial public offering price, the names of, the
principal amounts to be purchased by, and the compensation of underwriters,
dealers or agents, if any, any listing of the Securities on a securities
exchange and the other terms in connection with the offering and sale of such
Securities. With respect to the Stock Purchase Contracts, the related
Prospectus Supplement will set forth, among other things, the designation and
number of shares of Common Stock issuable thereunder, the purchase price of
Common Stock, the date or dates on which the Common Stock is required to be
purchased by the holders of the Stock Purchase Contracts, and any periodic
payments required to be made by the Company to the holders of the Stock
Purchase Contracts or vice-versa. With respect to the Stock Purchase Units,
the related Prospectus Supplement will set forth, among other things, the
specific terms of the Stock Purchase Contracts and any Debt Securities or
Trust Preferred Securities or debt obligations of third parties securing the
holder's obligation to purchase the Common Stock under the Stock Purchase
Contracts. With respect to the Trust Preferred Securities, the related
Prospectus Supplement will set forth, among other things, the specific
designation, rights, preferences, privileges and restrictions thereof,
including distribution rate or rates (or method of ascertaining the same),
distribution payment dates, voting rights, liquidation preference, and any
conversion, exchange, redemption or sinking fund provisions, the terms upon
which the proceeds of the sale of the Trust Preferred Securities will be used
to purchase a specific series of Junior Subordinated Debt Securities of the
Company and the terms upon which the obligations of the Ingersoll-Rand Trust
to make periodic cash distributions on the Trust Preferred Securities or make
payments upon liquidation or dissolution of the Ingersoll-Rand Trust or upon
redemption of the Trust Preferred Securities, to the extent funds are
available therefor, shall be unconditionally guaranteed by Ingersoll-Rand.
<PAGE>
---------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTA-
TION TO THE CONTRARY IS A CRIMINAL OFFENSE.
---------------------------
The Securities may be sold directly to purchasers or to or through
underwriters, dealers or agents. If any underwriters, dealers or agents are
involved in the sale of any Securities, their names and any applicable fee,
commission or discount arrangements will be set forth in the Prospectus
Supplement. The net proceeds to the Company or any Ingersoll-Rand Trust from
sales of Securities will be set forth in the related Prospectus Supplement
and will be the purchase price of such Securities less attributable issuance
expenses, including underwriters', dealers' or agents' compensation
arrangements. See "Plan of Distribution" for indemnification arrangements for
underwriters, dealers and agents.
---------------------------
The date of this Prospectus is August __, 1997.
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "1934 Act"), and in
accordance therewith files reports, proxy statements and other information
with the Securities and Exchange Commission (the "Commission"). Reports,
proxy statements and other information filed by the Company can be inspected
and copied at the Commission's public reference facilities at Room 1024,
Judiciary Plaza, 450 Fifth Street, N.W.,Washington, D.C. 20549, and at the
Commission's regional offices located at Seven World Trade Center, Suite
1300, New York, New York 10048, and the Northwestern Atrium Center, 500 West
Madison Street, Suite 1400, Chicago, Illinois 60661. Copies of such material
can be obtained from the Public Reference Section of the Commission at 450
Fifth Street, N.W., Washington, D.C. 20549, at prescribed rates. The Common
Stock of the Company is listed on the New York Stock Exchange, Inc., and
reports, proxy statements and other information concerning the Company may be
inspected at the office of such Exchange, 20 Broad Street, New York, N.Y.
10005. This Prospectus does not contain all information set forth in the
Registration Statement (of which this Prospectus is a part) and the exhibits
thereto which the Company has filed with the Commission under the Securities
Act of 1933, as amended (the "Securities Act"), and to which reference is
hereby made.
No separate financial statements of the Ingersoll-Rand Trusts have been
included herein. The Company does not consider that such financial statements
would be material to holders of the Securities because: (i) the Company, a
reporting company under the 1934 Act, owns, directly or indirectly, all of
the voting securities of each Ingersoll-Rand Trust, (ii) neither Ingersoll-
Rand Trust has any independent operations but exists for the sole purpose of
issuing securities representing undivided beneficial interests in the assets
of the Ingersoll-Rand Trusts and investing the proceeds thereof in
Subordinated Debt Securities and (iii) the obligations of each Ingersoll-Rand
Trust to make periodic cash payments on Trust Preferred Securities and
payments upon liquidation or dissolution of such Ingersoll-Rand Trust or upon
redemption of the Trust Preferred Securities, to the extent funds are
available therefor, are unconditionally guaranteed by the Company. See
"Description of Trust Preferred Guarantees" and "Description of Debt
Securities."
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1996, the Company's Quarterly Report on Form 10-Q for the
quarter ended March 31, 1997 and the Company's Quarterly Report on Form 10-Q
for the quarter ended June 30, 1997 are incorporated herein by reference and
made a part of this Prospectus, and all documents filed by the Company with
the Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of the 1934 Act
subsequent to the date of this Prospectus but prior to the termination of the
offering of the Securities shall be deemed to be incorporated herein by
reference and made a part of this Prospectus from the date of filing of such
documents. Any statement contained in a document incorporated or deemed to be
<PAGE>
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus and any amendment or supplement hereto to the
extent that a statement contained herein or in any other subsequently filed
document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Prospectus or any such amendment or supplement.
The Company will provide without charge to each person, including any
beneficial owner, to whom this Prospectus is delivered, on the written or
oral request of any such person, a copy of any or all of the foregoing
documents incorporated herein by reference (other than exhibits to such
documents unless such exhibits are specifically incorporated by reference
into such documents). Requests should be directed to Ingersoll-Rand Company,
P.O. Box 8738, Woodcliff Lake, New Jersey 07675, Attention: R.G. Heller,
Secretary (telephone 201-573-0123).
THE COMPANY
Ingersoll-Rand was organized in 1905 under the laws of the State of New
Jersey as a consolidation of Ingersoll-Sergeant Drill Company and the Rand
Drill Company, whose businesses were established in the early 1870s. Over the
years, the Company has supplemented its original business, which consisted
primarily of the manufacture and sale of rock drilling equipment, with
additional products which have been developed internally or obtained through
acquisition.
Ingersoll-Rand manufactures and sells primarily non-electrical machinery
and equipment, including air compression systems, air tools, pumps,
antifriction bearings, construction equipment, architectural hardware and
drilling equipment. The products manufactured by Ingersoll-Rand and its
subsidiaries and affiliates are sold principally under the name
Ingersoll-Rand and also under other names. The manufacturing and sales
operations of Ingersoll-Rand are conducted throughout the world.
The Company's principal executive offices are at 200 Chestnut Ridge
Road, Woodcliff Lake, New Jersey 07675 (telephone 201-573-0123). Unless the
context otherwise requires, the terms "Ingersoll-Rand" and "Company" refer to
Ingersoll-Rand Company and its consolidated subsidiaries.
THE INGERSOLL-RAND TRUSTS
Each of Ingersoll-Rand Financing I and Ingersoll-Rand Financing II is a
statutory business trust created under Delaware law pursuant to (i) a
separate trust agreement executed by the Company, as Depositor for such trust
(the "Depositor"), and the trustees of such trust and (ii) the filing of a
certificate of trust with the Secretary of State of the State of Delaware.
The trust agreements will be amended and restated in their entirety (each as
so amended and restated, a "Trust Agreement") substantially in the form filed
as an exhibit to the Registration Statement of which this Prospectus is a
part and will be qualified as Indentures under the Trust Indenture Act of
1939. Each Ingersoll-Rand Trust exists for the exclusive purposes of (i)
<PAGE>
issuing the Trust Preferred Securities and common securities representing
undivided beneficial interests in the assets of the Trust (the "Trust Common
Securities" and, together with the Trust Preferred Securities, the "Trust
Securities"), (ii) investing the proceeds received by the Ingersoll-Rand
Trust from the sale of the Trust Securities in Corresponding Junior
Subordinated Debt Securities and (iii) engaging in only those other
activities necessary or incidental thereto. All of the Trust Common
Securities will be directly or indirectly owned by the Company. The Trust
Common Securities will rank pari passu, and payments will be made thereon pro
rata, with the Trust Preferred Securities, except that, upon an event of
default under a Trust Agreement, the rights of the holders of the Trust
Common Securities to payment in respect of distributions and payments upon
liquidation, redemption and otherwise will be subordinated to the rights of
the holders of the Trust Preferred Securities. The Company will directly or
indirectly acquire Trust Common Securities in an aggregate liquidation amount
equal to 3% of the total capital of each Ingersoll-Rand Trust. Each
Ingersoll-Rand Trust has a term of approximately 55 years but may dissolve
earlier, as provided in each Trust Agreement. Each Ingersoll-Rand Trust's
business and affairs will be conducted by its trustees, including a Property
Trustee (as defined below), a Delaware Trustee (as defined below) and three
individual trustees (the "Administrative Trustees") who are employees or
officers of or affiliated with the Company (collectively, the "Ingersoll-Rand
Trustees") appointed by the Company as the direct or indirect holder of all
the Trust Common Securities. The holder of the Trust Common Securities of a
Trust, or the holders of a majority in liquidation amount of the Related
Trust Preferred Securities if an event of default under the Trust Agreement
for such Trust has occurred and is continuing, will be entitled to appoint,
remove or replace the Property Trustee and/or the Delaware Trustee for such
Trust. In no event will the holders of the Trust Preferred Securities have
the right to vote to appoint, remove or replace the Administrative Trustees;
such voting rights are vested exclusively in the holder of the Trust Common
Securities. The duties and obligations of the Ingersoll-Rand Trustees shall
be governed by the Trust Agreement of such Ingersoll-Rand Trust. One
Ingersoll-Rand Trustee of each Ingersoll-Rand Trust will be a financial
institution that is not affiliated with the Company and has combined capital
and surplus of not less than $50,000,000, which shall act as property trustee
and as indenture trustee for the purposes of the Trust Indenture Act of 1939,
as amended (the "Trust Indenture Act"), pursuant to the terms set forth in
the related Prospectus Supplement (the "Property Trustee"). In addition,
unless the Property Trustee maintains a principal place of business in the
State of Delaware and otherwise meets the requirements of applicable law, one
Ingersoll-Rand Trustee of each Ingersoll-Rand Trust will have a principal
place of business or reside in the State of Delaware (the "Delaware
Trustee"). The Company will pay all fees and expenses related to the
Ingersoll-Rand Trusts and the offering of the Trust Securities.
The office of the Delaware Trustee for each Ingersoll-Rand Trust is c/o
The Corporation Trust Company, 1209 Orange Street, Wilmington, Delaware
19801. The address for each Ingersoll-Rand Trust is c/o the Company, the
Depositor of each Trust, at 200 Chestnut Ridge Road, Woodcliff Lake, New
Jersey 07675.
<PAGE>
USE OF PROCEEDS
The Company intends to apply the net proceeds from the sale of the
Securities to which this Prospectus relates to its general funds to be used
for capital expenditures, acquisitions and other general corporate purposes.
Funds not required immediately for such purposes may be invested in
short-term obligations or used to reduce the future level of the Company's
commercial paper obligations.
SELECTED FINANCIAL DATA
The following table sets forth selected financial data of the Company
for each of the years in the five year period ended December 31, 1996
and for the six month periods ended June 30, 1997 and 1996. Information on a
per share basis is presented as reported and restated to reflect the 3-for-2
stock split, which will be effected in the form of a stock dividend, declared
on August 6, 1997 and payable on September 2, 1997 to shareholders of record
on August 19, 1997:
<TABLE>
<CAPTION>
Six Month
Ended
June 30, Years Ended December 31,
------------------ ------------------------------------------------
1997 1996 1996 1995 1994 1993 1992
-------- -------- -------- -------- -------- -------- --------
(in millions of dollars, except per share data)
(unaudited)
------------------ ------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
Net sales . . . . . . $3,476.8 $3,366.7 $6,702.9 $5,729.0 $4,507.5 $4,021.1 $3,783.8
Net earnings (loss) . 189.4 166.8 358.0 270.3 211.1 142.5 (234.4)
Total assets . . . . 5,903.7 5,695.8 5,621.6 5,563.3 3,596.9 3,375.3 3,387.6
Long-term debt . . . 1,164.9 1,303.7 1,163.8 1,304.4 315.9 314.1 355.6
Shareholders' equity 2,231.8 1,927.5 2,090.8 1,795.5 1,531.3 1,349.8 1,293.4
Earnings (loss) per
common share <F1> . . 1.75 1.56 3.33 2.55 2.00 1.36 (2.25)
Earnings (loss) per
common share <F2> . . 1.16 1.04 2.22 1.70 1.33 0.91 (1.50)
Dividends per common
share <F1>. . . . . . 0.41 0.37 0.78 0.74 0.72 0.70 0.69
Dividends per common
share <F2>. . . . . . 0.27 0.25 0.52 0.49 0.48 0.47 0.46
<FN>
- ---------------
<F1> Prior to the 3-for-2 stock split.
<F2> Restated to give effect to the 3-for-2 stock split.
</TABLE>
<PAGE>
RATIOS OF EARNINGS TO FIXED CHARGES
The following table sets forth the ratio of earnings to fixed charges
for the Company for each of the years in the five year period ended December
31, 1996 and for the six month period ended June 30, 1997. For the purpose of
computing the ratios of earnings to fixed charges, earnings consist of
earnings before income taxes and fixed charges, excluding the Company's
proportionate share in the undistributed earnings (losses) of less than
fifty-percent-owned affiliates (accounted for using the equity method),
minority interests and capitalized interest. Fixed charges consist of
interest (including capitalized interest), amortization of debt discount and
expense and that portion (one-third) of rental expense deemed to be
representative of an interest factor included therein.
<TABLE>
<CAPTION>
Six Month
Period Ended
June 30, Year Ended December 31,
--------------- -----------------------------------------------------------------
1997 1996 1995 1994 1993 1992
--------------- ------------ ------------ ------------ ------------- ------------
<C> <C> <C> <C> <C> <C>
5.26 5.01<F1> 4.51 5.46 3.69<F2> 2.45<F3>
</TABLE>
____________________
[FN]
<F1> The 1996 calculation includes the effect of a $42.4 million pretax
charge mainly relating to the realignment of the Company's foreign
operations. The 1996 calculation also includes the $55 million of
pretax income relating to the sales of the Process Systems Group.
Excluding these amounts, the ratio would have been 4.93.
<F2> The 1993 calculation includes the effect of the $5 million pretax
charge relating to the restructure of the Company's underground mining
machinery business. Excluding this amount, the ratio would have been
3.75.
<F3> The Company's portion of the earnings and fixed charges of the
Dresser-Rand Company (a joint venture formed effective January 1, 1987
with Dresser Industries, Inc.) is included through September 30, 1992.
Effective October 1, 1992, the Company's ownership interest in the
Dresser-Rand Company was reduced from 50% to 49%. The 1992 calculation
includes (i) the effect of the $10 million pretax charge relating to
<PAGE>
the restructure of the Company's aerospace bearings business and (ii)
the full effect of the $70 million pretax restructure of operations
charge relating to the Ingersoll-Dresser Pump Company. Excluding the
1992 restructure charges, the ratio would have been 3.35.
<PAGE>
DESCRIPTION OF CAPITAL STOCK
The following description of the Company's capital stock summarizes
certain provisions of the Company's Restated Certificate of Incorporation (as
it may be amended, the "Certificate of Incorporation"), the Rights Agreement,
as amended, between the Company and The Bank of New York, as Rights Agent
(the "Rights Agreement") and the New Jersey Business Corporation Act (the
"NJBCA") and is subject to and is qualified in its entirety by reference to
such documents and provisions.
General
The authorized capital stock of the Company consists of 400,000,000
shares of Common Stock and 10,000,000 shares of preference stock, of which
563,000 shares of Series A Preference Stock (the "Series A Preference Stock")
have been reserved for issuance. At June 30, 1997, no shares of the
authorized Preference Stock were issued and outstanding and 110,550,296
shares of the authorized Common Stock were issued and outstanding. The
Company also had outstanding, as of such date, 55,275,148 Series A Preference
Stock Purchase Rights (the "Rights"). On August 6, 1997, the Board of
Directors of the Company declared a three-for-two stock split payable on
September 2, 1997 to shareholders of record on August 19, 1997. See "--
Rights Plan."
Common Stock
Dividends. Subject to the rights of holders of Preference Stock, the
Board of Directors may, in its discretion, out of funds legally available for
the payment of dividends and at such times and in such manner as determined
by the Board of Directors, declare and pay dividends on the Common Stock.
Liquidation, Dissolution and Winding Up. In the event of any
liquidation, dissolution or winding up of the Company, whether voluntary or
involuntary, after payment in full has been made to the holders of Preference
Stock of the amounts to which they are respectively entitled or sufficient
sums have been set apart for the payment thereof, the holders of Common Stock
shall be entitled to receive ratably any and all assets remaining to be paid
or distributed, and the holders of Preference Stock shall not be entitled to
share therein.
Voting. Except as otherwise expressly provided in the Certificate of
Incorporation or as may be required by law, the holders of Common Stock of
the Company shall be entitled at all meetings of stockholders to one vote for
each share of such stock held by them respectively and shall vote together
with the holders of Preference Stock as one class. At all elections of
<PAGE>
directors, each holder of Common Stock shall be entitled to as many votes as
shall equal the number of votes which such holder would be entitled to cast,
multiplied by the number of directors to be elected, and such holder may cast
all such votes for a single director, or may distribute them, among the
number to be voted for or any two or more of such directors.
Preemptive Rights. No holder of shares of Common Stock shall have any
preemptive or preferential rights to subscribe to or purchase any shares of
any class or series of stock of the Company, now or hereafter authorized, or
any series convertible into, or warrants or other evidences of optional
rights to purchase or subscribe to, shares of any class or series of the
Company, now or hereafter authorized.
All the outstanding shares of Common Stock are fully paid and non-
assessable.
The registrar and transfer agent for the Common Stock is The Bank of New
York.
Preference Stock
The Certificate of Incorporation provides for Preference Stock which may
be issued, from time to time, in one or more series with certain rights and
limitations as may be fixed by the Board of Directors of the Company. The
Company has no present plan to issue any Preference Stock other than in
accordance with the Rights Plan (as defined herein). However, the Board of
Directors of the Company, without stockholder approval, may issue Preference
Stock that could adversely affect the voting power of holders of the Common
Stock. Issuance of Preference Stock could be utilized, under certain
circumstances, in an attempt to prevent a takeover of the Company.
The following description sets forth certain general terms and
provisions of the Preference Stock to which a Prospectus Supplement may
relate. Certain terms of a series of the Preference Stock offered by a
Prospectus Supplement will be described in such Prospectus Supplement. If so
indicated in the Prospectus Supplement and if permitted by the Certificate of
Incorporation and by law, the terms of any such series may differ from the
terms set forth below. The following description of the Preference Stock
summarizes certain provisions of the Certificate of Incorporation and is
subject to and qualified in its entirety by reference to the Certificate of
Incorporation and the Certificate of Amendment thereto which will be filed
with the Commission promptly after any offering of such series of Preference
Stock. The following description, together with any description of the terms
of a series of Preference Stock set forth in the related Prospectus
Supplement, summarizes all of the material terms of such series of Preference
Stock.
General. The Board of Directors may cause Preference Stock to be issued
from time to time in one or more series and is expressly authorized to fix:
(i) the distinctive designation of such series and the number of
shares which shall constitute such series, which number may be increased
(except as otherwise provided by the Board of Directors in creating such
<PAGE>
series) or decreased (but not below the number of shares thereof then
outstanding) from time to time by the Board of Directors;
(ii) the rate of dividends payable on shares of such series and
the date or dates from which dividends shall accumulate;
(iii) the terms, if any, on which shares of such series may be
redeemed, including, without limitation, the redemption price or prices
for such series, which may consist of a redemption price or scale of
redemption prices applicable only to redemption in connection with a
sinking fund (which term as used herein shall include any fund or
requirement for the periodic purchase or redemption of shares), and the
same or a different redemption price or scale of redemption prices
applicable to any other redemption;
(iv) the terms and amount of any sinking fund provided for the
purchase or redemption of shares of such series;
(v) the amount or amounts which shall be paid to the holders of
shares of such series in case of liquidation, dissolution or winding up
of the Company, whether voluntary or involuntary;
(vi) the terms, if any, upon which the holders of shares of such
series may convert shares thereof into stock of any other class or
classes or of any one or more series of the same class or of another
class or classes; and
(vii) such other rights, preferences and limitations as may be
permitted to be fixed by the Board of Directors of the Company under the
laws of the State of New Jersey as in effect at the time of the creation
of such series.
All shares of Preference Stock, irrespective of series, shall be of
equal rank, and shall be identical in all respects except to the terms fixed
by the Board of Directors as permitted in the Certificate of Incorporation.
The Board of Directors is authorized to change the designation, rights,
preferences and limitations of any series of Preference Stock theretofore
established, no shares of which have been issued. The Board of Directors is
authorized to amend the Certificate of Incorporation to set forth the
designation, number of shares, rights, preferences and limitations of any
series of Preference Stock fixed by the Board of Directors, or to reflect any
change therein made by the Board of Directors, as permitted in the
Certificate of Incorporation.
Dividends. The holders of Preference Stock shall be entitled to receive,
when, as and if declared by the Board of Directors out of funds legally
available for the payment of dividends, cumulative dividends in cash at the
annual rate for each particular series theretofore fixed by the Board of
Directors, payable in respect of each series on the date or dates which shall
be fixed by the Board of Directors with respect to each particular series.
If at any time there are two or more series of Preference Stock
outstanding, any dividend paid upon shares of Preference Stock in an amount
less than all dividends accrued and unpaid on all outstanding shares of
Preference Stock shall be paid ratably among all series of Preference Stock
<PAGE>
in proportion to the full amount of dividends accrued and unpaid on each such
series.
So long as any Preference Stock is outstanding, no dividend shall be
paid or declared, nor any distribution be made, on the Common Stock or any
other stock of the Company ranking junior to the Preference Stock in the
payment of dividends (other than a dividend payable in stock of junior rank),
nor shall any shares of Common Stock or any other stock of junior rank be
acquired for consideration by the Company or by any subsidiary except in
exchange for shares of stock of junior rank unless (i) full dividends on the
Preference Stock for all past dividend periods shall have been paid or shall
have been declared and a sufficient sum set apart for the payment thereof and
(ii) all obligations of the Company, if any, with respect to the redemption
or purchase of shares of Preference Stock in accordance with the requirements
of any sinking fund have been met. Subject to the foregoing provisions, such
dividends (payable in cash, stock or otherwise) as may be determined from
time to time by the Board of Directors may be declared and paid on the Common
Stock or any other stock of junior rank out of the remaining funds of the
Company legally available for the payment of dividends; and the Preference
Stock shall not be entitled to participate in any such dividends, whether
payable in cash, stock or otherwise.
Redemption. If so provided by the Board of Directors, the Company, at
the option of the Board of Directors, or in accordance with the requirements
of any sinking fund for the Preference Stock or any series thereof, may
redeem the whole or any part of the Preference Stock at any time outstanding,
or the whole or any part of any series thereof, at such time or times and
from time to time and at such redemption price or prices as may be fixed by
the Board of Directors pursuant to the Certificate of Incorporation, together
in each case with an amount equal to all unpaid dividends accrued thereon to
the date fixed for such redemption, and otherwise upon the terms and
conditions fixed by the Board of Directors for any such redemption; provided,
however, that no optional redemption of less than all of the Preference Stock
shall take place unless (i) full dividends on the Preference Stock for all
past dividend periods shall have been paid or declared and a sufficient sum
set apart for the payment thereof and (ii) all obligations of the Company, if
any, with respect to the redemption or purchase of shares of Preference Stock
in accordance with the requirements of any sinking fund have been met. If at
any time there are two or more series of Preference Stock outstanding, any
amount expended in purchasing or redeeming shares of Preference Stock
pursuant to the provisions of sinking funds therefor which is less than the
amount then required to be so expended under all such funds shall be expended
ratably among all series of Preference Stock in proportion to the full amount
of expenditures of such funds then required in respect of each such series.
Liquidation, Dissolution and Winding Up. In the event of any
liquidation, dissolution or winding up of the Company, whether voluntary or
involuntary, the holders of each series of Preference Stock then outstanding
shall be entitled to receive out of the assets of the Company, before any
distribution or payment shall be made to the holders of the Common Stock or
any other stock of Company ranking junior to the Preference Stock with
respect to the distribution of assets, the amount determined by the Board of
Directors in creating such series, plus in each case an amount equal to all
<PAGE>
unpaid dividends accrued thereon to the date fixed for such payment to the
holders of the Preference Stock. If upon any such liquidation, dissolution or
winding up, two or more series of Preference Stock are outstanding, any
distribution to holders of Preference Stock in an aggregate amount less than
the total payable with respect to all outstanding Preference Stock shall be
made ratably among all series of Preference Stock in proportion to the full
amount payable upon such liquidation, dissolution or winding up in respect of
each such series.
Voting. The holders of Preference Stock shall have the voting rights set
forth below:
(a) Except as otherwise expressly provided in the Certificate of
Incorporation or as may be required by law, the holders of Preference Stock
shall be entitled at all meetings of stockholders to three votes for each
five shares of such stock held by them respectively (a holder of less than
five shares being entitled to no vote) and the holders of all series of
Preference Stock shall vote together with the holders of Common Stock as one
class. At all elections of directors, each holder of Preference Stock shall
be entitled to as many votes as shall equal the number of votes which such
holder would be entitled to cast, multiplied by the number of directors to be
elected, and such holder may cast all such votes for a single director, or
may distribute them among the number to be voted for or any two or more of
them as such holder may see fit.
(b) If and whenever dividends on the Preference Stock shall be in
arrears in an amount equivalent to six quarterly dividends or mandatory
sinking fund payments shall be in arrears in an amount equal to the aggregate
of all such payments required during one year, then, at any ensuing annual
meeting of stockholders at which at least a majority of the outstanding
shares of Preference Stock are represented, the holders of Preference Stock
of all series thereof then outstanding, voting separately as a class, shall
be entitled to elect two directors. Such right of the holders of Preference
Stock shall continue to be exercisable until all dividends in arrears on
Preference Stock shall have been paid in full or declared and a sum
sufficient for the payment thereof set apart and all mandatory sinking fund
payments in arrears shall have been paid in full, whereupon such right shall
cease. During any time that the holders of Preference Stock are entitled to
elect two such directors, they shall also be entitled to participate with the
Common Stock in the election of any other directors.
(c) Notwithstanding any other provision of the Certificate of
Incorporation:
(i) the affirmative approval of the holders of at least
two-thirds in interest of Preference Stock of all series thereof then
outstanding present and voting at a meeting, acting as a single class without
regard to series, shall be required for any amendment of the Certificate of
Incorporation altering materially and adversely any existing provision of the
Preference Stock or for the creation, or an increase in the authorized
amount, of any class of stock ranking, as to dividends or assets, prior to
the Preference Stock; and
<PAGE>
(ii) the affirmative approval of the holders of at least a
majority in interest of Preference Stock of all series thereof then
outstanding present and voting at a meeting, acting as a single class without
regard to series, shall be required for an increase in the authorized amount
of Preference Stock, or for the creation, or an increase in the authorized
amount, of any class of stock ranking, as to dividends or assets, on a parity
with the Preference Stock;
provided, however, that if any amendment to the Certificate of Incorporation
shall affect adversely the rights or preferences of one or more, but not all,
of the series of Preference Stock at the time outstanding, or shall unequally
adversely affect the rights or preferences of different series of Preference
Stock at the time outstanding, the affirmative approval of the holders of at
least two-thirds in interest of the shares of each such series so adversely
or unequally adversely affected present and voting at a meeting shall be
required in lieu of or (if such affirmative approval is required by law) in
addition to the affirmative approval of the holders of at least two-thirds in
interest of the shares of Preference Stock as a class present and voting at
such meeting.
Preemptive Rights. No holder of shares of any series of Preference Stock
shall have any preemptive or preferential rights to subscribe to or purchase
shares of any class or series of stock of the Company, now or hereafter
authorized, or any securities convertible into, or warrants or other
evidences of optional rights to purchase or subscribe to, shares of any laws
or series of the Company, now or hereafter authorized.
Other Provisions. Subject to the requirements of paragraph (c) under "--
Voting" above, but notwithstanding any other provisions of the Certificate of
Incorporation, the Board of Directors, in the resolution or resolutions
providing for the issue of any series of Preference Stock, may determine, to
the extent that the Board of Directors may be permitted to do so under the
laws of the State of New Jersey as in effect at the time of the creation of
such series:
(i) the voting rights, full or limited, if any, of the shares of
such series; and whether or not and under what conditions the shares of such
series (alone or together with the shares of one or more other series having
similar provisions) shall be entitled to vote separately as a single class,
for the election of one or more additional directors of the Company in case
of dividend arrearages or other specified events, or upon other matters;
(ii) whether or not and upon what conditions dividends on shares
of such series shall be cumulative and, if cumulative, the date or dates from
which dividends shall accumulate;
(iii) whether or not the holders of shares of such series shall
have any preemptive or preferential rights to subscribe to or purchase shares
of any class or series of stock of the Company, now or hereafter authorized,
or any securities convertible into, or warrants or other evidences of
optional rights to purchase or subscribe to, shares of any class or series of
the Company, now or hereafter authorized; and
<PAGE>
(iv) whether or not the issuance of additional shares of such
series, or of any shares of any other series, shall be subject to
restrictions as to issuance, or as to the preferences, rights and
qualifications of any such other series.
Voting Requirements
Majority Voting Requirements. Subject to the provisions described below
under "--Greater Voting Requirements" and except as otherwise expressly
provided in the Certificate of Incorporation or as may be required by law,
the majority voting requirements prescribed in subsections 14A:10-3(2) and
14A:12-4(4) and in paragraphs 14A:9-2(4)(c) and 14A:10-11(1)(c) of the NJBCA
shall apply to the Company. As a result, in the case of each of (i) a plan of
merger or consolidation, (ii) a dissolution of the Company, (iii) an
amendment to the Certificate of Incorporation and (iv) a sale, lease,
exchange or other disposition of all, or substantially all, of the assets of
the Company, any such action shall be approved upon receiving the affirmative
vote of a majority of the votes cast by the holders of shares of the Company
entitled to vote therein, and, in addition, if any class or series is
entitled to vote thereon as a class, the affirmative vote of a majority of
the votes cast in each class vote. Such voting requirements shall generally
be subject to such greater requirements as are provided in the NJBCA for
specific amendments or as may be provided in the Certificate of
Incorporation.
Greater Voting Requirements. The affirmative vote of the holders of
four-fifths of the outstanding shares of all classes of stock of the Company
entitled to vote, considered for the purposes of this paragraph as one class,
shall be required to authorize (i) the merger or consolidation of the Company
or a subsidiary of the Company with or into any other corporation, person or
other entity, (ii) any sale, lease, exchange or other disposition of all or
any material part of the assets of the Company or of any subsidiary of the
Company to or with any other corporation, person or other entity or (iii) any
issuance or transfer of securities of the Company upon conversion of or in
exchange for the securities or assets of any other corporation, person or
entity if (as of the date of any action taken by the Board of Directors with
respect to such transaction or as of any record date for the determination of
stockholders entitled to notice and to vote with respect thereto or
immediately prior to the consummation of such transaction) such other
corporation, person or other entity referred to in clause (i), clause (ii) or
clause (iii) above is the beneficial owner, directly or indirectly, of more
than 10% of any class of capital stock of the Company. For the purposes
hereof, any corporation, person or other entity shall be deemed to be the
beneficial owner of any shares of capital stock of the Company, (x) which it
has the right to acquire pursuant to any agreement, or upon exercise of
conversion rights, warrants or options, or otherwise, or (y) which are
beneficially owned, directly or indirectly (including shares deemed owned
through application of clause (x) above) by any other corporation, person or
other entity with which it has any agreement, arrangement or understanding
with respect to the acquisition, holding, voting or disposition of stock or
of any material part of the assets of the Company or of it, or which is its
"affiliate" or "associate" as those terms are defined in Rule 12b-2 of the
General Rules and Regulations under the 1934 Act, as in effect on January 1,
<PAGE>
1970. Any determination made in good faith by the Board of Directors, on the
basis of information at the time available to it, as to whether any
corporation, person or other entity is the beneficial owner of more than 10%
of any class of capital stock of the Company, or is an "affiliate" or
"associate", as above defined, shall be conclusive and binding for all
purposes of this paragraph. The provisions described in this paragraph shall
not apply to any agreement for the merger of any subsidiary of the Company
with the Company or with another subsidiary of the Company where the Company
or such other subsidiary shall be the surviving corporation and where the
provisions described in this paragraph shall not be changed or otherwise
affected by or by virtue of the merger.
Directors
The Board of Directors shall be divided as equally as may be into three
classes, each of which shall consist of such number as the by-laws may from
time to time provide, but no class shall consist of less than two members.
At each annual election, the successors of the directors of the class whose
terms expire in that year are elected to hold office for the term of three
years, so that the term of office of one class of directors shall expire in
each year. If the number of directors is changed, any newly created
directorships or decrease in directorships shall be so apportioned among the
classes as to make all classes as nearly equal in number as possible. In case
of any increase in the number of directors of any class or classes, the
additional directors may be elected by the Board of Directors, but any such
director so elected shall hold office only until the next succeeding annual
meeting of stockholders and until his successor shall have been elected and
qualified. No decrease in the number of directors shall shorten the term of
any incumbent director. Directors may be removed without cause only upon the
affirmative vote of the holders of at least four-fifths of the shares of
capital stock entitled to vote for the election of directors. Directors may
be removed for cause upon the affirmative vote of two-thirds of the entire
Board. The affirmative vote of the holders of at least four-fifths of the
shares of capital stock entitled to vote for the election of the directors
shall be required for any amendment or deletion of this provision, unless
such amendment or deletion shall have been approved by the unanimous vote of
the directors then in office, in which case the majority voting requirements
of the NJBCA described above shall apply thereto.
The provisions of the Certificate of Incorporation relating to
directors shall have no application to any directors who may be elected by
the holders of Preference Stock or any series thereof, voting as a class or
series, as the case may be, pursuant to a right to elect directors conferred
upon such holders by reason of default in the payment of dividends, failure
to discharge sinking fund obligations or otherwise. Any such directors shall
be in addition to the directors to be elected pursuant to the paragraph
immediately above and shall be elected in the manner, and serve for such
term, as may be provided in the Certificate of Incorporation.
<PAGE>
Rights Plan
On December 7, 1988, the Board of Directors of the Company declared a
dividend distribution of one Right for each outstanding share of Common Stock
of the Company. The dividend was payable on December 22, 1988 to shareholders
of record on that date. Each Right entitles the registered holder to purchase
from the Company one-hundredth (1/100) of a share of a series of preference
stock of the Company, designated as Series A Preference Stock, without par
value (the "Series A Preference Stock"), at a price of $130 (the "Purchase
Price").
On May 6, 1992, the Board of Directors of the Company declared a two-
for-one stock split in the form of a dividend distribution of one share of
Common Stock for each outstanding share of Common Stock (the "First Common
Stock Dividend"). The First Common Stock Dividend was payable on June 1,
1992 to shareholders of record on May 19, 1992. After giving effect to
receipt of the First Common Stock Dividend, each holder of a Right was deemed
to be the holder of (i) one-half of a Right in respect of the share of Common
Stock pursuant to which such Right originally had been issued and (ii) one-
half of a Right in respect of the share of Common Stock received by such
holder pursuant to the First Common Stock Dividend.
On August 6, 1997, the Board of Directors of the Company declared a
three-for-two stock split in the form of a dividend distribution of one share
of Common Stock for every two outstanding shares of Common Stock (the "Second
Common Stock Dividend"). The Second Common Stock Dividend will be payable on
September 2, 1997 to shareholders of record on August 19, 1997. After giving
effect to receipt of the Second Common Stock Dividend, each holder of a Right
will be deemed to be the holder of (i) one-third of a Right in respect of the
share of Common Stock pursuant to which such Right originally had been
issued, (ii) one-third of a Right in respect of the share of Common Stock
received by such holder pursuant to the First Common Stock Dividend and (iii)
one-third of a Right in respect of the share of Common Stock received by such
holder pursuant to the Second Common Stock Dividend.
Until the close of business on the Distribution Date, which will occur
on the earlier to occur of (i) the tenth day following a public announcement
that a person or group of affiliated or associated persons (an "Acquiring
Person") other than the Company, any subsidiary of the Company or any
employee benefit plan or employee stock plan of the Company or of any
subsidiary of the Company (an "Exempt Person"), has acquired, or obtained the
right to acquire, beneficial ownership of 15% or more of the outstanding
Common Stock (the "Stock Acquisition Date"), (ii) the declaration by the
Board of Directors that any Person is an Adverse Person or (iii) the tenth
day after the date of the commencement of, or the first public announcement
of the intent of any person (other than an Exempt Person) to commence, a
tender offer or exchange offer (other than a tender or exchange offer by an
Exempt Person) which would result in the ownership of 15% or more of the
outstanding Common Stock (the earlier of such dates being called the
"Distribution Date"), the Rights will be represented by and transferred with,
and only with, the Common Stock. Until the Distribution Date, new
certificates issued for Common Stock after December 22, 1988 contain a legend
incorporating the Rights Agreement by reference, and the surrender for
<PAGE>
transfer of any of the Company's Common Stock certificates constitute the
transfer of the Rights associated with the Common Stock represented by such
certificates. As soon as practicable following the Distribution Date,
separate Right Certificates will be mailed to holders of record of the Common
Stock at the close of business on the Distribution Date, and thereafter the
separate certificates alone will evidence the Rights.
The Rights are not exercisable until the Distribution Date. The Rights
will expire at the close of business on December 22, 1998, unless earlier
redeemed by the Company as described below.
The Series A Preference Stock will be nonredeemable and, unless
otherwise provided in connection with the creation of a subsequent series of
Preference Stock, subordinate to any other series of Preference Stock. The
Series A Preference Stock will, however, rank prior to the Common Stock. The
Series A Preference Stock may not be issued except upon exercise of Rights.
Each share of Series A Preference Stock will be entitled to receive when, as
and if declared, a quarterly dividend in an amount per share equal to 100
times the cash dividends declared on the Company's Common Stock. In addition,
the Series A Preference Stock is entitled to 100 times any non-cash dividends
(other than dividends payable in equity securities) declared on the Common
Stock, in like kind. In the event of a default on such dividends, the holders
of the Series A Preference Stock (together with the holders of any other
Preference Stock similarly entitled) will be entitled to elect two directors.
In the event of liquidation, the holders of Series A Preference Stock will be
entitled to receive a liquidation payment in an amount equal to 100 times the
payment made per share of Common Stock. Each share of Series A Preference
Stock will have 100 votes, voting together with the Common Stock and not as a
separate class unless otherwise required by law or the Certificate of
Incorporation. In the event of any merger, consolidation or other transaction
in which common shares are exchanged, each share of Series A Preference Stock
will be entitled to receive 100 times the amount received per share of Common
Stock. The rights of the Series A Preference Stock as to dividends,
liquidation and voting are protected by antidilution provisions.
The Purchase Price payable, and the number of shares of Series A
Preference Stock or other securities or property issuable upon exercise of
the Rights, are subject to adjustment from time to time to prevent dilution
(i) in the event of a stock dividend on, or a subdivision, combination or
reclassification of the Series A Preference Stock, (ii) upon the grant to
holders of the Series A Preference Stock of certain rights or warrants to
subscribe for Series A Preference Stock or convertible securities at less
than the current market price of the Series A Preference Stock or (iii) upon
the distribution to holders of the Series A Preference Stock of evidences of
indebtedness or assets (excluding regular cash dividends and dividends
payable in Series A Preference Stock) or of subscription rights or warrants
(other than those referred to above).
If (i) any Person (other than an Exempt Person) becomes the beneficial
owner of 15% or more of the then outstanding shares of Common Stock, (ii) the
Board of Directors of the Company, by majority vote, shall declare any Person
to be an Adverse Person, (iii) any Acquiring Person, Adverse Person or any
affiliates or associates thereof engages in one or more "self-dealing"
<PAGE>
transactions as described in the Rights Agreement, then each holder of a
Right, other than the Acquiring Person or Adverse Person, will have the right
to receive in lieu of Series A Preference Stock, upon payment of the Purchase
Price, a number of shares of Common Stock having a market value equal to
twice the Purchase Price. This same right will be available to each holder of
record of a Right, other than the Acquiring Person or Adverse Person, if,
while there is an Acquiring Person or Adverse Person, there occurs any
reclassification of securities, any recapitalization of the Company, or any
merger or consolidation or other transaction involving the Company or any of
its subsidiaries which has the effect of increasing by more than 1% the
proportionate ownership interest of the Company or any of its subsidiaries
which is owned or controlled by the Acquiring Person or Adverse Person.
Alternatively, at any time after any person or group acquires 15% or more of
the Common Stock or the Board of Directors determines that a Person is an
Adverse Person, the Board of Directors of the Company may exchange one share
of the Common Stock (or an equivalent share of the Series A Preference Stock)
for each outstanding Right other than Rights held by an Acquiring Person or
Adverse Person, which become void. To the extent that insufficient shares of
Common Stock are available for the exercise in full of the Rights, holders of
Rights will receive upon exercise shares of Common Stock to the extent
available and then Series A Preference Stock, cash, property or other
securities of the Company (which may be accompanied by a reduction in the
Purchase Price), in proportions determined by the Company, so that the
aggregate value received is equal to twice the Purchase Price. Rights are not
exercisable following the occurrence of the events described in this
paragraph until the expiration of the period during which the Rights may be
redeemed as described below. Notwithstanding the foregoing, following the
occurrence of the events described in this paragraph, Rights that are (or,
under certain circumstances, Rights that were) beneficially owned by an
Acquiring Person or an Adverse Person will be void.
Unless the Rights are redeemed earlier, if, after the Stock Acquisition
Date or the declaration by the Board of Directors that a person is an Adverse
Person, the Company is acquired in a merger or other business combination (in
which any shares of the Common Stock are changed into or exchanged for other
securities or assets) or more than 50% of the assets or earning power of the
Company and its subsidiaries (taken as a whole) were to be sold or
transferred in one or a series of related transactions, the Rights Agreement
provides that proper provision shall be made so that each holder of record of
a Right will from and after that time have the right to receive, upon payment
of the Purchase Price, that number of shares of common stock of the acquiring
company which has a market value at the time of such transaction equal to two
times the Purchase Price.
Fractions of shares of Series A Preference Stock may, at the election of
the Company, be evidenced by depositary receipts. The Company may also issue
cash in lieu of fractional shares which are not integral multiples of one
one-hundredth of a share.
At any time until ten days following the Stock Acquisition Date or the
declaration by the Board of Directors that a person is an Adverse Person
(subject to extension by the Board of Directors), the Board of Directors
(with the concurrence of a majority of the Independent Directors) may cause
<PAGE>
the Company to redeem the Rights in whole, but not in part, at a price of
$0.01 per Right. Under certain circumstances set forth in the Rights
Agreement, the decision to redeem shall require the concurrence of a majority
of the Independent Continuing Directors. Immediately upon the action of the
Board of Directors of the Company authorizing redemption of the Rights, the
right to exercise the Rights will terminate, and the only right of the
holders of Rights will be to receive the Redemption Price without any
interest thereon. The term "Independent Directors" means any member of the
Board of Directors of the Company who is not an officer of the Company. The
term "Independent Continuing Directors" means any Independent Director who
was a member of the Board of Directors immediately prior to the time that any
Person shall become an Acquiring Person or Adverse Person, and any
Independent Director who becomes a member of the Board of Directors
subsequent to the time that any Person shall become an Acquiring Person or
Adverse Person if such Independent Director is recommended or nominated to
election on the Board of Directors by a majority of the Independent
Continuing Directors, but shall not include an Acquiring Person or Adverse
Person, or any representative of such Acquiring Person or Adverse Person.
Until the close of business on the tenth day following the Stock
Acquisition Date or the declaration by the Board of Directors that a person
is an Adverse Person, and thereafter for as long as the Rights are
redeemable, the Board of Directors (with the concurrence of a majority of the
Independent Directors) may cause the Company to amend the Rights in any
manner, including an amendment to extend the time period in which the Rights
may be redeemed, but no such amendment shall alter the redemption price, the
date of expiration of the Rights, or the number of one one-hundredths of a
share of Series A Preference Stock for which a Right is exercisable. At any
time when the Rights are not then redeemable, the Company (with the
concurrence of a majority of the Independent Continuing Directors) may amend
the Rights in any manner that does not adversely affect the interests of
holders of the Rights as such.
Until a Right is exercised, the holder, as such, will have no rights as
a shareholder of the Company, including, without limitation, the right to
vote or to receive dividends.
DESCRIPTION OF DEBT SECURITIES
The following description of Debt Securities sets forth certain general
terms and provisions of Debt Securities to which any Prospectus Supplement
may relate. The particular terms of the Debt Securities offered by any
Prospectus Supplement (the "Offered Debt Securities") and the extent, if any,
to which such general provisions do not apply to the Offered Debt Securities
will be described in the Prospectus Supplement relating to such Offered Debt
Securities.
The Company may issue Debt Securities either separately, or together
with, or upon the conversion of or in exchange for, other Securities. The
Debt Securities may be (i) senior unsecured obligations (the "Senior Debt
Securities") of the Company issued in one or more series under an Indenture
dated as of August 1, 1986, as supplemented (as so supplemented, the "Senior
Indenture") between the Company and The Bank of New York, as Trustee (the
<PAGE>
"Senior Trustee"), (ii) senior subordinated unsecured obligations (the
"Senior Subordinated Debt Securities") of the Company issued in one or more
series under an Indenture (the "Senior Subordinated Indenture") to be entered
into between the Company and a trustee to be named therein (the "Senior
Subordinated Trustee") or (iii) junior subordinated unsecured obligations
(the "Junior Subordinated Debt Securities") of the Company issued in one or
more series under an Indenture (the "Junior Subordinated Indenture") to be
entered into between the Company and a trustee to be named therein (the
"Junior Subordinated Trustee"). The Senior Indenture, the Senior Subordinated
Indenture and the Junior Subordinated Indenture are sometimes hereinafter
referred to, collectively, as the "Indentures, and, individually, as an
"Indenture"; and the Senior Trustee, Senior Subordinated Trustee and Junior
Subordinated Trustee are sometimes hereinafter referred to, collectively, as
the "Trustees" or individually, as a "Trustee."
The following summaries of certain provisions of the Indentures do not
purport to be complete and are subject to, and are qualified in their
entirety by reference to, all the provisions of each Indenture, including the
definitions therein of certain terms. Numerical references in parentheses
below are to sections in the applicable Indenture or Indentures. Whenever
particular sections or defined terms of an Indenture are referred to, such
sections or defined terms are incorporated herein by reference.
General
The Indentures do not limit the amount of Debt Securities which may be
issued thereunder and provide that Debt Securities may be issued thereunder
from time to time in one or more series up to the aggregate principal amount
which may be authorized from time to time by the Company. Except as described
below, the Indentures do not limit the amount of other indebtedness or
securities which may be issued by the Company.
Reference is made to the Prospectus Supplement relating to the
particular series of Offered Debt Securities offered thereby for the
following terms of such series of Offered Debt Securities: (1) the
designation, aggregate principal amount and authorized denominations of such
Offered Debt Securities; (2) the purchase price of such Offered Debt
Securities (expressed as a percentage of the principal amount thereof); (3)
the date or dates on which such Offered Debt Securities will mature; (4) the
rate or rates per annum, if any (which may be fixed or variable), at which
such Offered Debt Securities will bear interest or the method by which such
rate or rates will be determined; (5) the dates on which such interest will
be payable and the record dates for payment of interest, if any; (6) the coin
or currency in which payment of the principal of (and premium, if any) or
interest, if any, on such Offered Debt Securities will be payable; (7) the
terms of any mandatory or optional redemption (including any sinking fund) or
any obligation of the Company to repurchase Offered Debt Securities; (8)
whether such Offered Debt Securities are to be issued in whole or in part in
the form of one or more temporary or permanent global Debt Securities
("Global Notes") and, if so, the identity of the depositary, if any, for such
Global Note or Notes; (9) whether such Offered Debt Securities will be Senior
Debt Securities, Senior Subordinated Debt Securities or Junior Subordinated
Debt Securities; (10) the terms, if any, upon which such Debt Securities may
<PAGE>
be convertible into or exchangeable for other Securities; (11) in the case of
Corresponding Junior Subordinated Debt Securities, the form of Trust
Agreement and Guarantee Agreement and any other provisions relating to
deferral of interest, extension of maturity and any other covenants and
provisions applicable thereto; and (12) any other additional provisions or
specific terms which may be applicable to that series of Offered Debt
Securities.
Principal, premium, if any, and interest, if any, will be payable, and
the Debt Securities will be transferable or exchangeable, at the office or
agency of the Company maintained for such purposes in the Borough of
Manhattan, The City of New York, provided that payment of interest on any
Debt Securities may, at the option of the Company, be made by check mailed to
the registered holders. Interest, if any, will be payable on any interest
payment date to the persons in whose names the Debt Securities are registered
at the close of business on the record date with respect to such interest
payment date.
Unless otherwise indicated in the Prospectus Supplement relating
thereto, the Debt Securities will be issued only in fully registered form
without coupons in denominations of $1,000 or any integral multiple thereof.
No service charge will be made for any registration of, transfer or exchange
of the Debt Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge payable in
connection therewith.
Some or all of the Debt Securities may be issued as discounted Debt
Securities (bearing no interest or interest at a rate which at the time of
issuance is below market rates) to be sold at a substantial discount below
their stated principal amount. Federal income tax consequences and other
special considerations applicable to any such discounted Debt Securities will
be described in the Prospectus Supplement relating thereto.
Ranking of Debt Securities
The Senior Debt Securities will be unsecured unsubordinated obligations
of the Company and will rank on a parity in right of payment with all other
unsecured and unsubordinated indebtedness of the Company. The Senior
Subordinated Debt Securities will be unsecured senior subordinated
obligations of the Company and will be subordinated in right of payment to
all existing and future Senior Indebtedness (as defined in the supplemental
indenture and the applicable Prospectus Supplement) of the Company, including
the Senior Debt Securities. The Junior Subordinated Debt Securities will be
unsecured junior subordinated obligations of the Company and will be
subordinated in right of payment to all existing and future Senior
Indebtedness (as defined in the applicable Prospectus Supplement) of the
Company, including the Senior Debt Securities and the Senior Subordinated
Debt Securities). See "--Subordination of Senior Subordinated and Junior
Subordinated Debt Securities."
<PAGE>
Conversion and Exchange
The terms, if any, on which Debt Securities of any series are
convertible into or exchangeable for Common Stock, Preference Stock or other
Debt Securities will be set forth in the applicable Prospectus Supplement.
Such terms may include provisions for conversion or exchange, either
mandatory, at the option of the holders or at the option of the Company.
Global Notes
The Debt Securities of a series may be issued in whole or in part in the
form of one or more Global Notes that will be deposited with or on behalf of
a depositary located in the United States (a "U.S. Depositary") identified in
the Prospectus Supplement relating to such series.
The specific terms of the depositary arrangement with respect to any
Debt Securities of a series will be described in the Prospectus Supplement
relating to such series. The Company anticipates that the following
provisions will apply to all depositary arrangements.
Unless otherwise specified in an applicable Prospectus Supplement, Debt
Securities which are to be represented by a Global Note to be deposited with
or on behalf of a U.S. Depositary will be represented by a Global Note
registered in the name of such depositary or its nominee. Upon the issuance
of a Global Note in registered form, the U.S. Depositary for such Global Note
will credit, on its book-entry registration and transfer system, the
respective principal amounts of the Debt Securities represented by such
Global Note to the accounts of institutions that have accounts with such
depositary or its nominee ("participants"). The accounts to be credited shall
be designated by the underwriters or agents of such Debt Securities or by the
Company, if such Debt Securities are offered and sold directly by the
Company. Ownership of beneficial interests in such Global Notes will be
limited to participants or persons that may hold interests through
participants. Ownership of beneficial interests by participants in such
Global Notes will be shown on, and the transfer of that ownership interest
will be effected only through, records maintained by the U.S. Depositary or
its nominee for such Global Notes. Ownership of beneficial interests in
Global Notes by persons that hold such beneficial interests through
participants will be shown on, and the transfer of that ownership interest
within such participant will be effected only through, records maintained by
such participant. The laws of some jurisdictions require that certain
purchasers of securities take physical delivery of such securities in
definitive form. Such limits and such laws may impair the ability to transfer
beneficial interests in a Global Note.
So long as the U.S. Depositary for a Global Note in registered form, or
its nominee, is the registered owner of such Global Note, such depositary or
such nominee, as the case may be, will be considered the sole owner or holder
of the Debt Securities represented by such Global Note for all purposes under
the applicable Indenture governing such Debt Securities. Except as set forth
below, owners of beneficial interests in such Global Notes will not be
entitled to have Debt Securities of the series represented by such Global
Notes registered in their names, will not receive or be entitled to receive
<PAGE>
physical delivery of Debt Securities of such series in definitive form and
will not be considered the owners or holders thereof under the applicable
Indenture.
Payment of principal of, premium, if any, and any interest on Debt
Securities registered in the name of or held by a U.S. Depositary or its
nominee will be made to the U.S. Depositary or its nominee, as the case may
be, as the registered owner or the holder of the Global Note representing
such Debt Securities. None of the Company, the Trustee, any Paying Agent or
the Security Registrar for such Debt Securities will have any responsibility
or liability for any aspect of the records relating to or payments made on
account of beneficial ownership interests in a Global Note for such Debt
Securities or for maintaining, supervising or reviewing any records relating
to such beneficial ownership interests.
The Company expects that the U.S. Depositary for Debt Securities of a
series, upon receipt of any payment of principal, premium or interest in
respect of a permanent Global Note, will credit immediately participants'
accounts with payments in amounts proportionate to their respective
beneficial interests in the principal amount of such Global Note as shown on
the records of such depositary. The Company also expects that payments by
participants to owners of beneficial interests in such Global Note held
through such participants will be governed by standing instructions and
customary practices, as is now the case with securities held for the accounts
of customers in bearer form or registered in "street name", and will be the
responsibility of such participants.
A Global Note may not be transferred except as a whole by the U.S.
Depositary for such Global Note to a nominee of such depositary or by a
nominee of such depositary to such depositary or another nominee of such
depositary or by such depositary or any such nominee to a successor of such
depositary or a nominee of such successor. If a U.S. Depositary for Debt
Securities of a series is at any time unwilling or unable to continue as a
depositary and a successor depositary is not appointed by the Company within
ninety days, the Company will issue Debt Securities in definitive registered
form in exchange for the Global Note or Notes representing such Debt
Securities. In addition, the Company may at any time and in its sole
discretion determine not to have any Debt Securities in registered form
represented by one or more Global Notes and, in such event, will issue Debt
Securities in definitive form in exchange for the Global Note or Notes
representing such Debt Securities. In any such instance, an owner of a
beneficial interest in a Global Note will be entitled to physical delivery in
definitive form of Debt Securities of the series represented by such Global
Note equal in principal amount to such beneficial interest and to have such
Debt Securities registered in its name.
Certain Covenants of the Company
Senior Debt Securities. The Senior Debt Securities will include the
following covenants:
Limitation on Liens. Unless otherwise indicated in the Prospectus
Supplement relating to a series of Senior Debt Securities, the Company will
<PAGE>
not, and will not permit any Restricted Subsidiary to, create, assume or
guarantee any indebtedness for money borrowed, secured by any mortgage, lien,
pledge, charge or other security interest or encumbrance (hereinafter
referred to as a "Mortgage" or "Mortgages") on any Principal Property of the
Company or a Restricted Subsidiary or on any shares or Funded Indebtedness of
a Restricted Subsidiary (whether such Principal Property, shares or Funded
Indebtedness are now owned or hereafter acquired) without, in any such case,
effectively providing concurrently with the creation, assumption or
guaranteeing of such indebtedness that the Senior Debt Securities (together,
if the Company shall so determine, with any other indebtedness then or
thereafter existing, created, assumed or guaranteed by the Company or such
Restricted Subsidiary ranking equally with the Senior Debt Securities) shall
be secured equally and ratably with or prior to such indebtedness. The Senior
Indenture excludes, however, from the foregoing any indebtedness secured by a
Mortgage (including any extension, renewal or replacement of any Mortgage
hereinafter specified or any indebtedness secured thereby, without increase
of the principal of such indebtedness) (i) on property, shares or Funded
Indebtedness of any corporation existing at the time such corporation becomes
a Restricted Subsidiary; (ii) on property existing at the time of acquisition
of such property, or to secure indebtedness incurred for the purpose of
financing the purchase price of such property or improvements or construction
thereon which indebtedness is incurred prior to or within 180 days after the
later of such acquisition, completion of such construction or the
commencement of commercial operation of such property; (iii) on property,
shares or Funded Indebtedness of a corporation existing at the time such
corporation is merged into or consolidated with the Company or a Restricted
Subsidiary, or at the time of a sale, lease or other disposition of the
properties of a corporation as an entirety or substantially as an entirety to
the Company or a Restricted Subsidiary; (iv) on property of a Restricted
Subsidiary to secure indebtedness of such Restricted Subsidiary to the
Company or another Restricted Subsidiary; (v) on property of the Company or a
Restricted Subsidiary in favor of the United States of America or any State
thereof, or any department, agency or instrumentality or political
subdivision of the United States of America or any State thereof, to secure
partial, progress, advance or other payments pursuant to any contract or
statute or to secure any indebtedness incurred for the purpose of financing
all or any part of the purchase price or the cost of constructing or
improving the property subject to such Mortgage; or (vi) existing at the date
of the Senior Indenture; provided, however, that any Mortgage permitted by
any of the foregoing clauses (i), (ii), (iii) and (v) shall not extend to or
cover any property of the Company or such Restricted Subsidiary, as the case
may be, other than the property specified in such clauses and improvements
thereto. See also "Exempted Indebtedness" below.
Limitation on Sale and Leaseback Transactions. Unless otherwise
indicated in the Prospectus Supplement relating to a series of Senior Debt
Securities, sale and leaseback transactions (which are defined in the Senior
Indenture to exclude leases expiring within three years of making, leases
between the Company and a Restricted Subsidiary or between Restricted
Subsidiaries and any lease of part of a Principal Property, which has been
sold, for use in connection with the winding up or termination of the
business conducted on such Principal Property) by the Company or any
Restricted Subsidiary of any Principal Property are prohibited, unless (a)
<PAGE>
the Company would be entitled to incur indebtedness secured by a Mortgage on
such Principal Property (see "Limitations on Liens" above) or (b) an amount
equal to the fair value of the Principal Property so leased (as determined by
the Board of Directors of the Company) is applied within 180 days to the
retirement (otherwise than by payment at maturity or pursuant to mandatory
sinking funds) of Senior Debt Securities or Funded Indebtedness of the
Company or any Restricted Subsidiary on a parity with the Senior Debt
Securities or to purchase, improve or construct Principal Properties. See
also "Exempted Indebtedness" below.
Exempted Indebtedness. Notwithstanding the limitations on Mortgages and
sale and leaseback transactions described above, the Company or any
Restricted Subsidiary may, in addition to amounts permitted under such
restrictions, create, assume or guarantee secured indebtedness or enter into
sale and leaseback transactions which would otherwise be prohibited, provided
that at the time of such event, and after giving effect thereto, the sum of
such outstanding secured indebtedness plus the Attributable Debt in respect
of such sale and leaseback transactions (other than sale and leaseback
transactions entered into prior to the date of the Senior Indenture and sale
and leaseback transactions whose proceeds have been applied in accordance
with clause (b) under "Limitation on Sale and Leaseback Transactions") does
not exceed 5% of the shareholders' equity in the Company and its consolidated
Subsidiaries. "Attributable Debt" means, as of any particular time, the then
present value of the total net amount of rent required to be paid under such
leases during the remaining terms thereof (excluding any renewal term unless
the renewal is at the option of the lessor), discounted at the actual
interest factor included in such rent, or, if such interest factor is not
readily determinable, then at the rate of 8-3/8% per annum.
Restrictions Upon Merger and Sales of Assets. Upon any consolidation or
merger of the Company with or into any other corporation or any sale,
conveyance or lease of all or substantially all the property of the Company
to any other corporation, the corporation (if other than the Company) formed
by such consolidation, or into which the Company shall have been merged, or
the corporation which shall have acquired or leased such property (which
corporation shall be a solvent corporation organized under the laws of the
United States of America or a State thereof or the District of Columbia)
shall expressly assume the due and punctual payment of the principal of and
premium, if any, and interest, if any, on all of the Senior Debt Securities.
The Company will not so consolidate or merge, or make any such sale, lease or
other disposition, and the Company will not permit any other corporation to
merge into the Company, unless immediately after giving effect thereto, the
Company or such successor corporation, as the case may be, will not be in
default under the Senior Indenture. If, upon any such consolidation, merger,
sale, conveyance or lease, or upon any consolidation or merger of any
Restricted Subsidiary, or upon the sale, conveyance or lease of all or
substantially all the property of any Restricted Subsidiary to any other
corporation, any Principal Property or any shares or Funded Indebtedness of
any Restricted Subsidiary would become subject to any Mortgage, the Company
will secure the due and punctual payment of the principal of, premium, if
any, and interest, if any, on the Senior Debt Securities (together with, if
the Company shall so determine, any other indebtedness of or guarantee by the
Company or such Restricted Subsidiary ranking equally with the Senior Debt
<PAGE>
Securities) by a Mortgage, the lien of which will rank prior to the lien of
such Mortgage of such other corporation on all assets owned by the Company or
such Restricted Subsidiary.
Certain Definitions. The term "Principal Property" means any
manufacturing plant or other manufacturing facility of the Company or any
Restricted Subsidiary, which plant or facility is located within the United
States of America, except any such plant or facility which the Board of
Directors by resolution declares is not of material importance to the total
business conducted by the Company and its Restricted Subsidiaries. The term
"Funded Indebtedness" means indebtedness created, assumed or guaranteed by a
person for money borrowed which matures by its terms, or is renewable by the
borrower to a date, more than one year after the date of its original
creation, assumption or guarantee. The term "Restricted Subsidiary" means any
Subsidiary which owns a Principal Property excluding, however, any
corporation the greater part of the operating assets of which are located or
the principal business of which is carried on outside the United States of
America. The term "Subsidiary" means any corporation of which at least a
majority of the outstanding stock having voting power under ordinary
circumstances to elect a majority of the board of directors of said
corporation shall at the time be owned by the Company or by the Company and
one or more Subsidiaries or by one or more Subsidiaries.
Senior Subordinated Debt Securities. The Senior Subordinated Debt
Securities will include those covenants which may be set forth in the
Prospectus Supplement to which such Debt Securities relate, including the
following:
Restrictions Upon Merger and Sales of Assets. Upon any consolidation or
merger of the Company with or into any other corporation or any sale,
conveyance or lease of all or substantially all the property of the Company
to any other corporation, the corporation (if other than the Company) formed
by such consolidation, or into which the Company shall have been merged, or
the corporation which shall have acquired or leased such property (which
corporation shall be a solvent corporation organized under the laws of the
United States of America or a State thereof or the District of Columbia)
shall expressly assume the due and punctual payment of the principal of and
premium, if any, and interest, if any, on all of the Senior Subordinated Debt
Securities. The Company will not so consolidate or merge, or make any such
sale, lease or other disposition, and the Company will not permit any other
corporation to merge into the Company, unless immediately after giving effect
thereto, the Company or such successor corporation, as the case may be, will
not be in default under the Senior Subordinated Indenture.
Anti-Layering Restriction. The Senior Subordinated Debt Securities will
also include a covenant prohibiting the Company from incurring indebtedness
which is subordinated to any other indebtedness of the Company unless such
indebtedness is made (i) pari passu in right of payment to such Senior
Subordinated Debt Securities or (ii) subordinate in right of payment to such
Senior Subordinated Debt Securities.
Junior Subordinated Debt Securities. The Junior Subordinated Debt
Securities will include those covenants which may be set forth in the
<PAGE>
Prospectus Supplement to which such Debt Securities relate, including the
following:
Restrictions Upon Merger and Sales of Assets. Upon any consolidation or
merger of the Company with or into any other corporation or any sale,
conveyance or lease of all or substantially all the property of the Company
to any other corporation, the corporation (if other than the Company) formed
by such consolidation, or into which the Company shall have been merged, or
the corporation which shall have acquired or leased such property (which
corporation shall be a solvent corporation organized under the laws of the
United States of America or a State thereof or the District of Columbia)
shall expressly assume the due and punctual payment of the principal of and
premium, if any, and interest, if any, on all of the Junior Subordinated Debt
Securities. The Company will not so consolidate or merge, or make any such
sale, lease or other disposition, and the Company will not permit any other
corporation to merge into the Company, unless immediately after giving effect
thereto, the Company or such successor corporation, as the case may be, will
not be in default under the Junior Subordinated Indenture. In the case of
Corresponding Junior Subordinated Debt Securities, any such transaction must
also be permitted under the related Trust Agreement and Guarantee and must
not give rise to any breach or violation of the related Trust Agreement and
Guarantee.
In addition, in the event Corresponding Junior Subordinated Debt
Securities are issued to an Ingersoll-Rand Trust or a trustee of such Trust
in connection with the issuance of Trust Securities by such Ingersoll-Rand
Trust, such Corresponding Junior Subordinated Debt Securities subsequently
may be distributed pro rata to the holders of such Trust Securities in
connection with the dissolution of such Ingersoll-Rand Trust upon the
occurrence of certain events described in the Prospectus Supplement relating
to such Trust Securities. Only one series of Corresponding Junior
Subordinated Debt Securities will be issued to an Ingersoll-Rand Trust or a
trustee of such Trust in connection with the issuance of Trust Securities by
such Ingersoll-Rand Trust.
Unless otherwise provided in the applicable Prospectus Supplement, if
Corresponding Junior Subordinated Debt Securities are issued to an Ingersoll-
Rand Trust or a trustee of such Trust in connection with the issuance of
Trust Securities by such Ingersoll-Rand Trust and (i) there shall have
occurred an event that would constitute an Event of Default, (ii) the Company
shall be in default with respect to its payment of any obligations under the
related Trust Preferred Guarantee or Trust Common Guarantee or (iii) the
Company shall have given notice of its election to defer payments of interest
on such Corresponding Junior Subordinated Debt Securities by extending the
interest payment period as provided in the Indenture and such period, or any
extension thereof, shall be continuing, then (a) the Company shall not
declare or pay any dividend on, make any distribution with respect to, or
redeem, purchase or make a liquidation payment with respect to, any of its
capital stock, and (b) the Company shall not make any payment of interest,
principal or premium, if any, on or repay, repurchase or redeem any debt
securities which rank pari passu with or junior to such Corresponding Junior
Subordinated Debt Securities; provided that the foregoing restriction does
not apply to any stock dividends paid by the Company where the dividend stock
<PAGE>
is of the same class as that of the stock held by the holders receiving the
dividend.
If provided in the applicable Prospectus Supplement, the Company will
have the right at any time and from time to time during the term of any
series of Corresponding Junior Subordinated Debt Securities to defer payment
of interest for up to such number of consecutive interest payment periods as
may be specified in the applicable Prospectus Supplement (each, an "Extension
Period"), subject to the terms, conditions and covenants, if any, specified
in such Prospectus Supplement, provided that such Extension Period may not
extend beyond the Stated Maturity of such series of Corresponding Junior
Subordinated Debt Securities. Certain United States federal income tax
consequences and special considerations applicable to any such Corresponding
Junior Subordinated Debt Securities will be described in the applicable
Prospectus Supplement.
In the Junior Subordinated Indenture, the Company, as borrower, will
agree to pay to each Trust all debts and other obligations (other than with
respect to the Trust Securities) and all costs and expenses of such Trust
(including costs and expenses relating to the organization of such Trust, the
fees and expenses of the related Ingersoll-Rand Trustees and the costs and
expenses relating to the operation of such Trust) and the offering of the
Trust Preferred Securities, and to pay any and all taxes, duties, assessments
or other similar governmental charges (other than United States withholding
taxes), and all costs and expenses with respect to the foregoing, to which
such Trust might become subject.
Events of Default
As to each series of Debt Securities, an Event of Default is defined in
each Indenture as being: default in payment of any interest or any sinking
fund payment on such series which continues for 30 days (subject to the
deferral of any interest payment in the case of an Extension Period in the
case of the Junior Subordinated Indenture); default in payment of any
principal or premium, if any, on such series; default after written notice in
performance of any other covenant in such Indenture (other than a covenant
included solely for the benefit of Debt Securities of another series) which
continues for 90 days; certain events in bankruptcy, insolvency or
reorganization; or other Events of Default specified in or pursuant to a
Board Resolution or in a supplemental indenture. Each Indenture provides that
the Trustee may withhold notice to the holders of Debt Securities of such
series of any default (except in payment of principal, interest, if any, or
premium, if any, on such series or in payment of any sinking fund installment
on such series) if the Trustee considers it in the interest of such holders
to do so.
In case an Event of Default shall occur and be continuing with respect
to the Debt Securities of any series, the Trustee or the holders of not less
than 25% in aggregate principal amount of the Debt Securities then
outstanding of that series may declare the principal of the Debt Securities
of such series (or, if the Debt Securities of that series were issued as
discounted Debt Securities, such portion of the principal as may be specified
in the terms of that series) to be due and payable and, in the case of
<PAGE>
Corresponding Junior Subordinated Debt Securities, should the Trustee or the
holders of such Corresponding Junior Subordinated Debt Securities fail to
make such declaration, the holders of at least 25% in aggregate liquidation
amount of the Related Trust Preferred Securities shall have such right. Any
Event of Default with respect to the Debt Securities of any series (except
defaults in payment of principal or premium, if any, or interest, if any, on
the Debt Securities of such series) may be waived by the holders of a
majority in aggregate principal amount of the Debt Securities of that series
then outstanding. In the case of Corresponding Junior Subordinated Debt
Securities of a series, should the holders of such Corresponding Junior
Subordinated Debt Securities fail to annul a declaration or waive such
default, the holders of a majority in aggregate liquidation amount of the
series of Related Trust Preferred Securities affected shall have such right.
Subject to the provisions of each Indenture relating to the duties of
the Trustee in case an Event of Default shall occur and be continuing, the
Trustee is under no obligation to exercise any of the rights or powers under
such Indenture at the request, order or direction of any of the holders of
Debt Securities, unless such holders shall have offered to the Trustee
reasonable security or indemnity. Subject to such provisions for the
indemnification of the Trustee and certain limitations contained in each
Indenture, the holders of a majority in principal amount of the Debt
Securities of any series then outstanding shall have the right to direct the
time, method and place of conducting any proceeding for any remedy available
to the Trustee, or exercising any trust or power conferred on the Trustee,
with respect to the Debt Securities of such series. In case an Event of
Default shall occur and be continuing as to a series of Corresponding Junior
Subordinated Debt Securities, the Property Trustee will have the right to
declare the principal of and the interest on such Corresponding Junior
Subordinated Debt Securities, and any other amounts payable under the Junior
Subordinated Indenture, to be forthwith due and payable and to enforce its
other rights as a creditor with respect to such Corresponding Junior
Subordinated Debt Securities. The Company is required annually to deliver to
the Trustee an officers' certificate stating whether or not the signers have
knowledge of any default in performance by the Company of the covenants
described above.
If an Event of Default with respect to a series of Corresponding Junior
Subordinated Debt Securities has occurred and is continuing and such event is
attributable to the failure of the Company to pay interest, premium (if any)
or principal on such Corresponding Junior Subordinated Debt Securities on the
date such interest, premium (if any) on principal is due and payable, a
holder of Related Trust Preferred Securities may institute a legal proceeding
directly against the Company for enforcement of payment to such holder of the
principal of or interest or premium (if any) on such Corresponding Junior
Subordinated Debt Securities having a principal amount equal to the aggregate
liquidation amount of the Related Trust Preferred Securities of such holder
(a "Direct Action"). The Company may not amend the Junior Subordinated
Indenture to remove the foregoing right to bring a Direct Action without the
prior written consent of the holders of all of the Trust Preferred Securities
outstanding. If the right to bring a Direct Action is removed, the applicable
Trust may become subject to the reporting obligations under the Exchange Act.
The Company shall have the right under the Junior Subordinated Indenture to
<PAGE>
set-off any payment made to such holder of Trust Preferred Securities by the
Company in connection with a Direct Action.
The holders of the Trust Preferred Securities will not be able to
exercise directly any remedies other than those set forth in the preceding
paragraph available to the holders of the Corresponding Junior Subordinated
Debt Securities unless there shall have been an event of default under the
Trust Agreement.
Defeasance
Each Indenture provides that the Company, at its option, (a) will be
discharged from any and all obligations with respect to any series of Debt
Securities (except for certain obligations which include registering the
transfer or exchange of the Debt Securities, replacing stolen, lost or
mutilated Debt Securities, maintaining payment agencies and holding monies
for payment in trust) or (b) need not comply with certain restrictive
covenants of such Indenture as to any series of Debt Securities (in the case
of Senior Debt Securities as described above under "Certain Covenants of the
Company--Limitation on Liens", "Limitation on Sale and Leaseback
Transactions" and the last sentence of "Restrictions Upon Merger and Sales of
Assets"), in each case upon the deposit with the Trustee (and in the case of
a discharge 91 days after such deposit), in trust, of money, or U.S.
Government Obligations, or a combination thereof, which, through the payment
of interest thereon and principal thereof in accordance with their terms,
will provide money, in an amount sufficient to pay all the principal
(including any mandatory sinking fund payments, if any) of, and interest, if
any, or premium, if any, on the Debt Securities of such series on the dates
such payments are due in accordance with the terms of such Debt Securities to
their stated maturities or to and including a redemption date which has been
irrevocably designated by the Company for redemption of such Debt Securities.
To exercise any such option, the Company is required to meet certain
conditions, including delivering to the Trustee an opinion of counsel to the
effect that the deposit and related defeasance would not cause the holders of
the Debt Securities to recognize income, gain or loss for Federal income tax
purposes and, in the case of a discharge pursuant to clause (a), accompanied
by a ruling of the United States Internal Revenue Service (the "IRS") to such
effect or an opinion of counsel to such effect based upon a ruling of the
IRS.
Modification of the Indentures
Each Indenture contains provisions permitting the Company and the
Trustee, with the consent of the holders of not less than 66-2/3% in
principal amount of the outstanding Debt Securities of all series affected by
such modification (voting as one class), to modify such Indenture or the
rights of the holders of the Debt Securities, except that no such
modification shall, without the consent of the holder of each Debt Security
so affected, (i) change the maturity of any Debt Security, or reduce the rate
or extend the time of payment of interest thereon, or reduce the principal
amount thereof (including, in the case of a discounted Debt Security, the
amount payable thereon in the event of acceleration) or any redemption
<PAGE>
premium thereon, or change the place or medium of payment of such Debt
Security, or impair the right of any holder to institute suit for payment
thereof or (ii) reduce the percentage of Debt Securities, the consent of the
holders of which is required for any such modification or for certain waivers
under such Indenture, provided that, in the case of Corresponding Junior
Subordinated Debt Securities, so long as any Related Trust Preferred
Securities remain outstanding, (a) no such modification may be made that
adversely affects the holders of such Trust Preferred Securities in any
material respect, and no termination of the Junior Subordinated Indenture may
occur, and no waiver of any Event of Default or compliance with any covenant
under the Junior Subordinated Indenture may be effective, without the prior
consent of the holders of at least a majority of the aggregate liquidation
amount of all Related Trust Preferred Securities affected unless and until
the principal of the Corresponding Junior Subordinated Debt Securities and
all accrued and unpaid interest thereon have been paid in full and certain
other conditions have been satisfied, and (b) where a consent under the
Junior Subordinated Indenture would require the consent of each holder of
Corresponding Junior Subordinated Debt Securities, no such consent shall be
given by the Property Trustee without the prior consent of each holder of
Related Trust Preferred Securities.
Subordination of Senior Subordinated and Junior Subordinated Debt Securities
The payment of the principal of, premium, if any, and interest, if any,
on the Senior Subordinated Debt Securities and the Junior Subordinated Debt
Securities will be subordinated, to the extent and in the manner set forth in
the Senior Subordinated Indenture and Junior Subordinated Indenture,
respectively, and as may be further described in the applicable Prospectus
Supplement, in right of payment to the prior payment in full in cash or cash
equivalents of all Senior Indebtedness which may at any time and from time to
time be outstanding.
Unless otherwise provided in the applicable Prospectus Supplement with
respect to an issue of Senior Subordinated Debt Securities or Junior
Subordinated Debt Securities, in the event of any insolvency or bankruptcy
case or proceeding, or any receivership, liquidation, reorganization or other
similar case or proceeding in connection therewith, relating to the Company
or its assets, or any liquidation, dissolution or other winding-up of the
Company, whether voluntary or involuntary, or any assignment for the benefit
of creditors or other marshalling of assets or liabilities of the Company,
all Senior Indebtedness of the Company must be paid in full or such payment
must be provided for before any payment or distribution (excluding the
distribution of certain permitted equity or subordinated securities) is made
on account of the principal, premium, if any, sinking fund, if any, or
interest, if any, on any Senior Subordinated Debt Securities or Junior
Subordinated Debt Securities, as the case may be.
In addition, the applicable Prospectus Supplement may provide that no
payment on account of the Senior Subordinated Debt Securities or Junior
Subordinated Debt Securities offered thereby shall be made during the
continuance of certain defaults with respect to the Senior Indebtedness or
certain designated Senior Indebtedness of the Company.
<PAGE>
In the event that, notwithstanding the foregoing, any payment or
distribution of assets (excluding the distribution of certain permitted
equity or subordinated securities) of the Company is received by the Senior
Subordinated Trustee or the Junior Subordinated Trustee or the holders of any
of the Senior Subordinated Debt Securities or Junior Subordinated Debt
Securities, as the case may be, under the circumstances described above and
before all Senior Indebtedness is paid in full, such payment or distribution
will be paid over to the holders of such Senior Indebtedness or on their
behalf for application to the payment of all such Senior Indebtedness
remaining unpaid until all such Senior Indebtedness has been paid in full or
such payment provided for, after giving effect to any concurrent payment or
distribution to the holders of such Senior Indebtedness.
If the Company fails to make any payments on the Senior Subordinated
Debt Securities or the Junior Subordinated Debt Securities of any series when
due or within any applicable grace period, whether or not on account of any
payment blockage provisions that may be set forth in the applicable
Prospectus Supplement, such failure would constitute an Event of Default
under the relevant Indenture and would enable the holders of such Debt
Securities to accelerate the maturity thereof. See "--Events of Default."
By reason of such subordination, in the event of any distribution of
assets of the Company upon dissolution, winding up, liquidation,
reorganization or other similar proceedings of the Company, (i) holders of
Senior Indebtedness will be entitled to be paid in full before payments may
be made on the Senior Subordinated Debt Securities or the Junior Subordinated
Debt Securities and the holders of Senior Subordinated Debt Securities and
Junior Subordinated Debt Securities will be required to pay over their share
of such distribution to the holders of Senior Indebtedness until such Senior
Indebtedness is paid in full and (ii) creditors of the Company who are
neither holders of Senior Subordinated Debt Securities or Junior Subordinated
Debt Securities nor holders of Senior Indebtedness may recover less, ratably,
than holders of Senior Indebtedness and may recover more, ratably, than the
holders of the Senior Subordinated Debt Securities and Junior Subordinated
Debt Securities. Furthermore, such subordination may result in a reduction or
elimination of payments to the holders of Senior Subordinated Debt Securities
and Subordinated Debt Securities. The Senior Subordinated Indenture and
Junior Subordinated Indenture provide that the subordination provisions
thereof will not apply to any money and securities held in trust pursuant to
the discharge, defeasance and covenant defeasance provisions of such
Indenture (see "--Defeasance" above).
If this Prospectus is being delivered in connection with the offering of
a series of Senior Subordinated Debt Securities or Junior Subordinated Debt
Securities, the accompanying Prospectus Supplement or the information
incorporated by reference herein will set forth the definitions of Senior
Indebtedness and Designated Senior Indebtedness applicable thereto, any
payment blockage provisions and the approximate amount of such Senior
Indebtedness outstanding as of a recent date.
<PAGE>
Concerning the Trustee
The Company may from time to time maintain lines of credit and have
other customary banking relationships with each Trustee and its affiliated
banks.
Corresponding Junior Subordinated Debt Securities
The Corresponding Junior Subordinated Debt Securities may be issued in
one or more series of Junior Subordinated Debt Securities under the Junior
Subordinated Indenture with terms corresponding to the terms of a series of
Related Trust Preferred Securities. In that event, concurrently with the
issuance of the Related Trust Preferred Securities, such Trust will invest
the proceeds thereof and the consideration paid by the Company for the Trust
Common Securities of such Trust in such series of Corresponding Junior
Subordinated Debt Securities issued by the Company to such Trust. Each series
of Corresponding Junior Subordinated Debt Securities will be in the principal
amount equal to the aggregate stated liquidation amount of the Related Trust
Preferred Securities and the Trust Common Securities of such Trust and will
rank pari passu with all other series of Junior Subordinated Debt Securities.
Holders of the Related Trust Preferred Securities for a series of
Corresponding Junior Subordinated Debt Securities will have the rights, in
connection with modifications to the Junior Subordinated Indenture or upon
occurrence of Events of Default, as described above under "--Modification of
the Indentures" and "--Events of Default," unless provided otherwise in the
Prospectus Supplement for such Related Trust Preferred Securities.
The applicable Prospectus Supplement will also set forth the terms of
any redemption provisions applicable to the Corresponding Junior Subordinated
Debt Securities and any other provisions and covenants.
The Company will covenant, as to each series of Corresponding Junior
Subordinated Debt Securities, (i) to maintain directly or indirectly 100%
ownership of the Trust Common Securities of the Trust to which such
Corresponding Junior Subordinated Debt Securities have been issued, provided
that certain successors which are permitted pursuant to the Junior
Subordinated Indenture may succeed to the Company's ownership of the Trust
Common Securities, (ii) not to voluntarily terminate, wind up or liquidate
any Trust, except (a) in connection with a distribution of Corresponding
Junior Subordinated Debt Securities to the holders of the Trust Preferred
Securities in exchange therefor upon liquidation of such Trust, or (b) in
connection with certain mergers or consolidations permitted by the related
Trust Agreement and (iii) to use its reasonable efforts, consistent with the
terms and provisions of the related Trust Agreement, to cause such Trust to
remain classified as a grantor trust and not as an association taxable as a
corporation for United States federal income tax purposes.
<PAGE>
DESCRIPTION OF STOCK PURCHASE CONTRACTS AND STOCK PURCHASE UNITS
The Company may issue Stock Purchase Contracts, representing contracts
obligating holders to purchase from the Company, and the Company to sell to
the holders, a specified number of shares of Common Stock at a future date or
dates. The price per share of Common Stock may be fixed at the time the
Stock Purchase Contracts are issued or may be determined by reference to a
specific formula set forth in the Stock Purchase Contracts. The Stock
Purchase Contracts may be issued separately or as a part of Stock Purchase
Units consisting of a Stock Purchase Contract and Debt Securities or Trust
Preferred Securities or debt obligations of third parties, including U.S.
Treasury securities, securing the holders' obligations to purchase the Common
Stock under the Stock Purchase Contracts. The Stock Purchase Contracts may
require the Company to make periodic payments to the holders of the Stock
Purchase Units or vice-versa, and such payments may be unsecured or prefunded
on some basis. The Stock Purchase Contracts may require holders to secure
their obligations thereunder in a specified manner.
The applicable Prospectus Supplement will describe the terms of any
Stock Purchase Contracts or Stock Purchase Units.
DESCRIPTION OF TRUST PREFERRED SECURITIES
Each Ingersoll-Rand Trust may issue only one series of Trust Preferred
Securities having terms described in the Prospectus Supplement relating
thereto. The Trust Agreement of each Ingersoll-Rand Trust authorizes the
Regular Trustees of each Ingersoll-Rand Trust to issue on behalf of such
Ingersoll-Rand Trust one series of Trust Preferred Securities. The Trust
Agreement will be qualified as an indenture under the Trust Indenture Act.
The Trust Preferred Securities will have such terms, including distributions,
redemption, voting, liquidation rights and such other preferred, deferred or
other special rights or such restrictions, as shall be set forth in the Trust
Agreement or made part of the Trust Agreement by the Trust Indenture Act.
Reference is made to any Prospectus Supplement relating to the Trust
Preferred Securities for specific terms including (i) the distinctive
designation of such Trust Preferred Securities, (ii) the number of Trust
Preferred Securities issued, (iii) the annual distribution rate (or method of
determining such rate) for Trust Preferred Securities and the date or dates
upon which such distributions shall be payable, (iv) whether distributions on
Trust Preferred Securities shall be cumulative, and, in the case of Trust
Preferred Securities having such cumulative distribution rights, the date or
dates or method determining the date or dates from which distributions on
Trust Preferred Securities shall be cumulative, (v) the amount or amounts
which shall be paid out of the assets of such trust to the holders of Trust
Preferred Securities upon voluntary or involuntary dissolution, winding-up or
termination of such Ingersoll-Rand Trust, (vi) the obligation, if any, of
such Ingersoll-Rand Trust to purchase or redeem Trust Preferred Securities
and the price or prices at which, the period or periods within which and the
terms and conditions upon which Trust Preferred Securities issued by such
Ingersoll-Rand Trust shall be purchased or redeemed, in whole or in part,
pursuant to such obligation, (vii) the voting rights, if any, of Trust
<PAGE>
Preferred Securities issued by such Ingersoll-Rand Trust in addition to those
required by law, including the number of votes per Trust Preferred Security
and any requirement for the approval by the holders of Trust Preferred
Securities, or of Trust Preferred Securities issued by both Ingersoll-Rand
Trusts, as a condition to specified action or amendments to the Trust
Agreement of such Ingersoll-Rand Trust, (viii) whether the Trust Preferred
Securities will be issued in the form of one or more global securities and
(ix) any other relevant rights, preferences, privileges, limitations or
restrictions of Trust Preferred Securities issued by such Ingersoll-Rand
Trust consistent with the Trust Agreement of such Trust or with applicable
law. All Trust Preferred Securities offered hereby will be guaranteed by the
Company to the extent set forth below under "Description of Trust Preferred
Guarantees." Certain United States federal income tax consideration
applicable to any offering of Trust Preferred Securities will be described in
the Prospectus Supplement relating thereto.
In connection with the issuance of Trust Preferred Securities, each
Ingersoll-Rand Trust will issue one series of Trust Common Securities. The
Trust Agreement of each Ingersoll-Rand Trust authorizes the Regular Trustees
to issue on behalf of such Ingersoll-Rand Trust one series of Trust Common
Securities having such terms including distributions, redemption, voting,
liquidation rights or such restrictions as shall be set forth therein. The
terms of the Trust Common Securities issued by an Ingersoll-Rand Trust will
be substantially identical to the terms of the Trust Preferred Securities
issued by such trust and the Trust Common Securities will rank pari passu,
and payments will be made thereon pro rata, with the Trust Preferred
Securities except that, upon the occurrence and during the continuation of an
event of default under the Trust Agreement, the rights of the holders of the
Trust Common Securities to payment in respect of distributions and payments
upon liquidation, redemption and otherwise will be subordinated to the rights
of the holders of the Trust Preferred Securities. Except in certain limited
circumstances, the Trust Common Securities will also carry the right to vote
and to appoint, remove or replace any of the Ingersoll-Rand Trustees. All of
the Trust Common Securities will be directly or indirectly owned by the
Company.
DESCRIPTION OF TRUST PREFERRED GUARANTEES
Set forth below is a summary of information concerning the Trust
Preferred Guarantees that will be executed and delivered by the Company for
the benefit of the holders, from time to time, of Trust Preferred Securities.
Each Trust Preferred Guarantee Agreement under which Trust Preferred
Guarantees are issued will be qualified as an indenture under the Trust
Indenture Act. The trustee under each Trust Preferred Guarantee (the
"Guarantee Trustee") will be identified in the relevant Prospectus
Supplement, and will be a financial institution not affiliated with the
Company that has a combined capital and surplus of not less than $50,000,000.
The terms of each Trust Preferred Guarantee will be those set forth in such
Trust Preferred Guarantee and those made part of such Trust Preferred
Guarantee by the Trust Indenture Act. This summary does not purport to be
complete and makes use of certain terms defined in the Trust Preferred
Guarantee Agreement and is subject in all respects to the provisions of, and
<PAGE>
is qualified in its entirety by reference to, the form of Trust Preferred
Guarantee, which is filed as an exhibit to the Registration Statement of
which this Prospectus forms a part, and the Trust Indenture Act. Each Trust
Preferred Guarantee will be held by the Trust Preferred Guarantee Trustee for
the benefit of the holders of the Trust Preferred Securities of the
applicable Ingersoll-Rand Trust.
General
Pursuant to each Trust Preferred Guarantee, the Company will
unconditionally agree, to the extent set forth herein, to pay in full to the
holders of the Trust Preferred Securities issued by each Ingersoll-Rand
Trust, the Trust Preferred Guarantee Payments (as defined herein) (except to
the extent paid by such Ingersoll-Rand Trust), as and when due, regardless of
any defense, right of set-off or counterclaim which such Ingersoll-Rand Trust
may have or assert. The following payments with respect to Trust Preferred
Securities issued by each Ingersoll-Rand Trust (the "Trust Preferred
Guarantee Payments"), to the extent not paid by such Ingersoll-Rand Trust,
will be subject to the Trust Preferred Guarantee (without duplication): (i)
any accumulated and unpaid distributions that are required to be paid on such
Trust Preferred Securities, but if and only to the extent that in each case
the Company has made a payment to the related Property Trustee of interest,
principal and premium, if any, on the subordinated Debt Securities held in
such Ingersoll-Rand Trust as trust assets, (ii) the redemption price,
including all accrued and unpaid distributions (the "Redemption Price"), but
if and only to the extent that in each case the Company has made a payment to
the related Property Trustee of interest and principal on the subordinated
Debt Securities held in such Ingersoll-Rand Trust as trust assets with
respect to any Trust Preferred Securities called for redemption by such
Ingersoll-Rand Trust and (iii) upon a voluntary or involuntary dissolution,
winding-up or termination of such Ingersoll-Rand Trust (other than in
connection with the distribution of Corresponding Junior Subordinated Debt
Securities to the holders of Trust Preferred Securities or the redemption of
all of the Trust Preferred Securities), the lesser of (a) the aggregate of
the liquidation amount and all accrued and unpaid distributions on such Trust
Preferred Securities to the date of payment to the extent such Ingersoll-Rand
Trust has funds available therefor or (b) the amount of assets of such
Ingersoll-Rand Trust remaining available for distribution to holders of such
Trust Preferred Securities in liquidation of such Ingersoll-Rand Trust. The
Company's obligation to make a Trust Preferred Guarantee Payment may be
satisfied by direct payment of the required amounts by the Company to the
holders of Trust Preferred Securities or by causing the applicable Ingersoll-
Rand Trust to pay such amounts to such holders.
Each Trust Preferred Guarantee will be a guarantee with respect to the
Trust Preferred Securities issued by the applicable Ingersoll-Rand Trust from
the time of issuance of such Trust Preferred Securities but will not apply to
any payment of distributions except to the extent the Company has made a
payment to the related Property Trustee of interest or principal on the
subordinated Debt Securities held in such Ingersoll-Rand Trust as trust
assets. If the Company does not make interest payments on the Corresponding
Junior Subordinated Debt Securities purchased by an Ingersoll-Rand Trust,
<PAGE>
such Ingersoll-Rand Trust will not pay distributions on the Trust Preferred
Securities issued by such Ingersoll-Rand Trust and will not have funds
available therefor and such payment obligation will therefore not be
guaranteed by the Company under the Trust Preferred Guarantee. See
"Description of Trust Preferred Securities" and "Description of Debt
Securities--Certain Covenants of the Company."
The Company's obligations under the Trust Agreement for each Ingersoll-
Rand Trust, the Trust Preferred Guarantee issued with respect to Trust
Preferred Securities issued by that Ingersoll-Rand Trust, the Corresponding
Junior Subordinated Debt Securities purchased by that Ingersoll-Rand Trust
and the related Junior Subordinated Indenture in the aggregate will provide a
full and unconditional guarantee on a junior subordinated basis by the
Company of payments due on the Trust Preferred Securities issued by that
Ingersoll-Rand Trust.
The Company has also agreed to unconditionally guarantee the obligations
of the Ingersoll-Rand Trusts with respect to the Trust Common Securities (the
"Trust Common Guarantees") to the same extent as the Trust Preferred
Guarantees, except that, upon an event of default under the Subordinated
Indenture, holders of Trust Preferred Securities under the Trust Preferred
Guarantees shall have priority over holders of Trust Common Securities under
the Trust Common Guarantee with respect to distributions and payments on
liquidation, redemption or otherwise.
Certain Covenants of the Company
In each Trust Preferred Guarantee, the Company will covenant that, so
long as any Trust Preferred Securities issued by the applicable Ingersoll-
Rand Trust remain outstanding, if there shall have occurred any event that
would constitute an event of default under such Trust Preferred Guarantee or
the Declaration of such Ingersoll-Rand Trust, then (a) the Company shall not
declare or pay any dividend on, or make any distribution with respect to, or
redeem, purchase, acquire or make a liquidation payment with respect to, any
of its capital stock and (b) the Company shall not make any payment of
interest, principal or premium, if any, on or repay, repurchase or redeem any
debt securities issued by the Company which rank junior to such Corresponding
Junior Subordinated Debt Securities. However, each Trust Preferred Guarantee
will except from the foregoing any stock dividends paid by the Company, or
any of its subsidiaries, where the dividend stock is of the same class as
that on which the dividend is being paid.
Modification of the Trust Preferred Guarantees; Assignment
Except with respect to any changes that do not adversely affect the
rights of holders of Trust Preferred Securities in any material respect (in
which case no vote will be required), each Trust Preferred Guarantee may be
amended only with the prior approval of the holders of not less than a
majority in liquidation amount of the outstanding Trust Preferred Securities
issued by the applicable Ingersoll-Rand Trust. The manner of obtaining any
such approval of holders of such Trust Preferred Securities will be set forth
in an accompanying Prospectus Supplement. All guarantees and agreements
<PAGE>
contained in a Trust Preferred Guarantee shall bind the successor, assignees,
receivers, trustees and representatives of the Company and shall inure to the
benefit of the holders of the Trust Preferred Securities of the applicable
Ingersoll-Rand Trust then outstanding.
Events of Default
An Event of Default under the Trust Preferred Guarantee will occur upon
the failure of the Company to perform any of its payments or other
obligations thereunder. The holders of a majority in liquidation amount of
the Trust Preferred Securities to which a Trust Preferred Guarantee relates
have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Trust Preferred Guarantee Trustee
in respect of the Trust Preferred Guarantee or to direct the exercise of any
trust or power conferred upon the Trust Preferred Guarantee Trustee under the
Trust Preferred Guarantee.
If the Trust Preferred Guarantee Trustee fails to enforce such Trust
Preferred Guarantee, any holder of Trust Preferred Securities relating to
such Trust Preferred Guarantee may, after a period of 30 days has elapsed
from such holder's written request to the Trust Preferred Guarantee Trustee
to enforce the Trust Preferred Guarantee, institute a legal proceeding
directly against the Company to enforce the Trust Preferred Guarantee
Trustee's rights under such Trust Preferred Guarantee without first
instituting a legal proceeding against the relevant Ingersoll-Rand Trust, the
Trust Preferred Guarantee Trustee or any other person or entity.
The Company will be required to provide annually to the Trust Preferred
Guarantee Trustee a statement as to the performance by the Company of certain
of its obligations under each of the Trust Preferred Guarantees and as to any
default in such performance and an officer's certificate as to the Company's
compliance with all conditions under each of the Trust Preferred Guarantees.
Termination of Trust Preferred Guarantees
Each Trust Preferred Guarantee will terminate as to the Trust Preferred
Securities issued by the applicable Ingersoll-Rand Trust upon full payment of
all distributions relating to the Trust Preferred Securities or the
Redemption Price of all Trust Preferred Securities of such Trust, upon
distribution of the Subordinated Debt Securities held by such Ingersoll-Rand
Trust to the holders of the Trust Preferred Securities of such Ingersoll-Rand
Trust or upon full payment of the amounts payable in accordance with the
Declaration of such Ingersoll-Rand Trust upon liquidation of such Ingersoll-
Rand Trust. Each Trust Preferred Guarantee will continue to be effective or
will be reinstated, as the case may be, if at any time any holder of Trust
Preferred Securities issued by the applicable Ingersoll-Rand Trust must
restore payment of any sums paid under such Trust Preferred Securities or
such Trust Preferred Guarantee.
<PAGE>
Status of Trust Preferred Guarantees
Each Trust Preferred Guarantee will constitute an unsecured obligation
of the Company and will rank (i) subordinate and junior in right of payment
to all other liabilities of the Company, (ii) pari passu with the most senior
Preference Stock now or hereafter issued by the Company and with any
guarantee now or hereafter entered into by the Company in respect of any
Preference Stock of any affiliate of the Company and (iii) senior to the
Company's Common Stock. The terms of the Trust Preferred Securities provide
that each holder of Trust Preferred Securities issued by such Ingersoll-Rand
Trust by acceptance thereof agrees to the subordination provisions and other
terms of the applicable Trust Preferred Guarantee.
The Trust Preferred Guarantee Trustee shall enforce the Trust Preferred
Guarantee on behalf of the holders of the Trust Preferred Securities issued
by the applicable Ingersoll-Rand Trust. The holders of not less than a
majority in aggregate liquidation amount of the Trust Preferred Securities
issued by the applicable Ingersoll-Rand Trust have the right to direct the
time, method and place of conducting any proceeding for any remedy available
in respect of the related Trust Preferred Guarantee, including the giving of
directions of the Trust Preferred Guarantee Trustee. If the Trust Preferred
Guarantee Trustee fails to enforce such Trust Preferred Guarantee, any holder
of Trust Preferred Securities issued by the applicable Ingersoll-Rand Trust
may institute a legal proceeding directly against the Company, as Guarantor,
to enforce its rights under such Trust Preferred Guarantee, without first
instituting a legal proceeding against the applicable Ingersoll-Rand Trust or
any other person or entity.
Each Trust Preferred Guarantee will constitute a guarantee of payment
and not of collection (that is, the guaranteed party may institute a legal
proceeding directly against the guarantor to enforce its rights under a Trust
Preferred Guarantee without instituting a legal proceeding against any other
person or entity).
PLAN OF DISTRIBUTION
The Company or any Ingersoll-Rand Trust may sell the Securities to which
this Prospectus relates to or for resale to the public through one or more
underwriters, acting alone or in underwriting syndicates led by one or more
managing underwriters, and also may sell such Securities directly to other
purchasers or dealers or through agents.
The distribution of Securities may be effected from time to time in one
or more transactions at a fixed price or prices, which may be changed from
time to time, at market prices prevailing at the time of sale, at prices
related to such prevailing market prices or at negotiated prices. Each
Prospectus Supplement will describe the method of distribution of the offered
Securities.
In connection with the sale of Securities, such underwriters, dealers
and agents may receive compensation from the Company or an Ingersoll-Rand
Trust, or from purchasers of Securities for whom they may act as agents, in
the form of discounts, concessions or commissions. Underwriters, dealers and
<PAGE>
agents that participate in the distribution of Securities and, in certain
cases, direct purchasers from the Company or from an Ingersoll-Rand Trust,
may be deemed to be "underwriters" and any discounts or commissions received
by them and any profit on the resale of Securities by them may be deemed to
be underwriting discounts and commissions under the Securities Act. Any such
underwriters, dealers or agents will be identified and any such compensation
will be described in the Prospectus Supplement.
Under agreements which may be entered into by the Company or by an
Ingersoll-Rand Trust, underwriters, dealers and agents who participate in the
distribution of Securities may be entitled to indemnification by the Company
against certain liabilities, including liabilities under the Securities Act.
The place and time of delivery for offered Securities in respect of which
this Prospectus is delivered are set forth in the accompanying Prospectus
Supplement.
LEGAL MATTERS
Certain legal matters with respect to the Securities (other than the
Trust Preferred Securities) will be passed upon for the Company by Patricia
Nachtigal, Esq., Vice President and General Counsel of the Company. The
validity of the Trust Preferred Securities will be passed upon for the
Company and the Ingersoll-Rand Trusts by Richards, Layton & Finger. Certain
legal matters will be passed upon for the underwriters, dealers or other
agents, if any, by Simpson Thacher & Bartlett (a partnership which includes
professional corporations), 425 Lexington Avenue, New York, New York 10017.
Simpson Thacher & Bartlett renders legal services to the Company on a regular
basis.
EXPERTS
The financial statements incorporated in this Prospectus by reference to
Ingersoll-Rand Company's Annual Report on Form 10-K for the year ended
December 31, 1996 have been so incorporated in reliance on the reports of
Price Waterhouse LLP, independent accountants, given on the authority of said
firm as experts in auditing and accounting.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table sets forth the Registrant's expenses in connection
with the issuance of the securities being registered. Except for the
registration fee, the amounts listed below are estimates.
Registration Fee -- Securities and Exchange
Commission . . . . . . . . . . . . . . . . . . $181,818
Printing of Registration Statement,
Prospectus, Indenture, etc. . . . . . . . . . 25,000
Blue Sky Fees . . . . . . . . . . . . . . . . . . 20,000
Accountants' Fees and Expenses . . . . . . . . . 40,000
Legal Fees and Expenses . . . . . . . . . . . . . 100,000
Miscellaneous . . . . . . . . . . . . . . . . . . 33,182
--------
Total . . . . . . . . . . . . . . . . . . . . $400,000
========
Item 15. Indemnification of Directors and Officers.
Article Seventh of the Company's Restated Certificate of Incorporation,
as amended, provides that, to the fullest extent permitted by the laws of the
State of New Jersey, directors and officers of the Company shall not be
personally liable to the Company or its shareholders for damages for breach
of any duty owed to the Company or its shareholders, except that no such
director or officer shall be relieved from liability for any breach of duty
based upon an act or omission (i) in breach of such person's duty of loyalty
to the Company or its shareholders, (ii) not in good faith or involving a
knowing violation of law or (iii) resulting in receipt by such person of an
improper personal benefit.
Article Seventh also provides that each person who was or is made a
party or is threatened to be made a party to or is involved in any pending,
threatened or completed civil, criminal, administrative or arbitrative
action, suit or proceeding, by reason of his or her being or having been a
director or officer of the Company, or by reason of his or her being or
having been a director, officer, trustee, employee or agent of any other
corporation or of any partnership, joint venture, employee benefit plan or
other entity or enterprise, serving as such at the request of the Company,
shall be indemnified and held harmless by the Company to the fullest extent
permitted by the New Jersey Business Corporation Act (the "Act"), from and
against all reasonable costs, disbursements and attorneys' fees, and all
amounts paid or incurred in satisfaction of settlements, judgments, fines and
penalties, incurred or suffered in connection with any such proceeding, and
such indemnification shall continue as to a person who has ceased to be a
director, officer, trustee, employee or agent and shall inure to the benefit
of his or her heirs, executors, administrators and assigns; provided,
however, that there shall be no indemnification with respect to any
settlement of any proceeding unless the Company has given its prior consent
<PAGE>
to such settlement or disposition. This right to indemnification includes the
right to be paid by the Company the expenses incurred in connection with any
proceeding in advance of the final disposition of such proceeding as
authorized by the Board of Directors; provided, however, that, if the Act so
requires, the payment of such expenses shall be made only upon receipt by the
Company of an undertaking to repay all amounts so advanced unless it shall
ultimately be determined that such director or officer is entitled to be
indemnified.
Article Seventh also provides that the right to indemnification
thereunder is a contract right and gives claimants certain rights with
respect to claims for indemnification not paid by the Company after 30 days
following a written request. Finally, Article Seventh provides that the right
to indemnification and advancement of expenses provided thereby shall not
exclude or be exclusive of any other rights to which any person may be
entitled under a certificate of incorporation, by-law, agreement, vote of
shareholders or otherwise. Sections 1 and 2 of Article IX of the Company's
By-Laws also provide directors and officers with certain rights to indemnity
that are substantially similar to the foregoing provisions of Article
Seventh.
Section 14A: 3-5 of the Act provides that no indemnification shall be
made if such person shall have been adjudged liable for negligence or
misconduct unless the court in which such proceeding was brought determines
upon application that the defendant, officers or directors are fairly and
reasonably entitled to indemnity for such expenses despite such adjudication
of liability. In any case, a corporation must indemnify an officer director
against expenses (including attorney's fees) to the extent that he has been
successful on the merits or otherwise or in defense of any claim or issue.
The Company has a liability insurance policy in effect which covers
certain claims against any officer or director of the Company by reason of
certain breaches of duty, neglect, errors or omissions committed by such
person in his capacity as an officer or director.
Under the Trust Agreement of each Ingersoll-Rand Trust, the Company will
agree to indemnify each of the Regular Trustees of such Ingersoll-Rand Trust
(or any predecessor trustee for such Ingersoll-Rand Trust), and to hold
harmless such Regular Trustee against any loss, damage, claims, liability or
expense incurred without negligence or bad faith on its part arising out of
or in connection with the acceptance or administration of such Trust
Agreement, including the costs and expenses of defending itself against any
claim or liability in connection with the exercise or performance of any of
its powers or duties under such Trust Agreement.
Item 16. Exhibits.
<F1>4.1 -- Restated Certificate of Incorporation of Ingersoll-Rand
Company, as amended through May 28, 1992. (Incorporated by
reference from Form 10-K of Ingersoll-Rand Company for Fiscal
Year Ended December 31, 1993.)
<PAGE>
<F2>4.2 -- By-Laws of Ingersoll-Rand Company, as amended through
August 1, 1997.
<F1>4.3 -- Rights Agreement, dated as of December 7, 1988, as amended by
amendment No. 1 thereto dated as of December 7, 1994, between
Ingersoll-Rand Company and The Bank of New York, as Rights
Agent. (Incorporated by reference from Form 8-A of Ingersoll-
Rand Company filed on December 12, 1988 and Form 8-A/A of
Ingersoll-Rand Company filed on December 15, 1994.)
<F1>4.4 -- Senior Indenture between Ingersoll-Rand Company and The Bank
of New York (Incorporated by reference from Exhibit 4.1 to the
Company's Form S-3 Registration Statement No. 33-39474).
<F1>4.5 -- First Supplemental Indenture (Incorporated by reference from
Exhibit 4.2 to the Company's Form S-3 Registration Statement
No. 33-39474)
<F1>4.6 -- Second Supplemental Indenture (Incorporated by reference from
Exhibit 4.3 to the Company's Form S-3 Registration Statement
No. 33-39474).
<F2>4.7 -- Form of Indenture with respect to Senior Subordinated Debt
Securities.
<F2>4.8 -- Form of Indenture with respect to Junior Subordinated Debt
Securities.
4.9 -- The form or forms of any series of Debt Securities or
Preference Stock and the Articles of Amendment for any series
of Preference Stock will be filed as an exhibit to a Current
Report on Form 8-K and incorporated herein by reference.
<F2>4.10 -- Certificate of Trust of Ingersoll-Rand Financing I.
<F2>4.11 -- Certificate of Trust of Ingersoll-Rand Financing II.
<F2>4.12 -- Trust Agreement of Ingersoll-Rand Financing I.
<F2>4.13 -- Trust Agreement of Ingersoll-Rand Financing II.
<F2>4.14 -- Form of Amended and Restated Trust Agreement of Ingersoll-Rand
Financing I and Ingersoll-Rand Financing II.
<F2>4.15 -- Form of Trust Preferred Securities Guarantee Agreement.
<F2>5.1 -- Opinion of Patricia Nachtigal, Esq., Vice President and
General Counsel.
<F2>5.2 -- Opinion of Richards, Layton & Finger (Ingersoll-Rand Financing
I).
<F2>5.3 -- Opinion of Richards, Layton & Finger (Ingersoll-Rand Financing
II).
<PAGE>
<F1>12 -- Computation of Ratio of Earnings to Fixed Charges
(Incorporated by reference from Exhibit 12 to the Company's
Form 10-Q for the Fiscal Quarter Ended June 30, 1997).
23.1 -- Consent of Patricia Nachtigal, Esq. (included in Exhibit 5.1).
23.2 -- Consent of Richards, Layton & Finger (included in Exhibits 5.2
and 5.3).
<F2>23.3 -- Consent of Independent Accountants.
<F2>24.1 -- Powers of Attorney (Ingersoll-Rand Company).
<F2>24.2 -- Powers of Attorney (Ingersoll-Rand Financing I and Ingersoll-
Rand Financing II).
<F2>25.1 -- Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939 of The Bank of New York, as Senior Debt Trustee.
__________________
[FN]
<F1> Incorporated by reference as indicated.
<F2> Filed herewith.
Item 17. Undertakings
The undersigned Registrants hereby undertake:
(1) To file, during any period in which offers or sales are being made
of the securities registered hereby, a post-effective amendment to this
Registration Statement:
(i) To include any prospectus required by Section 10(a) (3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the Registration Statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement or
any material change to such information in the Registration Statement;
provided, however, that paragraphs (i) and (ii) do not apply if the
Registration Statement is on Form S-3 or Form S-8 and the information
required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act
of 1934 that are incorporated by reference in the Registration
Statement;
<PAGE>
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to
be a new Registration Statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof;
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination
of the offering;
(4) That, for the purposes of determining any liability under the
Securities Act of 1933, each filing of the Registrant's Annual Report
pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of
1934 (and, where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15 (d) of the Securities Exchange Act of 1934)
that is incorporated by reference in the Registration Statement shall be
deemed to be a new Registration Statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to
be the initial bona fide offering thereof;
(5) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part of
this Registration Statement in reliance upon Rule 430A and contained in a
form of prospectus filed by the Registrant pursuant to Rule 424(b) (1) or (4)
or 497(h) under the Securities Act shall be deemed to be part of this
Registration Statement as of the time it was declared effective; and
(6) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of prospectus
shall be deemed to be a new Registration Statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
Ingersoll-Rand Trust I and Ingersoll-Rand Trust II each hereby
undertakes to provide to the underwriter at the closing specified in the
applicable underwriting agreement, certificates in such denominations and
registered in such names as required by the underwriter to permit prompt
delivery to each purchaser.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the provisions specified in Item 15 of this
Registration Statement or otherwise, the Registrant has been advised that in
the opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in said Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred or
paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities
being registered, the Registrant will, unless in the opinion of its counsel
the matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
<PAGE>
against public policy as expressed in the Act, and will be governed by the
final adjudication of such issue.
The undersigned registrants hereby undertake to file an application for
the purpose of determining the eligibility of the trustee to act under
subsection (a) of Section 310 of the Trust Indenture Act in accordance with
the rules and regulations prescribed by the Commission under Section
305(b)(2) of the Act.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in Woodcliff Lake, New Jersey, on the 20th day of
August, 1997.
INGERSOLL-RAND COMPANY
By /s/ James E. Perrella
(James E. Perrella)
Chairman of the Board, President and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities indicated on the 20th day of August, 1997.
Signature Title
/s/ James E. Perrella Chairman of the Board, President, Chief
(James E. Perrella) Executive Officer and Director (Principal
Executive Officer)
/s/ Gerard V. Geraghty Vice President and Comptroller (Principal
(Gerard V. Geraghty) Financial and Accounting Officer)
Joseph P. Flannery* Director
(Joseph P. Flannery)
Constance J. Horner* Director
(Constance J. Horner)
H. William Lichtenberger* Director
(H. William Lichtenberger)
Theodore E. Martin* Director
(Theodore E. Martin)
Cedric E. Ritchie* Director
(Cedric E. Ritchie)
<PAGE>
Signature Title
Orin R. Smith* Director
(Orin R. Smith)
Richard W. Swift* Director
(Richard W. Swift)
J. Frank Travis* Director
(J. Frank Travis)
Tony L. White* Director
(Tony L. White)
*By: /s/ Patricia Nachtigal
(Patricia Nachtigal),
Attorney-in-Fact
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, each of
Ingersoll-Rand Financing I and Ingersoll-Rand Financing II certifies that it
has reasonable grounds to believe that it meets all the requirements for
filing on Form S-3 and has duly caused this Registration Statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in
Woodcliff Lake, New Jersey, on the 20th day of August, 1997.
INGERSOLL-RAND FINANCING I
By: INGERSOLL-RAND COMPANY, as
Depositor
By: /s/ Patricia Nachtigal
Name: Patricia Nachtigal
Title: Vice President and
General Counsel
INGERSOLL-RAND FINANCING II
By: INGERSOLL-RAND COMPANY, as
Depositor
By: /s/ Patricia Nachtigal
Name: Patricia Nachtigal
Title: Vice President and
General Counsel
Exhibit 4.2
BY-LAWS
of
INGERSOLL-RAND COMPANY
As amended through August 1, 1997
<PAGE>
BY-LAWS
of
INGERSOLL-RAND COMPANY
ARTICLE I.
STOCKHOLDERS' MEETINGS
Section 1. Annual Meeting: The annual meeting of the Stockholders of the
Company shall be held on the fourth Thursday of April, in each year, or such
other date as the Board of Directors may determine, at such hour and at such
place within or without the State of New Jersey as may be fixed by the Board
of Directors and stated in the notice of the meeting, for the election of
Directors of the Company and for the transaction of such other business as
may come before it in accordance with the provisions of these By-Laws.
At any such annual meeting of Stockholders, only such business shall be
conducted as shall have been brought before the meeting (a) by or at the
direction of the Board of Directors, or (b) by any Stockholder entitled to
vote at such meeting who complies with the procedures set forth in this
Section 1. Any Stockholder entitled to vote at such meeting may propose
business to be included in the agenda of such meeting only if written notice
of such Stockholder's intent is given to the Secretary of the Company, either
by personal delivery or by United States mail, postage prepaid, not later
than 90 days in advance of the anniversary of the immediately preceding
annual meeting or if the date of the annual meeting of Stockholders occurs
more than 30 days before or 60 days after the anniversary of such immediately
preceding annual meeting, not later than the close of business on the seventh
day following the date on which notice of such meeting is given to
Stockholders. A Stockholder's notice to the Secretary shall set forth in
writing as to each matter such Stockholder proposes to bring before the
annual meeting (a) a brief description of the business desired to be brought
before the annual meeting and the reasons for conducting such business at the
annual meeting, (b) the name and address, as they
<PAGE>
appear on the Company's books, of the Stockholder proposing such business,
(c) the class and number of shares of the Company which are beneficially
owned by the Stockholder and (d) any material interest of the Stockholder in
such business. Notwithstanding anything in these By-Laws to the contrary, no
business shall be conducted at an annual meeting except in accordance with
the procedures set forth in this Section 1. The officer of the Company or
other person presiding at the annual meeting shall, if the facts so warrant,
determine and declare to the meeting that business was not properly brought
before the meeting in accordance with the provisions of this Section 1, and,
if such officer or other person should so determine, he or she shall so
declare to the meeting and any such business not properly brought before the
meeting shall not be transacted.
Section 2. Special Meetings: Special meetings of the Stockholders may be
held at the principal office of the Company in the State of New Jersey or at
such other place within or without said State as may from time to time be
designated by the Board of Directors and stated in the notice of the meeting,
whenever called in writing by the Chairman of the Board, the Vice-Chairman or
the President or by vote of a majority of the Board of Directors. At any
special meeting of the Stockholders, only such business shall be conducted as
shall have been brought before the meeting by or at the direction of the
Board of Directors and such business shall be confined to the object or
objects stated in the notice thereof.
Section 3. Quorum: Unless otherwise provided in the Certificate of
Incorporation of this Company or by statute, the presence in person or by
proxy of the holders of record of the shares entitled to cast a majority of
the votes at any meeting of the Stockholders shall constitute a quorum at
such meeting. Whenever the holders of any class or series of shares are
entitled to vote separately on a specified item of business, the presence in
person or by proxy of the holders of record of the shares of such class or
series entitled to cast a majority of the votes thereon shall constitute a
quorum for the transaction of such specified item of business.
<PAGE>
If the holders of the amount of stock necessary to constitute a quorum shall
fail to attend in person or by proxy at the time and place fixed by these
By-Laws for an annual meeting, or as fixed by notice, as above provided for a
special meeting, a majority in interest of the Stockholders present, in
person or by proxy, may adjourn from time to time without notice other than
announcement at the meeting until the holders of the amount of stock
requisite to constitute a quorum shall attend. At any such adjourned meeting
at which a quorum shall be present, any business may be transacted which
might have been transacted at the meeting as originally notified.
Section 4. Organization: The Chairman of the Board shall call meetings of
the Stockholders to order and shall act as Chairman of such meetings. In the
absence of the Chairman of the Board, the Vice-Chairman or the President, or
in his absence an Executive Vice President shall preside: and in the absence
of any of the foregoing officers, the Stockholders present, or
the Board of Directors, may appoint any Stockholder to act as Chairman of any
meeting.
The Secretary of the Company shall act as Secretary of all meetings of the
Stockholders. In the absence of the Secretary at any meeting of the
Stockholders, the presiding officer may appoint any person to act as
Secretary of the Meeting.
Section 5. Voting: At each meeting of the Stockholders, every Stockholder
shall be entitled to vote in person or by proxy appointed by instrument in
writing subscribed by such Stockholder or by his duly authorized attorney and
delivered to the inspectors at the meeting. The votes for Directors and,
upon demand of any Stockholder, the votes upon any question before the
meeting shall be by ballot.
Section 6. Inspectors: At each annual stated meeting of the Stockholders
for the election of Directors, the presiding officer of such meeting shall
appoint two persons to act as inspectors, who shall be sworn to perform their
duties in accordance with the laws of the State of New Jersey, and who shall
return a formal certificate.
<PAGE>
Section 7. Nominations of Directors: Nominations for the election of
Directors may be made by the Board of Directors or any Stockholder entitled
to vote for the election of Directors. Any Stockholder entitled to vote for
the election of Directors at a meeting or to express a consent in writing
without a meeting may nominate a person or persons for election as a Director
only if written notice of such Stockholder's intent to make such nomination
is given to the Secretary of the Company, either by personal delivery or
United States mail, postage prepaid, not later than (a) with respect to an
election to be held at an annual meeting of Stockholders, 90 days in advance
of the anniversary of the immediately preceding annual meeting or if the date
of the annual meeting of Stockholders occurs more than 30 days before or 60
days after the anniversary of such immediately preceding annual meeting, not
later than the close of business on the seventh day following the date on
which notice of such meeting is given to Stockholders and (b) in the case of
any Stockholder who wishes to nominate a person or persons for election as a
Director pursuant to consents in writing by Stockholders without a meeting
(to the extent election by such consents is permitted under applicable law
and the Company's Certificate of Incorporation), 60 days in advance of the
date on which materials soliciting such consents are first mailed to
Stockholders or, if no such materials are required to be mailed under
applicable law, 60 days in advance of the date on which the first such
consent in writing is executed. Each such notice shall set forth the name
and address of the Stockholder who intends to make the nomination and of the
person or persons to be nominated for election as a Director, a
representation that the Stockholder is a holder of record of stock of the
Company entitled to vote at such meeting or to express such consent in
writing and intends to appear in person or by proxy at the meeting to
nominate the person or persons specified in the notice or to execute such a
consent in writing to elect such person or persons as a Director, a
description of all arrangements or understandings between the Stockholder and
each nominee and any other person or persons (naming such person or persons)
pursuant to which the nomination or nominations for election as a Director
are to be made by the Stockholder, such other information regarding each
nominee proposed by such Stockholder as would have been required to be
included in a proxy statement filed pursuant to the proxy rules of the
Securities and Exchange Commission if such nominee had been nominated, or was
intended to be nominated, for election as a Director by the Board of
Directors, and the consent of each nominee to serve as a Director of the
Company if so elected. The Board of Directors may refuse to acknowledge the
nomination of any person not made in compliance with the foregoing
procedures.
ARTICLE II.
BOARD OF DIRECTORS
Section 1. Number and Election: The business and property of the Company
shall be managed by a Board of ten Directors. The number of Directors may be
altered from time to time by the alteration of these By-Laws, provided that,
as required by the Restated Certificate of Incorporation, the Board shall
never consist of less than eight members.
<PAGE>
As provided in the Restated Certificate of Incorporation, the Board of
Directors shall be divided into three classes, two consisting of three
Directors each and the remaining consisting of four Directors. At each
annual election, the successors to the Directors of the class whose terms
shall expire in that year shall be elected to hold office for a term of three
years, so that the term of office of one class of Directors shall expire in
each year. Each Director shall serve for the term for which such Director
shall have been elected and until such Director's successor shall have been
duly elected.
Notwithstanding the foregoing provisions of this Section 1, if and as long as
the Restated Certificate of Incorporation provides for the election of
additional Directors by class or classes of stock, such additional Directors
shall be elected in the manner and for the term provided in the Restated
Certificate of Incorporation.
<PAGE>
Section 2. Vacancies: Subject to any requirements of the Certificate of
Incorporation with respect to the filling of vacancies among additional
Directors elected by a class or classes of stock, if the office of any
Director becomes vacant, the remaining Directors may, by a majority vote,
elect a successor who shall hold office until the next succeeding annual
meeting of the Stockholders and until his successor shall have been elected
and qualified.
Section 3. Place of Meetings: The Directors may hold their meetings and may
have an office and keep the books of the Company (except as otherwise may be
provided for by law) in such place or places in the State of New Jersey or
outside of the State of New Jersey as the Board from time to time may
determine.
Section 4. Regular Meetings: Regular meetings of the Board of Directors
shall be held at such times and intervals as the Board may from time to time
determine. It shall be the duty of the Secretary to send a notice to each of
the Directors at his address as it appears on the books of the Company at
least two (2) days before the holding of each regular meeting, but a failure
of the Secretary to send such notice shall not invalidate any proceedings of
the said Board.
Section 5. Special Meetings: Special meetings of the Board of Directors
shall be held whenever called by the Chairman of the Board or the
Vice-Chairman or the President, or by one-third (1/3) of the Directors for
the time being in office.
The Secretary shall give notice of each special meeting by mailing the same
at least two (2) days before the meeting, or by telegraphing the same at
least one (1) day before the meeting to each Director, but such notice may be
waived by any Director. At any meeting at which every Director shall be
present, even without notice, any business may be transacted.
<PAGE>
Section 6. Quorum: Six (6) members of the Board of Directors, but not less
than one-third (1/3) of the entire Board, shall constitute a quorum for the
transaction of business; but if at any meeting of the Board there be less
than a quorum present, those present may adjourn the meeting from time to
time. At meetings of the Board of Directors, business shall be transacted in
such order as from time to time the Board may determine.
Section 7. Director Emeritus: The Board of Directors may appoint a person
who has served with distinction and who has retired from the Board upon
reaching mandatory retirement as provided herein to the position of Director
Emeritus. A Director Emeritus shall be invited to attend all meetings of the
Board and shall receive the same compensation as that paid to outside
Directors. While serving as a Director Emeritus, he shall not be considered
a retired director for pension benefit purposes; however, any pension
benefits to which he may be entitled will commence upon his cessation of
service as a Director Emeritus. He shall be appointed by the Board for a
one-year term and may be reappointed from time to time by action of the
Board. While the presence of a Director Emeritus at a Board meeting will not
be considered for quorum or voting purposes, nevertheless, his advice and
counsel on all matters to come before the Board is invited.
ARTICLE III.
COMMITTEES
The Board of Directors may appoint from their number such standing committees
as they deem best and to the extent permitted by statute may invest them with
such of their own powers as they may deem advisable, subject to such
conditions as they may prescribe.
<PAGE>
ARTICLE IV.
OFFICERS
Section 1. Officers: The executive officers of the Company shall include a
Chairman of the Board of Directors, President, Treasurer and Secretary and
may also include one or more Vice-Chairmen, Executive Vice Presidents, Senior
Vice Presidents, Vice Presidents, and such other officers as the Board of
Directors shall deem necessary or otherwise appropriate to elect. The Chief
Executive Officer may hold the title of Chairman of the Board, or President,
or both titles.
The Board of Directors may appoint such other officers and advisory boards as
they shall deem necessary, who shall have such authority and who shall
perform such duties as from time to time may be prescribed by the Board of
Directors.
Any executive officer elected by the Board of Directors may be removed at any
time with or without cause by the affirmative vote of two-thirds (2/3) of the
entire Board of Directors.
Any other appointed or elected officer, agent, employee or member of an
advisory board may be removed at any time with or without cause by
affirmative vote of the Directors or by the Committee or superior officer
upon whom such power of removal may be conferred.
Section 2. Powers and Duties: The Chairman of the Board shall preside at
all meetings of the Board of Directors and Stockholders. Subject to
designation by the Board of Directors he shall be the Chief Executive Officer
of the Company, and he shall have responsibility for the active management of
the business of the Company. He may sign and execute contracts and
agreements authorized by the Board, delegate other officers to do so and may,
from time to time, require from other officers and from employees of the
Company opinions, reports or information upon any matter specified by him or
generally upon the interests or affairs of the Company under the supervision
of such officers or employees respectively. He may appoint and remove
assistant officers and other employees and agents. He may exercise any other
powers conferred upon him by the Board of Directors.
Other officers shall have all the usual and customary powers and shall
perform all the usual and customary duties incident to their respective
offices and, in addition thereto and to any duties specifically prescribed by
any subsequent provisions of these By-Laws, they shall respectively perform
such other general or special duties as may from time to time be assigned to
them by the Board of Directors or the Chief Executive Officer.
The Board of Directors may appoint an officer to act as Chief Financial
Officer of the Company, who shall have responsibility for the financial
affairs of the Company. He will be responsible for the preparation of the
financial statements of the Company, and such other duties as from time to
time may be assigned to him by the Board of Directors or the Chief Executive
Officer. The Board of Directors may appoint an officer to act as General
Counsel of the Company, who shall have
<PAGE>
responsibility for the legal affairs of the Company. The Board of Directors
may appoint the Comptroller to be the principal accounting and financial
control officer of the Company.
Securities of other corporations or interests in other entities held by the
Company may be voted by the Chairman of the Board or by any other person
designated by the Board of Directors or Chief Executive Officer.
Section 3. Term: The executive officers elected by the Board of Directors
shall hold office for one year or until their successors are elected and
qualify. The Chairman, and any Vice-Chairman, shall be elected by the
Directors from among their own number. One person may hold more than one
office.
<PAGE>
ARTICLE V.
BILLS, NOTES, AND CHECKS
All bills, notes, checks or other negotiable instruments of the Company shall
be made in the name of the Company and shall be signed by two executive
officers or by any two persons duly authorized by the Board of Directors. No
officers or agents of the Company, either singly or together shall have power
to make any bill, note or check or other negotiable instrument in the name of
the Company to bind the Company thereby, except as in this Article prescribed
and provided.
No officer or agent of this Company shall have power to endorse in the name,
for or in behalf of the Company, any note, bill of exchange, draft, check or
other written instrument for the payment of money, save only for purposes of
the discount or the collection of the said instrument, unless thereunto duly
and specially authorized by the vote of the Directors of this Company entered
on the minutes of said Board.
ARTICLE VI.
CAPITAL STOCK
Section 1. Certificates for Shares: The certificates for shares of the
capital stock of the Company shall be in such form not inconsistent with the
Certificate of Incorporation as shall be prepared or be approved by the Board
of Directors. The certificates shall be signed by or bear thereon the
facsimile signature of the Chairman, the Vice-Chairman, President, or an
Executive Vice President, or a Vice President, and also be signed by or bear
thereon the facsimile signature of the Treasurer or an Assistant Treasurer.
The certificates shall be consecutively numbered. The name of the person
owning the shares represented thereby, with the number of such shares and the
date of issue, shall be entered in the Company's books.
Section 2. Transfers: Shares of the capital stock of the Company shall be
transferred only on the books of the Company by the holder thereof in person
or by his attorney, upon surrender of the certificate or certificates
properly endorsed. The Board of Directors shall have power and authority to
make all such rules and regulations as it may deem expedient concerning the
issue, transfer and registration of certificates for shares of the capital
stock of the Company. The Board of Directors may appoint Transfer Agents and
Stock Registrars and may require all stock certificates to bear the
signatures of such a Transfer Agent and of such a Registrar of Transfers, or
any of them.
The stock transfer books may be closed for such period next preceding any
Stockholders' meeting, or the payment of dividends as the Board of Directors
may from time to time determine, and during such period no stock shall be
transferable.
The Board of Directors may also fix in advance a date not more than 60 nor
less than 10 days preceding the date of any meeting of Stockholders, nor more
than 60 days preceding the date for the payment of any dividend on the Common
Stock or any series of Preference Stock, or the date for allotment of rights,
or the date when any change or conversion or exchange of capital stock shall
go into effect, as a record date for the determination of the Stockholders
<PAGE>
entitled to notice of and to vote at any such meeting, or entitled to receive
payment of any such dividend, or any such allotment of rights, or to exercise
the rights in respect to any such change, conversion or exchange of capital
stock. In such cases only Stockholders of record on the date so fixed shall
be entitled to such notice of and vote at such meeting, or to receive payment
of such dividend, or allotment of rights, or to exercise such rights, as the
case may be, and notwithstanding any transfer of any stock on the books of
the Company after any such record date fixed as aforesaid.
Section 3. Lost Stock Certificates: In case any stock certificate shall be
lost, the Board of Directors may order a new certificate to be issued in its
place upon receiving such proof of loss and such security therefor as may be
satisfactory to it.
ARTICLE VII.
THE CORPORATE SEAL
The Corporate Seal of the Company shall consist of a circle formed by the
words "Ingersoll-Rand Company" and the letters "N. J." with the words
"Corporate Seal" and the figures "1905" in the center.
The Seal shall be attested by the signature of the Secretary or the Assistant
Secretary or of the Treasurer or the Assistant Treasurer.
When authorized by the Board of Directors, the Secretary shall affix the
Seal, or cause it to be affixed, to all documents executed on behalf of the
Company. The Board of Directors may also specifically or generally authorize
other persons to affix the Seal.
ARTICLE VIII.
REACQUIRED SHARES
When shares of the Company are reacquired by the Company by purchase, by
redemption or by their conversion into other shares of the Company, such
shares shall be treated by the Company as treasury shares, unless and to the
extent the Board of Directors determines at any time that any such shares
shall be cancelled.
<PAGE>
ARTICLE IX.
INDEMNIFICATION OF DIRECTORS, OFFICERS AND OTHERS
Section 1. Right to Indemnification: Each person who was or is made a party
or is threatened to be made a party to or is involved in any pending,
threatened or completed civil, criminal, administrative or arbitrative
action, suit or proceeding, or any appeal therein or any inquiry or
investigation which could lead to such action, suit or proceeding
("proceeding"), by reason of his or her being or having been a Director or
officer of the Company or of any constituent corporation absorbed by the
Company in a consolidation or merger, or by reason of his or her being or
having been a Director, officer, trustee, employee or agent of any other
corporation (domestic or foreign) or of any partnership, joint venture, sole
proprietorship, trust, employee benefit plan or other enterprise (whether or
not for profit), serving as such at the request of the Company or of any such
constituent corporation, or the legal representative of any
such Director, officer, trustee, employee or agent, shall be indemnified and
held harmless by the Company to the fullest extent permitted by the New
Jersey Business Corporation Act, as the same exists or may hereafter be
amended (but, in the case of any such amendment, only to the extent that such
amendment permits the Company to provide broader indemnification rights than
said Act permitted prior to such amendment), from and against any and all
reasonable costs, disbursements and attorneys' fees, and any and all amounts
paid or incurred in satisfaction of settlements, judgments, fines and
penalties, incurred or suffered in connection with any such proceeding, and
such indemnification shall continue as to a person who has ceased to be a
Director, officer, trustee, employee or agent and shall inure to the benefit
of his or her heirs, executors, administrators and assigns; provided,
however, that there shall be no indemnification hereunder with respect to any
settlement or other nonadjudicated disposition of any proceeding unless the
Company has given its prior consent to such settlement or disposition. The
right to indemnification conferred in this Section 1 shall be a contract
right and shall include the right to be paid by the Company the expenses
incurred in connection with any proceeding in advance of the final
disposition of such proceeding as authorized by the Board of Directors;
provided, however, that, if the New Jersey Business Corporation Act so
requires, the payment of such expenses incurred by a Director or officer in
his or her capacity as a Director or officer in advance of the final
disposition of a proceeding shall be made only upon receipt by the Company of
an undertaking, by or on behalf of such Director or officer, to repay all
amounts so advanced if it shall ultimately be determined that such Director
or officer is not entitled to be indemnified under this Section 1 or
otherwise. The Company may, by action of its Board of Directors, provide for
indemnification and advancement of expenses to employees and agents of the
Company with the same scope and effect as the foregoing indemnification of
Directors and officers.
Section 2. Right of Claimant to Bring Suit: If a claim under Section 1 of
this Article IX is not paid in full by the Company within thirty days after a
written request has been received by the Company, the claimant may at any
time thereafter apply to a court for an award of indemnification by the Company
for the unpaid amount of the claim and, if successful on the merits or
otherwise in connection with any proceeding, or in the defense of any claim,
issue or matter therein, the
<PAGE>
claimant shall be entitled also to be paid by the Company any and all
expenses incurred or suffered in connection with such proceeding. It shall
be a defense to any such action (other than an action brought to enforce a
claim for the advancement of expenses incurred in connection with any
proceeding where the required undertaking, if any, has been tendered to the
Company) that the claimant has not met the standard of conduct which makes it
permissible under the New Jersey Business Corporation Act for the Company to
indemnify the claimant for the amount claimed, but the burden of proving such
defense shall be on the Company. Neither the failure of the Company
(including its Board of Directors, independent legal counsel or its
stockholders) to have made a determination prior to the commencement of such
proceeding that indemnification of the claimant is proper in the
circumstances because he or she has met the applicable standard of conduct
set forth in the New Jersey Business Corporation Act, nor an actual
determination by the Company (including its Board of Directors, independent
legal counsel or its stockholders) that the claimant has not met such
applicable standard of conduct, nor the termination of any proceeding by
judgment, order, settlement, conviction or upon a plea of nolo contendere or
its equivalent, shall be a defense to the action or create a presumption that
the claimant has not met the applicable standard of conduct.
Section 3. Non-Exclusivity of Rights: The right to indemnification and
advancement of expenses provided by or granted pursuant to this Article IX
shall not exclude or be exclusive of any other rights, including the right to
be indemnified against any and all reasonable costs, disbursements and
attorneys' fees, and any and all amounts paid or incurred in satisfaction of
settlements, judgments, fines and penalties incurred or suffered in
proceedings by or in the right of the Company, to which any person may be
entitled under a certificate of incorporation, by-law, agreement, vote of
stockholders, or otherwise, provided that no indemnification shall be made to
or on behalf of any person if a judgment or other final adjudication adverse
to such person establishes that such person has
not met the applicable standard of conduct required to be met under the New
Jersey Business Corporation Act.
ARTICLE X.
AMENDMENTS
The Board of Directors may, by a majority vote of the entire Board, make
By-Laws and from time to time alter, amend or repeal any By-Law, but any
By-Law made by the Board of Directors may be altered or repealed by the
Stockholders at any annual or special meeting. Notice of such proposed
alteration, amendment or repeal of any By-Law shall be included in the notice
of the meeting of the Directors or Stockholders.
ARTICLE XI.
AUDITORS
The Board of Directors may appoint a firm of certified public accountants to
audit the books and accounts of the Company for the calendar year in which
such appointment is made.
INDENTURE, dated as of , 1997, between INGERSOLL-
RAND COMPANY, a corporation duly organized and existing under the laws of
the State of New Jersey (herein called the "Company"), having its
principal office at 200 Chestnut Ridge Road, Woodcliff Lake, New Jersey
07675, and ____________________, a corporation duly organized and existing
under the laws of the State of New York, as Trustee (herein called the
"Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of its
unsecured senior subordinated debentures, notes or other evidences of
indebtedness (herein called the "Securities"), to be issued in one or more
series as in this Indenture provided.
All things necessary to make this Indenture a valid agreement
of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Securities by the Holders thereof, it is mutually covenanted and
agreed, for the equal and proportionate benefit of all Holders of the
Securities or of series thereof, as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 1.1 Definitions.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well
as the singular;
(2) all other terms used herein which are defined in the
Trust Indenture Act, either directly or by reference therein,
have the meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein
have the meanings assigned to them in accordance with generally
accepted accounting principles, and, except as otherwise herein
expressly provided, the term "generally accepted accounting
principles" with respect to any computation required or
permitted hereunder shall mean such accounting principles as
are generally accepted at the date of such computation; and
(4) the words "herein", "hereof" and "hereunder" and
other words of similar import to this Indenture as a whole and
not to any particular Article, Section or other subdivision.
<PAGE>
Certain terms, used principally in Article Six, are defined in
that Article.
"Act", when used with respect to any Holder, has the meaning
specified in Section 1.4.
"Affiliate" of any specified person means any other person
directly or indirectly controlling or controlled by or under direct
or indirect common control with such specified person. For the
purposes of this definition, "control" when used with respect to any
specified person means the power to direct the management and
policies of such person, directly or indirectly, whether through the
ownership of voting securities, by contract or otherwise; and the
terms "controlling" and "controlled" have meanings correlative to
the foregoing.
"Authenticating Agent" means any person authorized to
authenticate and deliver Securities on behalf of the Trustee
pursuant to Section 6.14.
"Board of Directors" means either the Board of Directors of the
Company or an executive committee of such Board or any other duly
authorized committee of that Board to which the powers of that Board
have been lawfully delegated.
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Company to have been
duly adopted by the Board of Directors and to be in full force and
effect on the date of such certification, and delivered to the
Trustee.
"Business Day", when used with respect to any Place of Payment,
means each day which is not a day on which banking institutions in
that Place of Payment are authorized or obligated by law to close.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities Exchange
Act of 1934, or, if at any time after the execution of this
instrument such Commission is not existing and performing the duties
now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"Company" means the person named as the "Company" in the first
paragraph of this instrument until a successor corporation shall
have become such pursuant to the applicable provisions of this
Indenture, and thereafter "Company" shall mean such successor
corporation.
"Company Request" or "Company Order" means a written request or
order signed in the name of the Company by its Chairman of the
Board, its President or a Vice President, and by its Treasurer, an
Assistant Treasurer, its Secretary or an Assistant Secretary, and
delivered to the Trustee.
"Corporate Trust Office" means the principal office of the
Trustee in the Borough of Manhattan, City and State of New York, at
which at any particular time its corporate trust business shall be
<PAGE>
administered, which at the date of this Indenture is ,
New York, New York , Attention: Corporate Trust
Administration.
"Defaulted Interest" has the meaning specified in Section 3.7.
"Designated Senior Indebtedness", in respect of a particular
series of Securities, shall have the meaning set forth in the
supplemental indenture, Board Resolution or Officers' Certificate
pursuant to Section 3.1 establishing such series of Securities.
"Discharged" has the meaning specified in Section 4.2.
"Event of Default" has the meaning specified in Section 5.1.
"Holder" means a person in whose name a Security is registered
in the Security Register.
"Indenture" means this instrument as originally executed or as
it may from time to time be supplemented or amended by one or more
indentures supplemental hereto entered into pursuant to the
applicable provisions hereof and shall include the terms of
particular series of Securities established as contemplated by
Section 3.1.
"interest", when used with respect to an Original Issue
Discount Security which by its terms bears interest only after
Maturity, means interest payable after Maturity.
"Interest Payment Date", when used with respect to any
Security, means the Stated Maturity of an instalment of interest on
such Security.
"Maturity", when used with respect to any Security, means the
date on which the principal of such Security or an instalment of
principal becomes due and payable as therein or herein provided,
whether at the Stated Maturity or by declaration of acceleration,
call for redemption or otherwise.
"Officers' Certificate" means a certificate signed by the
chairman of the board of directors, the vice chairman of the board
of directors, the president or a vice President, and by the
treasurer, an assistant treasurer, the secretary or an assistant
secretary, of the Company, and delivered to the Trustee. Each such
certificate shall include the statements provided for in Section 1.2
if and to the extent required by this Indenture.
"Opinion of Counsel" means a written opinion of counsel, who
may be an employee of or regular counsel for the Company, or may be
other counsel satisfactory to the Trustee. Each such opinion shall
include the statements provided for in Section 1.2 if and to the
extent required by this Indenture.
"Original Issue Discount Security" means any Security which
provides for an amount less than the principal amount thereof to be
due and payable upon a declaration of acceleration of the Maturity
thereof pursuant to Section 5.2.
<PAGE>
"Outstanding", when used with respect to Securities, means, as
of the date of determination, all Securities theretofore
authenticated and delivered under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment or
redemption money in the necessary amount has been theretofore
deposited with the Trustee or any Paying Agent (other than the
Company) in trust or set aside and segregated in trust by the
Company (if the Company shall act as its own Paying Agent) for
the Holders of such Securities; provided that, if such
Securities are to be redeemed, notice of such redemption has
been duly given pursuant to this Indenture or provision
therefor satisfactory to the Trustee has been made; and
(iii) Securities which have been paid pursuant to Section
3.6 or in exchange for or in lieu of which other Securities
have been authenticated and delivered pursuant to this
Indenture, other than any such Securities in respect of which
there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona fide
purchaser in whose hands such Securities are valid obligations
of the Company;
provided, however, that in determining whether the Holders of the
requisite principal amount of the Outstanding Securities have given
any request, demand, authorization, direction, notice, consent or
waiver hereunder, (a) the principal amount of an Original Issue
Discount Security that shall be deemed to be Outstanding for such
purposes shall be the amount of the principal thereof that would be
due and payable as of the date of such determination upon a
declaration of acceleration of the maturity thereof pursuant to
Section 5.2, and (b) Securities owned by the Company or any other
obliger upon the Securities or any Affiliate of the Company or of
such other obliger shall be disregarded and deemed not to be
Outstanding, except that in determining whether the Trustee shall be
protected in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Securities which the
Trustee knows to be so owned shall be so disregarded. Securities so
owned as described in (b) above which have been pledged in good
faith may be regarded as Outstanding if the pledge establishes to
the satisfaction of the Trustee the pledgee's right so to act with
respect to such Securities and that the pledgee is not the Company
or any other obligor upon the Securities or any Affiliate of the
Company or of such other obligor.
"Paying Agent" means any person authorized by the Company to
pay the principal of (and premium, if any) or interest, if any, on
any Securities on behalf of the Company.
"Place of Payment", when used with respect to the Securities of
any series, means the place or places where the principal of (and
premium, if any) and interest, if any, on the Securities of that
series are payable as specified in or as contemplated by Section
3.1.
<PAGE>
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as
that evidenced by such particular Security; and, for the purposes of
this definition, any Security authenticated and delivered under
Section 3.6 in exchange for or in lieu of a mutilated, destroyed,
lost or stolen Security shall be deemed to evidence the same debt as
the mutilated, destroyed, lost or stolen Security.
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to
this Indenture.
"Redemption Price", when used with respect to any Security to
be redeemed, means the price at which it is to be redeemed pursuant
to this Indenture, exclusive of accrued and unpaid interest.
"Regular Record Date" for the interest payable on any Interest
Payment Date on the Securities of any series means the date
specified for that purpose as contemplated by Section 3.1.
"Responsible Officer", when used with respect to the Trustee,
means the chairman or any vice chairman of the board of directors,
the chairman or any vice chairman of the executive committee of the
board of directors, the chairman of the trust committee, the
president, any vice president, the secretary, any assistant
secretary, the treasurer, any assistant treasurer, the cashier, any
assistant cashier, any trust officer or assistant trust officer, the
controller or any assistant controller or any other officer of the
Trustee customarily performing functions similar to those performed
by any of the above designated officers and also means, with respect
to a particular corporate trust matter, any other officer to whom
such matter is referred because of his knowledge of and familiarity
with the particular subject.
"Securities" has the meaning stated in the first recital of
this Indenture and more particularly means any Securities
authenticated and delivered under this Indenture.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 3.5.
"Senior Indebtedness" has the meaning specified in Section
13.1.
"Senior Representative", in respect of a particular series of
Securities, shall have the meaning set forth in the supplemental
indenture, Board Resolution or Officers' Certificate pursuant to
Section 3.1 establishing such series of Securities.
"Special Record Date" for the payment of any Defaulted Interest
means a date fixed by the Trustee pursuant to Section 3.7.
"Stated Maturity", when used with respect to any Security or
any instalment of principal thereof or interest thereon, means the
date specified in such Security as the fixed date on which the
principal of such Security or such instalment of principal or
interest is due and payable.
<PAGE>
"Subsidiary" means any corporation of which at least a majority
of the outstanding stock having voting power under ordinary
circumstances to elect a majority of the board of directors of said
corporation shall at the time be owned by the Company or by the
Company and one or more Subsidiaries or by one or more Subsidiaries.
"Trustee" means the person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have
become such pursuant to the applicable provisions of this Indenture,
and thereafter "Trustee" shall mean or include each person who is
then a Trustee hereunder, and if at any time there is more than one
such person, "Trustee" as used with respect to the Securities of any
series shall mean the Trustee with respect to Securities of that
series.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as
in force at the date as of which this instrument was executed,
except as provided in Section 9.5.
"U.S. Government Obligations" means direct obligations of the
United States for the payment of which its full faith and credit is
pledged, or obligations of a person controlled or supervised by and
acting as an agency or instrumentality of the United States and the
payment of which is unconditionally guaranteed by the United States.
"Vice President", when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a
number or a word or words added before or after the title "vice
president".
SECTION 1.2 Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee
to take any action under any provision of this Indenture, the Company
shall furnish to the Trustee an Officers' Certificate stating that all
conditions precedent, if any, provided for in this Indenture relating to
the proposed action have been complied with and an Opinion of Counsel
stating that in the opinion of such counsel all such conditions precedent,
if any, have been complied with, except that in the case of any such
application or request as to which the furnishing of such documents is
specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion
need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(1) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions
herein relating thereto;
(2) a brief statement as to the nature and scope of the exam-
ination or investigation upon which the statements or opinions con-
tained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual,
he has made such examination or investigation as is necessary to
<PAGE>
enable him to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 1.3 Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified person, it is not necessary
that all such matters be certified by, or covered by the opinion of, only
one such person, or that they be so certified or covered by only one
document, but one such person may certify or give an opinion with respect
to some matters and one or more other such persons as to other matters,
and any such person may certify or give an opinion as to such matters in
one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or
opinion of, or representations by, counsel, unless such officer knows, or
in the exercise of reasonable care should know, that the certificate or
opinion or representations with respect to the matters upon which his
certificate or opinion is based are erroneous. Any such certificate or
Opinion of Counsel may be based, insofar as it relates to factual matters,
upon a certificate or opinion of, or representations by, an officer or
officers of the Company stating that the information with respect to such
factual matters is in the possession of the Company, unless such counsel
knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to such matters are
erroneous.
Where any person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions
or other instruments under this Indenture, they may, but need not, be
consolidated and form one instrument.
SECTION 1.4 Acts of Holders.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or
taken by Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in
person or by agent duly appointed in writing; and, except as herein
otherwise expressly provided, such action shall become effective when such
instrument or instruments are delivered to the Trustee and, where it is
hereby expressly required, to the Company. Such instrument or instruments
(and the action embodied therein and evidenced thereby) are herein
sometimes referred to as the "Act" of the Holders signing such instrument
or instruments. Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 6.1) conclusive in favor of the Trustee
and the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any person of any
such instrument or writing may be proved by the affidavit of a witness of
such execution or by a certificate of a notary public or other officer
authorized by law to take acknowledgments of deeds, certifying that the
<PAGE>
individual signing such instrument or writing acknowledged to him the
execution thereof. Where such execution is by a signer acting in a
capacity other than his individual capacity, such certificate or affidavit
shall also constitute sufficient proof of his authority. The fact and
date of the execution of any such instrument or writing, or the authority
of the person executing the same, may also be proved in any other manner
which the Trustee deems sufficient.
(c) The ownership of Securities shall be proved by the
Security Register.
(d) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind
every future Holder of the same Security and the Holder of every Security
issued upon the registration of transfer thereof or in exchange therefor
or in lieu thereof in respect of anything done, omitted or suffered to be
done by the Trustee or the Company in reliance thereon, whether or not
notation of such action is made upon such Security.
SECTION 1.5 Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent,
waiver or Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust
Office, or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein ex-
pressly provided) if in writing and sent by registered or certified
mail, prepaid, to the Company addressed to it at the address of its
principal office specified in the first paragraph of this instrument
or at any other address previously furnished in writing to the
Trustee by the Company.
SECTION 1.6 Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any
event, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid,
to each Holder affected by such event, at his address as it appears in the
Security Register, not later than the latest date, and not earlier than
the earliest date, prescribed for the giving of such notice. In any case
where notice to Holders is given by mail, neither the failure to mail such
notice, nor any defect in any notice so mailed, to any particular Holder
shall affect the sufficiency of such notice with respect to other Holders.
Where this Indenture provides for notice in any manner, such notice may be
waived in writing by the person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any
action taken in reliance upon such waiver.
<PAGE>
In case by reason of the suspension of regular mail service or
by reason of any other cause it shall be impracticable to give such notice
by mail, then such notification as shall be made with the approval of the
Trustee shall constitute a sufficient notification for every purpose
hereunder.
SECTION 1.7 Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with
another provision hereof which is required to be included in this
Indenture by any of the provisions of the Trust Indenture Act, such
required provision shall control.
SECTION 1.8 Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of
Contents are for convenience only and shall not affect the construction
hereof.
SECTION 1.9 Successors and Assigns.
All covenants and agreements in this Indenture by the Company
shall bind its successors and assigns, whether so expressed or not.
SECTION 1.10 Separability Clause.
In case any provision in this Indenture or in the Securities
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
SECTION 1.11 Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or
implied, shall give to any person, other than the parties hereto and their
successors hereunder, the holders of Senior Indebtedness, and the Holders,
any benefit or any legal or equitable right, remedy or claim under this
Indenture.
SECTION 1.12 Governing Law.
This Indenture and the Securities shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 1.13 Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or
Stated Maturity of any Security shall not be a Business Day at any Place
of Payment, then (notwithstanding any other provision of this Indenture or
of the Securities) payment of interest, if any, or principal (and premium,
if any) need not be made at such Place of Payment on such date, but may be
made on the next succeeding Business Day at such Place of Payment with the
same force and effect as if made on the Interest Payment Date or
Redemption Date, or at the Stated Maturity, provided that no interest
shall accrue for the period from and after such Interest Payment Date,
Redemption Date or Stated Maturity, as the case may be.
<PAGE>
SECTION 1.14 Incorporators, Stockholders, Officers and
Directors of the Company Exempt from Individual
Liability.
No recourse for the payment of the principal of (and premium,
if any) or interest, if any, on any Security, or for any claim based
thereon or otherwise in respect thereof, and no recourse under or upon any
obligation, covenant or agreement of the Company in this Indenture or in
any supplemental indenture, or in any Security, or because of the creation
of any indebtedness represented thereby, shall be had against any
incorporator, stockholder, officer or director, as such, past, present or
future, of the Company or of any successor corporation, either directly or
through the Company or any successor corporation, whether by virtue of any
constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise; it being expressly understood that all
such liability is hereby waived and released as a condition of and as a
consideration for, the execution of this Indenture and the issue of the
Securities.
SECTION 1.15 Counterparts.
This instrument may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
SECTION 1.16 Currency Exchange.
If, in determining whether the Holders of the requisite
principal amount of Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, it becomes
necessary to determine the principal amount of Securities of any series
denominated in any coin or currency other than that of the United States
of America, such principal amount shall be computed by converting such
coin or currency into coin or currency of the United States of America
based upon the rate of exchange in effect at the office of the Trustee in
New York, New York on the date of initial issuance of such series of
Securities.
ARTICLE II
SECURITY FORMS
SECTION 2.1 Forms Generally.
The Securities of each series shall be in substantially the
form set forth in this Article, or in such other form as shall be
established by or pursuant to a Board Resolution or in one or more
indentures supplemental hereto, in each case with such appropriate
insertions, omissions, substitutions and other variations as are required
or permitted by this Indenture, and may have such letters, numbers or
other marks of identification and such legends or endorsements placed
thereon as may be required to comply with the rules of any securities
exchange or as may, consistently herewith, be determined by the officers
executing such Securities, as evidenced by their execution of the
Securities.
<PAGE>
The Trustee's certificates of authentication shall be in
substantially the form set forth in this Article.
The definitive Securities shall be printed, lithographed or
engraved on steel engraved borders or may be produced in any other manner,
all as determined by the officers executing such Securities, as evidenced
by their execution of such Securities.
SECTION 2.2 Form of Face of Security.
[If the Security is an Original Issue Discount Security, insert
-- FOR PURPOSES OF SECTIONS 1273 AND 1275 OF THE INTERNAL REVENUE CODE,
THE AMOUNT OF ORIGINAL ISSUE DISCOUNT ON THIS SECURITY IS ____________% OF
ITS PRINCIPAL AMOUNT, THE ISSUE DATE IS ______________, 19__, [AND] THE
YIELD TO MATURITY IS ____% [, THE METHOD USED TO DETERMINE THE YIELD FOR
THE SHORT ACCRUAL PERIOD OF ________ , 19__ TO ________, 19__, IS _______
AND THE AMOUNT OF ORIGINAL ISSUE DISCOUNT APPLICABLE TO THE SHORT ACCRUAL
PERIOD IS _______% OF THE PRINCIPAL AMOUNT OF THIS SECURITY]. [THIS
SECURITY WAS ISSUED WITHOUT A SHORT ACCRUAL PERIOD.]
INGERSOLL-RAND COMPANY
[Title of the Security]
No. $__________
INGERSOLL-RAND COMPANY, a corporation duly organized and
existing under the laws of the State of New Jersey (herein called the
"Company", which term includes any successor corporation under the
Indenture hereinafter referred to), for value received, hereby promises to
pay to ____________________
_____________________________, or registered assigns, the principal sum of
_________________________ Dollars on __________ [If the Security is to
bear interest prior to Maturity, insert --, and to pay interest thereon
from ____________, or from the most recent Interest Payment Date to which
interest has been paid or duly provided for, semiannually on
________________ and ______________ in each year, commencing ___________,
at the rate per annum provided in the title hereof, until the principal
hereof is paid or made available for payment [If applicable insert ___,
and, subject to the terms of the Indenture, at the rate per annum provided
in the title hereof on any overdue principal and premium and (to the
extent that the payment of such interest shall be legally enforceable) on
any overdue instalment of interest]. The interest so payable, and
punctually paid or duly provided for, on any Interest Payment Date will,
as provided in such Indenture, be paid to the person in whose name this
Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest, which
shall be the __________ or _________ (whether or not a Business Day), as
the case may be, next preceding such Interest Payment Date. Any such
interest not so punctually paid or duly provided for will forthwith cease
to be payable to the Holder on such Regular Record Date and may either be
paid to the person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on a Special Record
Date for the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to Holders of Securities of this
series not less than 10 days prior to such Special Record Date, or be paid
at any time in any other lawful manner not inconsistent with the
<PAGE>
requirements of any securities exchange on which the Securities of this
series may be listed, and upon such notice as may be required by such
exchange, all as more fully provided in said Indenture].
[If the Security is not to bear interest prior to Maturity, insert -- The
principal of this Security shall not bear interest except in the case of a
default in payment of principal upon acceleration, upon redemption or at
Stated Maturity and in such case the overdue principal of this Security
shall bear interest at the rate of [yield to maturity]% per annum (to the
extent that the payment of such interest shall be legally enforceable),
which shall accrue from the date of such default in payment to the date
payment of such principal has been made or duly provided for. Interest on
any overdue principal shall be payable on demand. Any such interest on
any overdue principal that is not so paid on demand shall bear interest at
the rate of [yield to maturity]% per annum (to the extent that the payment
of such interest shall be legally enforceable), which shall accrue from
the date of such demand for payment to the date payment of such interest
has been made or duly provided for, and such interest shall also be
payable on demand.]
Payment of the principal of (and premium, if any) and interest,
if any, on this Security will be made at the office or agency of the
Company maintained for that purpose in the Borough of Manhattan, The City
of New York, in [coin or currency]; provided, however, that at the option
of the Company payment of interest may be made by check mailed to the
address of the person entitled thereto as such address shall appear in the
Security Register.
The indebtedness evidenced by this Security is, to the extent
provided in the Indenture, subordinate and subject in right of payments to
the prior payment in full of all Senior Indebtedness, and this Security is
issued subject to the provisions of the Indenture with respect thereto.
Each Holder of this Security, by accepting the same, (a) agrees to and
shall be bound by such provisions, (b) authorizes and directs the Trustee
on his behalf to take such actions as may be necessary or appropriate to
effectuate the subordination so provided and (c) appoints the Trustee his
attorney-in-fact for any and all such purposes. Each Holder hereof, by his
acceptance hereof, waives all notice of the acceptance of the
subordination provisions contained herein and in the Indenture by each
holder of Senior Indebtedness, whether now outstanding or hereafter
incurred, and waives reliance by each such holder upon said provisions.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS
SECURITY SET FORTH ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL
FOR ALL PURPOSES HAVE THE SAME EFFECT AS IF SET FORTH AT THIS PLACE.
Unless the certificate of authentication hereon has been
executed by the Trustee referred to on the reverse hereof by manual
signature, this Security shall not be entitled to any benefit under the
Indenture or be valid or obligatory for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed under its corporate seal.
Dated:
[Seal] INGERSOLL-RAND COMPANY
By
---------------------------
By
---------------------------
<PAGE>
SECTION 2.3 Form of Reverse of Security.
INGERSOLL-RAND COMPANY
[Title of the Security]
This Security is one of a duly authorized issue of securities
of the Company (herein called the "Securities"), issued and to be issued
in one or more series under an Indenture, dated as of , 1997
(herein called the "Indenture"), between the Company and The Bank of New
York, as Trustee (herein called the "Trustee", which term includes any
successor trustee under the Indenture), to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement
of the respective rights, limitations of rights, duties and immunities
thereunder of the Company, the Trustee and the Holders of the Securities
and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Security is one of the series
designated on the face hereof, limited in aggregate principal amount to
_____________________.
[If applicable, insert -- The Securities of this series are
subject to redemption upon not less than 30 or more than 60 days' notice
by mail to the Holders of such Securities at their addresses in the
Security Register for such series, [if applicable, insert -- (1) on
________________ in any year commencing with the year ____________ and
ending with the year _________________ through operation of the sinking
fund for this series at a Redemption Price equal to 100% of the principal
amount, and (2)] at any time [on or after ___________, 19__], as a whole
or in part, at the election of the Company, at the following Redemption
Prices (expressed as percentages of the principal amount):
If redeemed [on or before _______________, __%, and if
redeemed] during the 12-month period beginning ________________,
Redemption Redemption
Year Price Year Price
---- ---------- ---- -----------
<PAGE>
and thereafter at a Redemption Price equal to ___% of the principal
amount, together in the case of any such redemption [if applicable, insert
-- (whether through operation of the sinking fund or otherwise)] with
accrued and unpaid interest to the Redemption Date, but interest
installments whose Stated Maturity is on or prior to such Redemption Date
will be payable to the Holders of such Securities, or one or more
Predecessor Securities, of record at the close of business on the relevant
Record Dates referred to on the face hereof, all as provided in the
Indenture.]
[If applicable, insert -- The Securities of this series are
subject to redemption upon not less than 30 or more than 60 days' notice
by mail to the Holders of such Securities at their addresses in the
Security Register for such series, (1) on
____________________________ in any year commencing with the year
_________________ and ending with the year ________________ through
operation of the sinking fund for this series at the Redemption Prices for
redemption through operation of the sinking fund (expressed as percentages
of the principal amount) set forth in the table below, and (2) at any time
[on or after ________________], as a whole or in part, at the election of
the Company, at the Redemption Prices for redemption otherwise than
through operation of the sinking fund (expressed as percentages of the
principal amount) set forth in the table below:
If redeemed during the 12-month period beginning
Redemption Price
For Redemption Redemption Price For
Through Operation Redemption Otherwise
of the Than Through Operation
Year Sinking Fund of the Sinking Fund
---- ----------------- -----------------------
and thereafter at a Redemption Price equal to ___% of the principal
amount, together in the case of any such redemption (whether through
operation of the sinking fund or otherwise) with accrued and unpaid
interest to the Redemption Date, but interest installments whose Stated
Maturity is on or prior to such Redemption Date will be payable to the
Holders of such Securities, or one or more Predecessor Securities, of
record at the close of business on the relevant Record Dates referred to
on the face hereof, all as provided in the Indenture.]
[Notwithstanding the foregoing, the Company may not, prior to
__________________________, redeem any Securities of this series as
contemplated by [Clause (2) of] the preceding paragraph as a part of, or
in anticipation of, any refunding operation by the application, directly
or indirectly, of moneys borrowed having an interest cost to the Company
(calculated in accordance with generally accepted financial practice) of
less than ___% per annum.]
<PAGE>
[The sinking fund for this series provides for the redemption
on _________________________ in each year beginning with the year ______
and ending with the year _____ of [not less than]
_______________________[("mandatory sinking fund") and, at the option of
the Company, not more than ___] aggregate principal amount of
Securities of this series. [Securities of this series acquired or redeemed
by the Company otherwise than through [mandatory] sinking fund payments
may be credited against subsequent [mandatory] sinking fund payments
otherwise required to be made in the order in which they become due.]
[In the event of redemption of this Security in part only, a
new Security or Securities of this series for the unredeemed portion
hereof will be issued in the name of the Holder hereof upon the
cancellation hereof.]
The Indenture contains provisions for defeasance of (a) the
entire indebtedness of this Security and (b) certain restrictive covenants
upon compliance by the Company with certain conditions set forth therein.
[If the Security is not an Original Issue Discount Security,
insert -- If an Event of Default with respect to Securities of this series
shall occur and be continuing, the principal of the Securities of this
series may be declared due and payable in the manner and with the effect
provided in the Indenture.]
[If the Security is an Original Issue Discount Security, insert
-- If an Event of Default with respect to Securities of this series shall
occur and be continuing, an amount of principal of the Securities of this
series (the "Acceleration Amount") may be declared due and payable in the
manner and with the effect provided in the Indenture. In case of a
declaration of acceleration on or before ________, or on ________ in any
year, the Acceleration Amount per ________ principal amount at Stated
Maturity of the Securities shall be equal to the amount set forth in
respect of such date below:
<PAGE>
Acceleration
Amount per
Principal Amount
Date of Declaration at Stated Maturity
------------------- ----------------
and in case of a declaration of acceleration on any other date, the
Acceleration Amount shall be equal to the Acceleration Amount as of the
next preceding date set forth in the table above, plus accrued original
issue discount (computed in accordance with generally accepted accounting
principles in effect on _______________) from such next
preceding date to the date of declaration at the yield to maturity. For
the purpose of this computation the yield to maturity is ___%. Upon
payment (i) of the Acceleration Amount so declared due and payable and
(ii) of interest on any overdue principal and overdue interest (in each
case to the extent that the payment of such interest shall be legally
enforceable), all of the Company's obligations in respect of the payment
of the principal of and interest, if any, on the Securities of this series
shall terminate.]
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders of the Securities
of each series to be affected under the Indenture at any time by the
Company and the Trustee with the consent of the Holders of not less than a
majority in aggregate principal amount of the Securities at the time
Outstanding of all series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in principal
amount of the Securities at the time Outstanding of all series to be
affected, on behalf of the Holders of all Securities of such series, to
waive compliance by the Company with certain provisions of the Indenture
and certain past defaults under the Indenture and their consequences. Any
such consent or waiver by the Holder of this Security shall be conclusive
and binding upon such Holder and upon all future Holders of this Security
and of any Security issued upon the registration of transfer hereof or in
exchange herefor or in lieu hereof, whether or not notation of such
consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of (and
premium, if any) and interest, if any, on this Security at the times,
place and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in the
Security Register, upon surrender of this Security for registration of
transfer at the office or agency of the Company in any place where the
principal of (and premium, if any) and interest, if any, on this Security
<PAGE>
are payable, duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Company and the Security Registrar
duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Securities of this series, of
authorized denominations and for the same aggregate principal amount, will
be issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered
form without coupons in denominations of _______ and any integral multiple
thereof. As provided in the Indenture and subject to certain limitations
therein set forth, Securities of this series are exchangeable for a like
aggregate principal amount of Securities of this series of a different
authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge payable in
connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the
Trustee may treat the person in whose name this Security is registered as
the owner hereof for all purposes, whether or not this Security be
overdue, and neither the Company, the Trustee nor any such agent shall be
affected by notice to the contrary.
No recourse for the payment of the principal of (and premium,
if any) or interest, if any, on this Security, or for any claim based
hereon or otherwise in respect hereof, and no recourse under or upon any
obligation, covenant or agreement of the Company in the Indenture or any
indenture supplemental thereto or in any Security, or because of the
creation of any indebtedness represented thereby, shall be had against any
incorporator, stockholder, officer or director, as such, past, present or
future, of the Company or of any successor corporation, either directly or
through the Company or any successor corporation, whether by virtue of any
constitution, statute or rule of law or by the enforcement of any
assessment or penalty or otherwise, all such liability being, by the
acceptance hereof and as part of the consideration for the issue hereof,
expressly waived and released.
This Security shall be governed by and construed in accordance
with the laws of the State of New York.
All terms used in this Security which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
<PAGE>
SECTION 2.4 Form of Trustee's Certificate of Authentication.
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
,
----------------------
as Trustee
By
-----------------------
Authorized Signature
<PAGE>
ARTICLE III
THE SECURITIES
SECTION 3.1 Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. The
Securities shall be subordinated in right of payment to Senior
Indebtedness as set forth in Article XIII. There shall be established in
or pursuant to a Board Resolution, and set forth in an Officers'
Certificate, or established in one or more indentures supplemental hereto,
prior to the issuance of Securities of any series:
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from all other Securities);
(2) any limit upon the aggregate principal amount of the Secu-
rities of the series which may be authenticated and delivered under
this Indenture (except for Securities authenticated and delivered
upon registration of transfer of, or in exchange for, or in lieu of,
other Securities of the series pursuant to Sections 3.4, 3.5, 3.6,
9.6, or 11.7);
(3) the date or dates on which the principal of the Securities
of the series is payable;
(4) the rate or rates at which the Securities of the series
shall bear interest, if any, the date or dates from which such
interest shall accrue, the Interest Payment Dates on which such
interest shall be payable and the Regular Record Date for the
interest payable on any Interest Payment Date;
(5) the place or places where the principal of (and premium,
if any) and interest, if any, on Securities of the series shall be
payable and where such Securities may be registered or transferred;
(6) the period or periods within which, the price or prices at
which and the terms and conditions upon which Securities of the
series may be redeemed, in whole or in part, at the option of the
Company;
(7) the obligation, if any, of the Company to redeem or
purchase Securities of the series pursuant to any sinking fund or
analogous provisions or at the option of a Holder thereof, and the
period or periods within which, the price or prices at which and the
terms and conditions upon which Securities of the series shall be
redeemed or purchased, in whole or in part, pursuant to such
obligation;
(8) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which Securities of the
series shall be issuable;
<PAGE>
(9) if other than the principal amount thereof, the portion of
the principal amount of Securities of the series which shall be
payable upon declaration of acceleration of the Maturity thereof
pursuant to Section 5.2;
(10) if other than such coin or currency of the United States
of America as at the time of payment is legal tender for payment of
public or private debts, the coin or currency, including composite
currencies such as the European Currency Unit, in which payment of
the principal of (and premium, if any) and interest, if any, on the
Securities of the series shall be payable;
(11) if the principal of (and premium, if any) or interest, if
any, on the Securities of the series are to be payable, at the
election of the Company or a Holder thereof, in a coin or currency
other than that in which the Securities are stated to be payable,
the period or periods within which, and the terms and conditions
upon which, such election may be made;
(12) if the amount of payments of principal of (and premium,
if any) or interest, if any, on the Securities of the series may be
determined with reference to an index based on a coin or currency
other than that in which the Securities are stated to be payable,
the manner in which such amounts shall be determined;
(13) any provisions permitted by this Indenture relating to
Events of Default, covenants of the Company or subordination with
respect to such series of Securities;
(14) whether the Securities of the series will be convertible
into shares of Common Stock of the Company and/or exchangeable for
other securities, and if so, the terms and conditions upon which
such Securities will be so convertible or exchangeable, and any
deletions from or modifications or additions to this Indenture to
permit or to facilitate the issuance of such convertible or
exchangeable Securities or the administration thereof; and
(15) any other terms of the series and any deletions from or
modifications or additions to the Indenture in respect of such
Securities.
All Securities of any one series shall be substantially
identical except as to denomination and except as may otherwise be
provided in or pursuant to such Board Resolution and set forth in such
Officers' Certificate or in any such indenture supplemental hereto.
If any of the terms of a series, including the form of Security
of such series, are established by action taken pursuant to a Board
Resolution, a copy of an appropriate record of such action shall be
certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Company Order
contemplated by Section 3.3 for the authentication and delivery of such
series of Securities.
<PAGE>
SECTION 3.2 Denominations.
The Securities of each series shall be issuable in registered
form without coupons in such denominations as shall be specified as
contemplated by Section 3.1. In the absence of any such provisions with
respect to the Securities of any series, the Securities of such series
shall be issuable in denominations of $1,000 and any integral multiple
thereof.
SECTION 3.3 Execution, Authentication, Delivery and Dating.
The Securities shall be executed, manually or by facsimile, on
behalf of the Company by its Chairman of the Board, its Vice Chairman of
the Board, its President or one of its Vice Presidents and by its
Treasurer or one of its Assistant Treasurers or its Secretary or one of
its Assistant Secretaries, under its corporate seal reproduced thereon, by
facsimile or otherwise, and which need not be attested.
Securities bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall
bind the Company, notwithstanding that such individuals or any of them
have ceased to hold such offices prior to the authentication and delivery
of such Securities or did not hold such offices at the date of such
Securities.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities of any
series executed by the Company to the Trustee for authentication, together
with a Company Order for the authentication and delivery of such
Securities, and the Trustee in accordance with the Company Order shall
authenticate and deliver such Securities. If the form or terms of the
Securities of the series have been established in or pursuant to one or
more Board Resolutions as permitted by Sections 2.1 and 3.1, in
authenticating Securities, and accepting the additional responsibilities
under this Indenture in relation to such Securities, the Trustee shall be
entitled to receive, and (subject to Section 6.1) shall be fully protected
in relying upon, an Opinion of Counsel stating,
(a) if the form of such Securities has been established by or
pursuant to Board Resolution as permitted by Section 2.1, that such
form has been established in conformity with the provisions of this
Indenture;
(b) if the terms of such Securities have been established by
or pursuant to Board Resolution as permitted by Section 3.1, that
such terms have been established in conformity with the provisions
of this Indenture; and
(c) that such Securities, when authenticated and delivered by
the Trustee and issued by the Company in the manner and subject to
any conditions specified in such Opinion of Counsel, will constitute
valid and legally binding obligations of the Company, enforceable in
accordance with their terms, subject to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to
or affecting the enforcement of creditors' rights and to general
equity principles.
<PAGE>
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the Trustee, being advised by
counsel, determines that the issue of such Securities pursuant to this
Indenture will affect the Trustee's own rights, duties or immunities under
the Securities and this Indenture or otherwise in a manner which is not
reasonably acceptable to the Trustee.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears
on such Security a certificate of authentication substantially in the form
provided for herein executed by the Trustee by manual signature, and such
certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered
hereunder and is entitled to the benefits of this Indenture.
SECTION 3.4 Temporary Securities.
Pending the preparation of definitive Securities of any series,
the Company may execute, and upon Company Order the Trustee shall
authenticate and deliver, temporary Securities which are printed, litho-
graphed, typewritten, mimeographed or otherwise produced, in any author-
ized denomination, substantially of the tenor of the definitive Securities
in lieu of which they are issued and with such appropriate insertions,
omissions, substitutions and other variations as the officers executing
such Securities may determine, as evidenced by their execution of such
Securities.
If temporary Securities of any series are issued, the Company
will cause definitive Securities of that series to be prepared without
unreasonable delay. After the preparation of definitive Securities of
such series, the temporary Securities of such series shall be exchangeable
for definitive Securities of such series upon surrender of the temporary
Securities of such series at the office or agency of the Company in a
Place of Payment for that series, without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Securities of any
series the Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a like principal amount of definitive
Securities of the same series of authorized denominations. Until so
exchanged the temporary Securities of any series shall in all respects be
entitled to the same benefits under this Indenture as definitive
Securities of such series.
SECTION 3.5 Registration, Registration of Transfer and
Exchange.
The Company shall cause to be kept at the Corporate Trust
Office of the Trustee a register (the register maintained in such office
and in any other office or agency of the Company in a Place of Payment
being herein sometimes collectively referred to as the "Security
Register") in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of Securities
and of transfers of Securities. The Trustee is hereby appointed "Security
Registrar" for the purpose of registering Securities and transfers of
Securities as herein provided.
<PAGE>
Upon surrender for registration of transfer of any Security of
any series at the office or agency in a Place of Payment for that series,
the Company shall execute, and the Trustee shall authenticate and deliver,
in the name of the designated transferee or transferees, one or more new
Securities of the same series, of any authorized denominations and of a
like aggregate principal amount.
At the option of the Holder, Securities of any series may be
exchanged for other Securities of the same series, of any authorized
denominations and of a like aggregate principal amount, upon surrender of
the Securities to be exchanged at such office or agency. Whenever any
Securities are so surrendered for exchange, the Company shall execute, and
the Trustee shall authenticate and deliver, the Securities which the
Holder making the exchange is entitled to receive.
All securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Securities surrendered upon such registration of
transfer or exchange.
Every Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the
Trustee) be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Company and the Security Registrar
duly executed, by the Holder thereof or his attorney duly authorized in
writing.
No service charge shall be made for any registration of
transfer or exchange of Securities, but the Company may require payment of
a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration of transfer or exchange of
Securities, other than exchanges pursuant to Sections 3.4, 9.6 or 11.7 not
involving any transfer.
The Company shall not be required (i) to issue, register the
transfer of or exchange Securities of any series during a period beginning
at the opening of business 15 days before the day of the mailing of a
notice of redemption of Securities of that series selected for redemption
under Section 11.3 and ending at the close of business on the day of such
mailing, or (ii) to register the transfer of or exchange any Security so
selected for redemption in whole or in part, except the unredeemed portion
of any Security being redeemed in part.
SECTION 3.6 Mutilated, Destroyed, Lost and Stolen
Securities.
If any mutilated Security is surrendered to the Trustee, the
Company shall execute and the Trustee shall authenticate and deliver in
exchange therefor a new Security of the same series and of like tenor and
principal amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any
Security and (ii) such security or indemnity as may be required by them to
save each of them and any agent of either of them harmless, then, in the
absence of notice to the Company or the Trustee that such Security has
<PAGE>
been acquired by a bona fide purchaser, the Company shall execute and upon
its request the Trustee shall authenticate and deliver, in lieu of any
such destroyed, lost or stolen Security, a new Security of the same series
and of like tenor and principal amount and bearing a number not
contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security
has become or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and any
other expenses (including the fees and expenses of the Trustee) connected
therewith.
Every new Security of any series issued pursuant to this
Section in lieu of any destroyed, lost or stolen Security shall constitute
an original additional contractual obligation of the Company, whether or
not the destroyed, lost or stolen Security shall be at any time
enforceable by anyone, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Securities of
that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 3.7 Payment of Interest; Interest Rights Preserved.
Interest on any Security which is payable, and is punctually
paid or duly provided for, on any Interest Payment Date shall be paid to
the person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record
Date for such interest.
Any interest on any Security of any series which is payable,
but is not punctually paid or duly provided for, on any Interest Payment
Date (herein called "Defaulted Interest") shall forthwith cease to be
payable to the Holder on the relevant Regular Record Date by virtue of
having been such Holder, and such Defaulted Interest may be paid by the
Company, at its election in each case, as provided in Clause (1) or (2)
below:
(1) The Company may elect to make payment of any Defaulted
Interest to the persons in whose names the Securities of such series
(or their respective Predecessor Securities) are registered at the
close of business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following manner.
The Company shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each Security of such
series and the date of the proposed payment, and at the same time
the Company shall deposit with the Trustee an amount of money equal
to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the
Trustee for such deposit prior to the date of the proposed payment,
such money when deposited to be held in trust for the benefit of the
<PAGE>
persons entitled to such Defaulted Interest as in this Clause
provided. Thereupon the Trustee shall fix a Special Record Date for
the payment of such Defaulted Interest which shall be not more than
15 days and not less than 10 days prior to the date of the proposed
payment and not less than 10 days after the receipt by the Trustee
of the notice of the proposed payment. The Trustee shall promptly
notify the Company of such Special Record Date and, in the name and
at the expense of the Company, shall cause notice of the proposed
payment of such Defaulted Interest and the Special Record Date
therefor to be mailed, first-class postage prepaid, to each Holder
of Securities of such series at his address as it appears in the
Security Register, not less than 10 days prior to such Special
Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been so mailed,
such Defaulted Interest shall be paid to the persons in whose names
the Securities of such series (or their respective Predecessor
Securities) are registered at the close of business on such Special
Record Date and shall no longer be payable pursuant to the following
Clause (2).
(2) The Company may make payment of any Defaulted Interest on
the Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on
which such Securities may be listed, and upon such notice as may be
required by such exchange, if, after notice given by the Company to
the Trustee of the proposed payment pursuant to this Clause, such
manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each
Security delivered under this Indenture upon registration of transfer of
or in exchange for or in lieu of any other Security shall carry the rights
to interest accrued and unpaid, and to accrue, which were carried by such
other Security.
SECTION 3.8 Persons Deemed Owners.
Prior to due presentment of a Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the
Trustee may treat the person in whose name such Security is registered as
the owner of such Security for the purpose of receiving payment of
principal of (and premium, if any) and (subject to Section 3.7) interest,
if any, on such Security and for all other purposes whatsoever, whether or
not such Security be overdue, and neither the Company, the Trustee nor any
agent of the Company or the Trustee shall be affected by notice to the
contrary.
SECTION 3.9 Cancellation.
All Securities surrendered for payment, redemption,
registration of transfer or exchange or for credit against any sinking
fund payment shall, if surrendered to any person other than the Trustee,
be delivered to the Trustee and shall be promptly cancelled by it. The
Company may at any time deliver to the Trustee for cancellation any
Securities previously authenticated and delivered hereunder which the
Company may have acquired in any manner whatsoever, and all Securities so
delivered shall be promptly cancelled by the Trustee. No Securities shall
be authenticated in lieu of or in exchange for any Securities cancelled as
<PAGE>
provided in this Section, except as expressly permitted by this Indenture.
All cancelled Securities held by the Trustee shall be disposed of as
directed by a Company Order.
SECTION 3.10 Computation of Interest.
Except as otherwise specified as contemplated by Section 3.1
for Securities of any series, interest, if any, on the Securities of each
series shall be computed on the basis of a year of twelve 30-day months.
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.1 Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of
further effect (except as to any surviving rights of registration of
transfer or exchange of Securities herein expressly provided for), and the
Trustee, at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and
delivered (other than (i) Securities which have been destroyed,
lost or stolen and which have been replaced or paid as provided
in Section 3.6 and (ii) Securities for whose payment money has
theretofore been deposited in trust or segregated and held in
trust by the Company and thereafter repaid to the Company or
discharged from such trust, as provided in Section 10.3) have
been delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the
Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the
giving of notice of redemption by the Trustee in the name,
and at the expense, of the Company, or
(iv) are deemed paid and discharged pursuant to
Section 4.3, as applicable,
and the Company, in the case of (i), (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee as trust
funds in trust for the purpose an amount of (a) money, or (b)
in the case of (ii) or (iii) above and (except as provided in
an indenture supplemental hereto) if no Securities of any
series Outstanding are subject to repurchase at the option of
Holders, (I) U.S. Government Obligations which through the
payment of interest and principal in respect thereof in
<PAGE>
accordance with their terms will provide not later than one day
before the Stated Maturity or Redemption Date, as the case may
be, money in an amount, or (II) a combination of money or U.S.
Government Obligations as provided in (I) above, in each case
sufficient to pay and discharge the entire indebtedness on such
Securities not theretofore delivered to the Trustee for
cancellation, for principal (and premium, if any) and interest,
if any, to the date of such deposit (in the case of Securities
which have become due and payable) or to the Stated Maturity or
Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other
sums payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture have been complied
with.
Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company to the Trustee under Section
6.7, the obligations of the Trustee to any Authenticating Agent under
Section 6.14 and, if money or U.S. Government Obligations shall have been
deposited with the Trustee pursuant to subclause (B) of Clause (I) of this
Section or if money or U.S. Government Obligations shall have been
deposited with or received by the Trustee pursuant to Section 4.3, the
provisions of Section 4.4, the obligations of the Trustee under Section
4.2 and the last paragraph of Section 10.3 shall survive.
SECTION 4.2 Application of Trust Money.
(a) Subject to the provisions of the last paragraph of Section
10.3, all money or U.S. Government Obligations deposited with the
Trustee pursuant to Section 4.1, 4.3 or 10.6 and all money received
by the Trustee in respect of U.S. Government Obligations deposited
with the Trustee pursuant to Section 4.1, 4.3 or 10.6, shall be held
in trust and applied by it, in accordance with the provisions of the
Securities and this Indenture, to the payment, either directly or
through any Paying Agent (including the Company acting as its own
Paying Agent) as the Trustee may determine, to the persons entitled
thereto, of the principal (and premium, if any) and interest, if
any, for whose payment such money has been deposited with or
received by the Trustee or to make mandatory sinking fund payments
or analogous payments as contemplated by Section 4.1, 4.3 or 10.6.
(b) The Company shall pay and shall indemnify the Trustee
against any tax, fee or other charge imposed on or assessed against
U.S. Government Obligations deposited pursuant to Section 4.1, 4.3
or 10.6 or the interest and principal received in respect of such
obligations other than any payable by or on behalf of Holders.
(c) The Trustee shall deliver or pay to the Company from time
to time upon Company Request any U.S. Government Obligations or
money held by it as provided in Section 4.1, 4.3 or 10.6 which, in
the opinion of a nationally recognized firm of independent certified
public accountants expressed in a written certification thereof
<PAGE>
delivered to the Trustee, are then in excess of the amount thereof
which then would have been required to be deposited for the purpose
for which such U.S. Government Obligations or money was deposited or
received. This provision shall not authorize the sale by the
Trustee of any U.S. Government Obligations held under this
Indenture.
SECTION 4.3 Satisfaction, Discharge and Defeasance of
Securities of any Series.
The Company shall be deemed to have paid and discharged the
entire indebtedness on all the Outstanding Securities of any series on the
91st day after the date of the deposit referred to in subparagraph (f)
hereof, and the provisions of this Indenture, as it relates to such
Outstanding Securities of such series, shall no longer be in effect (and
the Trustee, at the expense of the Company, shall at Company Request
execute proper instruments acknowledging the same), except as to:
(a) the rights of Holders of Securities of such series to
receive, from the trust funds described in subparagraph (f) hereof,
(i) payment of the principal of (and premium, if any) and each
instalment of principal of (and premium, if any) or interest, if
any, on the Outstanding Securities of such series on the Stated
Maturity of such principal or instalment of principal or interest or
to and including the Redemption Date irrevocably designated by the
Company pursuant to subparagraph (i) hereof and (ii) the benefit of
any mandatory sinking fund payments applicable to the Securities of
such series on the day on which such payments are due and payable in
accordance with the terms of this Indenture and the Securities of
such series;
(b) the Company's obligations with respect to such Securities
of such series under Sections 3.5, 3.6, and 10.2 and, if the Company
shall have irrevocably designated a Redemption Date pursuant to
subparagraph (i) hereof, Sections 11.1, 11.4 and 11.6 as they apply
to such Redemption Date;
(c) the Company's obligations with respect to the Trustee
under Section 6.7;
(d) the rights, powers, trust and immunities of the Trustee
hereunder and the duties of the Trustee under Section 4.2 and, if
the Company shall have irrevocably designated a Redemption Date
pursuant to subparagraph (i) hereof, Article Eleven and the duty of
the Trustee to authenticate Securities of such series on
registration of transfer or exchange; and
(e) the provisions of Section 4.4;
provided that, the following conditions shall have been satisfied:
(f) the Company has deposited or caused to be irrevocably
deposited (except as provided in Section 4.2(c) and the last
paragraph of Section 10.3) with the Trustee as trust funds in trust,
specifically pledged as security for, and dedicated solely to, the
benefit of the Holders of the Securities of such series, (i) money
in an amount, or (ii) (except as provided in a supplemental
<PAGE>
indenture with respect to such series) if Securities of such series
are not subject to repurchase at the option of Holders, (A) U.S.
Government Obligations which through the payment of interest and
principal in respect thereof in accordance with their terms will
provide not later than one day before the due date of any payment
referred to in clause (x) or (y) of this subparagraph (f) money in
an amount or (B) a combination thereof, sufficient, in the opinion
of a nationally recognized firm of independent certified public
accountants expressed in a written certification thereof delivered
to the Trustee, to pay and discharge (x) the principal of (and
premium, if any) and each instalment of principal (and premium, if
any) and interest, if any, on the Outstanding Securities of such
series on the Stated Maturity of such principal or instalment of
principal or interest or to and including the Redemption Date
irrevocably designated by the Company pursuant to subparagraph (i)
hereof and (y) any mandatory sinking fund payments applicable to the
Securities of such series on the day on which such payments are due
and payable in accordance with the terms of this Indenture and of
the Securities of such series;
(g) the Company has delivered to the Trustee an Opinion of
Counsel to the effect that the taking of the actions referred to in
subparagraph (f) hereof would not cause any Outstanding Securities
of such series then listed on any national securities exchange to be
delisted as a result thereof;
(h) no Event of Default or event which with notice or lapse of
time would become an Event of Default (including by reason of such
deposit) with respect to the Securities of such series shall have
occurred and be continuing on the date of such deposit or during the
period ending on the 91st day after such date;
(i) the Company has delivered to the Trustee an Opinion of
Counsel to the effect that the Company has received from, or there
has been published by, the Internal Revenue Service a ruling to the
effect that Holders of the Securities of such series will not
recognize income, gain or loss for Federal income tax purposes as a
result of such deposit, defeasance and discharge; and
(j) if the Company has deposited or caused to be deposited
money or U.S. Government Obligations to pay or discharge the
principal of (and premium, if any) and interest, if any, on the
Outstanding Securities of a series to and including a Redemption
Date on which all of the Outstanding Securities of such series are
to be redeemed, such Redemption Date shall be irrevocably designated
by a Board Resolution delivered to the Trustee on or prior to the
date of deposit of such money or U.S. Government Obligations, and
such Board Resolution shall be accompanied by an irrevocable Company
Request that the Trustee give notice of such redemption in the name
and at the expense of the Company not less than 30 nor more than 60
days prior to such Redemption Date in accordance with Section 11.4.
SECTION 4.4 Effect on Subordination Provisions.
Unless otherwise expressly provided pursuant to Section 3.1
with respect to the Securities of any series, the provisions for
subordination of the Securities set forth in Article XIII hereof are
<PAGE>
hereby expressly made subject to the provisions for satisfaction and
discharge set forth in Section 4.1 hereof and the provisions for
defeasance and covenant defeasance set forth in Section 10.6 hereof and,
anything herein to the contrary notwithstanding, upon the effectiveness of
such satisfaction and discharge pursuant to Section 4.1 or any such
defeasance or covenant defeasance pursuant to Section 10.6 with respect to
the Securities of any series, such Securities shall thereupon cease to be
so subordinated and such Securities (and the monies and/or U.S. Government
Obligations deposited in respect thereof) shall no longer be subject to
the provisions of Article XIII hereof and, without limitation to the
foregoing, all moneys, U.S. Government Obligations and other securities or
property deposited with the Trustee (or other qualifying trustee) in trust
in connection with such satisfaction and discharge, defeasance or covenant
defeasance, as the case may be, and all proceeds therefrom may be applied
to pay the principal of, premium, if any, and interest, if any, on, the
Securities of such series as and when the same shall become due and
payable notwithstanding the provisions of Article XIII.
ARTICLE V
REMEDIES
SECTION 5.1 Events of Default.
"Event of Default", wherever used herein with respect to
Securities of any series, means any one of the following events (whatever
the reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any
judgment, decree or order of any court or any order, rule or regulation of
any administrative or governmental body):
(1) default in the payment of any interest upon any Security
of that series when it becomes due and payable, and continuance of
such default for a period of 30 days; or
(2) default in the payment of the principal of (or premium, if
any, on) any Security of that series at its Maturity; or
(3) default in the payment of any sinking fund instalment,
when and as due by the terms of a Security of that series, and
continuance of such default for a period of 30 days; or
(4) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture (other than a covenant or
warranty a default in whose performance or whose breach is elsewhere
in this Section specifically dealt with or which has expressly been
included in this Indenture solely for the benefit of series of
Securities other than that series), and continuance of such default
or breach for a period of 90 days after there has been given, by
registered or certified mail, to the Company by the Trustee or to
the Company and the Trustee by the Holders of at least 25% in
principal amount of the Outstanding Securities of that series a
written notice specifying such default or breach and requiring it to
be remedied and stating that such notice is a "Notice of Default"
hereunder; or
<PAGE>
(5) the entry by a court having jurisdiction in the premises
of (A) a decree or order for relief in respect of the Company in an
involuntary case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or (B) a
decree or order adjudging the Company a bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of the
Company under any applicable Federal or State law, or appointing a
custodian, receiver, liquidator, assignee, trustee, sequestrator or
other similar official of the Company or of any substantial part of
its property, or ordering the winding up or liquidation of its
affairs, and the continuance of any such decree or order for relief
or any such other decree or order unstayed and in effect for a
period of 90 consecutive days; or
(6) the commencement by the Company of a voluntary case or
proceeding under any applicable Federal or State bankruptcy, in-
solvency, reorganization or other similar law or of any other case
or proceeding to be adjudicated a bankrupt or insolvent, or the
consent by it to the entry of a decree or order for relief in
respect of the Company in an involuntary case or proceeding under
any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or to the commencement of any
bankruptcy or insolvency case or proceeding against it, or the
filing by it of a petition or answer or consent seeking
reorganization or relief under any applicable Federal or State law,
or the consent by it to the filing of such petition or to the
appointment of or taking possession by a custodian, receiver,
liquidator, assignee, trustee, sequestrator or similar official of
the Company or of any substantial part of its property, or the
making by it of an assignment for the benefit of creditors, or the
admission by it in writing of its inability to pay its debts
generally as they become due, or the taking of corporate action by
the Company in furtherance of any such action; or
(7) any other Event of Default provided in the supplemental
indenture or provided in or pursuant to Board Resolution under which
such series of Securities is issued or in the form of Security for
such series.
SECTION 5.2 Acceleration of Maturity; Rescission and
Annulment.
If an Event of Default with respect to Securities of any series
at the time Outstanding occurs and is continuing, then in every such case
the Trustee or the Holders of not less than 25% in aggregate principal
amount of the Outstanding Securities of that series may declare the
principal amount (or, if the Securities of that series are Original Issue
Discount Securities, such portion of the principal amount as may be
specified in the terms of that series) of all of the Securities of that
series to be due and payable immediately, by a notice in writing to the
Company (and to the Trustee if given by Holders), and upon any such
declaration such principal amount (or specified amount) shall become
immediately due and payable.
At any time after such a declaration of acceleration with
respect to Securities of any series has been made and before a judgment or
<PAGE>
decree for payment of the money due has been obtained by the Trustee as
hereinafter in this Article provided, the Holders of a majority in
principal amount of the Outstanding Securities of that series, by written
notice to the Company and the Trustee, may rescind and annul such
declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest, if any, on all Securities of
that series,
(B) the principal of (and premium, if any, on) any
Securities of that series which have become due otherwise than
by such declaration of acceleration and interest thereon at the
rate or rates prescribed therefor in such Securities,
(C) to the extent that payment of such interest is
lawful, interest upon overdue interest at the rate or rates
prescribed therefor in such Securities, and
(D) all sums paid or advanced by the Trustee hereunder
and the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel;
and
(2) all Events of Default with respect to Securities of that
series, other than the non-payment of the principal of and accrued
interest on Securities of that series which have become due solely
by such declaration of acceleration, have been cured or waived as
provided in Section 5.13.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
For all purposes under this Indenture, if a portion of the
principal of any Original Issue Discount Securities shall have been
accelerated and declared due and payable pursuant to the provisions
hereof, then, from and after such declaration, unless such declaration has
been rescinded and annulled, the principal amount of such Original Issue
Discount Securities shall be deemed, for all purposes hereunder, to be
such portion of the principal thereof as shall be due and payable as a
result of such acceleration, and payment of such portion of the principal
thereof as shall be due and payable as a result of such acceleration,
together with interest, if any, thereon and all other amounts owing
thereunder, shall constitute payment in full of such Original Issue
Discount Securities.
SECTION 5.3 Collection of Indebtedness and Suits for
Enforcement by Trustee.
The Company covenants that if
(1) default is made in the payment of any interest on any
Security when such interest becomes due and payable and such default
continues for a period of 30 days, or
<PAGE>
(2) default is made in the payment of the principal of (or
premium, if any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit
of the Holders of such Securities, the whole amount then due and payable
on such Securities for principal (and premium, if any) and interest, if
any, and, to the extent that payment of such interest shall be legally
enforceable, interest on any overdue principal (and premium, if any) and
on any overdue interest, at the rate or rates prescribed therefor in such
Securities, and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express mist,
may institute a judicial proceeding for the collection of the sums so due
and unpaid, may prosecute such proceeding to judgment or final decree and
may enforce the same against the Company or any other obligor upon such
Securities and collect the moneys adjudged or decreed to be payable in the
manner provided by law out of the property of the Company or any other
obligor upon such Securities, wherever situated.
If an Event of Default with respect to Securities of any series
occurs and is continuing, the Trustee may in its discretion proceed to
protect and enforce its rights and the rights of the Holders of Securities
of such series by such appropriate judicial proceedings as the Trustee
shall deem most effectual to protect and enforce any such rights, whether
for the specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein, or to
enforce any other proper remedy.
SECTION 5.4 Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment,
composition or other judicial proceeding relative to the Company or any
other obligor upon the Securities or the property of the Company or of
such other obligor or their creditors, the Trustee (irrespective of
whether the principal of the Securities shall then be due and payable as
therein expressed or by declaration or otherwise and irrespective of
whether the Trustee shall have made any demand on the Company for the
payment of overdue principal or interest) shall be entitled and empowered,
by intervention in such proceeding or otherwise,
(i) to file and prove a claim for the whole amount of
principal (and premium, if any) and interest owing and unpaid in
respect of the Securities and to file such other papers or documents
as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and
counsel) and of the Holders allowed in such judicial proceeding, and
(ii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the
same;
<PAGE>
and any custodian, receiver, assignee, trustee, liquidator, sequestrator
or other similar official in any such judicial proceeding is hereby
authorized by each Holder to make such payments to the Trustee and, in the
event that the Trustee shall consent to the making of such payments
directly to the Holders, to pay to the Trustee any amount due it for the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee
under Section 6.7.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any
Holder any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or the rights of any Holder thereof or to
authorize the Trustee to vote in respect of the claim of any Holder in any
such proceeding.
SECTION 5.5 Trustee May Enforce Claims Without Possession of
Securities.
All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without the
possession of any of the Securities or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the
Trustee shall be brought in its own name as trustee of an express trust,
and any recovery of judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, be for the ratable benefit of the Holders
of the Securities in respect of which such judgment has been recovered.
SECTION 5.6 Application of Money Collected.
Any money collected by the Trustee pursuant to this Article
shall be applied in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such money on account of
principal (or premium, if any) or interest, upon presentation of the
Securities and the notation thereon of the payment if only partially paid
and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 6.7;
SECOND: To the payment of amounts then due and unpaid to the
holders of Senior Indebtedness, to the extent required by Article
XIII;
THIRD: In case the principal of the Securities of such series
in respect of which moneys have been collected shall not have become
and be then due and payable, to the payment of interest, if any, on
the Securities of such series in default in the order of the
maturity of the installments of such interest, with interest (to the
extent that such interest has been collected by the Trustee and to
the extent permitted by law) upon the overdue installments of
interest at the rate prescribed therefor in such Securities, such
payments to be made ratably to the persons entitled thereto, without
discrimination or preference;
<PAGE>
FOURTH: In case the principal of the Securities of such series
in respect of which moneys have been collected shall have become and
shall be then due and payable, to the payment of the whole amount
then owing and unpaid upon all the Securities of such series for
principal and interest, if any, with interest upon the overdue
principal, and (to the extent that such interest has been collected
by the Trustee and to the extent permitted by law) upon overdue
installments of interest at the rate prescribed therefor in the
Securities of such series; and in case such moneys shall be
insufficient to pay in full the whole amount so due and unpaid upon
the Securities of such series, then to the payment of such principal
and interest, without preference or priority of principal over
interest, or of interest over principal, or of any instalment of
interest over any other instalment of interest, or of any Security
of such series over any other Security of such series, ratably to
the aggregate of such principal and accrued and unpaid interest; and
FIFTH: To the payment of the remainder, if any, to the Company
or any other person lawfully entitled thereto.
SECTION 5.7 Limitation on Suits.
No Holder of any Security of any series shall have any right to
institute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless
(1) such Holder has previously given written notice to
the Trustee of a continuing Event of Default with respect to
the Securities of that series;
(2) the Holders of not less than 25% in principal amount
of the Outstanding Securities of that series shall have made
written request to the Trustee to institute proceedings in
respect of such Event of Default in its own name as Trustee
hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and
liabilities to be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute
any such proceeding; and
(5) no direction inconsistent with such written request
has been given to the Trustee during such 60-day period by the
Holders of a majority in principal amount of the Outstanding
Securities of that series;
it being understood and intended that no one or more of such Holders shall
have any right in any manner whatever by virtue of, or by availing of, any
provision of this Indenture to affect, disturb or prejudice the rights of
any other of such Holders, or to obtain or to seek to obtain priority or
preference over any other of such Holders or to enforce any right under
this Indenture, except in the manner herein provided and for the equal and
ratable benefit of all such Holders.
<PAGE>
SECTION 5.8 Unconditional Right of Holders to Receive
Principal, Premium and Interest.
Notwithstanding any other provision in this Indenture, the
Holder of any Security shall have the right, which is absolute and
unconditional, to receive payment of the principal of (and premium, if
any) and (subject to Section 3.7) interest, if any, on such Security on
the Stated Maturity or Maturities expressed in such Security (or, in the
case of redemption, on the Redemption Date) and to institute suit for the
enforcement of any such payment, and such rights shall not be impaired
without the consent of such Holder.
SECTION 5.9 Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has
been discontinued or abandoned for any reason, or has been determined
adversely to the Trustee or to such Holder, then and in every such case,
subject to any determination in such proceeding, the Company, the Trustee
and the Holders shall be restored severally and respectively to their
former positions hereunder and thereafter all rights and remedies of the
Trustee and the Holders shall continue as though no such proceeding had
been instituted.
SECTION 5.10 Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities in the last
paragraph of Section 3.6, no right or remedy herein conferred upon or
reserved to the Trustee or to the Holders is intended to be exclusive of
any other right or remedy, and every right and remedy shall, to the extent
permitted by law, be cumulative and in addition to every other right and
remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder,
or otherwise, shall not prevent the concurrent assertion or employment of
any other appropriate right or remedy.
SECTION 5.11 Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any
Securities to exercise any right or remedy accruing upon any Event of
Default shall impair any such right or remedy or constitute a waiver of
any such Event of Default or an acquiescence therein. Every right and
remedy given by this Article or by law to the Trustee or to the Holders
may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders, as the case may be.
SECTION 5.12 Control by Holders.
The Holders of a majority in principal amount of the
Outstanding Securities of any series shall have the right to direct the
time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred on
the Trustee, with respect to the Securities of such series, provided that
(1) such direction shall not be in conflict with any rule of
law or with this Indenture, and
<PAGE>
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
SECTION 5.13 Waiver of Past Defaults.
The Holders of not less than a majority in aggregate principal
amount of the Outstanding Securities of any series may on behalf of the
Holders of all the Securities of such series waive any past default
hereunder with respect to such series and its consequences, except a
default
(1) in the payment of the principal of (or premium, if any) or
interest, if any, on any Security of such series, or
(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of
the Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured,
for every purpose of this Indenture; but no such waiver shall extend to
any subsequent or other default or impair any right consequent thereon.
SECTION 5.14 Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any
Security by his acceptance thereof shall be deemed to have agreed, that
any court may in its discretion require, in any suit for the enforcement
of any right or remedy under this Indenture, or in any suit against the
Trustee for any action taken or omitted by it as Trustee, the filing by
any party litigant in such suit of an undertaking to pay the costs of such
suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in such
suit, having due regard to the merits and good faith of the claims or
defenses made by such party litigant; but the provisions of this Section
shall not apply to any suit instituted by the Trustee, to any suit
instituted by any Holder, or group of Holders, holding in the aggregate
more than 10% in principal amount of the Outstanding Securities of any
series, or to any suit instituted by any Holder for the enforcement of the
payment of the principal of (or premium, if any) or interest, if any, on
any Security on or after the Stated Maturity or Maturities expressed in
such Security (or, in the case of redemption, on or after the Redemption
Date).
ARTICLE VI
THE TRUSTEE
SECTION 6.1 Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties and
only such duties as are specifically set forth in this
Indenture, and no implied covenants or obligations shall be
read into this Indenture against the Trustee; and
<PAGE>
(2) in the absence of bad faith on its part, the Trustee
may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture; but in the
case of any such certificates or opinions which by any
provision hereof are specifically required to be furnished to
the Trustee, the Trustee shall be under a duty to examine the
same to determine whether or not they conform to the
requirements of this Indenture.
(b) In case an Event of Default has occurred and is
continuing, the Trustee shall exercise such of the rights and powers
vested in it by this Indenture, and use the same degree of care and
skill in their exercise, as a prudent man would exercise or use
under the circumstances in the conduct of his own affairs.
(c) No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own negligent action, its
own negligent failure to act, or its own wilful misconduct, except
that
(1) this Subsection shall not be construed to limit the
effect of Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless it
shall be proved that the Trustee was negligent in ascertaining
the pertinent facts;
(3) the Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of a majority in
principal amount of the Outstanding Securities of any series,
determined as provided in Section 5.12, relating to the time,
method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power
conferred upon the Trustee, under this Indenture with respect
to the Securities of such series; and
(4) no provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers,
if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk
or liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting the
liability of or affording protection to the Trustee shall be subject
to the provisions of this Section.
SECTION 6.2 Notice of Defaults.
Within 90 days after the occurrence of any default hereunder
with respect to the Securities of any series, the Trustee shall transmit
<PAGE>
by mail to all Holders of Securities of such series, as their names and
addresses appear in the Security Register, notice of such default
hereunder known to the Trustee, unless such default shall have been cured
or waived; provided, however, that, except in the case of a default in the
payment of the principal of (or premium, if any) or interest, if any, on
any Security of such series or in the payment of any sinking fund
instalment with respect to Securities of such series, the Trustee shall be
protected in withholding such notice if and so long as the board of
directors, the executive committee or a trust committee of directors or
Responsible Officers of the Trustee in good faith determine that the
withholding of such notice is in the interest of the Holders of Securities
of such series; and provided, further, that in the case of any default of
the character specified in Section 5.1(4) with respect to Securities of
such series, no such notice to Holders shall be given until at least 30
days after the occurrence thereof. For the purpose of this Section, the
term "default" means any event which is, or after notice or lapse of time
or both would become, an Event of Default with respect to Securities of
such series.
SECTION 6.3 Certain Rights of Trustee.
Subject to the provisions of Section 6.1:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or
other paper or document believed by it to be genuine and to have
been signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company
Order and any resolution of the Board of Directors may be
sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or
established prior to taking, suffering or omitting any action
hereunder, the Trustee (unless other evidence be herein specifically
prescribed) may, in the absence of bad faith on its part, rely upon
an Officers' Certificate;
(d) the Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken
or omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the
request or direction of any of the Holders pursuant to this
Indenture, unless such Holders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such
request or direction;
(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
<PAGE>
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Trustee, in its
discretion, may make such further inquiry or investigation into such
facts or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it shall be
entitled upon so reasonable request to examine the books, records
and premises of the Company, personally or by agent or attorney; and
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or
attorney appointed with due care by it hereunder.
SECTION 6.4 Not Responsible for Recitals or Issuance of
Securities.
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements
of the Company, and neither the Trustee nor any Authenticating Agent
assumes any responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of
the Securities. Neither the Trustee nor any Authenticating Agent shall be
accountable for the use or application by the Company of Securities or the
proceeds thereof.
SECTION 6.5 May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any
Security Registrar or any other agent of the Company, in its individual or
any other capacity, may become the owner or pledgee of Securities and,
subject to Sections 6.8 and 6.13, may otherwise deal with the Company with
the same rights it would have if it were not Trustee, Authenticating
Agent, Paying Agent, Security Registrar or such other agent.
SECTION 6.6 Money Held in Trust.
Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The
Trustee shall be under no liability for interest on any money received by
it hereunder except as otherwise agreed with the Company.
SECTION 6.7 Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder ( which
compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the
Trustee in accordance with any provision of this Indenture
(including the reasonable compensation and the expenses and
<PAGE>
disbursements of its agents and counsel), except any such
expense, disbursement or advance as may be attributable to its
negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without
negligence or bad faith on its part, arising out of or in
connection with the acceptance or administration of the trust
or trusts hereunder, including the costs and expenses of
defending itself against any claim or liability in connection
with the exercise or performance of any of its powers or duties
hereunder.
SECTION 6.8 Disqualification; Conflicting Interests.
(a) If the Trustee has or shall acquire any conflicting
interest, as defined in this Section, with respect to the Securities
of any series, it shall, within 90 days after ascertaining that it
has such conflicting interest, either eliminate such conflicting
interest or resign with respect to the Securities of that series in
the manner and with the effect hereinafter specified in this
Article.
(b) In the event that the Trustee shall fail to comply with
the provisions of subsection (a) of this Section with respect to the
Securities of any series, the Trustee shall, within 10 days after
the expiration of such 90 day period, transmit by mail to all
Holders of Securities of that series, as their names and addresses
appear in the Security Register, notice of such failure.
(c) For the purposes of this Section, the Trustee shall be
deemed to have a conflicting interest with respect to the Securities
of any series if
(1) the Trustee is trustee under this Indenture with
respect to the Outstanding Securities of any series other than
that series or is trustee under another indenture under which
any other securities, or certificates of interest or
participation in any other securities, of the Company are
outstanding, unless such other indenture is a collateral trust
indenture under which the only collateral consists of
Securities issued under this Indenture, provided that there
shall be excluded from the operation of this paragraph this
Indenture with respect to the Securities of any series other
than that series, and in addition, any other indenture or
indentures under which other securities, or certificates of
interest or participation in other securities, of the Company
are outstanding, if
(i) this Indenture and such other indenture or indentures
are wholly unsecured and such other indenture or indentures are
hereafter qualified under the Trust Indenture Act, unless the
Commission shall have found and declared by order pursuant to
Section 305(b) or Section 307(c) of the Trust Indenture Act that
differences exist between the provisions of this Indenture with
respect to Securities of that series and one or more other series or
the provisions of such other indenture or indentures which are so
<PAGE>
likely to involve a material conflict of interest as to make it
necessary in the public interest or for the protection of investors
to disqualify the Trustee from acting as such under this Indenture
with respect to the Securities of that series and such other series
or under such other indenture or indentures, or
(ii) the Company shall have sustained the burden of proving,
on application to the Commission and after opportunity for hearing
thereon, that trusteeship under this Indenture with respect to the
Securities of that series and such other series or such other
indenture or indentures is not so likely to involve a material
conflict of interest as to make it necessary in the public interest
or for the protection of investors to disqualify the Trustee from
acting as such under this Indenture with respect to the Securities
of that series and such other series or under such other indenture
or indentures;
(2) the Trustee or any of its directors or executive
officers is an obligor upon the Securities or an underwriter
for the Company;
(3) the Trustee directly or indirectly controls or is
directly or indirectly controlled by or is under direct or
indirect common control with the Company or an underwriter for
the Company;
(4) the Trustee or any of its directors or executive
officers is a director, officer, partner, employee, appointee
or representative of the Company, or of an underwriter (other
than the Trustee itself) for the Company who is currently
engaged in the business of underwriting, except that (i) one
individual may be a director or an executive officer, or both,
of the Trustee and a director or an executive officer, or both,
of the Company but may not be at the same time an executive
officer of both the Trustee and the Company; (ii) if and so
long as the number of directors of the Trustee in office is
more than nine, one additional individual may be a director or
an executive officer, or both, of the Trustee and a director of
the Company; and (iii) the Trustee may be designated by the
Company or by any underwriter for the Company to act in the
capacity of transfer agent, registrar, custodian, paying agent,
fiscal agent, escrow agent or depositary, or in any other
similar capacity, or, subject to the provisions of paragraph
(1) of this Subsection, to act as trustee, whether under an
indenture or otherwise;
(5) 10% or more of the voting securities of the Trustee
is beneficially owned either by the Company or by any director,
partner or executive officer thereof, or 20% or more of such
voting securities is beneficially owned, collectively, by any
two or more of such persons; or 10% or more of the voting
securities of the Trustee is beneficially owned either by an
underwriter for the Company or by any director, partner or
executive officer thereof, or is beneficially owned,
collectively, by any two or more such persons;
<PAGE>
(6) the Trustee is the beneficial owner of, or holds as
collateral security for an obligation which is in default (as
hereinafter in this Subsection defined), (i) 5% or more of the
voting securities, or 10% or more of any other class of
security, of the Company, not including the Securities issued
under this Indenture and securities issued under any other
indenture under which the Trustee is also trustee, or (ii) 10%
or more of any class of security of an underwriter for the
Company;
(7) the Trustee is the beneficial owner of, or holds as
collateral security for an obligation which is in default (as
hereinafter in this Subsection defined), 5% or more of the
voting securities of any person who, to the knowledge of the
Trustee, owns 10% or more of the voting securities of, or
controls directly or indirectly or is under direct or indirect
common control with, the Company;
(8) the Trustee is the beneficial owner of, or holds as
collateral security for an obligation which is in default (as
hereinafter in this Subsection defined), 10% or more of any
class of security of any person who, to the knowledge of the
Trustee, owns 50% or more of the voting securities of the
Company; or
(9) the Trustee owns, on May 15 in any calendar year, in
the capacity of executor, administrator, testamentary or inter
vivos trustee, guardian, committee or conservator, or in any
other similar capacity, an aggregate of 25% or more of the
voting securities, or of any class of security, of any person,
the beneficial ownership of a specified percentage of which
would have constituted a conflicting interest under paragraph
(6), (7) or (8) of this Subsection. As to any such securities
of which the Trustee acquired ownership through becoming
executor, administrator or testamentary trustee of an estate
which included them, the provisions of the preceding sentence
shall not apply, for a period of two years from the date of
such acquisition, to the extent that such securities included
in such estate do not exceed 25% of such voting securities or
25% of any such class of security. Promptly after May 15 in
each calendar year, the Trustee shall make a check of its
holdings of such securities in any of the above-mentioned
capacities as of such May 15. If the Company fails to make
payment in full of the principal of (or premium, if any) or
interest, if any, on any of the Securities when and as the same
becomes due and payable, and such failure continues for 30 days
thereafter, the Trustee shall make a prompt check of its
holdings of such securities in any of the above-mentioned
capacities as of the date of the expiration of such 30-day
period, and after such date, notwithstanding the foregoing
provisions of this paragraph, all such securities so held by
the Trustee, with sole or joint control over such securities
vested in it, shall, but only so long as such failure shall
continue, be considered as though beneficially owned by the
Trustee for the purposes of paragraphs (6), (7) and (8) of this
Subsection.
<PAGE>
The specification of percentages in paragraphs (5) to (9),
inclusive, of this Subsection shall not be construed as indicating that
the ownership of such percentages of the securities of a person is or is
not necessary or sufficient to constitute direct or indirect control for
the purposes of paragraph (3) or (7) of this Subsection.
For the purposes of paragraphs (6), (7), (8) and (9) of this
Subsection only, (i) the terms "security" and "securities" shall include
only such securities as are generally known as corporate securities, but
shall not include any note or other evidence of indebtedness issued to
evidence an obligation to repay moneys lent to a person by one or more
banks, trust companies or banking firms, or any certificate of interest or
participation in any such note or evidence of indebtedness; (ii) an
obligation shall be deemed to be "in default" when a default in payment of
principal shall have continued for 30 days or more and shall not have been
cured; and (iii) the Trustee shall not be deemed to be the owner or holder
of (A) any security which it holds as collateral security, as trustee or
otherwise, for an obligation which is not in default as defined in clause
(ii) above, or (B) any security which it holds as collateral security
under this Indenture, irrespective of any default hereunder, or (C) any
security which it holds as agent for collection, or as custodian, escrow
agent or depositary, or in any similar representative capacity.
(d) For the purposes of this Section:
(1) The term "underwriter", when used with reference to
the Company, means every person who, within three years prior
to the time as of which the determination is made, has
purchased from the Company with a view to, or has offered or
sold for the Company in connection with, the distribution of
any security of the Company outstanding at such time, or has
participated or has had a direct or indirect participation in
any such undertaking, or has participated or has had a
participation in the direct or indirect underwriting of any
such undertaking, but such term shall not include a person
whose interest was limited to a commission from an underwriter
or dealer not in excess of the usual and customary
distributors' or sellers' commission.
(2) The term "director" means any director of a
corporation or any individual performing similar functions with
respect to any organization, whether incorporated or
unincorporated.
(3) The term "person" means an individual, a corporation,
a partnership, an association, a joint-stock company, a trust,
an unincorporated organization or a government or political
subdivision thereof. As used in this paragraph, the term
"trust" shall include only a trust where the interest or
interests of the beneficiary or beneficiaries are evidenced by
a security.
(4) The term "voting security" means any security
presently entitling the owner or holder thereof to vote in the
direction or management of the affairs of a person, or any
security issued under or pursuant to any trust, agreement or
arrangement whereby a trustee or trustees or agent or agents
<PAGE>
for the owner or holder of such security are presently entitled
to vote in the direction or management of the affairs of a
person.
(5) The term "Company" means any obligor on the
Securities.
(6) The term "executive officer" means the president,
every vice president, every trust officer, the cashier, the
secretary and the treasurer of a corporation, and any
individual customarily performing similar functions with
respect to any organization whether incorporated or
unincorporated, but shall not include the chairman of the board
of directors.
(e) The percentages of voting securities and other securities
specified in this Section shall be calculated in accordance with the
following provisions:
(1) A specified percentage of the voting securities of
the Trustee, the Company or any other person referred to in
this Section (each of whom is referred to as a "person" in this
paragraph) means such amount of the outstanding voting
securities of such person as entitles the holder or holders
thereof to cast such specified percentage of the aggregate
votes which the holders of all the outstanding voting
securities of such person are entitled to cast in the direction
or management of the affairs of such person.
(2) A specified percentage of a class of securities of a
person means such percentage of the aggregate amount of
securities of the class outstanding.
(3) The term "amount", when used in regard to securities,
means the principal amount if relating to evidences of
indebtedness, the number of shares if relating to capital
shares and the number of units if relating to any other kind of
security.
(4) The term "outstanding" means issued and not held by
or for the account of the issuer. The following securities
shall not be deemed outstanding within the meaning of this
definition:
(i) securities of an issuer held in a sinking fund
relating to securities of the issuer of the same class;
(ii) securities of an issuer held in a sinking fund
relating to another class of securities of the issuer, if
the obligation evidenced by such other class of securities
is not in default as to principal or interest or
otherwise;
(iii) securities pledged by the issuer thereof as
security for an obligation of the issuer not in default as
to principal or interest or otherwise; and
<PAGE>
(iv) securities held in escrow if placed in escrow
by the issuer thereof;
provided, however, that any voting securities of an issuer shall be deemed
outstanding if any person other than the issuer is entitled to exercise
the voting rights thereof.
(5) A security shall be deemed to be of the same class as
another security if both securities confer upon the holder or
holders thereof substantially the same rights and privileges;
provided, however, that, in the case of secured evidences of
indebtedness, all of which are issued under a single indenture,
differences in the interest rates or maturity dates of various
series thereof shall not be deemed sufficient to constitute
such series different classes and provided, further, that, in
the case of unsecured evidences of indebtedness, differences in
the interest rates or maturity dates thereof shall not be
deemed sufficient to constitute them securities of different
classes, whether or not they are issued under a single
indenture.
SECTION 6.9 Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be
a corporation organized and doing business under the laws of the United
States of America, any State thereof or the District of Columbia,
authorized under such laws to exercise corporate trust powers, having a
combined capital and surplus of at least $50,000,000 subject to
supervision or examination by Federal or State authority and, if there be
such a corporation willing and able to act as trustee on reasonable and
customary terms, having its Corporate Trust Office in the Borough of
Manhattan, The City of New York. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of
said supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. If at any time the Trustee shall
cease to be eligible in accordance with the provisions of this Section, it
shall resign immediately in the manner and with the effect hereinafter
specified in this Article.
SECTION 6.10 Resignation and Removal; Appointment of
Successor.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall
become effective until the acceptance of appointment by the
successor Trustee in accordance with the applicable requirements of
Section 6.11.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to
the Company. If the instrument of acceptance by a successor Trustee
required by Section 6.11 shall not have been delivered to the
Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of
<PAGE>
competent jurisdiction for the appointment of a successor Trustee
with respect to the Securities of such series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series,
delivered to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 6.8(a)
after written request therefor by the Company or by any Holder
who has been a bona fide Holder of a Security for at least six
months, or
(2) the Trustee shall cease to be eligible under Section
6.9 and shall fail to resign after written request therefor by
the Company or by any such Holder, or
(3) the Trustee shall become incapable of acting or shall
be adjudged a bankrupt or insolvent or a receiver of the
Trustee or of its property shall be appointed or any public
officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation,
conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove
the Trustee with respect to all Securities, or (ii) subject to Section
5.14, any Holder who has been a bona fide Holder of a Security for at
least six months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the removal of
the Trustee with respect to all Securities and the appointment of a
successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of
Trustee for any cause, with respect to the Securities of one or more
series, the Company, by a Board Resolution, shall promptly appoint a
successor Trustee or Trustees with respect to the Securities of that
or those series (it being understood that any such successor Trustee
may be appointed with respect to the Securities of one or more or
all of such series and that at any time there shall be only one
Trustee with respect to the Securities of any particular series) and
shall comply with the applicable requirements of Section 6.11. If,
within one year after such resignation, removal or incapability, or
the occurrence of such vacancy, a successor Trustee with respect to
the Securities of any series shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding
Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon
its acceptance of such appointment in accordance with the applicable
requirements of Section 6.11, become the successor Trustee with
respect to the Securities of such series and to that extent
supersede the successor Trustee appointed by the Company. If no
successor Trustee with respect to the Securities of any series shall
have been so appointed by the Company or the Holders and accepted
appointment in the manner required by Section 6.11, any Holder who
<PAGE>
has been a bona fide Holder of a Security of such series for at
least six months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of
such series.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series
and each appointment of a successor Trustee with respect to the
Securities of any series by mailing written notice of such event by
first-class mail, postage prepaid, to all Holders of Securities of
such series as their names and addresses appear in the Security
Register. Each notice shall include the name of the successor
Trustee with respect to the Securities of such series and the
address of its Corporate Trust Office.
SECTION 6.11 Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor
Trustee with respect to all Securities, every such successor Trustee
so appointed shall execute, acknowledge and deliver to the Company
and to the retiring Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the
retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested
with all the rights, powers, trusts and duties of the retiring
Trustee; but, on the request of the Company or the successor
Trustee, such retiring Trustee shall, upon payment of its charges,
execute and deliver an instrument transferring to such successor
Trustee all the rights, powers and trusts of the retiring Trustee
and shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee
hereunder.
(b) In case of the appointment hereunder of a successor
Trustee with respect to the Securities of one or more (but not all)
series, the Company, the retiring Trustee and each successor Trustee
with respect to the Securities of one or more series shall execute
and deliver an indenture supplemental hereto wherein each successor
Trustee shall accept such appointment and which (1) shall contain
such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights,
powers, trusts and duties of the retiring Trustee with respect to
the Securities of that or those series to which the appointment of
such successor Trustee relates, (2) if the retiring Trustee is not
retiring with respect to all Securities, shall contain such
provisions as shall be deemed necessary or desirable to confirm that
all the rights, powers, trusts and duties of the retiring Trustee
with respect to the Securities of that or those series as to which
the retiring Trustee is not retiring shall continue to be vested in
the retiring Trustee, and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than
one Trustee, it being understood that nothing herein or in such
supplemental indenture shall constitute such Trustees co-trustees of
the same trust and that each such Trustee shall be trustee of a
trust or trusts hereunder separate and apart from any trust or
<PAGE>
trusts hereunder administered by any other such Trustee; and upon
the execution and delivery of such supplemental indenture the
resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such successor
Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates;
but, on request of the Company or any successor trustee, such
retiring Trustee shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring
Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company
shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all such rights,
powers and trusts referred to in paragraph (a) or (b) of this
Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless
at the time of such acceptance such successor Trustee shall be
qualified and eligible under this Article.
SECTION 6.12 Merger, Conversion, Consolidation or Succession
to Business.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the
Trustee shall be a party, or any corporation succeeding to all or
substantially all the corporate trust business of the Trustee, shall be
the successor of the Trustee hereunder, provided such corporation shall be
otherwise qualified and eligible under this Article, without the execution
or filing of any paper or any further act on the part of any of the
parties hereto. In case any Securities shall have been authenticated, but
not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such
Securities.
SECTION 6.13 Preferential Collection of Claims Against
Company.
(a) Subject to Subsection (b) of this Section, if the Trustee
shall be or shall become a creditor, directly or indirectly, secured
or unsecured, of the Company within four months prior to a default,
as defined in Subsection (c) of this Section, or subsequent to such
a default, then, unless and until such default shall be cured, the
Trustee shall set apart and hold in a special account for the
benefit of the Trustee individually, the Holders of the Securities
and the holders of other indenture securities, as defined in
Subsection (c) of this Section:
(1) an amount equal to any and all reductions in the
amount due and owing upon any claim as such creditor in respect
<PAGE>
of principal or interest, effected after the beginning of such
four months' period and valid as against the Company and its
other creditors, except any such reduction resulting from the
receipt or disposition of any property described in paragraph
(2) of this Subsection, or from the exercise of any right of
set-off which the Trustee could have exercised if a petition in
bankruptcy had been filed by or against the Company upon the
date of such default; and
(2) all property received by the Trustee in respect of
any claims as such creditor, either as security therefor, or in
satisfaction or composition thereof, or otherwise, after the
beginning of such four months' period, or an amount equal to
the proceeds of any such property, if disposed of, subject,
however, to the rights, if any, of the Company and its other
creditors in such property or such proceeds.
Nothing herein contained, however, shall affect the right of
the Trustee:
(A) to retain for its own account (i) payments made on
account of any such claim by any person (other than the
Company) who is liable thereon, and (ii) the proceeds of the
bona fide sale of any such claim by the Trustee to a third
person, and (iii) distributions made in cash, securities or
other property in respect of claims filed against the Company
in bankruptcy or receivership or in proceedings for reorgani-
zation pursuant to the Federal Bankruptcy Act or applicable
State law;
(B) to realize, for its own account, upon any property
held by it as security for any such claim, if such property was
so held prior to the beginning of such four months' period;
(C) to realize, for its own account, but only to the
extent of the claim hereinafter mentioned, upon any property
held by it as security for any such claim, if such claim was
created after the beginning of such four months' period and
such property was received as security therefor simultaneously
with the creation thereof, and if the Trustee shall sustain the
burden of proving that at the time such property was so
received the Trustee had no reasonable cause to believe that a
default, as defined in Subsection (c) of this Section, would
occur within four months; or
(D) to receive payment on any claim referred to in
paragraph (B) or (C), against the release of any property held
as security for such claim as provided in paragraph (B) or (C),
as the case may be, to the extent of the fair value of such
property.
For the purposes of paragraphs (B), (C) and (D), property
substituted after the beginning of such four months' period for property
held as security at the time of such substitution shall, to the extent of
the fair value of the property released, have the same status as the
property released, and, to the extent that any claim referred to in any of
such paragraphs is created in renewal of or in substitution for or for the
<PAGE>
purpose of repaying or refunding any pre-existing claim of the Trustee as
such creditor, such claim shall have the same status as such pre-existing
claim.
If the Trustee shall be required to account, the funds and
property held in such special account and the proceeds thereof shall be
apportioned among the Trustee, the Holders and the holders of other
indenture securities in such manner that the Trustee, the Holders and the
holders of other indenture securities realize, as a result of payments
from such special account and payments of dividends on claims filed
against the Company in bankruptcy or receivership or in proceedings for
reorganization pursuant to the Federal Bankruptcy Act or applicable State
law, the same percentage of their respective claims, figured before
crediting to the claim of the Trustee anything on account of the receipt
by it from the Company of the funds and property in such special account
and before crediting to the respective claims of the Trustee and the
Holders and the holders of other indenture securities dividends on claims
filed against the Company in bankruptcy or receivership or in proceedings
for reorganization pursuant to the Federal Bankruptcy Act or applicable
State law, but after crediting thereon receipts on account of the
indebtedness represented by their respective claims from all sources other
than from such dividends and from the funds and property so held in such
special account. As used in this paragraph, with respect to any claim, the
term "dividends" shall include any distribution with respect to such
claim, in bankruptcy or receivership or proceedings for reorganization
pursuant to the Federal Bankruptcy Act or applicable State law, whether
such distribution is made in cash, securities or other property, but shall
not include any such distribution with respect to the secured portion, if
any, of such claim. The court in which such bankruptcy, receivership or
proceedings for reorganization is pending shall have jurisdiction (i) to
apportion among the Trustee, the Holders and the holders of other
indenture securities, in accordance with the provisions of this paragraph,
the funds and property held in such special account and proceeds thereof,
or (ii) in lieu of such apportionment, in whole or in part, to give to the
provisions of this paragraph due consideration in determining the fairness
of the distributions to be made to the Trustee and the Holders and the
holders of other indenture securities with respect to their respective
claims, in which event it shall not be necessary to liquidate or to
appraise the value of any securities or other property held in such
special account or as security for any such claim, or to make a specific
allocation of such distributions as between the secured and unsecured
portions of such claims, or otherwise to apply the provisions of this
paragraph as a mathematical formula.
Any Trustee which has resigned or been removed after the
beginning of such four months' period shall be subject to the provisions
of this Subsection as though such resignation or removal had not occurred.
If any Trustee has resigned or been removed prior to the beginning of such
four months' period, it shall be subject to the provisions of this
Subsection if and only if the following conditions exist:
(i) the receipt of property or reduction of claim, which
would have given rise to the obligation to account, if such Trustee
had continued as Trustee, occurred after the beginning of such four
months' period; and
<PAGE>
(ii) such receipt of property or reduction of claim occurred
within four months after such resignation or removal.
(b) There shall be excluded from the operation of Subsection
(a) of this Section a creditor relationship arising from:
(1) the ownership or acquisition of securities issued
under any indenture, or any security or securities having a
maturity of one year or more at the time of acquisition by the
Trustee;
(2) advances authorized by a receiver or bankruptcy court
of competent jurisdiction or by this Indenture, for the purpose
of preserving any property which shall at any time be subject
to the lien of this Indenture or of discharging tax liens or
other prior liens or encumbrances thereon, if notice of such
advances and of the circumstances surrounding the making
thereof is given to the Holders at the time and in the manner
provided in this Indenture;
(3) disbursements made in the ordinary course of business
in the capacity of trustee under an indenture, transfer agent,
registrar, custodian, paying agent, fiscal agent or depositary,
or other similar capacity;
(4) an indebtedness created as a result of services
rendered or premises rented; or an indebtedness created as a
result of goods or securities sold in a cash transaction, as
defined in Subsection (c) of this Section;
(5) the ownership of stock or of other securities of a
corporation organized under the provisions of Section 25(a) of
the Federal Reserve Act, as amended, which is directly or
indirectly a creditor of the Company; and
(6) the acquisition, ownership, acceptance or negotiation
of any drafts, bills of exchange, acceptances or obligations
which fall within the classification of self-liquidating paper,
as defined in Subsection (c) of this Section.
(c) For the purposes of this Section only:
(1) the term "default" means any failure to make payment
in full of the principal of or interest on any of the
Securities or upon the other indenture securities when and as
such principal or interest becomes due and payable;
(2) the term "other indenture securities" means
securities upon which the Company is an obligor (as defined in
the Trust Indenture Act) outstanding under any other indenture
(i) under which the Trustee is also trustee, (ii) which
contains provisions substantially similar to the provisions of
this Section, and (iii) under which a default exists at the
time of the apportionment of the funds and property held in
such special account;
<PAGE>
(3) the term "cash transaction" means any transaction in
which full payment for goods or securities sold is made within
seven days after delivery of the goods or securities in
currency or in checks or other orders drawn upon banks or
bankers and payable upon demand;
(4) the term "self-liquidating paper" means any draft,
bill of exchange, acceptance or obligation which is made,
drawn, negotiated or incurred by the Company for the purpose of
financing the purchase, processing, manufacturing, shipment,
storage or sale of goods, wares or merchandise and which is
secured by documents evidencing title to, possession of, or a
lien upon, the goods, wares or merchandise or the receivables
or proceeds arising from the sale of the goods, wares or
merchandise previously constituting the security, provided the
security is received by the Trustee simultaneously with the
creation of the creditor relationship with the Company arising
from the making, drawing, negotiating or incurring of the
draft, bill of exchange, acceptance or obligation;
(5) the term "Company" means any obligor upon the
Securities; and
(6) the term "Federal Bankruptcy Act" means the
Bankruptcy Act or Title 11 of the United States Code.
SECTION 6.14 Authenticating Agents.
From time to time the Trustee, in its sole discretion, may
appoint one or more Authenticating Agents with respect to one or more
series of Securities, which may include the Company or any Affiliate of
the Company, with power to act on the Trustee's behalf and subject to its
direction in the authentication and delivery of Securities of such series
or in connection with transfers and exchanges under Sections 3.4, 3.5,
3.6, and 11.7 as fully to all intents and purposes as though the
Authenticating Agent had been expressly authorized by those Sections of
this Indenture to authenticate and deliver Securities of such series. For
all purposes of this Indenture, the authentication and delivery of
Securities by an Authenticating Agent pursuant to this Section shall be
deemed to be authentication and delivery of such Securities "by the
Trustee". Each such Authenticating Agent shall be acceptable to the
Company and shall at all times be a corporation organized and doing
business under the laws of the United States, any State thereof or the
District of Columbia, authorized under such laws to exercise corporate
trust powers, having a combined capital and surplus of at least
$25,000,000 and, if other than the Company or any Affiliate of the
Company, subject to supervision or examination by Federal, State or
District of Columbia authority. If such corporation publishes reports of
condition at least annually pursuant to law or the requirements of such
authority, then for the purposes of this Section the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published.
If at any time an Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, such Authenticating Agent
shall resign immediately in the manner and with the effect specified in
this Section.
<PAGE>
Any corporation into which any Authenticating Agent may be
merged or with which it may be consolidated, or any corporation resulting
from any merger or consolidation or to which any Authenticating Agent
shall be a party, or any corporation succeeding to the corporate trust
business of any Authenticating Agent, shall be the successor of the
Authenticating Agent hereunder, if such successor corporation is otherwise
eligible under this Section, without the execution or filing of any paper
or any further act on the part of the parties hereto or the Authenticating
Agent or such successor corporation.
Any Authenticating Agent may resign at any time by giving
written notice of resignation to the Trustee and to the Company. The
Trustee may at any time terminate the agency of any Authenticating Agent
by giving written notice of termination to such Authenticating Agent and
to the Company. Upon receiving such a notice of resignation or upon such a
termination, or in case at any time any Authenticating Agent shall cease
to be eligible under this Section, the Trustee may appoint a successor
Authenticating Agent which shall be acceptable to the Company and shall
mail notice of such appointment to all Holders of Securities of the series
with respect to which such Authenticating Agent will serve, as the names
and addresses of such Holders appear on the Security Register. Any
successor Authenticating Agent, upon acceptance of its appointment
hereunder, shall become vested with all the rights, powers and duties of
its predecessor hereunder, with like effect as if originally named as an
Authenticating Agent. No successor Authenticating Agent shall be
appointed unless eligible under the provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent from
time to time reasonable compensation for its services, and the Trustee
shall be entitled to be reimbursed for such payments, subject to Section
6.7.
If an appointment with respect to one or more series of
Securities is made pursuant to this Section, the Securities of such series
may have endorsed thereon, in addition to the Trustee's certificate of
authentication, an alternate certificate of authentication in the
following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
,
--------------------------
as Trustee
By
------------------------
As Authenticating Agent
By
------------------------
Authorized Officer
<PAGE>
The provisions of Sections 3.9, 6.4 and 6.5 shall be applicable
to any Authenticating Agent.
ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.1 Company to Furnish Trustee Names and Addresses
of Holders.
The Company will furnish or cause to be furnished to the
Trustee with respect to the Securities of each series
(a) semi-annually, not later than 15 days after each Regular
Record Date, or, in the case of any series of Securities on which
semi-annual interest is not payable, not more than 15 days after
such semi-annual dates as may be specified by the Trustee, a list,
in such form as the Trustee may reasonably require, of the names and
addresses of the Holders as of such Regular Record Date or
semi-annual date, as the case may be, and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request,
a list of similar form and content as of a date not more than 15
days prior to the time such list is furnished;
provided, however, that so long as the Trustee is Security Registrar for
any series of Securities, no such list shall be required to be furnished
with respect to any such series.
SECTION 7.2 Preservation of Information; Communications to
Holders.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders contained
in the most recent list furnished to the Trustee as provided in
Section 7.1 and the names and addresses of Holders received by the
Trustee in its capacity as Security Registrar. The Trustee may
destroy any list furnished to it as provided in Section 7.1 upon
receipt of a new list so furnished.
(b) If three or more Holders (herein referred to as
"applicants") apply in writing to the Trustee, and furnish to the
Trustee reasonable proof that each such applicant has owned a
Security for a period of at least six months preceding the date of
such application, and such application states that the applicants
desire to communicate with other Holders with respect to their
rights under this Indenture or under the Securities and is
accompanied by a copy of the form of proxy or other communication
which such applicants propose to transmit, then the Trustee shall,
within five business days after the receipt of such application, at
its election, either
(i) afford such applicants access to the information
preserved at the time by the Trustee in accordance with Section
7.2(a), or
<PAGE>
(ii) inform such applicants as to the approximate number of
Holders whose names and addresses appear in the information pre-
served at the time by the Trustee in accordance with Section 7.2(a),
and as to the approximate cost of mailing to such Holders the form
of proxy or other communication, if any, specified in such
application.
If the Trustee shall elect not to afford such applicants access
to such information, the Trustee shall, upon the written request of such
applicants, mail to each Holder whose name and address appear in the
information preserved at the time by the Trustee in accordance with
Section 7.2(a) a copy of the form of proxy or other communication which is
specified in such request, with reasonable promptness after a tender to
the Trustee of the material to be mailed and of payment, or provision for
the payment, of the reasonable expenses of mailing, unless within five
days after such tender the Trustee shall mail to such applicants and file
with the Commission, together with a copy of the material to be mailed, a
written statement to the effect that, in the opinion of the Trustee, such
mailing would be contrary to the best interest of the Holders or would be
in violation of applicable law. Such written statement shall specify the
basis of such opinion. If the Commission, after opportunity for a hearing
upon the objections specified in the written statement so filed, shall
enter an order refusing to sustain any of such objections or if, after the
entry of an order sustaining one or more of such objections, the
Commission shall find, after notice and opportunity for hearing, that all
the objections so sustained have been met and shall enter an order so
declaring, the Trustee shall mail copies of such material to all such
Holders with reasonable promptness after the entry of such order and the
renewal of such tender; otherwise the Trustee shall be relieved of any
obligation or duty to such applicants respecting their application.
(c) Every Holder of Securities, by receiving and holding the
same, agrees with the Company and the Trustee that neither the
Company nor the Trustee nor any agent of either of them shall be
held accountable by reason of the disclosure of any such information
as to the names and addresses of the Holders in accordance with
Section 7.2(b), regardless of the source from which such information
was derived, and that the Trustee shall not be held accountable by
reason of mailing any material pursuant to a request made under
Section 7.2(b).
SECTION 7.3 Reports by Trustee.
(a) Within 60 days after the first May 15 which occurs not
less than 60 days following the first date of issuance of Securities
of any series under this Indenture and within 60 days after May 15
in every year thereafter, the Trustee shall transmit by mail to all
Holders, as their names and addresses appear in the Security
Register, a brief report dated as of such May 15 with respect to:
(1) its eligibility under Section 6.9 and its
qualifications under Section 6.8, or in lieu thereof, if to the
best of its knowledge it has continued to be eligible and
qualified under said Sections, a written statement to such
effect;
<PAGE>
(2) the character and amount of any advances (and if the
Trustee elects so to state, the circumstances surrounding the
making thereof) made by the Trustee (as such) which remain
unpaid on the date of such report, and for the reimbursement of
which it claims or may claim a lien or charge, prior to that of
the Securities, on any property or funds held or collected by
it as Trustee, except that the Trustee shall not be required
(but may elect) to report such advances if such advances so
remaining unpaid aggregate not more than 1/2 of 1% of the
principal amount of the Securities Outstanding on the date of
such report;
(3) the amount, interest rate and maturity date of all
other indebtedness owing by the Company (or by any other
obligor on the Securities) to the Trustee in its individual
capacity, on the date of such report, with a brief description
of any property held as collateral security therefor, except an
indebtedness based upon a creditor relationship arising in any
manner described in Section 6.13(b)(2), (3), (4) or (6);
(4) the property and funds, if any, physically in the
possession of the Trustee as such on the date of such report;
(5) any additional issue of Securities which the Trustee
has not previously reported; and
(6) any action taken by the Trustee in the performance of
its duties hereunder which it has not previously reported and
which in its opinion materially affects the Securities, except
action in respect of a default, notice of which has been or is
to be withheld by the Trustee in accordance with Section 6.2.
(b) The Trustee shall transmit by mail to all Holders, as
their names and addresses appear in the Security Register, a brief
report with respect to the character and amount of any advances (and
if the Trustee elects so to state, the circumstances surrounding the
making thereof) made by the Trustee (as such) since the date of the
last report transmitted pursuant to Subsection (a) of this Section
(or if no such report has yet been so transmitted, since the date of
execution of this instrument) for the reimbursement of which it
claims or may claim a lien or charge, prior to that of the
Securities, on property or funds held or collected by it as Trustee
and which it has not previously reported pursuant to this
Subsection, except that the Trustee shall not be required (but may
elect) to report such advances if such advances remaining unpaid at
any time aggregate 10% or less of the principal amount of the
Securities Outstanding at such time, such report to be transmitted
within 90 days after such time.
(c) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock
exchange upon which any Securities are listed, with the Commission
and with the Company. The Company will notify the Trustee when any
Securities are listed on any stock exchange.
<PAGE>
SECTION 7.4 Reports by Company.
The Company shall:
(1) file with the Trustee, within 15 days after the
Company is required to file the same with the Commission,
copies of the annual reports and of the information, documents
and other reports (or copies of such portions of any of the
foregoing as the Commission may from time to time by rules and
regulations prescribe) which the Company may be required to
file with the Commission pursuant to Section 13 or Section
15(d) of the Securities Exchange Act of 1934; or, if the
Company is not required to file information, documents or
reports pursuant to either of said Sections, then it shall file
with the Trustee and the Commission, in accordance with rules
and regulations prescribed from time to time by the Commission,
such of the supplementary and periodic information, documents
and reports which may be required pursuant to Section 13 of the
Securities Exchange Act of 1934 in respect of a security listed
and registered on a national securities exchange as may be
prescribed from time to time in such rules and regulations;
(2) file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from time to
time by the Commission, such additional information, documents
and reports with respect to compliance by the Company with the
conditions and covenants of this Indenture as may be required
from time to time by such rules and regulations; and
(3) transmit by mail to all Holders, as their names and
addresses appear in the Security Register, within 30 days after
the filing thereof with the Trustee, such summaries of any
information, documents and reports required to be filed by the
Company pursuant to paragraphs (1) and (2) of this Section as
may be required by rules and regulations prescribed from time
to time by the Commission.
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, SALE OR LEASE
SECTION 8.1 Company May Consolidate, Etc., on Certain Terms.
Nothing contained in this Indenture or in any of the Securities
shall prevent any consolidation or merger of the Company with or into any
other corporation or corporations (whether or not affiliated with the
Company), or successive consolidations or mergers in which the Company or
its successor or successors shall be a party or parties, or shall prevent
any sale, conveyance or lease of all or substantially all the property of
the Company, to any other corporation (whether or not affiliated with the
Company) authorized to acquire and operate the same; provided, however,
and the Company hereby covenants and agrees, that upon any such
consolidation, merger, sale, conveyance or lease, the due and punctual
payment of the principal of (and premium, if any) and interest, if any, on
all of the Securities, according to their tenor, and the due and punctual
performance and observance of all of the covenants and conditions of this
Indenture to be performed by the Company, shall be expressly assumed, by
<PAGE>
supplemental indenture satisfactory in form to the Trustee, executed and
delivered to the Trustee by the corporation (if other than the Company)
formed by such consolidation, or into which the Company shall have been
merged, or by the corporation which shall have acquired or leased such
property, and provided further, that such corporation shall be a solvent
corporation organized under the laws of the United States of America or a
State thereof or the District of Columbia. The Company will not so
consolidate or merge, or make any such sale, lease or other disposition,
and the Company will not permit any other corporation to merge into the
Company, unless immediately after the proposed consolidation, merger,
sale, lease or other disposition, and after giving effect thereto, the
Company or such successor corporation, as the case may be, will not be in
default in the performance or observance of any of the terms, covenants,
agreements or conditions contained in this Indenture.
SECTION 8.2 [Intentionally Omitted]
SECTION 8.3 Successor Corporation to be Substituted.
In case of any such consolidation, merger, sale or conveyance
and upon the assumption by the successor corporation, by supplemental
indenture, executed and delivered to the Trustee and satisfactory in form
to the Trustee, of the due and punctual payment of the principal of and
premium, if any, and interest, if any, on all of the Securities and the
due and punctual performance of all of the covenants and conditions of
this Indenture to be performed by the Company, such successor corporation
shall succeed to and be substituted for the Company, with the same effect
as if it had been named herein as the party of the first part, and the
Company shall thereupon be relieved of any further obligation or
liabilities hereunder or upon the Securities, and the Company as the
predecessor corporation may thereupon or at any time thereafter be
dissolved, wound up or liquidated. Such successor corporation thereupon
may cause to be signed, and may issue either in its own name or in the
name of Ingersoll-Rand Company any or all of the Securities of any series
issuable hereunder which theretofore shall not have been signed by the
Company and delivered to the Trustee; and, upon the order of such
successor corporation instead of the Company and subject to all the terms,
conditions and limitations in this Indenture prescribed, the Trustee shall
authenticate and shall deliver Securities of any series which previously
shall have been signed and delivered by the officers of the Company to the
Trustee for authentication, and any Securities which such successor
corporation thereafter shall cause to be signed and delivered to the
Trustee for that purpose. All the Securities of any series so issued
shall in all respects have the same legal rank and benefit under this
Indenture as the Securities of such series theretofore or thereafter
issued in accordance with the terms of this Indenture as though all of
such Securities had been issued at the date of the execution hereof.
In case of any such consolidation, merger, sale, conveyance or
lease such changes in phraseology and form (but not in substance) may be
made in the Securities thereafter to be issued as may be appropriate.
<PAGE>
SECTION 8.4 Opinion of Counsel to be Given Trustee.
The Trustee, subject to Section 6.1, shall be entitled to
receive an Opinion of Counsel as conclusive evidence that any such
consolidation, merger, sale, conveyance or lease and any such assumption
complies with the provisions of this Article.
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1 Supplemental Indentures without Consent of
Holders.
Without the consent of any Holders, the Company, when
authorized by or pursuant to a Board Resolution, and the Trustee, at any
time and from time to time, may enter into one or more indentures
supplemental hereto, in form satisfactory to the Trustee, for any of the
following purposes:
(1) to evidence the succession of another corporation to
the Company and the assumption by any such successor of the
covenants of the Company herein and in the Securities; or
(2) to add to the covenants of the Company for the
benefit of the Holders of all or any series of Securities (and
if such covenants are to be for the benefit of less than all
series of Securities, stating that such covenants are expressly
being included solely for the benefit of such series) or to
surrender any right or power herein conferred upon the Company;
or
(3) to add any additional Events of Default; or
(4) to add to or change any of the provisions of this
Indenture to such extent as shall be necessary to permit or
facilitate the issuance of Securities in bearer form,
registrable or not registrable as to principal, and with or
without interest coupons; or
(5) to change or eliminate any of the provisions of this
Indenture, provided that any such change or elimination shall
become effective only when there is no Security Outstanding of
any series created prior to the execution of such supplemental
indenture which is entitled to the benefit of such provision;
or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any
series as permitted by Sections 2.1 and 3.1; or
(8) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to
the Securities of one or more series and to add to or change
any of the provisions of this Indenture as shall be necessary
to provide for or facilitate the administration of the trusts
<PAGE>
hereunder by more than one Trustee, pursuant to the
requirements of Section 6.11(b); or
(9) to provide for any rights of the Holders of
Securities of any series to require the repurchase of
Securities of such series from the Company; or
(10) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other
provision herein, or to make any other provisions with respect
to matters or questions arising under this Indenture, provided
such action shall not adversely affect the interests of the
Holders of Securities of any series in any material respect.
SECTION 9.2 Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in
aggregate principal amount of the Outstanding Securities of all series
affected by such supplemental indenture (voting as one class), by Act of
said Holders delivered to the Company and the Trustee, the Company, when
authorized by or pursuant to a Board Resolution, and the Trustee may enter
into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of
the provisions of this Indenture or of modifying in any manner the rights
of the Holders of Securities of such series under this Indenture;
provided, however, that no such supplemental indenture shall, without the
consent of the Holder of each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or
any instalment of principal of or interest, if any, on, any
Security, or reduce the principal amount thereof or the rate of
interest thereon or any premium payable upon the redemption
thereof, or reduce the amount of the principal of an Original
Issue Discount Security that would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to
Section 5.2, or change any Place of Payment where, or the coin
or currency in which, any Security or any premium or the
interest thereon is payable, or impair the right to institute
suit for the enforcement of any such payment on or after the
Stated Maturity thereof (or, in the case of redemption, on or
after the Redemption Date), or
(2) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose
Holders is required for any such supplemental indenture, or the
consent of whose Holders is required for any waiver (of
compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences) provided for in this
Indenture, or
(3) modify any of the provisions of this Section, Section
5.13 or Section 10.8, except to increase any such percentage or
to provide that certain other provisions of this Indenture
cannot be modified or waived without the consent of the Holder
of each Outstanding Security affected thereby, provided,
however, that this clause shall not be deemed to require the
consent of any Holder with respect to changes in the references
<PAGE>
to "the Trustee" and concomitant changes in this Section and
Section 10.8, or the deletion of this proviso, in accordance
with the requirements of Sections 6.11(b) and 9.1(8), or
(4) modify any of the subordination provisions applicable
to any series of Securities in a manner adverse to the Holders
of such series of Securities.
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Securities, or which
modifies the rights of the Holders of Securities of such series with
respect to such covenant or other provision, shall be deemed not to affect
the rights under this Indenture of the Holders of Securities of any other
series.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the
substance thereof.
SECTION 9.3 Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by,
any supplemental indenture permitted by this Article or the modifications
thereby of the trusts created by this Indenture, the Trustee shall be
entitled to receive, and (subject to Section 6.1) shall be fully protected
in relying upon, an Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this Indenture. The
Trustee may, but shall not be obligated to, enter into any such
supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
SECTION 9.4 Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith, and
such supplemental indenture shall form a part of this Indenture for all
purposes; and every Holder of Securities theretofore or thereafter
authenticated and delivered hereunder shall be bound thereby.
SECTION 9.5 Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article
shall conform to the requirements of the Trust Indenture Act as then in
effect.
SECTION 9.6 Reference in Securities to Supplemental
Indentures.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and
shall if required by the Trustee, bear a notation in form approved by the
Trustee as to any matter provided for in such supplemental indenture. If
the Company shall so determine, new Securities of any series so modified
as to conform, in the opinion of the Trustee and the Company, to any such
supplemental indenture may be prepared and executed by the Company and
<PAGE>
authenticated and delivered by the Trustee in exchange for Outstanding
Securities of such series.
SECTION 9.7 Effect on Senior Indebtedness.
No supplemental indenture shall directly or indirectly modify
or eliminate the provisions of Article XIII or the definition of "Senior
Indebtedness" in any manner which might terminate or impair the
subordination of the Securities to Senior Indebtedness without the prior
written consent of the Holders of the Senior Indebtedness.
ARTICLE X
COVENANTS
SECTION 10.1 Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series
of Securities that it will duly and punctually pay the principal of (and
premium, if any) and interest, if any, on the Securities of that series in
accordance with the terms of the Securities and this Indenture.
SECTION 10.2 Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any
series of Securities an office or agency where Securities of that series
may be presented or surrendered for payment, where Securities of that
series may be surrendered for registration of transfer or exchange and
where notices and demands to or upon the Company in respect of the
Securities of that series and this Indenture may be served. The Company
will give prompt written notice to the Trustee of the location, and any
change in the location, of such office or agency. If at any time the
Company shall fail to maintain any such required office or agency or shall
fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate
Trust Office of the Trustee, and the Company hereby appoints the Trustee
as its agent to receive all such presentations, surrenders, notices and
demands.
The Company may also from time to time designate one or more
other offices or agencies where the Securities of one or more series may
be presented or surrendered for any or all such purposes and may from time
to time rescind such designations; provided, however, that no such
designation or rescission shall in any manner relieve the Company of its
obligation to maintain an office or agency in each Place of Payment for
Securities of any series for such purposes. The Company will give prompt
written notice to the Trustee of any such designation or rescission and of
any change in the location of any such other office or agency.
SECTION 10.3 Money for Securities Payments to Be Held in
Trust.
If the Company shall at any time act as its own Paying Agent
with respect to any series of Securities, it will, on or before each due
date of the principal of (and premium, if any) or interest, if any, on any
of the Securities of that series, segregate and hold in trust for the
benefit of the persons entitled thereto a sum sufficient to pay the
<PAGE>
principal (and premium, if any) or interest, if any, so becoming due until
such sums shall be paid to such persons or otherwise disposed of as herein
provided and will promptly notify the Trustee of its action or failure so
to act.
Whenever the Company shall have one or more Paying Agents for
any series of Securities, it will, prior to each due date of the principal
of (and premium, if any) or interest, if any, on any securities of that
series, deposit with a Paying Agent a sum sufficient to pay the principal
(and premium, if any) or interest so becoming due, such sum to be held in
trust for the benefit of the persons entitled to such principal, premium
or interest, and (unless such Paying Agent is the Trustee) the Company
will promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent for any series of
Securities other than the Trustee to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee,
subject to the provisions of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the
principal of (and premium, if any) or interest, if any, on
Securities of that series in trust for the benefit of the
persons entitled thereto until such sums shall be paid to such
persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company
(or any other obligor upon the Securities of that series) in
the making of any payment of principal (and premium, if any) or
interest, if any, on the Securities of that series; and
(3) at any time during the continuance of any such
default, upon the written request of the Trustee, forthwith pay
to the Trustee all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose,
pay, or by Company Order direct any Paying Agent to pay, to the Trustee
all sums held in trust by the Company or such Paying Agent, such sums to
be held by the Trustee upon the same trusts as those upon which such sums
were held by the Company or such Paying Agent; and, upon such payment by
any Paying Agent to the Trustee, such Paying Agent shall be released from
all further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the principal of
(and premium, if any) or interest, if any, on any Security of any series
and remaining unclaimed for three years after such principal (and premium,
if any) or interest has become due and payable shall be paid to the
Company on Company Request, or (if then held by the Company) shall be
discharged from such trust; and the Holder of such Security shall
thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent
with respect to such trust money, and all liability of the Company as
trustee thereof, shall thereupon cease; provided, however, that the
Trustee or such Paying Agent, before being required to make any such
repayment, may at the expense of the Company cause to be published once,
in a newspaper published in the English language, customarily published on
<PAGE>
each Business Day and of general circulation in the City, County and State
of New York, notice that such money remains unclaimed and that, after a
date specified therein, which shall not be less than 30 days from the date
of such publication, any unclaimed balance of such money then remaining
will be repaid to the Company.
SECTION 10.4 [Intentionally Omitted.]
SECTION 10.5 [Intentionally Omitted.]
SECTION 10.6 Defeasance of Certain Obligations.
The Company may omit to comply with any term, provision or
condition set forth in any specified covenant set forth in any
supplemental indenture, Board Resolution or Officers' Certificate
establishing any series of Securities with respect to the Securities of
any series, provided that the following conditions shall have been
satisfied:
(1) The Company has deposited or caused to be irrevocably
deposited (except as provided in Section 4.2(c) and the last
paragraph of Section 10.3) with the Trustee (specifying that
each deposit is pursuant to this Section 10.6) as trust funds
in trust, specifically pledged as security for, and dedicated
solely to, the benefit of the Holders of the Securities of such
series, (i) money in an amount, or (ii) (except as provided in
a supplemental indenture with respect to such series) if
Securities of such series are not subject to repurchase at the
option of Holders, (A) U.S. Government Obligations which
through the payment of interest and principal in respect
thereof in accordance with their terms will provide not later
than one day before the due date of any payment referred to in
clause (x) or (y) of this subparagraph (1) money in an amount,
or (B) a combination thereof, sufficient, in the opinion of a
nationally recognized firm of independent certified public
accountants expressed in a written certification thereof
delivered to the Trustee, to pay and discharge (x) the
principal of (and premium, if any) and each instalment of
principal (and premium, if any) and interest, if any, on the
Outstanding Securities of such series on the Stated Maturity of
such principal or instalment of principal or interest or to and
including the Redemption Date irrevocably designated by the
Company pursuant to subparagraph (4) of this Section and (y)
any mandatory sinking fund payments applicable to the
Securities of such series on the day on which such payments are
due and payable in accordance with the terms of the Indenture
and of the Securities of such series;
(2) No Event of Default or event which with notice or
lapse of time would become an Event of Default (including by
reason of such deposit) with respect to the Securities of such
series shall have occurred and be continuing on the date of
such deposit;
(3) The Company shall have delivered to the Trustee an
Opinion of Counsel to the effect that Holders of the Securities
of such series will not recognize income, gain or loss for
<PAGE>
Federal income tax purposes as a result of such deposit and
defeasance of certain obligations; and
(4) If the Company has deposited or caused to be
deposited money or U.S. Government Obligations to pay or
discharge the principal of (and premium, if any) and interest,
if any, on the Outstanding Securities of a series to and
including a Redemption Date on which all of the Outstanding
Securities of such series are to be redeemed, such Redemption
Date shall be irrevocably designated by a Board Resolution
delivered to the Trustee on or prior to the date of deposit of
such money or U.S. Government Obligations, and such Board
Resolution shall be accompanied by an irrevocable Company
Request that the Trustee give notice of such redemption in the
name and at the expense of the Company not less than 30 nor
more than 60 days prior to such Redemption Date in accordance
with Section 11.4.
SECTION 10.7 Statement by Officers as to Default.
The Company will deliver to the Trustee on or before May 15 in
each year ending after the date hereof, an Officers' Certificate stating
that in the course of the performance by each signer of his duties as an
officer of the Company he would normally have knowledge of any default by
the Company in the performance and observance of any of the covenants
contained in any specified covenant set forth in any supplemental
indenture, Board Resolution or Officers' Certificate establishing any
series of Securities, stating whether or not he has knowledge of any such
default and, if so, specifying each such default of which such signer has
knowledge and the nature thereof.
SECTION 10.8 Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with
any term, provision or condition set forth in any specified covenant set
forth in any supplemental indenture, Board Resolution or Officers'
Certificate establishing any series of Securities if before the time for
such compliance the Holders of not less than a majority in aggregate
principal amount of the Outstanding Securities of all series affected by
such omission (voting as one class ) shall, by Act of such Holders, either
waive such compliance in such instance or generally waive compliance with
such term, provision or condition, but no such waiver shall extend to or
affect such term, provision or condition except to the extent so expressly
waived, and, until such waiver shall become effective, the obligations of
the Company and the duties of the Trustee in respect of any such term,
provision or condition shall remain in full force and effect.
SECTION 10.9 Limitation on Other Senior Subordinated
Indebtedness.
Unless otherwise provided pursuant to Section 3.1 with respect
to the Securities of any series, the Company will not incur, create,
assume, guarantee or in any other manner become directly or indirectly
liable with respect to or responsible for, or permit to remain
outstanding, any new Indebtedness of the Company (the "New Indebtedness")
which is subordinated by the terms of the instrument creating or
evidencing such New Indebtedness in right of payment to any other
<PAGE>
Indebtedness of the Company unless such New Indebtedness is expressly by
the terms of the instrument creating or evidencing such New Indebtedness
made (i) pari passu in right of payment with the Securities or (ii)
subordinate in right of payment to the Securities of such series. For
purposes of this provision, no Indebtedness shall be deemed to be
subordinated in right of payment to any other Indebtedness solely by
reason of the fact that such other Indebtedness is secured by any
mortgage, pledge, security interest or other lien.
ARTICLE XI
REDEMPTION OF SECURITIES
SECTION 11.1 Applicability of Article.
Securities of any series which are redeemable before their
Stated Maturity shall be redeemable in accordance with their terms and (
except as otherwise specified as contemplated by Section 3.1 for
Securities of any series) in accordance with this Article.
SECTION 11.2 Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be
evidenced by an Officers' Certificate. In case of any redemption at the
election of the Company of less than all the Securities of any series, the
Company shall, at least 60 days prior to the Redemption Date fixed by the
Company (unless a shorter notice shall be satisfactory to the Trustee),
notify the Trustee of such Redemption Date and of the principal amount of
Securities of such series to be redeemed, such notice to be accompanied by
a written statement signed by an authorized officer of the Company stating
that no defaults in the payment of interest or Events of Default with
respect to the Securities of that series have occurred (which have not
been waived or cured). In the case of any redemption of Securities prior
to the expiration of any restriction on such redemption provided in the
terms of such Securities or elsewhere in this Indenture, the Company shall
furnish the Trustee with an Officers' Certificate evidencing compliance
with such restriction.
SECTION 11.3 Selection by Trustee of Securities to Be
Redeemed.
If less than all the Securities of any series are to be
redeemed, the particular Securities to be redeemed shall be selected not
more than 60 days prior to the Redemption Date by the Trustee, from the
Outstanding Securities of such series not previously called for
redemption, by such method as the Trustee shall deem fair and appropriate
and which may provide for the selection for redemption of portions (equal
to the minimum authorized denomination for Securities of that series or
any integral multiple thereof) of the principal amount of Securities of
such series of a denomination larger than the minimum authorized
denomination for Securities of that series.
Securities shall be excluded from eligibility for selection for
redemption if they are identified by registration and certificate number
in a written statement signed by an authorized officer of the Company and
delivered to the Trustee at least 60 days prior to the Redemption Date as
being owned of record and beneficially by, and not pledged or hypothecated
<PAGE>
by either (a) the Company or (b) an entity specifically identified in such
written statement which is an Affiliate of the Company.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities
selected for partial redemption, the principal amount thereof to be
redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of
Securities shall relate, in the case of any Securities redeemed or to be
redeemed only in part, to the portion of the principal amount of such
Securities which has been or is to be redeemed.
SECTION 11.4 Notice of Redemption.
Notice of redemption shall be given by first-class mail,
postage prepaid, mailed not less than 30 nor more than 60 days prior to
the Redemption Date, to each Holder of Securities to be redeemed, at his
address appearing in the Security Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any
series are to be redeemed, the identification (and, in the case
of partial redemption, the principal amounts) of the particular
Securities to be redeemed,
(4) that on the Redemption Date the Redemption Price will
become due and payable upon each such Security to be redeemed
and, if applicable, that interest thereon will cease to accrue
on and after said date,
(5) the place or places where such Securities are to be
surrendered for payment of the Redemption Price, and
(6) that the redemption is for a sinking fund, if such is
the case.
Notice of redemption of Securities to be redeemed at the
election of the Company shall be given by the Company or, at the Company's
request, by the Trustee in the name and at the expense of the Company.
SECTION 11.5 Deposit of Redemption Price.
At least one Business Day prior to any Redemption Date, the
Company shall deposit with the Trustee or with a Paying Agent (or, if the
Company is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 10.3) an amount of money sufficient to pay the
Redemption Price of, and (except if the Redemption Date shall be an
Interest Payment Date) accrued interest on, all the Securities which are
to be redeemed on that date (to the extent that such amounts are not
<PAGE>
already on deposit at such time in accordance with the provisions of
Section 4.1, 4.3 or 10.6).
SECTION 11.6 Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the
Securities so to be redeemed shall, on the Redemption Date, become due and
payable at the Redemption Price therein specified, and from and after such
date (unless the Company shall default in the payment of the Redemption
Price and accrued and unpaid interest) such Securities shall cease to bear
interest. Upon surrender of any such Security for redemption in
accordance with said notice, such Security shall be paid by the Company at
the Redemption Price, together with accrued and unpaid interest to the
Redemption Date; provided, however, that installments of interest whose
Stated Maturity is on or prior to the Redemption Date shall be payable to
the Holders of such Securities, or one or more Predecessor Securities,
registered as such at the close of business on the relevant Record Dates
according to their terms and the provisions of Section 3.7.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any)
shall, until paid, bear interest from the Redemption Date at the rate
prescribed therefor in the Security.
SECTION 11.7 Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be
surrendered at a Place of Payment therefor (with, if the Company or the
Trustee so requires, due endorsement by, or a written instrument of
transfer in form satisfactory to the Company and the Trustee duly executed
by, the Holder thereof or his attorney duly authorized in writing), and
the Company shall execute, and the Trustee shall authenticate and deliver
to the Holder of such Security without service charge, a new Security or
Securities of the same series, of any authorized denomination as requested
by such Holder, in aggregate principal amount equal to and in exchange for
the unredeemed portion of the principal of the Security so surrendered.
ARTICLE XII
SINKING FUNDS
SECTION 12.1 Applicability of Article.
The provisions of this Article shall be applicable to any
sinking fund for the retirement of Securities of a series except as
otherwise specified as contemplated by Section 3.1 for Securities of such
series.
The minimum amount of any sinking fund payment provided for by
the terms of Securities of any series is herein referred to as a
"mandatory sinking fund payment", and any payment in excess of such
minimum amount provided for by the terms of Securities of any series is
herein referred to as an "optional sinking fund payment". If provided for
by the terms of Securities of any series, the cash amount of any sinking
fund payment may be subject to reduction as provided in Section 12.2. Each
sinking fund payment shall be applied to the redemption of Securities of
any series as provided for by the terms of Securities of such series.
<PAGE>
SECTION 12.2 Satisfaction of Sinking Fund Payments with
Securities.
In lieu of making all or any part of any mandatory sinking fund
payment with respect to any series of Securities in cash, the Company may
at its option (a) deliver to the Trustee Securities of such series
theretofore purchased or otherwise acquired (except upon redemption
pursuant to the mandatory sinking fund) by the Company or receive credit
for Securities of such series (not previously so credited) theretofore
purchased or otherwise acquired (except as aforesaid) by the Company and
delivered to the Trustee for cancellation pursuant to Section 3.9, (b)
receive credit for optional sinking fund payments (not previously so
credited) made pursuant to this Section, or (c) receive credit for
Securities of such series (not previously so credited) redeemed by the
Company through any optional redemption provision contained in the terms
of such series. Securities so delivered or credited shall be received or
credited by the Trustee at the sinking fund redemption price specified in
such Securities.
SECTION 12.3 Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date
for any series of Securities, the Company will deliver to the Trustee an
Officers' Certificate (which need not contain the statements required by
Section 1.2) stating that no defaults in the payment of interest, if any,
with respect to Securities of that series and no Events of Default with
respect to Securities of that series have occurred (which in either case
have not been waived or cured) and (a) specifying the amount of the next
ensuing sinking fund payment for that series pursuant to the terms of that
series, (b) whether or not the Company intends to exercise its right, if
any, to make an optional sinking fund payment with respect to such series
on the next ensuing sinking fund payment date and, if so, the amount of
such optional sinking fund payment, and (c) the portion thereof, if any,
which is to be satisfied by payment of cash and the portion thereof, if
any, which is to be satisfied by delivering and crediting Securities of
that series pursuant to Section 12.2, and will also deliver to the Trustee
any Securities to be so delivered. Such written statement shall be
irrevocable and upon its receipt by the Trustee the Company shall become
unconditionally obligated to make all the cash payments or payments
therein referred to, if any, on or before the next succeeding sinking fund
payment date. Failure of the Company, on or before any such 60th day, to
deliver such written statement and Securities specified in this paragraph,
if any, shall not constitute a default but shall constitute, on and as of
such date, the irrevocable election of the Company (i) that the mandatory
sinking fund payment for such series due on the next succeeding sinking
fund payment date shall be paid entirely in cash without the option to
deliver or credit Securities of such series in respect therefor and (ii)
that the Company will make no optional sinking fund payment with respect
to such series as provided in this Section.
Not less than 30 days before each such sinking fund payment
date the Trustee shall select the Securities to be redeemed upon such
sinking fund payment date in the manner specified in Section 11.3 and
cause notice of the redemption thereof to be given in the name of and at
the expense of the Company in the manner provided in Section 11.4. Such
notice having been duly given, the redemption of such Securities shall be
<PAGE>
made upon the terms and in the manner stated in Sections 11.5, 11.6 and
11.7.
The Trustee shall not redeem or cause to be redeemed any
Security of a series with sinking fund moneys or mail any notice of
redemption of Securities of such series by operation of the sinking fund
during the continuance of a default in payment of interest with respect to
Securities of that series or an Event of Default with respect to the
Securities of that series except that, where the mailing of notice of
redemption of any Securities shall theretofore have been made, the Trustee
shall redeem or cause to be redeemed such Securities, provided that it
shall have received from the Company a sum sufficient for such redemption.
Except as aforesaid, any moneys in the sinking fund for such series at the
time when any such default or Event of Default, shall occur, and any
moneys thereafter paid into the sinking fund, shall, during the
continuance of such default or Event of Default, be deemed to have been
collected under Article Five and held for the payment of all such
Securities. In case such Event of Default shall have been waived as
provided in Section 5.13 or the default or Event of Default cured on or
before the 60th day preceding the sinking fund payment date, such moneys
shall thereafter be applied on the next succeeding sinking fund payment
date in accordance with this Section to the redemption of such Securities.
ARTICLE XIII
SUBORDINATION OF SECURITIES
Unless otherwise set forth in the supplemental indenture, Board
Resolution or Officers' Certificate pursuant to Section 3.1 establishing
the terms of a series of Securities, such series of Securities shall be
subject to the following provisions:
SECTION 13.1. Agreement to Subordinate.
The Company, for itself, its successors and assigns, covenants
and agrees, and each Holder of Securities by his acceptance thereof,
likewise covenants and agrees, that the payment of the principal of (and
premium, if any) and interest, if any, on each and all of the Securities
is hereby expressly subordinated, to the extent and in the manner
hereinafter set forth, in right of payment to the prior payment in full in
cash or cash equivalents or, as acceptable to the holders of Senior
Indebtedness, in any other manner, of all amounts payable under all
existing and future Senior Indebtedness.
Unless otherwise provided in the supplemental indenture, Board
Resolution or Officers' Certificate pursuant to Section 3.1 hereof
establishing the terms of a series of Securities, "Senior Indebtedness"
means the principal of, premium, if any, and interest, if any, on any
Indebtedness of the Company, whether outstanding on the date of this
Indenture or thereafter created, incurred or assumed, unless, in the case
of any particular Indebtedness, the instrument creating or evidencing the
same or pursuant to which the same is outstanding expressly provides that
such Indebtedness shall not be senior in right of payment to the
Securities. Unless otherwise provided in the supplemental indenture,
Board Resolution or Officers' Certificate pursuant to Section 3.1 hereof
establishing the terms of a series of Securities, notwithstanding the
foregoing, "Senior Indebtedness" shall not include (a) Indebtedness
<PAGE>
evidenced by the Securities, (b) Indebtedness that is, by the terms of the
instrument or agreement evidencing such Indebtedness or pursuant to which
such Indebtedness was issued, expressly subordinate in right of payment to
any other Indebtedness of the Company, and (c) Indebtedness for goods,
materials or services purchased in the ordinary course of business or
Indebtedness consisting of trade payables.
This Article XIII shall constitute a continuing offer to all
Persons who, in reliance upon such provisions, become holders of, or
continue to hold Senior Indebtedness; and such provisions are made for the
benefit of the holders of Senior Indebtedness; and such holders are made
obligees hereunder and they or each of them may enforce such provisions.
SECTION 13.2 Payment Over of Proceeds upon Dissolution, etc.
In the event of (a) any insolvency or bankruptcy case or
proceeding, or any receivership, liquidation, reorganization or other
similar case or proceeding in connection therewith, relating to the
Company or to its assets, or (b) any liquidation, dissolution or other
winding-up of the Company, whether voluntary or involuntary and whether or
not involving insolvency or bankruptcy, or (c) any assignment for the
benefit of creditors or any other marshalling of assets or liabilities of
the Company, then and in any such event (subject to the power of a court
of competent jurisdiction to make other equitable provision reflecting the
rights conferred in this Indenture upon the Senior Indebtedness and the
holders thereof with respect to the Securities and the Holders thereof by
a lawful plan of reorganization under applicable bankruptcy law):
(1) the holders of Senior Indebtedness shall be entitled to
receive payment in full, in cash or cash equivalents or, as acceptable to
the holders of Senior Indebtedness, in any other manner, of all Senior
Indebtedness (including principal, premium, if any and interest, if any,
and including, in the case of Designated Senior Indebtedness, any interest
accruing subsequent to the filing of a petition for bankruptcy at the rate
provided for in the documentation governing such Designated Senior
Indebtedness, to the extent that such interest is an allowed claim under
applicable law), or provision shall be made for such payment, before the
Holders of the Securities are entitled to receive any payment or
distribution of any kind or character (excluding securities of the Company
or any other person that are equity securities or are expressly
subordinated in right of payment to all Senior Indebtedness that may at
the time be outstanding, to substantially the same extent as, or to a
greater extent than, the Securities as provided in this Article; such
securities are hereinafter collectively referred to as "Permitted Junior
Securities") on account of principal of, premium, if any, or interest on
the Securities;
(2) any payment or distribution of assets of the Company of
any kind or character, whether in cash, property or securities (excluding
Permitted Junior Securities), by set-off or otherwise, to which the
Holders of the Securities or the Trustee would be entitled but for the
provisions of this Article XIII shall be paid by the liquidating trustee
or agent or other person making such payment or distribution, whether a
trustee in bankruptcy, a receiver or liquidating trustee or otherwise,
directly to the holders of Senior Indebtedness or their representative or
representatives or to the trustee or trustees under any indenture under
which any instruments evidencing any of such Senior Indebtedness may have
<PAGE>
been issued, ratably according to the aggregate amounts remaining unpaid
on account of the Senior Indebtedness held or represented by each, to the
extent necessary to make payment in full, in cash or cash equivalents or,
as acceptable to the holders of Senior Indebtedness, in any other manner,
of all Senior Indebtedness remaining unpaid, after giving effect to any
concurrent payment or distribution to or for the holders of such Senior
Indebtedness; and
(3) in the event that, notwithstanding the foregoing provisions
of this Section 13.2, the Trustee or the Holder of any Security shall have
received any payment or distribution of assets of the Company of any kind
or character, whether in cash, property or securities, in respect of
principal of, premium, if any, or interest, if any, on the Securities
before all Senior Indebtedness is paid in full, in cash or cash
equivalents or, as acceptable to the holders of Senior Indebtedness, in
any other manner, or payment thereof provided for, then and in such event
such payment or distribution (excluding Permitted Junior Securities) shall
be paid over or delivered forthwith to the trustee in bankruptcy,
receiver, liquidating trustee, custodian, assignee, agent or other Person
making payment or distribution of assets of the Company for application to
the payment of all Senior Indebtedness remaining unpaid, ratably as
aforesaid, to the extent necessary to pay all Senior Indebtedness in full,
in cash or cash equivalents or, as acceptable to the holders of Senior
Indebtedness, in any other manner, after giving effect to any concurrent
payment or distribution to or for the holders of Senior Indebtedness.
The consolidation of the Company with, or the merger of the
Company with or into, another person or the liquidation or dissolution of
the Company following the conveyance, transfer, lease or other disposition
of its properties and assets substantially as an entirety to another
Person upon the terms and conditions set forth in Article VIII hereof
shall not be deemed a dissolution, winding-up, liquidation,
reorganization, assignment for the benefit of creditors or marshalling of
assets and liabilities of the Company for the purposes of this Article
XIII if the Person formed by such consolidation or the surviving entity of
such merger or the Person which acquires by conveyance, transfer, lease or
other disposition such properties and assets substantially as an entirety,
as the case may be, shall, as a part of such consolidation, merger,
conveyance, transfer, lease or other disposition, comply with the
conditions set forth in such Article VIII.
SECTION 13.3 No Payment on Securities in Event of Default on
Senior Indebtedness.
No payment by the Company on account of principal of, or
premium, if any, sinking funds or interest, if any, on the Securities
shall be made unless full payment of amounts then due for the principal
of, and premium, if any, sinking funds and interest, if any, on Senior
Indebtedness has been made or duly provided for in money or money's worth.
SECTION 13.4 Trustee's Relation to Senior Indebtedness.
With respect to the holders of Senior Indebtedness, the Trustee
undertakes to perform or to observe only such of its covenants and
obligations as are specifically set forth in this Article XIII, and no
implied covenants or obligations with respect to the holders of Senior
Indebtedness shall be read into this Indenture against the Trustee. The
<PAGE>
Trustee shall not be deemed to owe any fiduciary duty to the holders of
Senior Indebtedness and the Trustee shall not be liable to any holder of
Senior Indebtedness if it shall mistakenly pay over or deliver to Holders
of Securities, the Company or any other Person moneys or assets to which
any holder of Senior Indebtedness shall be entitled by virtue of this
Article XIII or otherwise.
SECTION 13.5 Subrogation to Rights of Holders of Senior
Indebtedness.
Upon the payment in full of all Senior Indebtedness, the
Holders of the Securities shall be subrogated to the rights of the holders
of such Senior Indebtedness to receive payments and distributions of cash,
property and securities applicable to the Senior Indebtedness until the
principal of, premium, if any, and interest, if any, on the Securities
shall be paid in full in cash or cash equivalents. For purposes of such
subrogation, no payments or distributions to the holders of Senior
Indebtedness of any cash, property or securities to which the Holders of
the Securities or the Trustee would be entitled except for the provisions
of this Article XIII, and no payments over pursuant to the provisions of
this Article XIII to the holders of Senior Indebtedness by Holders of the
Securities or the Trustee shall, as among the Company, its creditors other
than holders of Senior Indebtedness, and the Holders of the Securities, be
deemed to be a payment or distribution by the Company to or on account of
the Senior Indebtedness.
SECTION 13.6 Provisions Solely To Define Relative Rights.
The provisions of this Article XIII are and are intended solely
for the purpose of defining the relative rights of the Holders of the
Securities on the one hand and the holders of Senior Indebtedness on the
other hand. Nothing contained in this Article XIII or elsewhere in this
Indenture or in the Securities is intended to or shall (a) impair, as
among the Company, its creditors other than holders of Senior Indebtedness
and the Holders of the Securities, the obligation of the Company, which is
absolute and unconditional, to pay to the Holders of the Securities the
principal of, premium, if any, and interest, if any, on the Securities as
and when the same shall become due and payable in accordance with their
terms; or (b) affect the relative rights of the Holders of the Securities
and creditors of the Company other than the holders of Senior
Indebtedness; or (c) prevent the Trustee or the Holder of any Security
from exercising all remedies otherwise permitted by applicable law upon a
Default or an Event of Default under this Indenture, subject to the
rights, if any, under this Article XIII of the holders of Senior
Indebtedness (1) in any case, proceeding, dissolution, liquidation or
other winding up, assignment for the benefit of creditors or other
marshalling of assets and liabilities of the Company referred to in
Section 13.2, to receive, pursuant to and in accordance with such Section,
cash, property and securities otherwise payable or deliverable to the
Trustee or such Holder, or (2) under the conditions specified in Section
13.3, to prevent any payment prohibited by such Section or enforce their
rights pursuant to Section 13.3.
The failure to make a payment on account of principal of, or
premium, if any, or interest, if any, on, or sinking funds, if any, in
respect of any Securities of any series by reason of any provision of this
Article XIII shall not be construed as preventing the occurrence of a
<PAGE>
Default or an Event of Default with respect of the Securities of such
series.
SECTION 13.7 Trustee To Effectuate Subordination.
Each Holder of a Security by such Holder's acceptance thereof
authorizes and directs the Trustee on such Holder's behalf to take such
action as may be necessary or appropriate to effectuate the subordination
provided in this Article XIII and appoints the Trustee his
attorney-in-fact for any and all such purposes, including, in the event of
any dissolution, winding-up, liquidation or reorganization of the Company,
whether in bankruptcy, insolvency, receivership proceedings or otherwise,
the timely filing of a claim for the unpaid balance of the Indebtedness of
the Company owing to such Holder in the form required in such proceedings
and the causing of such claim to be approved. If the Trustee does not file
such a claim prior to 30 days before the expiration of the time to file
such a claim, the holders of Senior Indebtedness, or any Senior
Representative, may file such a claim on behalf of Holders of the
Securities.
SECTION 13.8 No Waiver of Subordination Provisions.
(a) No right of any present or future holder of any Senior
Indebtedness to enforce subordination as herein provided shall at any time
in any way be prejudiced or impaired by any act or failure to act on the
part of the Company or by any act or failure to act, in good faith, by any
such holder, or by any non-compliance by the Company with the terms,
provisions and covenants of this Indenture, regardless of any knowledge
thereof any such holder may have or be otherwise charged with.
(b) Without limiting the generality of Section 13.8(a), the
holders of Senior Indebtedness may, at any time and from time to time,
without the consent of or notice to the Trustee or the Holders of the
Securities, without incurring responsibility to the Holders of the
Securities and without impairing or releasing the subordination provided
in this Article XIII or the obligations hereunder of the Holders of the
Securities to the holders of Senior Indebtedness, do any one or more of
the following: (1) change the manner, place or terms of payment or extend
the time of payment of, or renew or alter, Senior Indebtedness or any
instrument evidencing the same or any agreement under which Senior
Indebtedness is outstanding; (2) sell, exchange, release or otherwise deal
with any property pledged, mortgaged or otherwise securing Senior
Indebtedness; (3) release any Person liable in any manner for the
collection or payment of Senior Indebtedness; and (4) exercise or refrain
from exercising any rights against the Company and any other Person;
provided, however, that in no event shall any such actions limit the right
of the Holders of the Securities of any series to take any action to
accelerate the maturity of such Securities pursuant to Article V hereof or
to pursue any rights or remedies hereunder or under applicable laws if the
taking of such action does not otherwise violate the terms of this
Indenture.
SECTION 13.9 Notices to Trustee.
(a) The Company shall give prompt written notice to the
Trustee of any fact known to the Company which would prohibit the making
of any payment to or by the Trustee in respect of the Securities pursuant
<PAGE>
to this Article XIII. Failure to give such notice shall not affect the
subordination of the Securities to Senior Indebtedness. Notwithstanding
the provisions of this Article XIII or any other provisions of this
Indenture, neither the Trustee nor any Paying Agent (other than the
Company) shall be charged with knowledge of the existence of any Senior
Indebtedness or of any event which would prohibit the making of any
payment of moneys to or by the Trustee or such Paying Agent, unless and
until the Trustee or such Paying Agent shall have received (in the case of
the Trustee, at its Corporate Trust Office) written notice thereof from
the Company or from the holder of any Senior Indebtedness or from the
trustee for any such holder, together with proof satisfactory to the
Trustee or such Paying Agent, as the case may be, of such holding of
Senior Indebtedness or of the authority of such trustee; provided,
however, that if at least two Business Days prior to the date upon which
by the terms hereof any such moneys may become payable for any purpose
(including, without limitation, the payment of either the principal of, or
premium, if any, or interest, if any, on any Security) the Trustee shall
not have received with respect to such moneys the notice provided for in
this Section 13.9, then, anything herein contained to the contrary
notwithstanding, the Trustee shall have full power and authority to
receive such moneys and to apply the same to the purpose for which they
were received, and shall not be affected by any notice to the contrary,
which may be received by it within two Business Days prior to such date.
(b) Subject to the provisions of Section 6.3, the Trustee
shall be entitled to rely on the delivery to it of a written notice by a
Person representing himself to be a holder of Senior Indebtedness (or a
trustee on behalf of such holder) to establish that such a notice has been
given by a holder of Senior Indebtedness or a trustee on behalf of any
such holder. In the event that the Trustee determines in good faith that
further evidence is required with respect to the right of any Person as a
holder of Senior Indebtedness (or a trustee on behalf of such holder) to
participate in any payment or distribution pursuant to this Article XIII,
the Trustee may request such Person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of Senior Indebtedness held
by such Person (or the amount of Senior Indebtedness as to which such
Person is trustee), the extent to which such Person is entitled to
participate in such payment or distribution and any other facts pertinent
to the rights of such Person under this Article XIII and, if such evidence
is not furnished, the Trustee may defer any payment to such Person pending
judicial determination as to the right of such Person to receive such
payment.
SECTION 13.10 Reliance on Judicial Order or Certificate of
Liquidating Agent.
Upon any payment or distribution of assets of the Company
referred to in this Article XIII, the Trustee, subject to the provisions
of Section 6.3, and the Holders shall be entitled to rely upon any order
or decree entered by any court of competent jurisdiction in which such
insolvency, bankruptcy, receivership, liquidation, reorganization,
dissolution, winding-up or similar case or proceeding is pending, or a
certificate of the trustee in bankruptcy, receiver, liquidating trustee,
custodian, assignee for the benefit of creditors, agent or other person
making such payment or distribution, delivered to the Trustee or to the
Holders, for the purpose of ascertaining the Persons entitled to
participate in such payment or distribution, the holders of Senior
<PAGE>
Indebtedness and other Indebtedness of the Company, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all
other facts pertinent thereto or to this Article.
SECTION 13.11 Rights of Trustee as a Holder of Senior
Indebtedness; Preservation of Trustee's Rights.
The Trustee in its individual capacity shall be entitled to all
the rights set forth in this Article XIII with respect to any Senior
Indebtedness which may at any time be held by it, to the same extent as
any other holder of Senior Indebtedness, and nothing in this Indenture
shall deprive the Trustee of any of its rights as such holder. Nothing in
this Article XIII shall apply to claims of, or payments to, the Trustee
under or pursuant to Section 6.7.
SECTION 13.12 Article Applicable to Paying Agents.
In case at any time any Paying Agent other than the Trustee
shall have been appointed by the Company and be then acting hereunder, the
term "Trustee" as used in this Article XIII shall in such case (unless
otherwise expressly stated or the context otherwise requires) be construed
as extending to and including such Paying Agent within its meaning as
fully for all intents and purposes as if such Paying Agent were named in
this Article XIII in addition to or in place of the Trustee; provided,
however, that Section 13.12 shall not apply to the Company or any
Affiliate of the Company if it or such Affiliate acts as Paying Agent.
SECTION 13.13 No Suspension of Remedies.
Nothing contained in this Article XIII shall limit the right of
the Trustee or the Holders of Securities of any series to take any action
to accelerate the maturity of such Securities pursuant to Article V or to
pursue any rights or remedies hereunder or under applicable law, subject
to the rights, if any, under this Article XIII of the holders, from time
to time, of Senior Indebtedness.
Nothing contained in this Indenture or in any of the Securities
shall (a) affect the obligation of the Company to make, or prevent the
Company from making, at any time except as provided in Sections 13.2 and
13.3, payments of principal of, or premium, if any, or interest, if any,
on or sinking fund payments, if any, with respect to the Securities or (b)
prevent the application by the Trustee of any moneys deposited with it
hereunder to the payment of or on account of the principal of, or premium,
if any, or interest, if any, on, the Securities, unless the Trustee shall
have received at its Corporate Trust Office written notice of any event
prohibiting the making of such payment more than two Business Days prior
to the date fixed for such payment.
SECTION 13.14 Other Subordination Provisions.
Securities of any series may include such other subordination
provisions, including payment blockage provisions upon defaults other than
payment defaults, and definitions of "Senior Indebtedness and "Designated
Senior Indebtedness" as may be provided in the supplemental indenture or
provided in or pursuant to the Board Resolution or Officers' Certificate
under which such series of Securities is issued or in the form of Security
for such series.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this In-
denture to be duly executed and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above
written.
[Seal] INGERSOLL-RAND COMPANY
By
-------------------------
Title:
-------------------
Attest:
-------------------------------
Title:
------------------------- ---------------------------
[Seal]
By
-------------------------
Title:
-------------------
Attest:
-------------------------------
Title:
-------------------------
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the ___ day of _______, 1997, before me personally came
___________, to me known, who, being by me duly sworn, did depose and say
that he is _______________________________ of Ingersoll-Rand Company, one
of the corporations described in and which executed the foregoing
instrument; that he knows the seal of said corporation; that the seal
affixed to stud instrument is such corporate seal; that it was so affixed
by authority of the Board of Directors of said corporation, and that he
signed his name thereto by like authority.
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the ____ day of ______, 1997, before me personally came
_______________, to me known, who, being by me duly sworn, did depose and
say that he is _______________________________, one of the corporations
described in and which executed the foregoing instrument; that he knows
the seal of skid corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by authority of the Board of
Directors of stud corporation, and that he signed his name thereto by like
authority.
<PAGE>
Exhibit 4.7
=========================================================================
INGERSOLL-RAND COMPANY
and
,
-------------------------
Trustee
-------------------------
INDENTURE
Dated as of , 1997
-------------------------
Senior Subordinated Debt Securities
=========================================================================
<PAGE>
Reconciliation and tie between Trust Indenture Act of 1939 and
Indenture, dated as of , 1997.
Trust Indenture
Act Section Indenture Section
Section 310(a)(1) . . . . . . . . . . . . . . . . . . 6.9
(a)(2) . . . . . . . . . . . . . . . . . . . . . 6.9
(a)(3) . . . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(4) . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . 6.8
. . . . . . . . . . . . . . . . . . . . . . . . 6.10
Section 311(a) . . . . . . . . . . . . . . . . . . . 6.13(a)
(b) . . . . . . . . . . . . . . . . . . . . . . 6.13(b)
(b)(2) . . . . . . . . . . . . . . . . . . . . . 7.3(a)(2)
. . . . . . . . . . . . . . . . . . . . . . . . 7.3(b)
Section 312(a) . . . . . . . . . . . . . . . . . . . 7.1
. . . . . . . . . . . . . . . . . . . . . . . . 7.2(a)
(b) . . . . . . . . . . . . . . . . . . . . . . 7.2(b)
(c) . . . . . . . . . . . . . . . . . . . . . . 7.2(c)
Section 313(a) . . . . . . . . . . . . . . . . . . . 7.3(a)
(b)(1) . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b)(2) . . . . . . . . . . . . . . . . . . . . . 7.3(b)
(c) . . . . . . . . . . . . . . . . . . . . . . 7.3(a), 7.3(b)
(d) . . . . . . . . . . . . . . . . . . . . . . 7.3(c)
Section 314(a) . . . . . . . . . . . . . . . . . . . 7.4
(b) . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . . . . . . . . . . . . 1.2
(c)(2) . . . . . . . . . . . . . . . . . . . . . 1.2
(c)(3) . . . . . . . . . . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . . . . . . . . 1.2
Section 315(a) . . . . . . . . . . . . . . . . . . . 6.1(a)
(b) . . . . . . . . . . . . . . . . . . . . . . 6.2
7.3(a)(6)
(c) . . . . . . . . . . . . . . . . . . . . . . 6.1(b)
(d) . . . . . . . . . . . . . . . . . . . . . . 6.1(c)
(d)(1) . . . . . . . . . . . . . . . . . . . . . 6.1(a)(1)
(d)(2) . . . . . . . . . . . . . . . . . . . . . 6.1(c)(2)
(d)(3) . . . . . . . . . . . . . . . . . . . . . 6.1(c)(3)
(e) . . . . . . . . . . . . . . . . . . . . . . 5.14
Section 316(a)(1)(A) . . . . . . . . . . . . . . . . 5.2
5.12
(a)(1)(B) . . . . . . . . . . . . . . . . . . . 5.13
(a)(2) . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . 5.8
Section 317(a)(1) . . . . . . . . . . . . . . . . . . 5.3
(a)(2) . . . . . . . . . . . . . . . . . . . . . 5.4
(b) . . . . . . . . . . . . . . . . . . . . . . 10.3
Section 318(a) . . . . . . . . . . . . . . . . . . . 1.7
NOTE: This reconciliation and tie shall not, for any purpose, be deemed
to be a part of the Indenture.
<PAGE>
TABLE OF CONTENTS
Page
RECITALS OF THE COMPANY . . . . . . . . . . 1
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION . . . . . . . . . . 1
SECTION 1.1 Definitions . . . . . . . . . . . . . . . . . . . . 1
Act . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Affiliate . . . . . . . . . . . . . . . . . . . . . . . 2
Authenticating Agent . . . . . . . . . . . . . . . . . 2
Board of Directors . . . . . . . . . . . . . . . . . . 2
Board Resolution . . . . . . . . . . . . . . . . . . . 2
Business Day . . . . . . . . . . . . . . . . . . . . . 2
Commission . . . . . . . . . . . . . . . . . . . . . . 2
Company . . . . . . . . . . . . . . . . . . . . . . . . 2
Company Request . . . . . . . . . . . . . . . . . . . . 2
Company Order . . . . . . . . . . . . . . . . . . . . . 2
Corporate Trust Office . . . . . . . . . . . . . . . . 2
Defaulted Interest . . . . . . . . . . . . . . . . . . 3
Designated Senior Indebtedness . . . . . . . . . . . . 3
Discharged . . . . . . . . . . . . . . . . . . . . . . 3
Event of Default . . . . . . . . . . . . . . . . . . . 3
Holder . . . . . . . . . . . . . . . . . . . . . . . . 3
Indenture . . . . . . . . . . . . . . . . . . . . . . . 3
interest . . . . . . . . . . . . . . . . . . . . . . . 3
Interest Payment Date . . . . . . . . . . . . . . . . . 3
Maturity . . . . . . . . . . . . . . . . . . . . . . . 3
Officers' Certificate . . . . . . . . . . . . . . . . . 3
Opinion of Counsel . . . . . . . . . . . . . . . . . . 3
Original Issue Discount Security . . . . . . . . . . . 3
Outstanding . . . . . . . . . . . . . . . . . . . . . . 4
Paying Agent . . . . . . . . . . . . . . . . . . . . . 4
Place of Payment . . . . . . . . . . . . . . . . . . . 4
Predecessor Security . . . . . . . . . . . . . . . . . 5
Redemption Date . . . . . . . . . . . . . . . . . . . . 5
Redemption Price . . . . . . . . . . . . . . . . . . . 5
Regular Record Date . . . . . . . . . . . . . . . . . . 5
Responsible Officer . . . . . . . . . . . . . . . . . . 5
Securities . . . . . . . . . . . . . . . . . . . . . . 5
Security Register . . . . . . . . . . . . . . . . . . . 5
Security Registrar . . . . . . . . . . . . . . . . . . 5
Senior Indebtedness . . . . . . . . . . . . . . . . . . 5
Senior Representative . . . . . . . . . . . . . . . . . 5
Special Record Date . . . . . . . . . . . . . . . . . . 5
Stated Maturity . . . . . . . . . . . . . . . . . . . . 5
Subsidiary . . . . . . . . . . . . . . . . . . . . . . 6
Trustee . . . . . . . . . . . . . . . . . . . . . . . . 6
Trust Indenture Act . . . . . . . . . . . . . . . . . . 6
<PAGE>
U.S. Government Obligations . . . . . . . . . . . . . . 6
Vice President . . . . . . . . . . . . . . . . . . . . 6
SECTION 1.2 Compliance Certificates and Opinions . . . . . . 6
SECTION 1.3 Form of Documents Delivered to Trustee . . . . . 7
SECTION 1.4 Acts of Holders . . . . . . . . . . . . . . . . . 7
SECTION 1.5 Notices, Etc., to Trustee and Company . . . . . . 8
SECTION 1.6 Notice to Holders; Waiver . . . . . . . . . . . . 8
SECTION 1.7 Conflict with Trust Indenture Act . . . . . . . . 9
SECTION 1.8 Effect of Headings and Table of Contents . . . . 9
SECTION 1.9 Successors and Assigns . . . . . . . . . . . . . 9
SECTION 1.10 Separability Clause . . . . . . . . . . . . . . . 9
SECTION 1.11 Benefits of Indenture . . . . . . . . . . . . . . 9
SECTION 1.12 Governing Law . . . . . . . . . . . . . . . . . . 9
SECTION 1.13 Legal Holidays . . . . . . . . . . . . . . . . . 9
SECTION 1.14 Incorporators, Stockholders, Officers
and Directors of the Company Exempt from
Individual Liability. . . . . . . . . . . . . . 10
SECTION 1.15 Counterparts . . . . . . . . . . . . . . . . . . 10
SECTION 1.16 Currency Exchange . . . . . . . . . . . . . . . . 10
ARTICLE II
SECURITY FORMS . . . . . . . . . . . . 10
SECTION 2.1 Forms Generally . . . . . . . . . . . . . . . . . 10
SECTION 2.2 Form of Face of Security . . . . . . . . . . . . 11
SECTION 2.3 Form of Reverse of Security . . . . . . . . . . . 14
SECTION 2.4 Form of Trustee's Certificate of
Authentication. . . . . . . . . . . . . . . . . 19
ARTICLE III
THE SECURITIES . . . . . . . . . . . . 20
SECTION 3.1 Amount Unlimited; Issuable in Series . . . . . . 20
SECTION 3.2 Denominations . . . . . . . . . . . . . . . . . . 22
SECTION 3.3 Execution, Authentication, Delivery and Dating . 22
SECTION 3.4 Temporary Securities . . . . . . . . . . . . . . 23
SECTION 3.5 Registration, Registration of Transfer and
Exchange . . . . . . . . . . . . . . . . . . . 23
SECTION 3.6 Mutilated, Destroyed, Lost and Stolen
Securities . . . . . . . . . . . . . . . . . . 24
SECTION 3.7 Payment of Interest; Interest Rights Preserved . 25
SECTION 3.8 Persons Deemed Owners . . . . . . . . . . . . . . 26
SECTION 3.9 Cancellation . . . . . . . . . . . . . . . . . . 26
SECTION 3.10 Computation of Interest . . . . . . . . . . . . . 27
ARTICLE IV
SATISFACTION AND DISCHARGE . . . . . . . . . 27
SECTION 4.1 Satisfaction and Discharge of Indenture . . . . . 27
SECTION 4.2 Application of Trust Money . . . . . . . . . . . 28
SECTION 4.3 Satisfaction, Discharge and Defeasance of
Securities of any Series . . . . . . . . . . . 29
SECTION 4.4 Effect on Subordination Provisions . . . . . . . 30
<PAGE>
ARTICLE V
REMEDIES . . . . . . . . . . . . . 31
SECTION 5.1 Events of Default . . . . . . . . . . . . . . . . 31
SECTION 5.2 Acceleration of Maturity; Rescission and
Annulment . . . . . . . . . . . . . . . . . . . 32
SECTION 5.3 Collection of Indebtedness and Suits for
Enforcement by Trustee . . . . . . . . . . . . 33
SECTION 5.4 Trustee May File Proofs of Claim . . . . . . . . 34
SECTION 5.5 Trustee May Enforce Claims Without Possession
of Securities. . . . . . . . . . . . . . . . . 35
SECTION 5.6 Application of Money Collected . . . . . . . . . 35
SECTION 5.7 Limitation on Suits . . . . . . . . . . . . . . . 36
SECTION 5.8 Unconditional Right of Holders to Receive
Principal, Premium and Interest . . . . . . . . 37
SECTION 5.9 Restoration of Rights and Remedies . . . . . . . 37
SECTION 5.10 Rights and Remedies Cumulative . . . . . . . . . 37
SECTION 5.11 Delay or Omission Not Waiver . . . . . . . . . . 37
SECTION 5.12 Control by Holders . . . . . . . . . . . . . . . 37
SECTION 5.13 Waiver of Past Defaults . . . . . . . . . . . . . 38
SECTION 5.14 Undertaking for Costs . . . . . . . . . . . . . . 38
ARTICLE VI
THE TRUSTEE . . . . . . . . . . . . . 38
SECTION 6.1 Certain Duties and Responsibilities . . . . . . . 38
SECTION 6.2 Notice of Defaults . . . . . . . . . . . . . . . 39
SECTION 6.3 Certain Rights of Trustee . . . . . . . . . . . . 40
SECTION 6.4 Not Responsible for Recitals or Issuance
of Securities . . . . . . . . . . . . . . . . . 41
SECTION 6.5 May Hold Securities . . . . . . . . . . . . . . . 41
SECTION 6.6 Money Held in Trust . . . . . . . . . . . . . . . 41
SECTION 6.7 Compensation and Reimbursement . . . . . . . . . 41
SECTION 6.8 Disqualification; Conflicting Interests . . . . . 42
SECTION 6.9 Corporate Trustee Required; Eligibility . . . . . 47
SECTION 6.10 Resignation and Removal; Appointment of
Successor . . . . . . . . . . . . . . . . . . . 47
SECTION 6.11 Acceptance of Appointment by Successor . . . . . 49
SECTION 6.12 Merger, Conversion, Consolidation or
Succession to Business . . . . . . . . . . . . 50
SECTION 6.13 Preferential Collection of Claims Against
Company . . . . . . . . . . . . . . . . . . . . 50
SECTION 6.14 Authenticating Agents . . . . . . . . . . . . . . 54
ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY . . . 56
SECTION 7.1 Company to Furnish Trustee Names and Addresses
of Holders . . . . . . . . . . . . . . . . . . 56
SECTION 7.2 Preservation of Information; Communications to
Holders . . . . . . . . . . . . . . . . . . . . 56
SECTION 7.3 Reports by Trustee . . . . . . . . . . . . . . . 57
SECTION 7.4 Reports by Company . . . . . . . . . . . . . . . 59
<PAGE>
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, SALE OR LEASE . . . 59
SECTION 8.1 Company May Consolidate, Etc., on Certain Terms . 59
SECTION 8.2 . . . . . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 8.3 Successor Corporation to be Substituted . . . . . 60
SECTION 8.4 Opinion of Counsel to be Given Trustee . . . . . 61
ARTICLE IX
SUPPLEMENTAL INDENTURES . . . . . . . . . . 61
SECTION 9.1 Supplemental Indentures without Consent of
Holders . . . . . . . . . . . . . . . . . . . . 61
SECTION 9.2 Supplemental Indentures with Consent of
Holders . . . . . . . . . . . . . . . . . . . . 62
SECTION 9.3 Execution of Supplemental Indentures . . . . . . 63
SECTION 9.4 Effect of Supplemental Indentures . . . . . . . . 63
SECTION 9.5 Conformity with Trust Indenture Act . . . . . . . 63
SECTION 9.6 Reference in Securities to Supplemental
Indentures . . . . . . . . . . . . . . . . . . 63
SECTION 9.7 Effect on Senior Indebtedness . . . . . . . . . . 64
ARTICLE X
COVENANTS . . . . . . . . . . . . . 64
SECTION 10.1 Payment of Principal, Premium and Interest . . . 64
SECTION 10.2 Maintenance of Office or Agency . . . . . . . . . 64
SECTION 10.3 Money for Securities Payments to Be Held in Trust 64
SECTION 10.4 [Intentionally Omitted.] . . . . . . . . . . . . 66
SECTION 10.5 [Intentionally Omitted.] . . . . . . . . . . . . 66
SECTION 10.6 Defeasance of Certain Obligations . . . . . . . . 66
SECTION 10.7 Statement by Officers as to Default . . . . . . . 67
SECTION 10.8 Waiver of Certain Covenants . . . . . . . . . . . 67
SECTION 10.9 Limitation on Other Senior Subordinated
Indebtedness . . . . . . . . . . . . . . . . . 67
ARTICLE XI
REDEMPTION OF SECURITIES . . . . . . . . . 68
SECTION 11.1 Applicability of Article . . . . . . . . . . . . 68
SECTION 11.2 Election to Redeem; Notice to Trustee . . . . . . 68
SECTION 11.3 Selection by Trustee of Securities to Be
Redeemed . . . . . . . . . . . . . . . . . . . 68
SECTION 11.4 Notice of Redemption . . . . . . . . . . . . . . 69
SECTION 11.5 Deposit of Redemption Price . . . . . . . . . . . 69
SECTION 11.6 Securities Payable on Redemption Date . . . . . . 70
SECTION 11.7 Securities Redeemed in Part . . . . . . . . . . . 70
ARTICLE XII
SINKING FUNDS . . . . . . . . . . . . 70
SECTION 12.1 Applicability of Article . . . . . . . . . . . . 70
<PAGE>
SECTION 12.2 Satisfaction of Sinking Fund Payments with
Securities . . . . . . . . . . . . . . . . . . 71
SECTION 12.3 Redemption of Securities for Sinking Fund . . . . 71
ARTICLE XIII
SUBORDINATION OF SECURITIES . . . . . . . . . 72
SECTION 13.1. Agreement to Subordinate . . . . . . . . . . . . 72
SECTION 13.2 Payment Over of Proceeds upon Dissolution, etc . 73
SECTION 13.3 No Payment on Securities in Event of Default on
Senior Indebtedness . . . . . . . . . . . . . . 74
SECTION 13.4 Trustee's Relation to Senior Indebtedness . . . . 74
SECTION 13.5 Subrogation to Rights of Holders of Senior
Indebtedness . . . . . . . . . . . . . . . . . 75
SECTION 13.6 Provisions Solely To Define Relative Rights . . . 75
SECTION 13.7 Trustee To Effectuate Subordination . . . . . . . 76
SECTION 13.8 No Waiver of Subordination Provisions . . . . . . 76
SECTION 13.9 Notices to Trustee . . . . . . . . . . . . . . . 76
SECTION 13.10 Reliance on Judicial Order or Certificate of
Liquidating Agent . . . . . . . . . . . . . . . 77
SECTION 13.11 Rights of Trustee as a Holder of Senior
Indebtedness; Preservation of
Trustee's Rights . . . . . . . . . . . . . . . 78
SECTION 13.12 Article Applicable to Paying Agents . . . . . . . 78
SECTION 13.13 No Suspension of Remedies . . . . . . . . . . . . 78
TESTIMONIUM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
SIGNATURES AND SEALS . . . . . . . . . . . . . . . . . . . . . . . . . 93
ACKNOWLEDGMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
INDENTURE, dated as of , 1997, between INGERSOLL-RAND
COMPANY, a corporation duly organized and existing under the laws of the
State of New Jersey (herein called the "Company"), having its principal
office at 200 Chestnut Ridge Road, Woodcliff Lake, New Jersey 07675, and
____________________, a corporation duly organized and existing under the
laws of the State of New York, as Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
junior subordinated debentures, notes or other evidences of indebtedness
(herein called the "Securities"), to be issued in one or more series as in
this Indenture provided, including, without limitation, Securities issued to
evidence loans made to the Company of the proceeds from the issuance from
time to time by one or more business trusts (each a "Trust," and,
collectively, the "Trusts") of preferred beneficial ownership interests in
such Trusts (the "Preferred Securities") and common beneficial ownership
interests in such Trusts (the "Common Securities" and, collectively with the
Preferred Securities, the "Trust Securities").
All things necessary to make this Indenture a valid agreement of
the Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for
the equal and proportionate benefit of all Holders of the Securities or of
series thereof, as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 1.1 Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as
the singular;
(2) all other terms used herein which are defined in the
Trust Indenture Act, either directly or by reference therein, have
the meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have
the meanings assigned to them in accordance with generally accepted
accounting principles, and, except as otherwise herein expressly
provided, the term "generally accepted accounting principles" with
respect to any computation required or permitted hereunder shall
mean such accounting principles as are generally accepted at the
date of such computation; and
<PAGE>
(4) the words "herein", "hereof" and "hereunder" and other
words of similar import to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
Certain terms, used principally in Article Six, are defined in that
Article.
"Act", when used with respect to any Holder, has the meaning
specified in Section 1.4.
"Administrative Trustee" means, in respect of any Trust, each
Person identified as an "Administrative Trustee" in the related Trust
Agreement, solely in such Person's capacity as Administrative Trustee of
such Trust under such Trust Agreement and not in such Person's
individual capacity, or any successor administrative trustee appointed
as therein provided.
"Affiliate" of any specified person means any other person directly
or indirectly controlling or controlled by or under direct or indirect
common control with such specified person; provided, however, no Trust
to which Securities have been issued shall be deemed to be an Affiliate
of the Company. For the purposes of this definition, "control" when
used with respect to any specified person means the power to direct the
management and policies of such person, directly or indirectly, whether
through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative
to the foregoing.
"Authenticating Agent" means any person authorized to authenticate
and deliver Securities on behalf of the Trustee pursuant to Section
6.14.
"Board of Directors" means either the Board of Directors of the
Company or an executive committee of such Board or any other duly
authorized committee of that Board to which the powers of that Board
have been lawfully delegated.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly
adopted by the Board of Directors and to be in full force and effect on
the date of such certification, and delivered to the Trustee.
"Business Day", when used with respect to any Place of Payment,
means each day which is not (i) a day on which banking institutions in
that Place of Payment are authorized or obligated by law to close or
(ii) with respect to the Securities of a series initially issued to a
Trust, a day on which the principal office of the Property Trustee under
the related Trust Agreement, is closed for business.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of
1934, or, if at any time after the execution of this instrument such
Commission is not existing and performing the duties now assigned to it
under the Trust Indenture Act, then the body performing such duties at
such time.
<PAGE>
"Common Securities" has the meaning specified in the first recital
of this Indenture.
"Common Stock" means the common stock, par value $2 per share, of
the Company.
"Company" means the person named as the "Company" in the first
paragraph of this instrument until a successor corporation shall have
become such pursuant to the applicable provisions of this Indenture, and
thereafter "Company" shall mean such successor corporation.
"Company Request" or "Company Order" means a written request or
order signed in the name of the Company by its Chairman of the Board,
its President or a Vice President, and by its Treasurer, an Assistant
Treasurer, its Secretary or an Assistant Secretary, and delivered to the
Trustee.
"Corporate Trust Office" means the principal office of the Trustee
in the Borough of Manhattan, City and State of New York, at which at any
particular time its corporate trust business shall be administered,
which at the date of this Indenture is , New York, New
York , Attention: Corporate Trust Administration.
"Defaulted Interest" has the meaning specified in Section 3.7.
"Designated Senior Indebtedness", in respect of a particular series
of Securities, shall have the meaning set forth in the supplemental
indenture, Board Resolution or Officers' Certificate pursuant to Section
3.1 establishing such series of Securities.
"Discharged" has the meaning specified in Section 4.2.
"Distributions," with respect to the Trust Securities issued by a
Trust, means amounts payable in respect of such Trust Securities as
provided in the related Trust Agreement and referred to therein as
"Distributions."
"Event of Default" unless otherwise specified in the supplemental
indenture, Board Resolution or Officers' Certificate establishing a
series of Securities, has the meaning specified in Section 5.1.
"Guarantee", with respect to the Trust Securities issued by a
Trust, means the guarantee by the Company of Distributions on such Trust
Securities to the extent provided in the Guarantee Agreement.
"Guarantee Agreement", with respect to the Trust Securities issued
by a Trust, means the Guarantee Agreement substantially in the form
attached hereto as Annex C, or substantially in such form as may be
specified as contemplated by Section 3.1 with respect to the Securities
of any series, in each case as amended from time to time.
"Holder" means a person in whose name a Security is registered in
the Security Register.
"Indenture" means this instrument as originally executed or as it
may from time to time be supplemented or amended by one or more
indentures supplemental hereto entered into pursuant to the applicable
<PAGE>
provisions hereof and shall include the terms of particular series of
Securities established as contemplated by Section 3.1.
"interest", when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means
interest payable after Maturity.
"Interest Payment Date", when used with respect to any Security,
means the Stated Maturity of an instalment of interest on such Security.
"Maturity", when used with respect to any Security, means the date
on which the principal of such Security or an instalment of principal
becomes due and payable as therein or herein provided, whether at the
Stated Maturity or by declaration of acceleration, call for redemption
or otherwise.
"Officers' Certificate" means a certificate signed by the chairman
of the board of directors, the vice chairman of the board of directors,
the president or a vice president, and by the treasurer, an assistant
treasurer, the secretary or an assistant secretary, of the Company, and
delivered to the Trustee. Each such certificate shall include the
statements provided for in Section 1.2 if and to the extent required by
this Indenture.
"Opinion of Counsel" means a written opinion of counsel, who may be
an employee of or regular counsel for the Company, or may be other
counsel satisfactory to the Trustee. Each such opinion shall include the
statements provided for in Section 1.2 if and to the extent required by
this Indenture.
"Original Issue Discount Security" means any Security which
provides for an amount less than the principal amount thereof to be due
and payable upon a declaration of acceleration of the Maturity thereof
pursuant to Section 5.2.
"Outstanding", when used with respect to Securities, means, as of
the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment or
redemption money in the necessary amount has been theretofore
deposited with the Trustee or any Paying Agent (other than the
Company) in trust or set aside and segregated in trust by the
Company (if the Company shall act as its own Paying Agent) for the
Holders of such Securities; provided that, if such Securities are
to be redeemed, notice of such redemption has been duly given
pursuant to this Indenture or provision therefor satisfactory to
the Trustee has been made; and
(iii) Securities which have been paid pursuant to Section 3.6
or in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than
any such Securities in respect of which there shall have been
presented to the Trustee proof satisfactory to it that such
<PAGE>
Securities are held by a bona fide purchaser in whose hands such
Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the
requisite principal amount of the Outstanding Securities have given any
request, demand, authorization, direction, notice, consent or waiver
hereunder, (a) the principal amount of an Original Issue Discount
Security that shall be deemed to be Outstanding for such purposes shall
be the amount of the principal thereof that would be due and payable as
of the date of such determination upon a declaration of acceleration of
the maturity thereof pursuant to Section 5.2, and (b) Securities owned
by the Company or any other obligor upon the Securities or any Affiliate
of the Company or of such other obligor shall be disregarded and deemed
not to be Outstanding, except that in determining whether the Trustee
shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Securities
which the Trustee knows to be so owned shall be so disregarded.
Securities so owned as described in (b) above which have been pledged in
good faith may be regarded as Outstanding if the pledge establishes to
the satisfaction of the Trustee the pledgee's right so to act with
respect to such Securities and that the pledges is not the Company or
any other obligor upon the Securities or any Affiliate of the Company or
of such other obligor.
"Paying Agent" means any person authorized by the Company to pay
the principal of (and premium, if any) or interest, if any, on any
Securities on behalf of the Company.
"Place of Payment", when used with respect to the Securities of any
series, means the place or places where the principal of (and premium,
if any) and interest, if any, on the Securities of that series are
payable as specified in or as contemplated by Section 3.1.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that
evidenced by such particular Security; and, for the purposes of this
definition, any Security authenticated and delivered under Section 3.6
in exchange for or in lieu of a mutilated, destroyed, lost or stolen
Security shall be deemed to evidence the same debt as the mutilated,
destroyed, lost or stolen Security.
"Preferred Securities" has the meaning specified in the first
recital of this Indenture.
"Property Trustee" means, in respect of any Trust, the commercial
bank or trust company identified as the "Property Trustee" in the
related Trust Agreement, solely in its capacity as Property Trustee of
such Trust under such Trust Agreement and not in its individual
capacity, or its successor in interest in such capacity, or any
successor property trustee appointed as therein provided.
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to
this Indenture.
<PAGE>
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture, exclusive of accrued and unpaid interest.
"Regular Record Date" for the interest payable on any Interest
Payment Date on the Securities of any series means the date specified
for that purpose as contemplated by Section 3.1.
"Responsible Officer", when used with respect to the Trustee, means
the chairman or any vice chairman of the board of directors, the
chairman or any vice chairman of the executive committee of the board of
directors, the chairman of the trust committee, the president, any vice
president, the secretary, any assistant secretary, the treasurer, any
assistant treasurer, the cashier, any assistant cashier, any trust
officer or assistant trust officer, the controller or any assistant
controller or any other officer of the Trustee customarily performing
functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust
matter, any other officer to whom such matter is referred because of his
knowledge of and familiarity with the particular subject.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and
delivered under this Indenture.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 3.5.
"Senior Indebtedness", in respect of a particular series of
Securities, shall have the meaning set forth in the supplemental
indenture, Board Resolution or Officers' Certificate pursuant to Section
3.1 establishing such series of Securities.
"Senior Representative", in respect of a particular series of
Securities, shall have the meaning set forth in the supplemental
indenture, Board Resolution or Officers' Certificate pursuant to Section
3.1 establishing such series of Securities.
"Special Record Date" for the payment of any Defaulted Interest
means a date fixed by the Trustee pursuant to Section 3.7.
"Stated Maturity", when used with respect to any Security or any
instalment of principal thereof or interest thereon, means the date
specified in such Security as the fixed date on which the principal of
such Security or such instalment of principal or interest is due and
payable.
"Subsidiary" means any corporation of which at least a majority of
the outstanding stock having voting power under ordinary circumstances
to elect a majority of the board of directors of said corporation shall
at the time be owned by the Company or by the Company and one or more
Subsidiaries or by one or more Subsidiaries.
"Tax Event" with respect to a Trust means, except as otherwise set
forth in the supplemental indenture, Board Resolution or Officers'
Certificate establishing the terms of a series of Securities, the
receipt by such Trust of an Opinion of Counsel (as defined in the
<PAGE>
relevant Trust Agreement) experienced in such matters to the effect
that, as a result of any amendment to, or change (including any
announced proposed change) in, the laws (or any regulations thereunder)
of the United States or any political subdivision or taxing authority
thereof or therein, or as a result of any official administrative
pronouncement or judicial decision interpreting or applying such laws or
regulations, which amendment or change is effective, or which proposed
change, pronouncement or decision is announced, on or after the date of
issuance of the Preferred Securities of such Trust, there is more than
an insubstantial risk that (i) such Trust is, or will be within 90 days
of the date of such Opinion of Counsel, subject to United States federal
income tax with respect to income received or accrued on the
corresponding series of Securities issued by the Company to such Trust,
(ii) interest payable by the Company on such corresponding series of
Securities is not, or within 90 days of the date of such Opinion of
Counsel, will not be, deductible by the Company, in whole or in part,
for United States federal income tax purposes or (iii) such Trust is, or
will be within 90 days of the date of such Opinion of Counsel, subject
to more than a de minimis amount of other taxes, duties or other
governmental charges.
"Trust" has the meaning specified in the first recital of this
Indenture.
"Trust Agreement", with respect to a Trust, means a Trust Agreement
substantially in the form attached hereto as Annex A, as amended by the
form of Amended and Restated Trust Agreement substantially in the form
attached hereto as Annex B, or substantially in such form as may be
specified as contemplated by Section 3.1 with respect to the Securities
of any series, in each case as amended from time to time.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
force at the date as of which this instrument was executed, except as
provided in Section 9.5.
"Trust Securities" has the meaning specified in the first recital
of this Indenture.
"Trustee" means the person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become
such pursuant to the applicable provisions of this Indenture, and
thereafter "Trustee" shall mean or include each person who is then a
Trustee hereunder, and if at any time there is more than one such
person, "Trustee" as used with respect to the Securities of any series
shall mean the Trustee with respect to Securities of that series.
"U.S. Government Obligations" means direct obligations of the
United States for the payment of which its full faith and credit is
pledged, or obligations of a person controlled or supervised by and
acting as an agency or instrumentality of the United States and the
payment of which is unconditionally guaranteed by the United States.
"Vice President", when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number
or a word or words added before or after the title "vice president".
<PAGE>
SECTION 1.2 Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to
take any action under any provision of this Indenture, the Company shall
furnish to the Trustee an Officers' Certificate stating that all conditions
precedent, if any, provided for in this Indenture relating to the proposed
action have been complied with and an Opinion of Counsel stating that in the
opinion of such counsel all such conditions precedent, if any, have been
complied with, except that in the case of any such application or request as
to which the furnishing of such documents is specifically required by any
provision of this Indenture relating to such particular application or
request, no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the exam-
ination or investigation upon which the statements or opinions contained
in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he
has made such examination or investigation as is necessary to enable him
to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 1.3 Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by,
or covered by an opinion of, any specified person, it is not necessary that
all such matters be certified by, or covered by the opinion of, only one such
person, or that they be so certified or covered by only one document, but one
such person may certify or give an opinion with respect to some matters and
one or more other such persons as to other matters, and any such person may
certify or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion
of, or representations by, counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such certificate or Opinion of Counsel
may be based, insofar as it relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers of the Company
stating that the information with respect to such factual matters is in the
possession of the Company, unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or
representations with respect to such matters are erroneous.
Where any person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
<PAGE>
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 1.4 Acts of Holders.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or
taken by Holders may be embodied in and evidenced by one or more instruments
of substantially similar tenor signed by such Holders in person or by agent
duly appointed in writing; and, except as herein otherwise expressly
provided, such action shall become effective when such instrument or
instruments are delivered to the Trustee and, where it is hereby expressly
required, to the Company. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as
the "Act" of the Holders signing such instrument or instruments. Proof of
execution of any such instrument or of a writing appointing any such agent
shall be sufficient for any purpose of this Indenture and (subject to Section
6.1) conclusive in favor of the Trustee and the Company, if made in the
manner provided in this Section.
(b) The fact and date of the execution by any person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized
by law to take acknowledgments of deeds, certifying that the individual
signing such instrument or writing acknowledged to him the execution thereof.
Where such execution is by a signer acting in a capacity other than his
individual capacity, such certificate or affidavit shall also constitute
sufficient proof of his authority. The fact and date of the execution of any
such instrument or writing, or the authority of the person executing the
same, may also be proved in any other manner which the Trustee deems
sufficient.
(c) The ownership of Securities shall be proved by the Security
Register.
(d) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind every
future Holder of the same Security and the Holder of every Security issued
upon the registration of transfer thereof or in exchange therefor or in lieu
thereof in respect of anything done, omitted or suffered to be done by the
Trustee or the Company in reliance thereon, whether or not notation of such
action is made upon such Security.
SECTION 1.5 Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent,
waiver or Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder, any holder of Preferred Securities
or the Company shall be sufficient for every purpose hereunder if made,
given, furnished or filed in writing to or with the Trustee at its
Corporate Trust Office, or
(2) the Company by the Trustee, any Holder or any holder of
Preferred Securities shall be sufficient for every purpose hereunder
(unless otherwise herein expressly provided) if in writing and sent by
<PAGE>
registered or certified mail, prepaid, to the Company addressed to it at
the address of its principal office specified in the first paragraph of
this instrument or at any other address previously furnished in writing
to the Trustee by the Company.
SECTION 1.6 Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event,
such notice shall be sufficiently given (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to each
Holder affected by such event, at his address as it appears in the Security
Register, not later than the latest date, and not earlier than the earliest
date, prescribed for the giving of such notice. In any case where notice to
Holders is given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders. Where this
Indenture provides for notice in any manner, such notice may be waived in
writing by the person entitled to receive such notice, either before or after
the event, and such waiver shall be the equivalent of such notice. Waivers
of notice by Holders shall be filed with the Trustee, but such filing shall
not be a condition precedent to the validity of any action taken in reliance
upon such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by
mail, then such notification as shall be made with the approval of the
Trustee shall constitute a sufficient notification for every purpose
hereunder.
SECTION 1.7 Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with another
provision hereof which is required to be included in this Indenture by any of
the provisions of the Trust Indenture Act, such required provision shall
control.
SECTION 1.8 Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents
are for convenience only and shall not affect the construction hereof.
SECTION 1.9 Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
SECTION 1.10 Separability Clause.
In case any provision in this Indenture or in the Securities shall
be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
SECTION 1.11 Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied,
shall give to any person, other than the parties hereto and their successors
<PAGE>
hereunder, the holders of Senior Indebtedness, the Holders and, to the extent
expressly provided in Sections 5.2, 5.8, 5.9, 5.11, 5.13, 9.1 and 9.2, the
holders of Preferred Securities, any benefit or any legal or equitable right,
remedy or claim under this Indenture.
SECTION 1.12 Governing Law.
This Indenture and the Securities shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 1.13 Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or
Stated Maturity of any Security shall not be a Business Day at any Place of
Payment, then (notwithstanding any other provision of this Indenture or of
the Securities) payment of interest, if any, or principal (and premium, if
any) need not be made at such Place of Payment on such date, but may be made
on the next succeeding Business Day at such Place of Payment with the same
force and effect as if made on the Interest Payment Date or Redemption Date,
or at the Stated Maturity, provided that no interest shall accrue for the
period from and after such Interest Payment Date, Redemption Date or Stated
Maturity, as the case may be.
SECTION 1.14 Incorporators, Stockholders, Officers and Directors
of the Company Exempt from Individual Liability.
No recourse for the payment of the principal of (and premium, if
any) or interest, if any, on any Security, or for any claim based thereon or
otherwise in respect thereof, and no recourse under or upon any obligation,
covenant or agreement of the Company in this Indenture or in any supplemental
indenture, or in any Security, or because of the creation of any indebtedness
represented thereby, shall be had against any incorporator, stockholder,
officer or director, as such, past, present or future, of the Company or of
any successor corporation, either directly or through the Company or any
successor corporation, whether by virtue of any constitution, statute or rule
of law, or by the enforcement of any assessment or penalty or otherwise; it
being expressly understood that all such liability is hereby waived and
released as a condition of and as a consideration for, the execution of this
Indenture and the issue of the Securities.
SECTION 1.15 Counterparts.
This instrument may be executed in any number of counterparts, each
of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
SECTION 1.16 Currency Exchange.
If, in determining whether the Holders of the requisite principal
amount of Securities have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, it becomes necessary to
determine the principal amount of Securities of any series denominated in any
coin or currency other than that of the United States of America, such
principal amount shall be computed by converting such coin or currency into
coin or currency of the United States of America based upon the rate of
exchange in effect at the office of the Trustee in New York, New York on the
date of initial issuance of such series of Securities.
<PAGE>
ARTICLE II
SECURITY FORMS
SECTION 2.1 Forms Generally.
The Securities of each series shall be in substantially the form
set forth in this Article, or in such other form as shall be established by
or pursuant to a Board Resolution or in one or more indentures supplemental
hereto, in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture, and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such
Securities, as evidenced by their execution of the Securities.
The Trustee's certificates of authentication shall be in
substantially the form set forth in this Article.
The definitive Securities shall be printed, lithographed or
engraved on steel engraved borders or may be produced in any other manner,
all as determined by the officers executing such Securities, as evidenced by
their execution of such Securities.
SECTION 2.2 Form of Face of Security.
[If the Security is an Original Issue Discount Security, insert --
FOR PURPOSES OF SECTIONS 1273 AND 1275 OF THE INTERNAL REVENUE CODE, THE
AMOUNT OF ORIGINAL ISSUE DISCOUNT ON THIS SECURITY IS ____________% OF ITS
PRINCIPAL AMOUNT, THE ISSUE DATE IS ______________, 19__, [AND] THE YIELD TO
MATURITY IS ____% [, THE METHOD USED TO DETERMINE THE YIELD FOR THE SHORT
ACCRUAL PERIOD OF ________ , 19__ TO ________, 19__, IS _______ AND THE
AMOUNT OF ORIGINAL ISSUE DISCOUNT APPLICABLE TO THE SHORT ACCRUAL PERIOD IS
_______% OF THE PRINCIPAL AMOUNT OF THIS SECURITY]. [THIS SECURITY WAS
ISSUED WITHOUT A SHORT ACCRUAL PERIOD.]
INGERSOLL-RAND COMPANY
[Title of the Security]
No. $__________
INGERSOLL-RAND COMPANY, a corporation duly organized and existing
under the laws of the State of New Jersey (herein called the "Company", which
term includes any successor corporation under the Indenture hereinafter
referred to), for value received, hereby promises to pay to
____________________
_____________________________, or registered assigns, the principal sum of
_________________________ Dollars on __________ [If the Security is to bear
interest prior to Maturity, insert --, and to pay interest thereon from
____________, or from the most recent Interest Payment Date to which interest
has been paid or duly provided for, semiannually on ________________ and
______________ in each year, commencing ___________, at the rate per annum
provided in the title hereof, until the principal hereof is paid or made
available for payment [If applicable insert ___, and, subject to the terms of
the Indenture, at the rate per annum provided in the title hereof on any
<PAGE>
overdue principal and premium and (to the extent that the payment of such
interest shall be legally enforceable) on any overdue instalment of
interest]. The interest so payable, and punctually paid or duly provided
for, on any Interest Payment Date will, as provided in such Indenture, be
paid to the person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest, which shall be the __________ or _________ (whether or not
a Business Day), as the case may be, next preceding such Interest Payment
Date. Any such interest not so punctually paid or duly provided for will
forthwith cease to be payable to the Holder on such Regular Record Date and
may either be paid to the person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to Holders of Securities of this
series not less than 10 days prior to such Special Record Date, or be paid at
any time in any other lawful manner not inconsistent with the requirements of
any securities exchange on which the Securities of this series may be listed,
and upon such notice as may be required by such exchange, all as more fully
provided in said Indenture].
[If the Security is not to bear interest prior to Maturity, insert -- The
principal of this Security shall not bear interest except in the case of a
default in payment of principal upon acceleration, upon redemption or at
Stated Maturity and in such case the overdue principal of this Security shall
bear interest at the rate of [yield to maturity]% per annum (to the extent
that the payment of such interest shall be legally enforceable), which shall
accrue from the date of such default in payment to the date payment of such
principal has been made or duly provided for. Interest on any overdue
principal shall be payable on demand. Any such interest on any overdue
principal that is not so paid on demand shall bear interest at the rate of
[yield to maturity]% per annum (to the extent that the payment of such
interest shall be legally enforceable), which shall accrue from the date of
such demand for payment to the date payment of such interest has been made or
duly provided for, and such interest shall also be payable on demand.]
[In the case of Securities issued to a Trust, insert any interest
deferral or extension provisions and any additional covenants]
Payment of the principal of (and premium, if any) and interest, if
any, on this Security will be made at the office or agency of the Company
maintained for that purpose in the Borough of Manhattan, The City of New
York, in [coin or currency]; provided, however, that at the option of the
Company payment of interest may be made by check mailed to the address of the
person entitled thereto as such address shall appear in the Security
Register.
The indebtedness evidenced by this Security is, to the extent
provided in the Indenture, subordinate and subject in right of payments to
the prior payment in full of all Senior Indebtedness, and this Security is
issued subject to the provisions of the Indenture with respect thereto. Each
Holder of this Security, by accepting the same, (a) agrees to and shall be
bound by such provisions, (b) authorizes and directs the Trustee on his
behalf to take such actions as may be necessary or appropriate to effectuate
the subordination so provided and (c) appoints the Trustee his attorney-in-
fact for any and all such purposes. Each Holder hereof, by his acceptance
hereof, waives all notice of the acceptance of the subordination provisions
contained herein and in the Indenture by each holder of Senior Indebtedness,
<PAGE>
whether now outstanding or hereafter incurred, and waives reliance by each
such holder upon said provisions.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS SECURITY
SET FORTH ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL
PURPOSES HAVE THE SAME EFFECT AS IF SET FORTH AT THIS PLACE.
Unless the certificate of authentication hereon has been executed
by the Trustee referred to on the reverse hereof by manual signature, this
Security shall not be entitled to any benefit under the Indenture or be valid
or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be
duly executed under its corporate seal.
Dated:
[Seal] INGERSOLL-RAND COMPANY
By
-------------------------------------
By
-------------------------------------
<PAGE>
SECTION 2.3 Form of Reverse of Security.
INGERSOLL-RAND COMPANY
[Title of the Security]
This Security is one of a duly authorized issue of securities of
the Company (herein called the "Securities"), issued and to be issued in one
or more series under an Indenture, dated as of , 1997 (herein
called the "Indenture"), between the Company and The Bank of New York, as
Trustee (herein called the "Trustee", which term includes any successor
trustee under the Indenture), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of
the Company, the Trustee and the Holders of the Securities and of the terms
upon which the Securities are, and are to be, authenticated and delivered.
This Security is one of the series designated on the face hereof, limited in
aggregate principal amount to _____________________.
All terms used in this Security that are defined in the Indenture
[if applicable, insert -or in the Amended and Restated Trust Agreement, dated
as of _______ __, 1997, as amended (the "Trust Agreement"), for [Ingersoll-
Rand Financing I,] among Ingersoll-Rand Company, as Depositor, and the
Trustees named therein, shall have the meanings assigned to them in the
Indenture [if applicable, insert -or the Trust Agreement, as the case may
be].
[If applicable, insert -- The Securities of this series are subject
to redemption upon not less than 30 or more than 60 days' notice by mail to
the Holders of such Securities at their addresses in the Security Register
for such series, [if applicable, insert -- (1) on ________________ in any
year commencing with the year ____________ and ending with the year
_________________ through operation of the sinking fund for this series at a
Redemption Price equal to 100% of the principal amount, and (2)] at any time
[on or after ___________, 19__], as a whole or in part, at the election of
the Company, at the following Redemption Prices (expressed as percentages of
the principal amount):
If redeemed [on or before _______________, __%, and if redeemed]
during the 12-month period beginning ________________,
<PAGE>
Redemption Redemption
Year Price Year Price
- ---- ---------- ---- ----------
<PAGE>
and thereafter at a Redemption Price equal to ___% of the principal amount,
together in the case of any such redemption [if applicable, insert --
(whether through operation of the sinking fund or otherwise)] with accrued
and unpaid interest to the Redemption Date, but interest installments whose
Stated Maturity is on or prior to such Redemption Date will be payable to the
Holders of such Securities, or one or more Predecessor Securities, of record
at the close of business on the relevant Record Dates referred to on the face
hereof, all as provided in the Indenture.]
[If applicable, insert -- The Securities of this series are subject
to redemption upon not less than 30 or more than 60 days' notice by mail to
the Holders of such Securities at their addresses in the Security Register
for such series, (1) on ____________________________ in any year
commencing with the year _________________ and ending with the year
________________ through operation of the sinking fund for this series at the
Redemption Prices for redemption through operation of the sinking fund
(expressed as percentages of the principal amount) set forth in the table
below, and (2) at any time [on or after ________________], as a whole or in
part, at the election of the Company, at the Redemption Prices for redemption
otherwise than through operation of the sinking fund (expressed as
percentages of the principal amount) set forth in the table below:
If redeemed during the 12-month period beginning
Redemption Price
For Redemption Redemption Price For
Through Operation Redemption Otherwise
of the Than Through Operation
Year Sinking Fund of the Sinking Fund
---- ---------------- ----------------------
and thereafter at a Redemption Price equal to ___% of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued and unpaid interest to the Redemption
Date, but interest installments whose Stated Maturity is on or prior to such
Redemption Date will be payable to the Holders of such Securities, or one or
more Predecessor Securities, of record at the close of business on the
relevant Record Dates referred to on the face hereof, all as provided in the
Indenture.]
[Notwithstanding the foregoing, the Company may not, prior to
__________________________, redeem any Securities of this series as
contemplated by [Clause (2) of] the preceding paragraph as a part of, or in
anticipation of, any refunding operation by the application, directly or
indirectly, of moneys borrowed having an interest cost to the Company
(calculated in accordance with generally accepted financial practice) of less
than ___% per annum. ]
<PAGE>
[The sinking fund for this series provides for the redemption on
_________________________ in each year beginning with the year ______ and
ending with the year _____ of [not less than]
_______________________[("mandatory sinking fund") and, at the option of the
Company, not more than ___] aggregate principal amount of
Securities of this series. [Securities of this series acquired or redeemed by
the Company otherwise than through [mandatory] sinking fund payments may be
credited against subsequent [mandatory] sinking fund payments otherwise
required to be made in the order in which they become due.]
[In the event of redemption of this Security in part only, a new
Security or Securities of this series for the unredeemed portion hereof will
be issued in the name of the Holder hereof upon the cancellation hereof. ]
[If applicable, insert -Upon the occurrence and during the
continuation of a Tax Event in respect of a Trust, the Company may, at its
option, at any time within ___ days of the occurrence of such Tax Event
redeem this Security, in whole but not in part, subject to the provisions of
Section 11.7 and the other provisions of Article XI of the Indenture, at a
redemption price equal to ____% of the principal amount thereof plus accrued
and unpaid interest to the Redemption Date.]
The Indenture contains provisions for defeasance of (a) the entire
indebtedness of this Security and (b) certain restrictive covenants upon
compliance by the Company with certain conditions set forth therein.
[If the Security is not an Original Issue Discount Security, insert
- -- If an Event of Default with respect to Securities of this series shall
occur and be continuing, the principal of the Securities of this series may
be declared due and payable in the manner and with the effect provided in the
Indenture.]
[If the Security is an Original Issue Discount Security, insert --
If an Event of Default with respect to Securities of this series shall occur
and be continuing, an amount of principal of the Securities of this series
(the "Acceleration Amount") may be declared due and payable in the manner and
with the effect provided in the Indenture. In case of a declaration of
acceleration on or before ________, or on ________ in any year, the
Acceleration Amount per ________ principal amount at Stated Maturity of the
Securities shall be equal to the amount set forth in respect of such date
below:
<PAGE>
Acceleration
Amount per
Principal Amount
Date of Declaration at Stated Maturity
------------------- ------------------
and in case of a declaration of acceleration on any other date, the
Acceleration Amount shall be equal to the Acceleration Amount as of the next
preceding date set forth in the table above, plus accrued original issue
discount (computed in accordance with generally accepted accounting
principles in effect on _______________) from such next
preceding date to the date of declaration at the yield to maturity. For the
purpose of this computation the yield to maturity is ___%. Upon payment (i)
of the Acceleration Amount so declared due and payable and (ii) of interest
on any overdue principal and overdue interest (in each case to the extent
that the payment of such interest shall be legally enforceable), all of the
Company's obligations in respect of the payment of the principal of and
interest, if any, on the Securities of this series shall terminate.]
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of
the Company and the rights of the Holders of the Securities of each series to
be affected under the Indenture at any time by the Company and the Trustee
with the consent of the Holders of not less than a majority in aggregate
principal amount of the Securities at the time Outstanding of all series to
be affected. The Indenture also contains provisions permitting the Holders of
specified percentages in principal amount of the Securities at the time
Outstanding of all series to be affected, on behalf of the Holders of all
Securities of such series, to waive compliance by the Company with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Holder of this Security
shall be conclusive and binding upon such Holder and upon all future Holders
of this Security and of any Security issued upon the registration of transfer
hereof or in exchange herefor or in lieu hereof, whether or not notation of
such consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of (and
premium, if any) and interest, if any, on this Security at the times, place
and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in the
Security Register, upon surrender of this Security for registration of
transfer at the office or agency of the Company in any place where the
principal of (and premium, if any) and interest, if any, on this Security are
payable, duly endorsed by, or accompanied by a written instrument of transfer
in form satisfactory to the Company and the Security Registrar duly executed
<PAGE>
by, the Holder hereof or his attorney duly authorized in writing, and
thereupon one or more new Securities of this series, of authorized
denominations and for the same aggregate principal amount, will be issued to
the designated transferee or transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of _______ and any integral multiple
thereof. As provided in the Indenture and subject to certain limitations
therein set forth, Securities of this series are exchangeable for a like
aggregate principal amount of Securities of this series of a different
authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge payable in connection there-
with.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the
Trustee may treat the person in whose name this Security is registered as the
owner hereof for all purposes, whether or not this Security be overdue, and
neither the Company, the Trustee nor any such agent shall be affected by
notice to the contrary.
No recourse for the payment of the principal of (and premium, if
any) or interest, if any, on this Security, or for any claim based hereon or
otherwise in respect hereof, and no recourse under or upon any obligation,
covenant or agreement of the Company in the Indenture or any indenture
supplemental thereto or in any Security, or because of the creation of any
indebtedness represented thereby, shall be had against any incorporator,
stockholder, officer or director, as such, past, present or future, of the
Company or of any successor corporation, either directly or through the
Company or any successor corporation, whether by virtue of any constitution,
statute or rule of law or by the enforcement of any assessment or penalty or
otherwise, all such liability being, by the acceptance hereof and as part of
the consideration for the issue hereof, expressly waived and released.
This Security shall be governed by and construed in accordance with
the laws of the State of New York.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
SECTION 2.4 Form of Trustee's Certificate of Authentication.
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
,
---------------------------
as Trustee
By
-------------------------
Authorized Signature
<PAGE>
ARTICLE III
THE SECURITIES
SECTION 3.1 Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be authenti-
cated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. The Securities
shall be subordinated in right of payment to Senior Indebtedness as set forth
in Article XIII. There shall be established in or pursuant to a Board
Resolution, and set forth in an Officers' Certificate, or established in one
or more indentures supplemental hereto, prior to the issuance of Securities
of any series:
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from all other Securities);
(2) any limit upon the aggregate principal amount of the Secu-
rities of the series which may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Sections 3.4, 3.5, 3.6, 9.6, or
11.7);
(3) the date or dates on which the principal of the Securities of
the series is payable;
(4) the rate or rates at which the Securities of the series shall
bear interest, if any, the date or dates from which such interest shall
accrue, the Interest Payment Dates on which such interest shall be
payable and the Regular Record Date for the interest payable on any
Interest Payment Date;
(5) the place or places where the principal of (and premium, if
any) and interest, if any, on Securities of the series shall be payable
and where such Securities may be registered or transferred;
(6) the period or periods within which, the price or prices at
which and the terms and conditions upon which Securities of the series
may be redeemed, in whole or in part, at the option of the Company;
(7) the obligation, if any, of the Company to redeem or purchase
Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof, and the period or
periods within which, the price or prices at which and the terms and
conditions upon which Securities of the series shall be redeemed or
purchased, in whole or in part, pursuant to such obligation;
(8) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which Securities of the series
shall be issuable;
(9) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable upon
<PAGE>
declaration of acceleration of the Maturity thereof pursuant to Section
5.2;
(10) if other than such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public
or private debts, the coin or currency, including composite currencies
such as the European Currency Unit, in which payment of the principal of
(and premium, if any) and interest, if any, on the Securities of the
series shall be payable;
(11) if the principal of (and premium, if any) or interest, if
any, on the Securities of the series are to be payable, at the election
of the Company or a Holder thereof, in a coin or currency other than
that in which the Securities are stated to be payable, the period or
periods within which, and the terms and conditions upon which, such
election may be made;
(12) if the amount of payments of principal of (and premium, if
any) or interest, if any, on the Securities of the series may be
determined with reference to an index based on a coin or currency other
than that in which the Securities are stated to be payable, the manner
in which such amounts shall be determined;
(13) any provisions permitted by this Indenture relating to Events
of Default, covenants of the Company or subordination with respect to
such series of Securities;
(14) whether the Securities of the series will be convertible into
shares of Common Stock of the Company and/or exchangeable for other
securities, and if so, the terms and conditions upon which such
Securities will be so convertible or exchangeable, and any deletions
from or modifications or additions to this Indenture to permit or to
facilitate the issuance of such convertible or exchangeable Securities
or the administration thereof;
(15) in the case of Securities issued to a Trust, the form or
forms of the Trust Agreement, Amended and Restated Trust Agreement and
Guarantee Agreement, if different from the forms attached hereto as
Annexes A, B and C, respectively, whether the provisions set forth in
Section 10.10 shall be applicable to such series of Securities and
whether provisions for deferring interest payments by extending an
interest payment date or dates shall be applicable to such series of
Securities; and
(16) any other terms of the series and any deletions from or
modifications or additions to the Indenture in respect of such
Securities.
All Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or
pursuant to such Board Resolution and set forth in such Officers' Certificate
or in any such indenture supplemental hereto.
If any of the terms of a series, including the form of Security of
such series, are established by action taken pursuant to a Board Resolution,
a copy of an appropriate record of such action shall be certified by the
Secretary or an Assistant Secretary of the Company and delivered to the
<PAGE>
Trustee at or prior to the delivery of the Company Order contemplated by
Section 3.3 for the authentication and delivery of such series of Securities.
SECTION 3.2 Denominations.
The Securities of each series shall be issuable in registered form
without coupons in such denominations as shall be specified as contemplated
by Section 3.1. In the absence of any such provisions with respect to the
Securities of any series, the Securities of such series shall be issuable in
denominations of $1,000 and any integral multiple thereof.
SECTION 3.3 Execution, Authentication, Delivery and Dating.
The Securities shall be executed, manually or by facsimile, on
behalf of the Company by its Chairman of the Board, its Vice Chairman of the
Board, its President or one of its Vice Presidents and by its Treasurer or
one of its Assistant Treasurers or its Secretary or one of its Assistant
Secretaries, under its corporate seal reproduced thereon, by facsimile or
otherwise, and which need not be attested.
Securities bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall
bind the Company, notwithstanding that such individuals or any of them have
ceased to hold such offices prior to the authentication and delivery of such
Securities or did not hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery
of this Indenture, the Company may deliver Securities of any series executed
by the Company to the Trustee for authentication, together with a Company
Order for the authentication and delivery of such Securities, and the Trustee
in accordance with the Company Order shall authenticate and deliver such
Securities. If the form or terms of the Securities of the series have been
established in or pursuant to one or more Board Resolutions as permitted by
Sections 2.1 and 3.1, in authenticating Securities, and accepting the
additional responsibilities under this Indenture in relation to such
Securities, the Trustee shall be entitled to receive, and (subject to Section
6.1) shall be fully protected in relying upon, an Opinion of Counsel stating,
(a) if the form of such Securities has been established by or
pursuant to Board Resolution as permitted by Section 2.1, that such form
has been established in conformity with the provisions of this
Indenture;
(b) if the terms of such Securities have been established by or
pursuant to Board Resolution as permitted by Section 3.1, that such
terms have been established in conformity with the provisions of this
Indenture; and
(c) that such Securities, when authenticated and delivered by the
Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid
and legally binding obligations of the Company, enforceable in
accordance with their terms, subject to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or
affecting the enforcement of creditors' rights and to general equity
principles.
<PAGE>
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the Trustee, being advised by
counsel, determines that the issue of such Securities pursuant to this
Indenture will affect the Trustee's own rights, duties or immunities under
the Securities and this Indenture or otherwise in a manner which is not
reasonably acceptable to the Trustee.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture
or be valid or obligatory for any purpose unless there appears on such
Security a certificate of authentication substantially in the form provided
for herein executed by the Trustee by manual signature, and such certificate
upon any Security shall be conclusive evidence, and the only evidence, that
such Security has been duly authenticated and delivered hereunder and is
entitled to the benefits of this Indenture.
SECTION 3.4 Temporary Securities.
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate
and deliver, temporary Securities which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor of the definitive Securities in lieu
of which they are issued and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such Securities
may determine, as evidenced by their execution of such Securities.
If temporary Securities of any series are issued, the Company will
cause definitive Securities of that series to be prepared without
unreasonable delay. After the preparation of definitive Securities of such
series, the temporary Securities of such series shall be exchangeable for
definitive Securities of such series upon surrender of the temporary
Securities of such series at the office or agency of the Company in a Place
of Payment for that series, without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Securities of any series the
Company shall execute and the Trustee shall authenticate and deliver in
exchange therefor a like principal amount of definitive Securities of the
same series of authorized denominations. Until so exchanged the temporary
Securities of any series shall in all respects be entitled to the same
benefits under this Indenture as definitive Securities of such series.
SECTION 3.5 Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office of
the Trustee a register (the register maintained in such office and in any
other office or agency of the Company in a Place of Payment being herein
sometimes collectively referred to as the "Security Register") in which,
subject to such reasonable regulations as it may prescribe, the Company shall
provide for the registration of Securities and of transfers of Securities.
The Trustee is hereby appointed "Security Registrar" for the purpose of
registering Securities and transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security of any
series at the office or agency in a Place of Payment for that series, the
Company shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Securities
<PAGE>
of the same series, of any authorized denominations and of a like aggregate
principal amount.
At the option of the Holder, Securities of any series may be
exchanged for other Securities of the same series, of any authorized
denominations and of a like aggregate principal amount, upon surrender of the
Securities to be exchanged at such office or agency. Whenever any Securities
are so surrendered for exchange, the Company shall execute, and the Trustee
shall authenticate and deliver, the Securities which the Holder making the
exchange is entitled to receive.
All securities issued upon any registration of transfer or exchange
of Securities shall be the valid obligations of the Company, evidencing the
same debt, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the Trustee)
be duly endorsed, or be accompanied by a written instrument of transfer in
form satisfactory to the Company and the Security Registrar duly executed, by
the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed
in connection with any registration of transfer or exchange of Securities,
other than exchanges pursuant to Sections 3.4, 9.6 or 11.7 not involving any
transfer.
The Company shall not be required (i) to issue, register the
transfer of or exchange Securities of any series during a period beginning at
the opening of business 15 days before the day of the mailing of a notice of
redemption of Securities of that series selected for redemption under Section
11.3 and ending at the close of business on the day of such mailing, or (ii)
to register the transfer of or exchange any Security so selected for
redemption in whole or in part, except the unredeemed portion of any Security
being redeemed in part.
SECTION 3.6 Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the
Company shall execute and the Trustee shall authenticate and deliver in
exchange therefor a new Security of the same series and of like tenor and
principal amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any
Security and (ii) such security or indemnity as may be required by them to
save each of them and any agent of either of them harmless, then, in the
absence of notice to the Company or the Trustee that such Security has been
acquired by a bona fide purchaser, the Company shall execute and upon its
request the Trustee shall authenticate and deliver, in lieu of any such
destroyed, lost or stolen Security, a new Security of the same series and of
like tenor and principal amount and bearing a number not contemporaneously
outstanding.
<PAGE>
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected
therewith.
Every new Security of any series issued pursuant to this Section in
lieu of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the
destroyed, lost or stolen Security shall be at any time enforceable by
anyone, and shall be entitled to all the benefits of this Indenture equally
and proportionately with any and all other Securities of that series duly
issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 3.7 Payment of Interest; Interest Rights Preserved.
Interest on any Security which is payable, and is punctually paid
or duly provided for, on any Interest Payment Date shall be paid to the
person in whose name that Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest.
Any interest on any Security of any series which is payable, but is
not punctually paid or duly provided for, on any Interest Payment Date
(herein called "Defaulted Interest") shall forthwith cease to be payable to
the Holder on the relevant Regular Record Date by virtue of having been such
Holder, and such Defaulted Interest may be paid by the Company, at its
election in each case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the persons in whose names the Securities of such series (or
their respective Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company
shall notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each Security of such series and the date of the
proposed payment, and at the same time the Company shall deposit with
the Trustee an amount of money equal to the aggregate amount proposed to
be paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the
proposed payment, such money when deposited to be held in trust for the
benefit of the persons entitled to such Defaulted Interest as in this
Clause provided. Thereupon the Trustee shall fix a Special Record Date
for the payment of such Defaulted Interest which shall be not more than
15 days and not less than 10 days prior to the date of the proposed
payment and not less than 10 days after the receipt by the Trustee of
the notice of the proposed payment. The Trustee shall promptly notify
the Company of such Special Record Date and, in the name and at the
expense of the Company, shall cause notice of the proposed payment of
<PAGE>
such Defaulted Interest and the Special Record Date therefor to be
mailed, first-class postage prepaid, to each Holder of Securities of
such series at his address as it appears in the Security Register, not
less than 10 days prior to such Special Record Date. Notice of the
proposed payment of such Defaulted Interest and the Special Record Date
therefor having been so mailed, such Defaulted Interest shall be paid to
the persons in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the close of
business on such Special Record Date and shall no longer be payable
pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest on the
Securities of any series in any other lawful manner not inconsistent
with the requirements of any securities exchange on which such
Securities may be listed, and upon such notice as may be required by
such exchange, if, after notice given by the Company to the Trustee of
the proposed payment pursuant to this Clause, such manner of payment
shall be deemed practicable by the Trustee.
Any interest on any Security which is deferred or extended pursuant
to Section 3.11 shall not be Defaulted Interest for the purposes of this
Section 3.7.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
SECTION 3.8 Persons Deemed Owners.
Prior to due presentment of a Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the
Trustee may treat the person in whose name such Security is registered as the
owner of such Security for the purpose of receiving payment of principal of
(and premium, if any) and (subject to Section 3.7) interest, if any, on such
Security and for all other purposes whatsoever, whether or not such Security
be overdue, and neither the Company, the Trustee nor any agent of the Company
or the Trustee shall be affected by notice to the contrary.
SECTION 3.9 Cancellation.
All Securities surrendered for payment, redemption, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any person other than the Trustee, be delivered to the Trustee
and shall be promptly cancelled by it. The Company may at any time deliver
to the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and all Securities so delivered shall be promptly cancelled by
the Trustee. No Securities shall be authenticated in lieu of or in exchange
for any Securities cancelled as provided in this Section, except as expressly
permitted by this Indenture. All cancelled Securities held by the Trustee
shall be disposed of as directed by a Company Order.
<PAGE>
SECTION 3.10 Computation of Interest.
Except as otherwise specified as contemplated by Section 3.1 for
Securities of any series, interest, if any, on the Securities of each series
shall be computed on the basis of a year of twelve 30-day months.
SECTION 3.11 Deferrals of Interest Payment Dates.
In connection with any Securities issued to a Trust, the
supplemental indenture, Board Resolution or Officers' Certificate
establishing such Series shall set forth any provisions relating to deferral
of interest payment dates.
SECTION 3.12 Shortening or Extension of Stated Maturity.
In connection with any Securities issued to a Trust, the
supplemental indenture, Board Resolution or Officers' Certificate
establishing such Series shall set forth any provisions relating to the right
of the Company to shorten the Stated Maturity of the Securities or extend the
Stated Maturity of the Securities.
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.1 Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further
effect (except as to any surviving rights of registration of transfer or
exchange of Securities herein expressly provided for), and the Trustee, at
the expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered
(other than (i) Securities which have been destroyed, lost or
stolen and which have been replaced or paid as provided in Section
3.6 and (ii) Securities for whose payment money has theretofore
been deposited in trust or segregated and held in trust by the
Company and thereafter repaid to the Company or discharged from
such trust, as provided in Section 10.3) have been delivered to the
Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the
Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year, or
(iii) are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the giving
of notice of redemption by the Trustee in the name, and at the
expense, of the Company, or
<PAGE>
(iv) are deemed paid and discharged pursuant to Section
4.3, as applicable,
and the Company, in the case of (i), (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee as trust funds
in trust for the purpose an amount of (a) money, or (b) in the case
of (ii) or (iii) above and (except as provided in an indenture
supplemental hereto) if no Securities of any series Outstanding are
subject to repurchase at the option of Holders, (I) U.S. Government
Obligations which through the payment of interest and principal in
respect thereof in accordance with their terms will provide not
later than one day before the Stated Maturity or Redemption Date,
as the case may be, money in an amount, or (II) a combination of
money or U.S. Government Obligations as provided in (I) above, in
each case sufficient to pay and discharge the entire indebtedness
on such Securities not theretofore delivered to the Trustee for
cancellation, for principal (and premium, if any) and interest, if
any, to the date of such deposit (in the case of Securities which
have become due and payable) or to the Stated Maturity or
Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture have been complied
with.
Notwithstanding the satisfaction and discharge of this Indenture,
the obligations of the Company to the Trustee under Section 6.7, the obliga-
tions of the Trustee to any Authenticating Agent under Section 6.14 and, if
money or U.S. Government Obligations shall have been deposited with the
Trustee pursuant to subclause (B) of Clause (I) of this Section or if money
or U.S. Government Obligations shall have been deposited with or received by
the Trustee pursuant to Section 4.3, the provisions of Section 4.4, the
obligations of the Trustee under Section 4.2 and the last paragraph of
Section 10.3 shall survive.
SECTION 4.2 Application of Trust Money.
(a) Subject to the provisions of the last paragraph of Section
10.3, all money or U.S. Government Obligations deposited with the
Trustee pursuant to Section 4.1, 4.3 or 10.6 and all money received by
the Trustee in respect of U.S. Government Obligations deposited with the
Trustee pursuant to Section 4.1, 4.3 or 10.6, shall be held in trust and
applied by it, in accordance with the provisions of the Securities and
this Indenture, to the payment, either directly or through any Paying
Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the persons entitled thereto, of the principal
(and premium, if any) and interest, if any, for whose payment such money
has been deposited with or received by the Trustee or to make mandatory
sinking fund payments or analogous payments as contemplated by Section
4.1, 4.3 or 10.6.
<PAGE>
(b) The Company shall pay and shall indemnify the Trustee against
any tax, fee or other charge imposed on or assessed against U.S. Govern-
ment Obligations deposited pursuant to Section 4.1, 4.3 or 10.6 or the
interest and principal received in respect of such obligations other
than any payable by or on behalf of Holders.
(c) The Trustee shall deliver or pay to the Company from time to
time upon Company Request any U.S. Government Obligations or money held
by it as provided in Section 4.1, 4.3 or 10.6 which, in the opinion of a
nationally recognized firm of independent certified public accountants
expressed in a written certification thereof delivered to the Trustee,
are then in excess of the amount thereof which then would have been
required to be deposited for the purpose for which such U.S. Government
Obligations or money was deposited or received. This provision shall
not authorize the sale by the Trustee of any U.S. Government Obligations
held under this Indenture.
SECTION 4.3 Satisfaction, Discharge and Defeasance of Securities
of any Series.
The Company shall be deemed to have paid and discharged the entire
indebtedness on all the Outstanding Securities of any series on the 91st day
after the date of the deposit referred to in subparagraph (f) hereof, and the
provisions of this Indenture, as it relates to such Outstanding Securities of
such series, shall no longer be in effect (and the Trustee, at the expense of
the Company, shall at Company Request execute proper instruments
acknowledging the same), except as to:
(a) the rights of Holders of Securities of such series to receive,
from the trust funds described in subparagraph (f) hereof, (i) payment
of the principal of (and premium, if any) and each instalment of
principal of (and premium, if any) or interest, if any, on the Out-
standing Securities of such series on the Stated Maturity of such
principal or instalment of principal or interest or to and including the
Redemption Date irrevocably designated by the Company pursuant to
subparagraph (i) hereof and (ii) the benefit of any mandatory sinking
fund payments applicable to the Securities of such series on the day on
which such payments are due and payable in accordance with the terms of
this Indenture and the Securities of such series;
(b) the Company's obligations with respect to such Securities of
such series under Sections 3.5, 3.6, and 10.2 and, if the Company shall
have irrevocably designated a Redemption Date pursuant to subparagraph
(i) hereof, Sections 11.1, 11.4 and 11.6 as they apply to such
Redemption Date;
(c) the Company's obligations with respect to the Trustee under
Section 6.7;
(d) the rights, powers, trust and immunities of the Trustee
hereunder and the duties of the Trustee under Section 4.2 and, if the
Company shall have irrevocably designated a Redemption Date pursuant to
subparagraph (i) hereof, Article Eleven and the duty of the Trustee to
authenticate Securities of such series on registration of transfer or
exchange; and
(e) the provisions of Section 4.4;
<PAGE>
provided that, the following conditions shall have been satisfied:
(f) the Company has deposited or caused to be irrevocably
deposited (except as provided in Section 4.2(c) and the last paragraph
of Section 10.3) with the Trustee as trust funds in trust, specifically
pledged as security for, and dedicated solely to, the benefit of the
Holders of the Securities of such series, (i) money in an amount, or
(ii) (except as provided in a supplemental indenture with respect to
such series) if Securities of such series are not subject to repurchase
at the option of Holders, (A) U.S. Government Obligations which through
the payment of interest and principal in respect thereof in accordance
with their terms will provide not later than one day before the due date
of any payment referred to in clause (x) or (y) of this subparagraph (f)
money in an amount or (B) a combination thereof, sufficient, in the
opinion of a nationally recognized firm of independent certified public
accountants expressed in a written certification thereof delivered to
the Trustee, to pay and discharge (x) the principal of (and premium, if
any) and each instalment of principal (and premium, if any) and
interest, if any, on the Outstanding Securities of such series on the
Stated Maturity of such principal or instalment of principal or interest
or to and including the Redemption Date irrevocably designated by the
Company pursuant to subparagraph (i) hereof and (y) any mandatory
sinking fund payments applicable to the Securities of such series on the
day on which such payments are due and payable in accordance with the
terms of this Indenture and of the Securities of such series;
(g) the Company has delivered to the Trustee an Opinion of Counsel
to the effect that the taking of the actions referred to in subparagraph
(f) hereofwould not cause any Outstanding Securities of such series then
listed on any national securities exchange to be delisted as a result
thereof;
(h) no Event of Default or event which with notice or lapse of
time would become an Event of Default (including by reason of such
deposit) with respect to the Securities of such series shall have
occurred and be continuing on the date of such deposit or during the
period ending on the 91st day after such date;
(i) the Company has delivered to the Trustee an Opinion of Counsel
to the effect that the Company has received from, or there has been
published by, the Internal Revenue Service a ruling to the effect that
Holders of the Securities of such series will not recognize income, gain
or loss for Federal income tax purposes as a result of such deposit,
defeasance and discharge; and
(j) if the Company has deposited or caused to be deposited money
or U.S. Government Obligations to pay or discharge the principal of (and
premium, if any) and interest, if any, on the Outstanding Securities of
a series to and including a Redemption Date on which all of the
Outstanding Securities of such series are to be redeemed, such
Redemption Date shall be irrevocably designated by a Board Resolution
delivered to the Trustee on or prior to the date of deposit of such
money or U.S. Government Obligations, and such Board Resolution shall be
accompanied by an irrevocable Company Request that the Trustee give
notice of such redemption in the name and at the expense of the Company
not less than 30 nor more than 60 days prior to such Redemption Date in
accordance with Section 11.4.
<PAGE>
SECTION 4.4 Effect on Subordination Provisions.
Unless otherwise expressly provided pursuant to Section 3.1 with
respect to the Securities of any series, the provisions for subordination of
the Securities set forth in Article XIII hereof are hereby expressly made
subject to the provisions for satisfaction and discharge set forth in Section
4.1 hereof and the provisions for defeasance and covenant defeasance set
forth in Section 10.6 hereof and, anything herein to the contrary
notwithstanding, upon the effectiveness of such satisfaction and discharge
pursuant to Section 4.1 or any such defeasance or covenant defeasance
pursuant to Section 10.6 with respect to the Securities of any series, such
Securities shall thereupon cease to be so subordinated and such Securities
(and the monies and/or U.S. Government Obligations deposited in respect
thereof) shall no longer be subject to the provisions of Article XIII hereof
and, without limitation to the foregoing, all moneys, U.S. Government
Obligations and other securities or property deposited with the Trustee (or
other qualifying trustee) in trust in connection with such satisfaction and
discharge, defeasance or covenant defeasance, as the case may be, and all
proceeds therefrom may be applied to pay the principal of, premium, if any,
and interest, if any, on, the Securities of such series as and when the same
shall become due and payable notwithstanding the provisions of Article XIII.
ARTICLE V
REMEDIES
SECTION 5.1 Events of Default.
"Event of Default", wherever used herein with respect to Securities
of any series, means any one of the following events (whatever the reason for
such Event of Default and whether it shall be voluntary or involuntary or be
effected by operation of law or pursuant to any judgment, decree or order of
any court or any order, rule or regulation of any administrative or
governmental body):
(1) default in the payment of any interest upon any Security of
that series when it becomes due and payable, and continuance of such
default for a period of 30 days (subject, in the case of Securities
issued to a Trust, to any deferral of any interest payment date as set
forth in the supplemental indenture, Board Resolution or Officers'
Certificate establishing the terms of such series); or
(2) default in the payment of the principal of (or premium, if
any, on) any Security of that series at its Maturity; or
(3) default in the payment of any sinking fund instalment, when
and as due by the terms of a Security of that series, and continuance of
such default for a period of 30 days; or
(4) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture (other than a covenant or
warranty a default in whose performance or whose breach is elsewhere in
this Section specifically dealt with or which has expressly been
included in this Indenture solely for the benefit of series of
Securities other than that series), and continuance of such default or
breach for a period of 90 days after there has been given, by registered
<PAGE>
or certified mail, to the Company by the Trustee or to the Company and
the Trustee by the Holders of at least 25% in principal amount of the
Outstanding Securities of that series a written notice specifying such
default or breach and requiring it to be remedied and stating that such
notice is a "Notice of Default" hereunder; or
(5) the entry by a court having jurisdiction in the premises of
(A) a decree or order for relief in respect of the Company in an
involuntary case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or (B) a
decree or order adjudging the Company a bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of the Company
under any applicable Federal or State law, or appointing a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other similar
official of the Company or of any substantial part of its property, or
ordering the winding up or liquidation of its affairs, and the
continuance of any such decree or order for relief or any such other
decree or order unstayed and in effect for a period of 90 consecutive
days; or
(6) the commencement by the Company of a voluntary case or
proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or of any other case or proceeding
to be adjudicated a bankrupt or insolvent, or the consent by it to the
entry of a decree or order for relief in respect of the Company in an
involuntary case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or to the
commencement of any bankruptcy or insolvency case or proceeding against
it, or the filing by it of a petition or answer or consent seeking
reorganization or relief under any applicable Federal or State law, or
the consent by it to the filing of such petition or to the appointment
of or taking possession by a custodian, receiver, liquidator, assignee,
trustee, sequestrator or similar official of the Company or of any
substantial part of its property, or the making by it of an assignment
for the benefit of creditors, or the admission by it in writing of its
inability to pay its debts generally as they become due, or the taking
of corporate action by the Company in furtherance of any such action; or
(7) any other Event of Default provided in the supplemental
indenture, Board Resolution or Officers' Certificate under which such
series of Securities is issued or in the form of Security for such
series.
SECTION 5.2 Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Securities of any series at
the time Outstanding occurs and is continuing, then in every such case the
Trustee or the Holders of not less than 25% in aggregate principal amount of
the Outstanding Securities of that series may declare the principal amount
(or, if the Securities of that series are Original Issue Discount Securities,
such portion of the principal amount as may be specified in the terms of that
series) of all of the Securities of that series to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee if
given by Holders), provided that, in the case of the Securities of a series
issued to a Trust, if, upon an Event of Default, the Trustee or the Holders
of not less than 25% in aggregate principal amount of the Outstanding
<PAGE>
Securities of that series fail to declare the principal amount (or, if the
Securities of that series are Discount Securities, such portion of the
principal amount as may be specified in the terms of that series) of all the
Securities of that series to be immediately due and payable, the holders of
at least 25% in aggregate Liquidation Amount (as defined in the Trust
Agreement under which such Trust is formed) of the corresponding series of
Preferred Securities then outstanding shall have such right by written notice
to the Company and the Trustee, and upon any such declaration such principal
amount (or specified amount) shall become immediately due and payable.
At any time after such a declaration of acceleration with respect
to Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in
this Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Company and
the Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest, if any, on all Securities of that
series,
(B) the principal of (and premium, if any, on) any Securities
of that series which have become due otherwise than by such
declaration of acceleration and interest thereon at the rate or
rates prescribed therefor in such Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate or rates prescribed
therefor in such Securities, and
(D) all sums paid or advanced by the Trustee hereunder and
the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel;
and
(2) all Events of Default with respect to Securities of that
series, other than the non-payment of the principal of and accrued
interest on Securities of that series which have become due solely by
such declaration of acceleration, have been cured or waived as provided
in Section 5.13, provided that, in the case of Securities of a series
held by a Trust, if the Holders of at least a majority in principal
amount of the Outstanding Securities of that series fail to rescind and
annul such declaration and its consequences, the holders of a majority
in aggregate Liquidation Amount (as defined in the Trust Agreement under
which such Trust is formed) of the corresponding series of Preferred
Securities then outstanding shall have such right by written notice to
the Company and the Trustee, subject to the satisfaction of the
conditions set forth in Clauses (1) and (2) above of this Section 5.2.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
For all purposes under this Indenture, if a portion of the
principal of any Original Issue Discount Securities shall have been
<PAGE>
accelerated and declared due and payable pursuant to the provisions hereof,
then, from and after such declaration, unless such declaration has been
rescinded and annulled, the principal amount of such Original Issue Discount
Securities shall be deemed, for all purposes hereunder, to be such portion of
the principal thereof as shall be due and payable as a result of such
acceleration, and payment of such portion of the principal thereof as shall
be due and payable as a result of such acceleration, together with interest,
if any, thereon and all other amounts owing thereunder, shall constitute
payment in full of such Original Issue Discount Securities.
SECTION 5.3 Collection of Indebtedness and Suits for Enforcement
by Trustee.
The Company covenants that if
(1) default is made in the payment of any interest on any Security
when such interest becomes due and payable and such default continues
for a period of 30 days, or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of
the Holders of such Securities, the whole amount then due and payable on such
Securities for principal (and premium, if any) and interest, if any, and, to
the extent that payment of such interest shall be legally enforceable,
interest on any overdue principal (and premium, if any) and on any overdue
interest, at the rate or rates prescribed therefor in such Securities, and,
in addition thereto, such further amount as shall be sufficient to cover the
costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express mist, may
institute a judicial proceeding for the collection of the sums so due and
unpaid, may prosecute such proceeding to judgment or final decree and may
enforce the same against the Company or any other obligor upon such
Securities and collect the moneys adjudged or decreed to be payable in the
manner provided by law out of the property of the Company or any other
obligor upon such Securities, wherever situated.
If an Event of Default with respect to Securities of any series
occurs and is continuing, the Trustee may in its discretion proceed to
protect and enforce its rights and the rights of the Holders of Securities of
such series by such appropriate judicial proceedings as the Trustee shall
deem most effectual to protect and enforce any such rights, whether for the
specific enforcement of any covenant or agreement in this Indenture or in aid
of the exercise of any power granted herein, or to enforce any other proper
remedy.
SECTION 5.4 Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition
or other judicial proceeding relative to the Company or any other obligor
upon the Securities or the property of the Company or of such other obligor
or their creditors, the Trustee (irrespective of whether the principal of the
<PAGE>
Securities shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Trustee shall have
made any demand on the Company for the payment of overdue principal or
interest) shall be entitled and empowered, by intervention in such proceeding
or otherwise,
(i) to file and prove a claim for the whole amount of principal
(and premium, if any) and interest owing and unpaid in respect of the
Securities and to file such other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and
of the Holders allowed in such judicial proceeding, and
(ii) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized
by each Holder to make such payments to the Trustee and, in the event that
the Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 6.7.
Nothing herein contained shall be deemed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any Holder any
plan of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding.
SECTION 5.5 Trustee May Enforce Claims Without Possession of
Securities.
All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without the
possession of any of the Securities or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the
Trustee shall be brought in its own name as trustee of an express trust, and
any recovery of judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, be for the ratable benefit of the Holders of the
Securities in respect of which such judgment has been recovered.
SECTION 5.6 Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall
be applied in the following order, at the date or dates fixed by the Trustee
and, in case of the distribution of such money on account of principal (or
premium, if any) or interest, upon presentation of the Securities and the
notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section
6.7;
<PAGE>
SECOND: To the payment of amounts then due and unpaid to the
holders of Senior Indebtedness, to the extent required by Article XIII;
THIRD: In case the principal of the Securities of such series in
respect of which moneys have been collected shall not have become and be
then due and payable, to the payment of interest, if any, on the
Securities of such series in default in the order of the maturity of the
installments of such interest, with interest (to the extent that such
interest has been collected by the Trustee and to the extent permitted
by law) upon the overdue installments of interest at the rate prescribed
therefor in such Securities, such payments to be made ratably to the
persons entitled thereto, without discrimination or preference;
FOURTH: In case the principal of the Securities of such series in
respect of which moneys have been collected shall have become and shall
be then due and payable, to the payment of the whole amount then owing
and unpaid upon all the Securities of such series for principal and
interest, if any, with interest upon the overdue principal, and (to the
extent that such interest has been collected by the Trustee and to the
extent permitted by law) upon overdue installments of interest at the
rate prescribed therefor in the Securities of such series; and in case
such moneys shall be insufficient to pay in full the whole amount so due
and unpaid upon the Securities of such series, then to the payment of
such principal and interest, without preference or priority of principal
over interest, or of interest over principal, or of any instalment of
interest over any other instalment of interest, or of any Security of
such series over any other Security of such series, ratably to the
aggregate of such principal and accrued and unpaid interest; and
FIFTH: To the payment of the remainder, if any, to the Company or
any other person lawfully entitled thereto.
SECTION 5.7 Limitation on Suits.
No Holder of any Security of any series shall have any right to
institute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the
Securities of that series;
(2) the Holders of not less than 25% in principal amount of
the Outstanding Securities of that series shall have made written
request to the Trustee to institute proceedings in respect of such
Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to
be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
<PAGE>
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders
of a majority in principal amount of the Outstanding Securities of
that series;
it being understood and intended that no one or more of such Holders shall
have any right in any manner whatever by virtue of, or by availing of, any
provision of this Indenture to affect, disturb or prejudice the rights of any
other of such Holders, or to obtain or to seek to obtain priority or
preference over any other of such Holders or to enforce any right under this
Indenture, except in the manner herein provided and for the equal and ratable
benefit of all such Holders.
SECTION 5.8 Unconditional Right of Holders to Receive Principal,
Premium and Interest.
Notwithstanding any other provision in this Indenture, the Holder
of any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of (and premium, if any) and (subject to
Section 3.7) interest, if any, on such Security on the Stated Maturity or
Maturities expressed in such Security (or, in the case of redemption, on the
Redemption Date) and to institute suit for the enforcement of any such
payment, and such rights shall not be impaired without the consent of such
Holder. In the case of Securities of a series held by a Trust, any holder of
the corresponding series of Preferred Securities held by such Trust shall
have the right, upon the occurrence of an Event of Default described in
Section 5.1(1) or 5.1(2), to institute a suit directly against the Company
for enforcement of payment to such holder of principal of (or premium, if
any) and (subject to Section 3.7) interest on the Securities having a
principal amount equal to the aggregate Liquidation Amount (as defined in the
Trust Agreement under which such Trust is formed) of such Preferred
Securities of the corresponding series held by such holder.
SECTION 5.9 Restoration of Rights and Remedies.
If the Trustee, any Holder or any holder of Preferred Securities
has instituted any proceeding to enforce any right or remedy under this
Indenture and such proceeding has been discontinued or abandoned for any
reason, or has been determined adversely to the Trustee, such Holder or such
holder of Preferred Securities, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee, the Holders and
such holders of Preferred Securities shall be restored severally and
respectively to their former positions hereunder and thereafter all rights
and remedies of the Trustee, the Holders and the holders of Preferred
Securities shall continue as though no such proceeding had been instituted.
SECTION 5.10 Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities in the last
paragraph of Section 3.6, no right or remedy herein conferred upon or
reserved to the Trustee or to the Holders is intended to be exclusive of any
other right or remedy, and every right and remedy shall, to the extent
permitted by law, be cumulative and in addition to every other right and
remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or
<PAGE>
otherwise, shall not prevent the concurrent assertion or employment of any
other appropriate right or remedy.
SECTION 5.11 Delay or Omission Not Waiver.
No delay or omission of the Trustee, any Holder of any Securities
or any holder of any Preferred Security to exercise any right or remedy
accruing upon any Event of Default shall impair any such right or remedy or
constitute a waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article or by law to the Trustee or to
the Holders and the right and remedy given to the holders of Preferred
Securities by Section 5.8 may be exercised from time to time, and as often as
may be deemed expedient, by the Trustee, the Holders or the holders of
Preferred Securities, as the case may be.
SECTION 5.12 Control by Holders.
The Holders of a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee,
or exercising any trust or power conferred on the Trustee, with respect to
the Securities of such series, provided that
(1) such direction shall not be in conflict with any rule of law
or with this Indenture, and
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
SECTION 5.13 Waiver of Past Defaults.
The Holders of not less than a majority in aggregate principal
amount of the Outstanding Securities of any series and, in the case of any
Securities of a series issued to a Trust, the holders of a majority in
Liquidation Amount (as defined in the applicable Trust Agreement) of
Preferred Securities issued by such Trust may on behalf of the Holders of all
the Securities of such series waive any past default hereunder with respect
to such series and its consequences, except a default
(1) in the payment of the principal of (or premium, if any) or
interest, if any, on any Security of such series, or
(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Security of such series affected.
Any such waiver shall be deemed to be on behalf of the Holders of
all the Securities of such series or, in the case of a waiver by holders of
Preferred Securities issued by such Trust, by all holders of Preferred
Securities issued by such Trust.
Upon any such waiver, such default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
<PAGE>
SECTION 5.14 Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any
Security by his acceptance thereof shall be deemed to have agreed, that any
court may in its discretion require, in any suit for the enforcement of any
right or remedy under this Indenture, or in any suit against the Trustee for
any action taken or omitted by it as Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of such suit, and
that such court may in its discretion assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in such suit, having
due regard to the merits and good faith of the claims or defenses made by
such party litigant; but the provisions of this Section shall not apply to
any suit instituted by the Trustee, to any suit instituted by any Holder, or
group of Holders, holding in the aggregate more than 10% in principal amount
of the Outstanding Securities of any series, or to any suit instituted by any
Holder for the enforcement of the payment of the principal of (or premium, if
any) or interest, if any, on any Security on or after the Stated Maturity or
Maturities expressed in such Security (or, in the case of redemption, on or
after the Redemption Date).
ARTICLE VI
THE TRUSTEE
SECTION 6.1 Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture, and no
implied covenants or obligations shall be read into this Indenture
against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the
requirements of this Indenture; but in the case of any such
certificates or opinions which by any provision hereof are
specifically required to be furnished to the Trustee, the Trustee
shall be under a duty to examine the same to determine whether or
not they conform to the requirements of this Indenture.
(b) In case an Event of Default has occurred and is continuing,
the Trustee shall exercise such of the rights and powers vested in it by
this Indenture, and use the same degree of care and skill in their
exercise, as a prudent man would exercise or use under the circumstances
in the conduct of his own affairs.
(c) No provision of this Indenture shall be construed to relieve
the Trustee from liability for its own negligent action, its own
negligent failure to act, or its own wilful misconduct, except that
(1) this Subsection shall not be construed to limit the
effect of Subsection (a) of this Section;
<PAGE>
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it shall be
proved that the Trustee was negligent in ascertaining the pertinent
facts;
(3) the Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of a majority in
principal amount of the Outstanding Securities of any series,
determined as provided in Section 5.12, relating to the time,
method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power
conferred upon the Trustee, under this Indenture with respect to
the Securities of such series; and
(4) no provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in
the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably
assured to it.
(d) Whether or not therein expressly so provided, every provision
of this Indenture relating to the conduct or affecting the liability of
or affording protection to the Trustee shall be subject to the
provisions of this Section.
SECTION 6.2 Notice of Defaults.
Within 90 days after the occurrence of any default hereunder with
respect to the Securities of any series, the Trustee shall transmit by mail
to all Holders of Securities of such series, as their names and addresses
appear in the Security Register, notice of such default hereunder known to
the Trustee, unless such default shall have been cured or waived; provided,
however, that, except in the case of a default in the payment of the
principal of (or premium, if any) or interest, if any, on any Security of
such series or in the payment of any sinking fund instalment with respect to
Securities of such series, the Trustee shall be protected in withholding such
notice if and so long as the board of directors, the executive committee or a
trust committee of directors or Responsible Officers of the Trustee in good
faith determine that the withholding of such notice is in the interest of the
Holders of Securities of such series; and provided, further, that in the case
of any default of the character specified in Section 5.1(4) with respect to
Securities of such series, no such notice to Holders shall be given until at
least 30 days after the occurrence thereof. For the purpose of this Section,
the term "default" means any event which is, or after notice or lapse of time
or both would become, an Event of Default with respect to Securities of such
series.
SECTION 6.3 Certain Rights of Trustee.
Subject to the provisions of Section 6.1:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
<PAGE>
bond, debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall
be sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of
bad faith on its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or omitted
by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such
Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see fit,
and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled upon so reasonable request to
examine the books, records and premises of the Company, personally or by
agent or attorney; and
(g) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents
or attorneys and the Trustee shall not be responsible for any misconduct
or negligence on the part of any agent or attorney appointed with due
care by it hereunder.
SECTION 6.4 Not Responsible for Recitals or Issuance of
Securities.
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and neither the Trustee nor any Authenticating Agent assumes any
responsibility for their correctness. The Trustee makes no representations as
to the validity or sufficiency of this Indenture or of the Securities.
Neither the Trustee nor any Authenticating Agent shall be accountable for the
use or application by the Company of Securities or the proceeds thereof.
<PAGE>
SECTION 6.5 May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any
Security Registrar or any other agent of the Company, in its individual or
any other capacity, may become the owner or pledgee of Securities and,
subject to Sections 6.8 and 6.13, may otherwise deal with the Company with
the same rights it would have if it were not Trustee, Authenticating Agent,
Paying Agent, Security Registrar or such other agent.
SECTION 6.6 Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except
as otherwise agreed with the Company.
SECTION 6.7 Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time reasonable com-
pensation for all services rendered by it hereunder ( which com-
pensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or
advance as may be attributable to its negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without negligence
or bad faith on its part, arising out of or in connection with the
acceptance or administration of the trust or trusts hereunder,
including the costs and expenses of defending itself against any
claim or liability in connection with the exercise or performance
of any of its powers or duties hereunder.
SECTION 6.8 Disqualification; Conflicting Interests.
(a) If the Trustee has or shall acquire any conflicting interest,
as defined in this Section, with respect to the Securities of any
series, it shall, within 90 days after ascertaining that it has such
conflicting interest, either eliminate such conflicting interest or
resign with respect to the Securities of that series in the manner and
with the effect hereinafter specified in this Article.
(b) In the event that the Trustee shall fail to comply with the
provisions of subsection (a) of this Section with respect to the
Securities of any series, the Trustee shall, within 10 days after the
expiration of such 90 day period, transmit by mail to all Holders of
Securities of that series, as their names and addresses appear in the
Security Register, notice of such failure.
<PAGE>
(c) For the purposes of this Section, the Trustee shall be deemed
to have a conflicting interest with respect to the Securities of any
series if
(1) the Trustee is trustee under this Indenture with respect
to the Outstanding Securities of any series other than that series
or is trustee under another indenture under which any other
securities, or certificates of interest or participation in any
other securities, of the Company are outstanding, unless such other
indenture is a collateral trust indenture under which the only
collateral consists of Securities issued under this Indenture,
provided that there shall be excluded from the operation of this
paragraph (w) this Indenture with respect to the Securities of any
series other than that series, and in addition, any other indenture
or indentures under which other securities, or certificates of
interest or participation in other securities, of the Company are
outstanding, if
(i) this Indenture and such other indenture or indentures are
wholly unsecured and such other indenture or indentures are hereafter
qualified under the Trust Indenture Act, unless the Commission shall
have found and declared by order pursuant to Section 305(b) or Section
307(c) of the Trust Indenture Act that differences exist between the
provisions of this Indenture with respect to Securities of that series
and one or more other series or the provisions of such other indenture
or indentures which are so likely to involve a material conflict of
interest as to make it necessary in the public interest or for the
protection of investors to disqualify the Trustee from acting as such
under this Indenture with respect to the Securities of that series and
such other series or under such other indenture or indentures, or
(ii) the Company shall have sustained the burden of proving, on
application to the Commission and after opportunity for hearing thereon,
that trusteeship under this Indenture with respect to the Securities of
that series and such other series or such other indenture or indentures
is not so likely to involve a material conflict of interest as to make
it necessary in the public interest or for the protection of investors
to disqualify the Trustee from acting as such under this Indenture with
respect to the Securities of that series and such other series or under
such other indenture or indentures;
(2) the Trustee or any of its directors or executive officers
is an obligor upon the Securities or an underwriter for the
Company;
(3) the Trustee directly or indirectly controls or is
directly or indirectly controlled by or is under direct or indirect
common control with the Company or an underwriter for the Company;
(4) the Trustee or any of its directors or executive officers
is a director, officer, partner, employee, appointee or
representative of the Company, or of an underwriter (other than the
Trustee itself) for the Company who is currently engaged in the
business of underwriting, except that (i) one individual may be a
director or an executive officer, or both, of the Trustee and a
director or an executive officer, or both, of the Company but may
not be at the same time an executive officer of both the Trustee
<PAGE>
and the Company; (ii) if and so long as the number of directors of
the Trustee in office is more than nine, one additional individual
may be a director or an executive officer, or both, of the Trustee
and a director of the Company; and (iii) the Trustee may be
designated by the Company or by any underwriter for the Company to
act in the capacity of transfer agent, registrar, custodian, paying
agent, fiscal agent, escrow agent or depositary, or in any other
similar capacity, or, subject to the provisions of paragraph (1) of
this Subsection, to act as trustee, whether under an indenture or
otherwise;
(5) 10% or more of the voting securities of the Trustee is
beneficially owned either by the Company or by any director,
partner or executive officer thereof, or 20% or more of such voting
securities is beneficially owned, collectively, by any two or more
of such persons; or 10% or more of the voting securities of the
Trustee is beneficially owned either by an underwriter for the
Company or by any director, partner or executive officer thereof,
or is beneficially owned, collectively, by any two or more such
persons;
(6) the Trustee is the beneficial owner of, or holds as
collateral security for an obligation which is in default (as
hereinafter in this Subsection defined), (i) 5% or more of the
voting securities, or 10% or more of any other class of security,
of the Company, not including the Securities issued under this
Indenture and securities issued under any other indenture under
which the Trustee is also trustee, or (ii) 10% or more of any class
of security of an underwriter for the Company;
(7) the Trustee is the beneficial owner of, or holds as
collateral security for an obligation which is in default (as
hereinafter in this Subsection defined), 5% or more of the voting
securities of any person who, to the knowledge of the Trustee, owns
10% or more of the voting securities of, or controls directly or
indirectly or is under direct or indirect common control with, the
Company;
(8) the Trustee is the beneficial owner of, or holds as
collateral security for an obligation which is in default (as
hereinafter in this Subsection defined), 10% or more of any class
of security of any person who, to the knowledge of the Trustee,
owns 50% or more of the voting securities of the Company; or
(9) the Trustee owns, on May 15 in any calendar year, in the
capacity of executor, administrator, testamentary or inter vivos
trustee, guardian, committee or conservator, or in any other
similar capacity, an aggregate of 25% or more of the voting
securities, or of any class of security, of any person, the
beneficial ownership of a specified percentage of which would have
constituted a conflicting interest under paragraph (6), (7) or (8)
of this Subsection. As to any such securities of which the Trustee
acquired ownership through becoming executor, administrator or
testamentary trustee of an estate which included them, the
provisions of the preceding sentence shall not apply, for a period
of two years from the date of such acquisition, to the extent that
such securities included in such estate do not exceed 25% of such
<PAGE>
voting securities or 25% of any such class of security. Promptly
after May 15 in each calendar year, the Trustee shall make a check
of its holdings of such securities in any of the above-mentioned
capacities as of such May 15. If the Company fails to make payment
in full of the principal of (or premium, if any) or interest, if
any, on any of the Securities when and as the same becomes due and
payable, and such failure continues for 30 days thereafter, the
Trustee shall make a prompt check of its holdings of such
securities in any of the above-mentioned capacities as of the date
of the expiration of such 30-day period, and after such date,
notwithstanding the foregoing provisions of this paragraph, all
such securities so held by the Trustee, with sole or joint control
over such securities vested in it, shall, but only so long as such
failure shall continue, be considered as though beneficially owned
by the Trustee for the purposes of paragraphs (6), (7) and (8) of
this Subsection.
The specification of percentages in paragraphs (5) to (9),
inclusive, of this Subsection shall not be construed as indicating that the
ownership of such percentages of the securities of a person is or is not
necessary or sufficient to constitute direct or indirect control for the
purposes of paragraph (3) or (7) of this Subsection.
For the purposes of paragraphs (6), (7), (8) and (9) of this
Subsection only, (i) the terms "security" and "securities" shall include only
such securities as are generally known as corporate securities, but shall not
include any note or other evidence of indebtedness issued to evidence an
obligation to repay moneys lent to a person by one or more banks, trust
companies or banking firms, or any certificate of interest or participation
in any such note or evidence of indebtedness; (ii) an obligation shall be
deemed to be "in default" when a default in payment of principal shall have
continued for 30 days or more and shall not have been cured; and (iii) the
Trustee shall not be deemed to be the owner or holder of (A) any security
which it holds as collateral security, as trustee or otherwise, for an
obligation which is not in default as defined in clause (ii) above, or (B)
any security which it holds as collateral security under this Indenture,
irrespective of any default hereunder, or (C) any security which it holds as
agent for collection, or as custodian, escrow agent or depositary, or in any
similar representative capacity.
(d) For the purposes of this Section:
(1) The term "underwriter", when used with reference to the
Company, means every person who, within three years prior to the
time as of which the determination is made, has purchased from the
Company with a view to, or has offered or sold for the Company in
connection with, the distribution of any security of the Company
outstanding at such time, or has participated or has had a direct
or indirect participation in any such undertaking, or has
participated or has had a participation in the direct or indirect
underwriting of any such undertaking, but such term shall not
include a person whose interest was limited to a commission from an
underwriter or dealer not in excess of the usual and customary
distributors' or sellers' commission.
<PAGE>
(2) The term "director" means any director of a corporation
or any individual performing similar functions with respect to any
organization, whether incorporated or unincorporated.
(3) The term "person" means an individual, a corporation, a
partnership, an association, a joint-stock company, a trust, an
unincorporated organization or a government or political
subdivision thereof. As used in this paragraph, the term "trust"
shall include only a trust where the interest or interests of the
beneficiary or beneficiaries are evidenced by a security.
(4) The term "voting security" means any security presently
entitling the owner or holder thereof to vote in the direction or
management of the affairs of a person, or any security issued under
or pursuant to any trust, agreement or arrangement whereby a
trustee or trustees or agent or agents for the owner or holder of
such security are presently entitled to vote in the direction or
management of the affairs of a person.
(5) The term "Company" means any obligor on the Securities.
(6) The term "executive officer" means the president, every
vice president, every trust officer, the cashier, the secretary and
the treasurer of a corporation, and any individual customarily
performing similar functions with respect to any organization
whether incorporated or unincorporated, but shall not include the
chairman of the board of directors.
(e) The percentages of voting securities and other securities
specified in this Section shall be calculated in accordance with the
following provisions:
(1) A specified percentage of the voting securities of the
Trustee, the Company or any other person referred to in this
Section (each of whom is referred to as a "person" in this
paragraph) means such amount of the outstanding voting securities
of such person as entitles the holder or holders thereof to cast
such specified percentage of the aggregate votes which the holders
of all the outstanding voting securities of such person are
entitled to cast in the direction or management of the affairs of
such person.
(2) A specified percentage of a class of securities of a
person means such percentage of the aggregate amount of securities
of the class outstanding.
(3) The term "amount", when used in regard to securities,
means the principal amount if relating to evidences of
indebtedness, the number of shares if relating to capital shares
and the number of units if relating to any other kind of security.
(4) The term "outstanding" means issued and not held by or
for the account of the issuer. The following securities shall not
be deemed outstanding within the meaning of this definition:
<PAGE>
(i) securities of an issuer held in a sinking fund
relating to securities of the issuer of the same class;
(ii) securities of an issuer held in a sinking fund
relating to another class of securities of the issuer, if the
obligation evidenced by such other class of securities is not
in default as to principal or interest or otherwise;
(iii) securities pledged by the issuer thereof as
security for an obligation of the issuer not in default as to
principal or interest or otherwise; and
(iv) securities held in escrow if placed in escrow by
the issuer thereof;
provided, however, that any voting securities of an issuer shall be deemed
outstanding if any person other than the issuer is entitled to exercise the
voting rights thereof.
(5) A security shall be deemed to be of the same class as
another security if both securities confer upon the holder or
holders thereof substantially the same rights and privileges;
provided, however, that, in the case of secured evidences of
indebtedness, all of which are issued under a single indenture,
differences in the interest rates or maturity dates of various
series thereof shall not be deemed sufficient to constitute such
series different classes and provided, further, that, in the case
of unsecured evidences of indebtedness, differences in the interest
rates or maturity dates thereof shall not be deemed sufficient to
constitute them securities of different classes, whether or not
they are issued under a single indenture.
SECTION 6.9 Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be a
corporation organized and doing business under the laws of the United States
of America, any State thereof or the District of Columbia, authorized under
such laws to exercise corporate trust powers, having a combined capital and
surplus of at least $50,000,000 subject to supervision or examination by
Federal or State authority and, if there be such a corporation willing and
able to act as trustee on reasonable and customary terms, having its
Corporate Trust Office in the Borough of Manhattan, The City of New York. If
such corporation publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority,
then for the purposes of this Section, the combined capital and surplus of
such corporation shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time
the Trustee shall cease to be eligible in accordance with the provisions of
this Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
SECTION 6.10 Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of
a successor Trustee pursuant to this Article shall become effective
until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of Section 6.11.
<PAGE>
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the
Company. If the instrument of acceptance by a successor Trustee required
by Section 6.11 shall not have been delivered to the Trustee within 30
days after the giving of such notice of resignation, the resigning
Trustee may petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of
such series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series, delivered
to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 6.8(a)
after written request therefor by the Company or by any Holder who
has been a bona fide Holder of a Security for at least six months,
or
(2) the Trustee shall cease to be eligible under Section 6.9
and shall fail to resign after written request therefor by the
Company or by any such Holder, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of
its property shall be appointed or any public officer shall take
charge or control of the Trustee or of its property or affairs for
the purpose of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to all Securities, or (ii) subject to Section 5.14, any
Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any
court of competent jurisdiction for the removal of the Trustee with respect
to all Securities and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any
cause, with respect to the Securities of one or more series, the
Company, by a Board Resolution, shall promptly appoint a successor
Trustee or Trustees with respect to the Securities of that or those
series (it being understood that any such successor Trustee may be
appointed with respect to the Securities of one or more or all of such
series and that at any time there shall be only one Trustee with respect
to the Securities of any particular series) and shall comply with the
applicable requirements of Section 6.11. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy,
a successor Trustee with respect to the Securities of any series shall
be appointed by Act of the Holders of a majority in principal amount of
the Outstanding Securities of such series delivered to the Company and
the retiring Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment in accordance with the
applicable requirements of Section 6.11, become the successor Trustee
with respect to the Securities of such series and to that extent
supersede the successor Trustee appointed by the Company. If no
<PAGE>
successor Trustee with respect to the Securities of any series shall
have been so appointed by the Company or the Holders and accepted
appointment in the manner required by Section 6.11, any Holder who has
been a bona fide Holder of a Security of such series for at least six
months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the appointment of a
successor Trustee with respect to the Securities of such series.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and
each appointment of a successor Trustee with respect to the Securities
of any series by mailing written notice of such event by first-class
mail, postage prepaid, to all Holders of Securities of such series as
their names and addresses appear in the Security Register. Each notice
shall include the name of the successor Trustee with respect to the
Securities of such series and the address of its Corporate Trust Office.
SECTION 6.11 Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee
with respect to all Securities, every such successor Trustee so
appointed shall execute, acknowledge and deliver to the Company and to
the retiring Trustee an instrument accepting such appointment, and
thereupon the resignation or removal of the retiring Trustee shall
become effective and such successor Trustee, without any further act,
deed or conveyance, shall become vested with all the rights, powers,
trusts and duties of the retiring Trustee; but, on the request of the
Company or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring
to such successor Trustee all the rights, powers and trusts of the
retiring Trustee and shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring Trustee
hereunder.
(b) In case of the appointment hereunder of a successor Trustee
with respect to the Securities of one or more (but not all) series, the
Company, the retiring Trustee and each successor Trustee with respect to
the Securities of one or more series shall execute and deliver an
indenture supplemental hereto wherein each successor Trustee shall
accept such appointment and which (1) shall contain such provisions as
shall be necessary or desirable to transfer and confirm to, and to vest
in, each successor Trustee all the rights, powers, trusts and duties of
the retiring Trustee with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates, (2)
if the retiring Trustee is not retiring with respect to all Securities,
shall contain such provisions as shall be deemed necessary or desirable
to confirm that all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series
as to which the retiring Trustee is not retiring shall continue to be
vested in the retiring Trustee, and (3) shall add to or change any of
the provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one
Trustee, it being understood that nothing herein or in such supplemental
indenture shall constitute such Trustees co-trustees of the same trust
and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder
administered by any other such Trustee; and upon the execution and
<PAGE>
delivery of such supplemental indenture the resignation or removal of
the retiring Trustee shall become effective to the extent provided
therein and each such successor Trustee, without any further act, deed
or conveyance, shall become vested with all the rights, powers, trusts
and duties of the retiring Trustee with respect to the Securities of
that or those series to which the appointment of such successor Trustee
relates; but, on request of the Company or any successor trustee, such
retiring Trustee shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring Trustee
hereunder with respect to the Securities of that or those series to
which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in
and confirming to such successor Trustee all such rights, powers and
trusts referred to in paragraph (a) or (b) of this Section, as the case
may be.
(d) No successor Trustee shall accept its appointment unless at
the time of such acceptance such successor Trustee shall be qualified
and eligible under this Article.
SECTION 6.12 Merger, Conversion, Consolidation or Succession to
Business.
Any corporation into which the Trustee may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under
this Article, without the execution or filing of any paper or any further act
on the part of any of the parties hereto. In case any Securities shall have
been authenticated, but not delivered, by the Trustee then in office, any
successor by merger, conversion or consolidation to such authenticating
Trustee may adopt such authentication and deliver the Securities so
authenticated with the same effect as if such successor Trustee had itself
authenticated such Securities.
SECTION 6.13 Preferential Collection of Claims Against Company.
(a) Subject to Subsection (b) of this Section, if the Trustee
shall be or shall become a creditor, directly or indirectly, secured or
unsecured, of the Company within four months prior to a default, as
defined in Subsection (c) of this Section, or subsequent to such a
default, then, unless and until such default shall be cured, the Trustee
shall set apart and hold in a special account for the benefit of the
Trustee individually, the Holders of the Securities and the holders of
other indenture securities, as defined in Subsection (c) of this
Section:
(1) an amount equal to any and all reductions in the amount
due and owing upon any claim as such creditor in respect of
principal or interest, effected after the beginning of such four
months' period and valid as against the Company and its other
creditors, except any such reduction resulting from the receipt or
disposition of any property described in paragraph (2) of this
<PAGE>
Subsection, or from the exercise of any right of set-off which the
Trustee could have exercised if a petition in bankruptcy had been
filed by or against the Company upon the date of such default; and
(2) all property received by the Trustee in respect of any
claims as such creditor, either as security therefor, or in
satisfaction or composition thereof, or otherwise, after the
beginning of such four months' period, or an amount equal to the
proceeds of any such property, if disposed of, subject, however, to
the rights, if any, of the Company and its other creditors in such
property or such proceeds.
Nothing herein contained, however, shall affect the right of the
Trustee:
(A) to retain for its own account (i) payments made on
account of any such claim by any person (other than the Company)
who is liable thereon, and (ii) the proceeds of the bona fide sale
of any such claim by the Trustee to a third person, and (iii)
distributions made in cash, securities or other property in respect
of claims filed against the Company in bankruptcy or receivership
or in proceedings for reorganization pursuant to the Federal
Bankruptcy Act or applicable State law;
(B) to realize, for its own account, upon any property held
by it as security for any such claim, if such property was so held
prior to the beginning of such four months' period;
(C) to realize, for its own account, but only to the extent
of the claim hereinafter mentioned, upon any property held by it as
security for any such claim, if such claim was created after the
beginning of such four months' period and such property was
received as security therefor simultaneously with the creation
thereof, and if the Trustee shall sustain the burden of proving
that at the time such property was so received the Trustee had no
reasonable cause to believe that a default, as defined in
Subsection (c) of this Section, would occur within four months; or
(D) to receive payment on any claim referred to in paragraph
(B) or (C), against the release of any property held as security
for such claim as provided in paragraph (B) or (C), as the case may
be, to the extent of the fair value of such property.
For the purposes of paragraphs (B), (C) and (D), property
substituted after the beginning of such four months' period for property held
as security at the time of such substitution shall, to the extent of the fair
value of the property released, have the same status as the property
released, and, to the extent that any claim referred to in any of such
paragraphs is created in renewal of or in substitution for or for the purpose
of repaying or refunding any pre-existing claim of the Trustee as such
creditor, such claim shall have the same status as such pre-existing claim.
If the Trustee shall be required to account, the funds and property
held in such special account and the proceeds thereof shall be apportioned
among the Trustee, the Holders and the holders of other indenture securities
in such manner that the Trustee, the Holders and the holders of other
indenture securities realize, as a result of payments from such special
<PAGE>
account and payments of dividends on claims filed against the Company in
bankruptcy or receivership or in proceedings for reorganization pursuant to
the Federal Bankruptcy Act or applicable State law, the same percentage of
their respective claims, figured before crediting to the claim of the Trustee
anything on account of the receipt by it from the Company of the funds and
property in such special account and before crediting to the respective
claims of the Trustee and the Holders and the holders of other indenture
securities dividends on claims filed against the Company in bankruptcy or
receivership or in proceedings for reorganization pursuant to the Federal
Bankruptcy Act or applicable State law, but after crediting thereon receipts
on account of the indebtedness represented by their respective claims from
all sources other than from such dividends and from the funds and property so
held in such special account. As used in this paragraph, with respect to any
claim, the term "dividends" shall include any distribution with respect to
such claim, in bankruptcy or receivership or proceedings for reorganization
pursuant to the Federal Bankruptcy Act or applicable State law, whether such
distribution is made in cash, securities or other property, but shall not
include any such distribution with respect to the secured portion, if any, of
such claim. The court in which such bankruptcy, receivership or proceedings
for reorganization is pending shall have jurisdiction (i) to apportion among
the Trustee, the Holders and the holders of other indenture securities, in
accordance with the provisions of this paragraph, the funds and property held
in such special account and proceeds thereof, or (ii) in lieu of such
apportionment, in whole or in part, to give to the provisions of this
paragraph due consideration in determining the fairness of the distributions
to be made to the Trustee and the Holders and the holders of other indenture
securities with respect to their respective claims, in which event it shall
not be necessary to liquidate or to appraise the value of any securities or
other property held in such special account or as security for any such
claim, or to make a specific allocation of such distributions as between the
secured and unsecured portions of such claims, or otherwise to apply the
provisions of this paragraph as a mathematical formula.
Any Trustee which has resigned or been removed after the beginning
of such four months' period shall be subject to the provisions of this
Subsection as though such resignation or removal had not occurred. If any
Trustee has resigned or been removed prior to the beginning of such four
months' period, it shall be subject to the provisions of this Subsection if
and only if the following conditions exist:
(i) the receipt of property or reduction of claim, which would
have given rise to the obligation to account, if such Trustee had
continued as Trustee, occurred after the beginning of such four months'
period; and
(ii) such receipt of property or reduction of claim occurred
within four months after such resignation or removal.
(b) There shall be excluded from the operation of Subsection (a)
of this Section a creditor relationship arising from:
(1) the ownership or acquisition of securities issued under
any indenture, or any security or securities having a maturity of
one year or more at the time of acquisition by the Trustee;
(2) advances authorized by a receiver or bankruptcy court of
competent jurisdiction or by this Indenture, for the purpose of
<PAGE>
preserving any property which shall at any time be subject to the
lien of this Indenture or of discharging tax liens or other prior
liens or encumbrances thereon, if notice of such advances and of
the circumstances surrounding the making thereof is given to the
Holders at the time and in the manner provided in this Indenture;
(3) disbursements made in the ordinary course of business in
the capacity of trustee under an indenture, transfer agent,
registrar, custodian, paying agent, fiscal agent or depositary, or
other similar capacity;
(4) an indebtedness created as a result of services rendered
or premises rented; or an indebtedness created as a result of goods
or securities sold in a cash transaction, as defined in Subsection
(c) of this Section;
(5) the ownership of stock or of other securities of a
corporation organized under the provisions of Section 25(a) of the
Federal Reserve Act, as amended, which is directly or indirectly a
creditor of the Company; and
(6) the acquisition, ownership, acceptance or negotiation of
any drafts, bills of exchange, acceptances or obligations which
fall within the classification of self-liquidating paper, as
defined in Subsection (c) of this Section.
(c) For the purposes of this Section only:
(1) the term "default" means any failure to make payment in
full of the principal of or interest on any of the Securities or
upon the other indenture securities when and as such principal or
interest becomes due and payable;
(2) the term "other indenture securities" means securities
upon which the Company is an obligor (as defined in the Trust
Indenture Act) outstanding under any other indenture (i) under
which the Trustee is also trustee, (ii) which contains provisions
substantially similar to the provisions of this Section, and (iii)
under which a default exists at the time of the apportionment of
the funds and property held in such special account;
(3) the term "cash transaction" means any transaction in
which full payment for goods or securities sold is made within
seven days after delivery of the goods or securities in currency or
in checks or other orders drawn upon banks or bankers and payable
upon demand;
(4) the term "self-liquidating paper" means any draft, bill
of exchange, acceptance or obligation which is made, drawn,
negotiated or incurred by the Company for the purpose of financing
the purchase, processing, manufacturing, shipment, storage or sale
of goods, wares or merchandise and which is secured by documents
evidencing title to, possession of, or a lien upon, the goods,
wares or merchandise or the receivables or proceeds arising from
the sale of the goods, wares or merchandise previously constituting
the security, provided the security is received by the Trustee
simultaneously with the creation of the creditor relationship with
<PAGE>
the Company arising from the making, drawing, negotiating or
incurring of the draft, bill of exchange, acceptance or obligation;
(5) the term "Company" means any obligor upon the Securities;
and
(6) the term "Federal Bankruptcy Act" means the Bankruptcy
Act or Title 11 of the United States Code.
SECTION 6.14 Authenticating Agents.
From time to time the Trustee, in its sole discretion, may appoint
one or more Authenticating Agents with respect to one or more series of
Securities, which may include the Company or any Affiliate of the Company,
with power to act on the Trustee's behalf and subject to its direction in the
authentication and delivery of Securities of such series or in connection
with transfers and exchanges under Sections 3.4, 3.5, 3.6, and 11.7 as fully
to all intents and purposes as though the Authenticating Agent had been
expressly authorized by those Sections of this Indenture to authenticate and
deliver Securities of such series. For all purposes of this Indenture, the
authentication and delivery of Securities by an Authenticating Agent pursuant
to this Section shall be deemed to be authentication and delivery of such
Securities "by the Trustee". Each such Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation organized
and doing business under the laws of the United States, any State thereof or
the District of Columbia, authorized under such laws to exercise corporate
trust powers, having a combined capital and surplus of at least $25,000,000
and, if other than the Company or any Affiliate of the Company, subject to
supervision or examination by Federal, State or District of Columbia
authority. If such corporation publishes reports of condition at least
annually pursuant to law or the requirements of such authority, then for the
purposes of this Section the combined capital and surplus of such corporation
shall be deemed to be its combined capital and surplus as set forth in its
most recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immedi-
ately in the manner and with the effect specified in this Section.
Any corporation into which any Authenticating Agent may be merged
or with which it may be consolidated, or any corporation resulting from any
merger or consolidation or to which any Authenticating Agent shall be a
party, or any corporation succeeding to the corporate trust business of any
Authenticating Agent, shall be the successor of the Authenticating Agent
hereunder, if such successor corporation is otherwise eligible under this
Section, without the execution or filing of any paper or any further act on
the part of the parties hereto or the Authenticating Agent or such successor
corporation.
Any Authenticating Agent may resign at any time by giving written
notice of resignation to the Trustee and to the Company. The Trustee may at
any time terminate the agency of any Authenticating Agent by giving written
notice of termination to such Authenticating Agent and to the Company. Upon
receiving such a notice of resignation or upon such a termination, or in case
at any time any Authenticating Agent shall cease to be eligible under this
Section, the Trustee may appoint a successor Authenticating Agent which shall
be acceptable to the Company and shall mail notice of such appointment to all
Holders of Securities of the series with respect to which such Authenticating
<PAGE>
Agent will serve, as the names and addresses of such Holders appear on the
Security Register. Any successor Authenticating Agent, upon acceptance of
its appointment hereunder, shall become vested with all the rights, powers
and duties of its predecessor hereunder, with like effect as if originally
named as an Authenticating Agent. No successor Authenticating Agent shall be
appointed unless eligible under the provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services, and the Trustee shall be
entitled to be reimbursed for such payments, subject to Section 6.7.
If an appointment with respect to one or more series of Securities
is made pursuant to this Section, the Securities of such series may have
endorsed thereon, in addition to the Trustee's certificate of authentication,
an alternate certificate of authentication in the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
,
- ----------------------------
as Trustee
By
----------------------------
As Authenticating Agent
By
----------------------------
Authorized Officer
The provisions of Sections 3.9, 6.4 and 6.5 shall be applicable to
any Authenticating Agent.
ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.1 Company to Furnish Trustee Names and Addresses
of Holders.
The Company will furnish or cause to be furnished to the Trustee
with respect to the Securities of each series
(a) semi-annually, not later than 15 days after each Regular
Record Date, or, in the case of any series of Securities on which semi-
annual interest is not payable, not more than 15 days after such semi--
annual dates as may be specified by the Trustee, a list, in such form as
the Trustee may reasonably require, of the names and addresses of the
Holders as of such Regular Record Date or semi-annual date, as the case
may be, and
<PAGE>
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a
list of similar form and content as of a date not more than 15 days
prior to the time such list is furnished;
provided, however, that so long as the Trustee is Security Registrar for any
series of Securities, no such list shall be required to be furnished with
respect to any such series.
SECTION 7.2 Preservation of Information; Communications
to Holders.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders contained in
the most recent list furnished to the Trustee as provided in Section 7.1
and the names and addresses of Holders received by the Trustee in its
capacity as Security Registrar. The Trustee may destroy any list
furnished to it as provided in Section 7.1 upon receipt of a new list so
furnished.
(b) If three or more Holders (herein referred to as "applicants")
apply in writing to the Trustee, and furnish to the Trustee reasonable
proof that each such applicant has owned a Security for a period of at
least six months preceding the date of such application, and such
application states that the applicants desire to communicate with other
Holders with respect to their rights under this Indenture or under the
Securities and is accompanied by a copy of the form of proxy or other
communication which such applicants propose to transmit, then the
Trustee shall, within five business days after the receipt of such
application, at its election, either
(i) afford such applicants access to the information preserved
at the time by the Trustee in accordance with Section 7.2(a), or
(ii) inform such applicants as to the approximate number of
Holders whose names and addresses appear in the information preserved at
the time by the Trustee in accordance with Section 7.2(a), and as to the
approximate cost of mailing to such Holders the form of proxy or other
communication, if any, specified in such application.
If the Trustee shall elect not to afford such applicants access to
such information, the Trustee shall, upon the written request of such
applicants, mail to each Holder whose name and address appear in the
information preserved at the time by the Trustee in accordance with Section
7.2(a) a copy of the form of proxy or other communication which is specified
in such request, with reasonable promptness after a tender to the Trustee of
the material to be mailed and of payment, or provision for the payment, of
the reasonable expenses of mailing, unless within five days after such tender
the Trustee shall mail to such applicants and file with the Commission,
together with a copy of the material to be mailed, a written statement to the
effect that, in the opinion of the Trustee, such mailing would be contrary to
the best interest of the Holders or would be in violation of applicable law.
Such written statement shall specify the basis of such opinion. If the
Commission, after opportunity for a hearing upon the objections specified in
the written statement so filed, shall enter an order refusing to sustain any
of such objections or if, after the entry of an order sustaining one or more
of such objections, the Commission shall find, after notice and opportunity
<PAGE>
for hearing, that all the objections so sustained have been met and shall
enter an order so declaring, the Trustee shall mail copies of such material
to all such Holders with reasonable promptness after the entry of such order
and the renewal of such tender; otherwise the Trustee shall be relieved of
any obligation or duty to such applicants respecting their application.
(c) Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any agent of either of them shall be held accountable by
reason of the disclosure of any such information as to the names and
addresses of the Holders in accordance with Section 7.2(b), regardless
of the source from which such information was derived, and that the
Trustee shall not be held accountable by reason of mailing any material
pursuant to a request made under Section 7.2(b).
SECTION 7.3 Reports by Trustee.
(a) Within 60 days after the first May 15 which occurs not less
than 60 days following the first date of issuance of Securities of any
series under this Indenture and within 60 days after May 15 in every
year thereafter, the Trustee shall transmit by mail to all Holders, as
their names and addresses appear in the Security Register, a brief
report dated as of such May 15 with respect to:
(1) its eligibility under Section 6.9 and its qualifications
under Section 6.8, or in lieu thereof, if to the best of its
knowledge it has continued to be eligible and qualified under said
Sections, a written statement to such effect;
(2) the character and amount of any advances (and if the
Trustee elects so to state, the circumstances surrounding the
making thereof) made by the Trustee (as such) which remain unpaid
on the date of such report, and for the reimbursement of which it
claims or may claim a lien or charge, prior to that of the
Securities, on any property or funds held or collected by it as
Trustee, except that the Trustee shall not be required (but may
elect) to report such advances if such advances so remaining unpaid
aggregate not more than 1/2 of 1% of the principal amount of the
Securities Outstanding on the date of such report;
(3) the amount, interest rate and maturity date of all other
indebtedness owing by the Company (or by any other obligor on the
Securities) to the Trustee in its individual capacity, on the date
of such report, with a brief description of any property held as
collateral security therefor, except an indebtedness based upon a
creditor relationship arising in any manner described in Section
6.13(b)(2), (3), (4) or (6);
(4) the property and funds, if any, physically in the
possession of the Trustee as such on the date of such report;
(5) any additional issue of Securities which the Trustee has
not previously reported; and
(6) any action taken by the Trustee in the performance of its
duties hereunder which it has not previously reported and which in
its opinion materially affects the Securities, except action in
<PAGE>
respect of a default, notice of which has been or is to be withheld
by the Trustee in accordance with Section 6.2.
(b) The Trustee shall transmit by mail to all Holders, as their
names and addresses appear in the Security Register, a brief report with
respect to the character and amount of any advances (and if the Trustee
elects so to state, the circumstances surrounding the making thereof)
made by the Trustee (as such) since the date of the last report
transmitted pursuant to Subsection (a) of this Section (or if no such
report has yet been so transmitted, since the date of execution of this
instrument) for the reimbursement of which it claims or may claim a lien
or charge, prior to that of the Securities, on property or funds held or
collected by it as Trustee and which it has not previously reported
pursuant to this Subsection, except that the Trustee shall not be
required (but may elect) to report such advances if such advances
remaining unpaid at any time aggregate 10% or less of the principal
amount of the Securities Outstanding at such time, such report to be
transmitted within 90 days after such time.
(c) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock
exchange upon which any Securities are listed, with the Commission and
with the Company. The Company will notify the Trustee when any
Securities are listed on any stock exchange.
SECTION 7.4 Reports by Company.
The Company shall:
(1) file with the Trustee, within 15 days after the Company
is required to file the same with the Commission, copies of the
annual reports and of the information, documents and other reports
(or copies of such portions of any of the foregoing as the
Commission may from time to time by rules and regulations
prescribe) which the Company may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934; or, if the Company is not required
to file information, documents or reports pursuant to either of
said Sections, then it shall file with the Trustee and the
Commission, in accordance with rules and regulations prescribed
from time to time by the Commission, such of the supplementary and
periodic information, documents and reports which may be required
pursuant to Section 13 of the Securities Exchange Act of 1934 in
respect of a security listed and registered on a national
securities exchange as may be prescribed from time to time in such
rules and regulations;
(2) file with the Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time by the
Commission, such additional information, documents and reports with
respect to compliance by the Company with the conditions and
covenants of this Indenture as may be required from time to time by
such rules and regulations; and
(3) transmit by mail to all Holders, as their names and
addresses appear in the Security Register, within 30 days after the
filing thereof with the Trustee, such summaries of any information,
<PAGE>
documents and reports required to be filed by the Company pursuant
to paragraphs (1) and (2) of this Section as may be required by
rules and regulations prescribed from time to time by the
Commission.
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, SALE OR LEASE
SECTION 8.1 Company May Consolidate, Etc., on Certain Terms.
Nothing contained in this Indenture or in any of the Securities
shall prevent any consolidation or merger of the Company with or into any
other corporation or corporations (whether or not affiliated with the
Company), or successive consolidations or mergers in which the Company or its
successor or successors shall be a party or parties, or shall prevent any
sale, conveyance or lease of all or substantially all the property of the
Company, to any other corporation (whether or not affiliated with the
Company) authorized to acquire and operate the same; provided, however, and
the Company hereby covenants and agrees, that upon any such consolidation,
merger, sale, conveyance or lease, the due and punctual payment of the
principal of (and premium, if any) and interest, if any, on all of the
Securities, according to their tenor, and the due and punctual performance
and observance of all of the covenants and conditions of this Indenture to be
performed by the Company (and, in the case of Securities issued to a Trust,
the obligations of the Company under any Trust Agreement and Guarantee),
shall be expressly assumed, by supplemental indenture satisfactory in form to
the Trustee, executed and delivered to the Trustee by the corporation (if
other than the Company) formed by such consolidation, or into which the
Company shall have been merged, or by the corporation which shall have
acquired or leased such property, and provided further, that such corporation
shall be a solvent corporation organized under the laws of the United States
of America or a State thereof or the District of Columbia. The Company will
not so consolidate or merge, or make any such sale, lease or other
disposition, and the Company will not permit any other corporation to merge
into the Company, unless immediately after the proposed consolidation,
merger, sale, lease or other disposition, and after giving effect thereto,
the Company or such successor corporation, as the case may be, will not be in
default in the performance or observance of any of the terms, covenants,
agreements or conditions contained in this Indenture.
Further, in the case of Securities issued to a Trust, the Company
will not so consolidate or merge, or make any such sale, lease or other
disposition, and the Company will not permit any other corporation to merge
into the Company, unless, for so long as Securities registered in the name of
a Trust or property trustee are outstanding, such consolidation, merger or
sale, lease or other disposition is permitted under the Trust Agreement and
related Guarantee pertaining to such Securities and does not give rise to any
breach or violation thereof.
SECTION 8.2 [Intentionally Omitted]
SECTION 8.3 Successor Corporation to be Substituted.
In case of any such consolidation, merger, sale or conveyance and
upon the assumption by the successor corporation, by supplemental indenture,
executed and delivered to the Trustee and satisfactory in form to the
<PAGE>
Trustee, of the due and punctual payment of the principal of and premium, if
any, and interest, if any, on all of the Securities and the due and punctual
performance of all of the covenants and conditions of this Indenture to be
performed by the Company, such successor corporation shall succeed to and be
substituted for the Company, with the same effect as if it had been named
herein as the party of the first part, and the Company shall thereupon be
relieved of any further obligation or liabilities hereunder or upon the
Securities, and the Company as the predecessor corporation may thereupon or
at any time thereafter be dissolved, wound up or liquidated. Such successor
corporation thereupon may cause to be signed, and may issue either in its own
name or in the name of Ingersoll-Rand Company any or all of the Securities of
any series issuable hereunder which theretofore shall not have been signed by
the Company and delivered to the Trustee; and, upon the order of such
successor corporation instead of the Company and subject to all the terms,
conditions and limitations in this Indenture prescribed, the Trustee shall
authenticate and shall deliver Securities of any series which previously
shall have been signed and delivered by the officers of the Company to the
Trustee for authentication, and any Securities which such successor
corporation thereafter shall cause to be signed and delivered to the Trustee
for that purpose. All the Securities of any series so issued shall in all
respects have the same legal rank and benefit under this Indenture as the
Securities of such series theretofore or thereafter issued in accordance with
the terms of this Indenture as though all of such Securities had been issued
at the date of the execution hereof.
In case of any such consolidation, merger, sale, conveyance or
lease such changes in phraseology and form (but not in substance) may be made
in the Securities thereafter to be issued as may be appropriate.
SECTION 8.4 Opinion of Counsel to be Given Trustee.
The Trustee, subject to Section 6.1, shall be entitled to receive
an Opinion of Counsel as conclusive evidence that any such consolidation,
merger, sale, conveyance or lease and any such assumption complies with the
provisions of this Article.
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1 Supplemental Indentures without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by
or pursuant to a Board Resolution, and the Trustee, at any time and from time
to time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another corporation to the
Company and the assumption by any such successor of the covenants
of the Company herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit of
the Holders of all or any series of Securities (and if such
covenants are to be for the benefit of less than all series of
Securities, stating that such covenants are expressly being
included solely for the benefit of such series) or to surrender any
right or power herein conferred upon the Company; or
<PAGE>
(3) to add any additional Events of Default; or
(4) to add to or change any of the provisions of this
Indenture to such extent as shall be necessary to permit or
facilitate the issuance of Securities in bearer form, registrable
or not registrable as to principal, and with or without interest
coupons; or
(5) to change or eliminate any of the provisions of this
Indenture, provided that any such change or elimination shall
become effective only when there is no Security Outstanding of any
series created prior to the execution of such supplemental
indenture which is entitled to the benefit of such provision; or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any
series as permitted by Sections 2.1 and 3.1; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of
one or more series and to add to or change any of the provisions of
this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one
Trustee, pursuant to the requirements of Section 6.11(b); or
(9) to provide for any rights of the Holders of Securities of
any series to require the repurchase of Securities of such series
from the Company; or
(10) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture, provided such action shall
not adversely affect the interests of the Holders of Securities of
any series in any material respect or, in the case of the
Securities of a series issued to a Trust and for so long as any of
the corresponding series of Preferred Securities issued by such
Trust shall remain outstanding, the holders of such Preferred
Securities.
SECTION 9.2 Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in
aggregate principal amount of the Outstanding Securities of all series
affected by such supplemental indenture (voting as one class), by Act of said
Holders delivered to the Company and the Trustee, the Company, when
authorized by or pursuant to a Board Resolution, and the Trustee may enter
into an indenture or indentures supplemental hereto for the purpose of adding
any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of Securities of such series under this Indenture; provided, however,
that no such supplemental indenture shall, without the consent of the Holder
of each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any
instalment of principal of or interest, if any, on, any Security,
<PAGE>
or reduce the principal amount thereof or the rate of interest
thereon or any premium payable upon the redemption thereof, or
reduce the amount of the principal of an Original Issue Discount
Security that would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 5.2, or
change any Place of Payment where, or the coin or currency in
which, any Security or any premium or the interest thereon is
payable, or impair the right to institute suit for the enforcement
of any such payment on or after the Stated Maturity thereof (or, in
the case of redemption, on or after the Redemption Date), or
(2) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose Holders
is required for any such supplemental indenture, or the consent of
whose Holders is required for any waiver (of compliance with
certain provisions of this Indenture or certain defaults hereunder
and their consequences) provided for in this Indenture, or
(3) modify any of the provisions of this Section, Section
5.13 or Section 10.8, except to increase any such percentage or to
provide that certain other provisions of this Indenture cannot be
modified or waived without the consent of the Holder of each
Outstanding Security affected thereby, provided, however, that this
clause shall not be deemed to require the consent of any Holder
with respect to changes in the references to "the Trustee" and
concomitant changes in this Section and Section 10.8, or the
deletion of this proviso, in accordance with the requirements of
Sections 6.11(b) and 9.1(8), or
(4) modify any of the subordination provisions applicable to
any series of Securities in a manner adverse to the Holders of such
series of Securities.
provided, further, that, in the case of the Securities of a series issued to
a Trust, so long as any of the corresponding series of Preferred Securities
issued by such Trust remains outstanding, (i) no such amendment shall be made
that adversely affects the holders of such Preferred Securities in any
material respect, and no termination of this Indenture shall occur, and no
waiver of any Event of Default or compliance with any covenant under this
Indenture shall be effective, without the prior consent of the holders of at
least a majority of the aggregate Liquidation Amount (as defined in the Trust
Agreement under which such Trust is organized) of such Preferred Securities
then outstanding unless and until the principal (and premium, if any) of the
Securities of such series and all accrued and, subject to Section 3.7, unpaid
interest thereon have been paid in full and (ii) no amendment shall be made
to Section 5.8 of this Indenture that would impair the rights of the holders
of Preferred Securities provided therein without the prior consent of the
holders of each Preferred Security then outstanding unless and until the
principal (and premium, if any) of the Securities of such series and all
accrued and (subject to Section 3.7) unpaid interest thereon have been paid
in full.
A supplemental indenture which changes or eliminates any covenant
or other provision of this Indenture which has expressly been included solely
for the benefit of one or more particular series of Securities or Preferred
Securities, or which modifies the rights of the Holders of Securities or
holders of Preferred Securities of such series with respect to such covenant
<PAGE>
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities or holders of Preferred Securities of
any other series.
It shall not be necessary for any Act of Holders under this Section
to approve the particular form of any proposed supplemental indenture, but it
shall be sufficient if such Act shall approve the substance thereof.
SECTION 9.3 Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby
of the trusts created by this Indenture, the Trustee shall be entitled to
receive, and (subject to Section 6.1) shall be fully protected in relying
upon, an Opinion of Counsel stating that the execution of such supplemental
indenture is authorized or permitted by this Indenture. The Trustee may, but
shall not be obligated to, enter into any such supplemental indenture which
affects the Trustee's own rights, duties or immunities under this Indenture
or otherwise.
SECTION 9.4 Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes;
and every Holder of Securities theretofore or thereafter authenticated and
delivered hereunder shall be bound thereby.
SECTION 9.5 Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article
shall conform to the requirements of the Trust Indenture Act as then in
effect.
SECTION 9.6 Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and
shall if required by the Trustee, bear a notation in form approved by the
Trustee as to any matter provided for in such supplemental indenture. If the
Company shall so determine, new Securities of any series so modified as to
conform, in the opinion of the Trustee and the Company, to any such
supplemental indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for Outstanding
Securities of such series.
SECTION 9.7 Effect on Senior Indebtedness.
No supplemental indenture shall directly or indirectly modify or
eliminate the provisions of Article XIII or the definition of "Senior
Indebtedness" in any manner which might terminate or impair the subordination
of the Securities to Senior Indebtedness without the prior written consent of
the Holders of the Senior Indebtedness.
<PAGE>
ARTICLE X
COVENANTS
SECTION 10.1 Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of (and
premium, if any) and interest, if any, on the Securities of that series in
accordance with the terms of the Securities and this Indenture.
SECTION 10.2 Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any series
of Securities an office or agency where Securities of that series may be
presented or surrendered for payment, where Securities of that series may be
surrendered for registration of transfer or exchange and where notices and
demands to or upon the Company in respect of the Securities of that series
and this Indenture may be served. The Company will give prompt written
notice to the Trustee of the location, and any change in the location, of
such office or agency. If at any time the Company shall fail to maintain any
such required office or agency or shall fail to furnish the Trustee with the
address thereof, such presentations, surrenders, notices and demands may be
made or served at the Corporate Trust Office of the Trustee, and the Company
hereby appoints the Trustee as its agent to receive all such presentations,
surrenders, notices and demands.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be
presented or surrendered for any or all such purposes and may from time to
time rescind such designations; provided, however, that no such designation
or rescission shall in any manner relieve the Company of its obligation to
maintain an office or agency in each Place of Payment for Securities of any
series for such purposes. The Company will give prompt written notice to the
Trustee of any such designation or rescission and of any change in the
location of any such other office or agency.
SECTION 10.3 Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of
the principal of (and premium, if any) or interest, if any, on any of the
Securities of that series, segregate and hold in trust for the benefit of the
persons entitled thereto a sum sufficient to pay the principal (and premium,
if any) or interest, if any, so becoming due until such sums shall be paid to
such persons or otherwise disposed of as herein provided and will promptly
notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it will, prior to each due date of the principal of
(and premium, if any) or interest, if any, on any securities of that series,
deposit with a Paying Agent a sum sufficient to pay the principal (and
premium, if any) or interest so becoming due, such sum to be held in trust
for the benefit of the persons entitled to such principal, premium or
interest, and (unless such Paying Agent is the Trustee) the Company will
promptly notify the Trustee of its action or failure so to act.
<PAGE>
The Company will cause each Paying Agent for any series of
Securities other than the Trustee to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject
to the provisions of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal
of (and premium, if any) or interest, if any, on Securities of that
series in trust for the benefit of the persons entitled thereto
until such sums shall be paid to such persons or otherwise disposed
of as herein provided;
(2) give the Trustee notice of any default by the Company (or
any other obligor upon the Securities of that series) in the making
of any payment of principal (and premium, if any) or interest, if
any, on the Securities of that series; and
(3) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the
Trustee all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay,
or by Company Order direct any Paying Agent to pay, to the Trustee all sums
held in trust by the Company or such Paying Agent, such sums to be held by
the Trustee upon the same trusts as those upon which such sums were held by
the Company or such Paying Agent; and, upon such payment by any Paying Agent
to the Trustee, such Paying Agent shall be released from all further
liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then
held by the Company, in trust for the payment of the principal of (and
premium, if any) or interest, if any, on any Security of any series and
remaining unclaimed for three years after such principal (and premium, if
any) or interest has become due and payable shall be paid to the Company on
Company Request, or (if then held by the Company) shall be discharged from
such trust; and the Holder of such Security shall thereafter, as an unsecured
general creditor, look only to the Company for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause
to be published once, in a newspaper published in the English language,
customarily published on each Business Day and of general circulation in the
City, County and State of New York, notice that such money remains unclaimed
and that, after a date specified therein, which shall not be less than 30
days from the date of such publication, any unclaimed balance of such money
then remaining will be repaid to the Company.
SECTION 10.4 [Intentionally Omitted.]
SECTION 10.5 [Intentionally Omitted.]
SECTION 10.6 Defeasance of Certain Obligations.
The Company may omit to comply with any term, provision or
condition set forth in any specified covenant set forth in any supplemental
indenture, Board Resolution or Officers' Certificate establishing any series
<PAGE>
of Securities with respect to the Securities of any series, provided that the
following conditions shall have been satisfied:
(1) The Company has deposited or caused to be irrevocably
deposited (except as provided in Section 4.2(c) and the last
paragraph of Section 10.3) with the Trustee (specifying that each
deposit is pursuant to this Section 10.6) as trust funds in trust,
specifically pledged as security for, and dedicated solely to, the
benefit of the Holders of the Securities of such series, (i) money
in an amount, or (ii) (except as provided in a supplemental
indenture with respect to such series) if Securities of such series
are not subject to repurchase at the option of Holders, (A) U.S.
Government Obligations which through the payment of interest and
principal in respect thereof in accordance with their terms will
provide not later than one day before the due date of any payment
referred to in clause (x) or (y) of this subparagraph (1) money in
an amount, or (B) a combination thereof, sufficient, in the opinion
of a nationally recognized firm of independent certified public
accountants expressed in a written certification thereof delivered
to the Trustee, to pay and discharge (x) the principal of (and
premium, if any) and each instalment of principal (and premium, if
any) and interest, if any, on the Outstanding Securities of such
series on the Stated Maturity of such principal or instalment of
principal or interest or to and including the Redemption Date
irrevocably designated by the Company pursuant to subparagraph (4)
of this Section and (y) any mandatory sinking fund payments
applicable to the Securities of such series on the day on which
such payments are due and payable in accordance with the terms of
the Indenture and of the Securities of such series;
(2) No Event of Default or event which with notice or lapse
of time would become an Event of Default (including by reason of
such deposit) with respect to the Securities of such series shall
have occurred and be continuing on the date of such deposit;
(3) The Company shall have delivered to the Trustee an
Opinion of Counsel to the effect that Holders of the Securities of
such series will not recognize income, gain or loss for Federal
income tax purposes as a result of such deposit and defeasance of
certain obligations; and
(4) If the Company has deposited or caused to be deposited
money or U.S. Government Obligations to pay or discharge the
principal of (and premium, if any) and interest, if any, on the
Outstanding Securities of a series to and including a Redemption
Date on which all of the Outstanding Securities of such series are
to be redeemed, such Redemption Date shall be irrevocably
designated by a Board Resolution delivered to the Trustee on or
prior to the date of deposit of such money or U.S. Government
Obligations, and such Board Resolution shall be accompanied by an
irrevocable Company Request that the Trustee give notice of such
redemption in the name and at the expense of the Company not less
than 30 nor more than 60 days prior to such Redemption Date in
accordance with Section 11.4.
<PAGE>
SECTION 10.7 Statement by Officers as to Default.
The Company will deliver to the Trustee on or before May 15 in each
year ending after the date hereof, an Officers' Certificate stating that in
the course of the performance by each signer of his duties as an officer of
the Company he would normally have knowledge of any default by the Company in
the performance and observance of any of the covenants contained in any
specified covenant set forth in any supplemental indenture, Board Resolution
or Officers' Certificate establishing any series of Securities, stating
whether or not he has knowledge of any such default and, if so, specifying
each such default of which such signer has knowledge and the nature thereof.
SECTION 10.8 Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any
term, provision or condition set forth in any specified covenant set forth in
any supplemental indenture, Board Resolution or Officers' Certificate
establishing any series of Securities if before the time for such compliance
the Holders of not less than a majority in aggregate principal amount of the
Outstanding Securities of all series affected by such omission (voting as one
class ) shall, by Act of such Holders, either waive such compliance in such
instance or generally waive compliance with such term, provision or
condition, but no such waiver shall extend to or affect such term, provision
or condition except to the extent so expressly waived, and, until such waiver
shall become effective, the obligations of the Company and the duties of the
Trustee in respect of any such term, provision or condition shall remain in
full force and effect.
SECTION 10.9 [Intentionally Omitted].
SECTION 10.10 Limitation On Dividends In Trust-Related
Transactions.
The provisions of this Section shall apply so long as subordinated
Securities of any Series are outstanding, except to the extent that the
provisions contained in this Section 10.10 are expressly made inapplicable to
the subordinated Securities of a particular series, as specified in the
supplemental indenture, Board Resolution or Officers' Certificate
establishing the terms of such Series in accordance with Section 3.1 hereof
at the time of issuance of such series.
(1) If a particular series of subordinated Securities is issued to
one or more Trusts in connection with the issuance of securities by such
Trust and (a) there shall have occurred an Event of Default or (b) the
Company shall be in default with respect to its payment of any
obligation with respect to any guarantee issued by the Company with
respect to securities issued by such Trust, then (i) the Company shall
not declare or pay any dividend on, make any distribution with respect
to, or redeem, purchase or make a liquidation payment with respect to,
any of its capital stock and (ii) the Company shall not make any payment
of interest, principal or any premium on or repay, repurchase or redeem
any debt securities issued by the Company which rank pari passu with or
junior to such series of subordinated Securities.
(2) If a particular series of subordinated Securities are issued
to one or more Trusts in connection with the issuance of securities by
such Trust and the Company shall have exercised its right to defer
<PAGE>
payments of interest on such series of subordinated Securities by
extending the Interest Payment Date in accordance with the provisions of
the supplemental indenture, Board Resolution or Officers' Certificate
establishing the terms of such Series of Subordinated Securities or any
extension thereof shall be continuing, then (a) the Company shall not
declare or pay any dividend on, make any distribution with respect to,
or redeem, purchase or make a liquidation payment with respect to, any
of its capital stock and (b) the Company shall not make any payment of
interest, principal or any premium on or repay or repurchase or redeem
any debt securities issued by the Company which rank pari passu with or
junior to such series of subordinated Securities.
(3) The restrictions set forth in Section 10.10(1)(a)(i) and
(2)(a) do not apply to any stock dividend paid by the Company where the
dividend stock is of the same class as that of the stock held by the
holder receiving the dividend.
Section 10.11 Payment of Trust Costs and Expenses.
Since each Trust is being formed solely to facilitate an investment
in the Securities, the Company, in its capacity as the issuer of the
Securities, hereby covenants to pay all debts and obligations (other than
with respect to the Preferred Securities and Common Securities) and all costs
and expenses of each Trust (including, but not limited to, all costs and
expenses relating to the organization of the Trust, the fees and expenses of
the relevant Trustees and all costs and expenses relating to the operation of
the Trust) and to pay any and all taxes, duties, assessments or governmental
charges of whatever nature (other than withholding taxes) imposed on any
Trust by the United States, or any other taxing authority, so that the net
amounts received and retained by such Trust and the Property Trustee after
paying such expenses will be equal to the amounts such Trust and the Property
Trustee would have received had no such costs or expenses been incurred by or
imposed on such Trust. The obligations of the Company to pay all debts,
obligations, costs and expenses of each Trust shall constitute additional
indebtedness hereunder and shall survive the satisfaction and discharge of
this Indenture.
Section 10.12 Additional Covenants.
The Company also covenants with each Holder of Securities of a
series issued to a Trust (i) to maintain directly or indirectly 100%
ownership of the Common Securities of such Trust; provided, however, that any
permitted successor of the Company hereunder may succeed to the Company's
ownership of such Common Securities, (ii) not to voluntarily terminate, wind-
up or liquidate such Trust, except (a) in connection with a distribution of
the Securities of such series to the holders of the Trust Securities of such
Trust in liquidation of such Trust or (b) in connection with certain mergers,
consolidations or amalgamations permitted by the related Trust Agreement and
(iii) to use its reasonable efforts, consistent with the terms and provisions
of such Trust Agreement, to cause such Trust to remain classified as a
grantor trust and not an association taxable as a corporation for United
States federal income tax purposes.
<PAGE>
ARTICLE XI
REDEMPTION OF SECURITIES
SECTION 11.1 Applicability of Article.
Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and ( except as
otherwise specified as contemplated by Section 3.1 for Securities of any
series) in accordance with this Article.
SECTION 11.2 Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be
evidenced by an Officers' Certificate. In case of any redemption at the
election of the Company of less than all the Securities of any series, the
Company shall, at least 60 days prior to the Redemption Date fixed by the
Company (unless a shorter notice shall be satisfactory to the Trustee),
notify the Trustee of such Redemption Date and of the principal amount of
Securities of such series to be redeemed, such notice to be accompanied by a
written statement signed by an authorized officer of the Company stating that
no defaults in the payment of interest or Events of Default with respect to
the Securities of that series have occurred (which have not been waived or
cured). In the case of any redemption of Securities prior to the expiration
of any restriction on such redemption provided in the terms of such
Securities or elsewhere in this Indenture, the Company shall furnish the
Trustee with an Officers' Certificate evidencing compliance with such
restriction.
SECTION 11.3 Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities of any series are to be redeemed,
the particular Securities to be redeemed shall be selected not more than 60
days prior to the Redemption Date by the Trustee, from the Outstanding
Securities of such series not previously called for redemption, by such
method as the Trustee shall deem fair and appropriate and which may provide
for the selection for redemption of portions (equal to the minimum authorized
denomination for Securities of that series or any integral multiple thereof)
of the principal amount of Securities of such series of a denomination larger
than the minimum authorized denomination for Securities of that series.
Securities shall be excluded from eligibility for selection for
redemption if they are identified by registration and certificate number in a
written statement signed by an authorized officer of the Company and
delivered to the Trustee at least 60 days prior to the Redemption Date as
being owned of record and beneficially by, and not pledged or hypothecated by
either (a) the Company or (b) an entity specifically identified in such
written statement which is an Affiliate of the Company.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities
selected for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall
relate, in the case of any Securities redeemed or to be redeemed only in
<PAGE>
part, to the portion of the principal amount of such Securities which has
been or is to be redeemed.
SECTION 11.4 Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the
Redemption Date, to each Holder of Securities to be redeemed, at his address
appearing in the Security Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any series
are to be redeemed, the identification (and, in the case of partial
redemption, the principal amounts) of the particular Securities to
be redeemed,
(4) that on the Redemption Date the Redemption Price will
become due and payable upon each such Security to be redeemed and,
if applicable, that interest thereon will cease to accrue on and
after said date,
(5) the place or places where such Securities are to be
surrendered for payment of the Redemption Price, and
(6) that the redemption is for a sinking fund, if such is the
case.
Notice of redemption of Securities to be redeemed at the election
of the Company shall be given by the Company or, at the Company's request, by
the Trustee in the name and at the expense of the Company.
SECTION 11.5 Deposit of Redemption Price.
At least one Business Day prior to any Redemption Date, the Company
shall deposit with the Trustee or with a Paying Agent (or, if the Company is
acting as its own Paying Agent, segregate and hold in trust as provided in
Section 10.3) an amount of money sufficient to pay the Redemption Price of,
and (except if the Redemption Date shall be an Interest Payment Date) accrued
interest on, all the Securities which are to be redeemed on that date (to the
extent that such amounts are not already on deposit at such time in
accordance with the provisions of Section 4.1, 4.3 or 10.6).
SECTION 11.6 Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities
so to be redeemed shall, on the Redemption Date, become due and payable at
the Redemption Price therein specified, and from and after such date (unless
the Company shall default in the payment of the Redemption Price and accrued
and unpaid interest) such Securities shall cease to bear interest. Upon
surrender of any such Security for redemption in accordance with said notice,
such Security shall be paid by the Company at the Redemption Price, together
with accrued and unpaid interest to the Redemption Date; provided, however,
<PAGE>
that installments of interest whose Stated Maturity is on or prior to the
Redemption Date shall be payable to the Holders of such Securities, or one or
more Predecessor Securities, registered as such at the close of business on
the relevant Record Dates according to their terms and the provisions of
Section 3.7.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Security.
SECTION 11.7 Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be
surrendered at a Place of Payment therefor (with, if the Company or the
Trustee so requires, due endorsement by, or a written instrument of transfer
in form satisfactory to the Company and the Trustee duly executed by, the
Holder thereof or his attorney duly authorized in writing), and the Company
shall execute, and the Trustee shall authenticate and deliver to the Holder
of such Security without service charge, a new Security or Securities of the
same series, of any authorized denomination as requested by such Holder, in
aggregate principal amount equal to and in exchange for the unredeemed
portion of the principal of the Security so surrendered.
SECTION 11.8 Right of Redemption of Securities Initially Issued
to a Trust.
In connection with Securities issued to a Trust, the supplemental
indenture, Board Resolution or Officers' Certificate establishing the terms
of such series shall set forth any specific redemption provision, including,
without limitation, any provisions relating to redemption upon the occurrence
of a Tax Event.
ARTICLE XII
SINKING FUNDS
SECTION 12.1 Applicability of Article.
The provisions of this Article shall be applicable to any sinking
fund for the retirement of Securities of a series except as otherwise
specified as contemplated by Section 3.1 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory
sinking fund payment", and any payment in excess of such minimum amount
provided for by the terms of Securities of any series is herein referred to
as an "optional sinking fund payment". If provided for by the terms of
Securities of any series, the cash amount of any sinking fund payment may be
subject to reduction as provided in Section 12.2. Each sinking fund payment
shall be applied to the redemption of Securities of any series as provided
for by the terms of Securities of such series.
<PAGE>
SECTION 12.2 Satisfaction of Sinking Fund Payments
with Securities.
In lieu of making all or any part of any mandatory sinking fund
payment with respect to any series of Securities in cash, the Company may at
its option (a) deliver to the Trustee Securities of such series theretofore
purchased or otherwise acquired (except upon redemption pursuant to the
mandatory sinking fund) by the Company or receive credit for Securities of
such series (not previously so credited) theretofore purchased or otherwise
acquired (except as aforesaid) by the Company and delivered to the Trustee
for cancellation pursuant to Section 3.9, (b) receive credit for optional
sinking fund payments (not previously so credited) made pursuant to this
Section, or (c) receive credit for Securities of such series (not previously
so credited) redeemed by the Company through any optional redemption
provision contained in the terms of such series. Securities so delivered or
credited shall be received or credited by the Trustee at the sinking fund
redemption price specified in such Securities.
SECTION 12.3 Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for
any series of Securities, the Company will deliver to the Trustee an
Officers' Certificate (which need not contain the statements required by
Section 1.2) stating that no defaults in the payment of interest, if any,
with respect to Securities of that series and no Events of Default with
respect to Securities of that series have occurred (which in either case have
not been waived or cured) and (a) specifying the amount of the next ensuing
sinking fund payment for that series pursuant to the terms of that series,
(b) whether or not the Company intends to exercise its right, if any, to make
an optional sinking fund payment with respect to such series on the next
ensuing sinking fund payment date and, if so, the amount of such optional
sinking fund payment, and (c) the portion thereof, if any, which is to be
satisfied by payment of cash and the portion thereof, if any, which is to be
satisfied by delivering and crediting Securities of that series pursuant to
Section 12.2, and will also deliver to the Trustee any Securities to be so
delivered. Such written statement shall be irrevocable and upon its receipt
by the Trustee the Company shall become unconditionally obligated to make all
the cash payments or payments therein referred to, if any, on or before the
next succeeding sinking fund payment date. Failure of the Company, on or
before any such 60th day, to deliver such written statement and Securities
specified in this paragraph, if any, shall not constitute a default but shall
constitute, on and as of such date, the irrevocable election of the Company
(i) that the mandatory sinking fund payment for such series due on the next
succeeding sinking fund payment date shall be paid entirely in cash without
the option to deliver or credit Securities of such series in respect therefor
and (ii) that the Company will make no optional sinking fund payment with
respect to such series as provided in this Section.
Not less than 30 days before each such sinking fund payment date
the Trustee shall select the Securities to be redeemed upon such sinking fund
payment date in the manner specified in Section 11.3 and cause notice of the
redemption thereof to be given in the name of and at the expense of the
Company in the manner provided in Section 11.4. Such notice having been duly
given, the redemption of such Securities shall be made upon the terms and in
the manner stated in Sections 11.5, 11.6 and 11.7.
<PAGE>
The Trustee shall not redeem or cause to be redeemed any Security
of a series with sinking fund moneys or mail any notice of redemption of
Securities of such series by operation of the sinking fund during the
continuance of a default in payment of interest with respect to Securities of
that series or an Event of Default with respect to the Securities of that
series except that, where the mailing of notice of redemption of any
Securities shall theretofore have been made, the Trustee shall redeem or
cause to be redeemed such Securities, provided that it shall have received
from the Company a sum sufficient for such redemption. Except as aforesaid,
any moneys in the sinking fund for such series at the time when any such
default or Event of Default, shall occur, and any moneys thereafter paid into
the sinking fund, shall, during the continuance of such default or Event of
Default, be deemed to have been collected under Article Five and held for the
payment of all such Securities. In case such Event of Default shall have been
waived as provided in Section 5.13 or the default or Event of Default cured
on or before the 60th day preceding the sinking fund payment date, such
moneys shall thereafter be applied on the next succeeding sinking fund
payment date in accordance with this Section to the redemption of such
Securities.
ARTICLE XIII
SUBORDINATION OF SECURITIES
Unless otherwise set forth in the supplemental indenture, Board
Resolution or Officers' Certificate pursuant to Section 3.1 establishing the
terms of a series of Securities, such series of Securities shall be subject
to the following provisions:
SECTION 13.1 Agreement to Subordinate.
The Company, for itself, its successors and assigns, covenants and
agrees, and each Holder of Securities by his acceptance thereof, likewise
covenants and agrees, that the payment of the principal of (and premium, if
any) and interest, if any, on each and all of the Securities is hereby
expressly subordinated, to the extent and in the manner hereinafter set
forth, in right of payment to the prior payment in full in cash or cash
equivalents or, as acceptable to the holders of Senior Indebtedness, in any
other manner, of all amounts payable under all existing and future Senior
Indebtedness.
This Article XIII shall constitute a continuing offer to all
Persons who, in reliance upon such provisions, become holders of, or continue
to hold Senior Indebtedness; and such provisions are made for the benefit of
the holders of Senior Indebtedness; and such holders are made obligees
hereunder and they or each of them may enforce such provisions.
SECTION 13.2 Payment Over of Proceeds upon Dissolution, etc.
In the event of (a) any insolvency or bankruptcy case or
proceeding, or any receivership, liquidation, reorganization or other similar
case or proceeding in connection therewith, relating to the Company or to its
assets, or (b) any liquidation, dissolution or other winding-up of the
Company, whether voluntary or involuntary and whether or not involving
insolvency or bankruptcy, or (c) any assignment for the benefit of creditors
or any other marshalling of assets or liabilities of the Company, then and in
<PAGE>
any such event (subject to the power of a court of competent jurisdiction to
make other equitable provision reflecting the rights conferred in this
Indenture upon the Senior Indebtedness and the holders thereof with respect
to the Securities and the Holders thereof by a lawful plan of reorganization
under applicable bankruptcy law):
(1) the holders of Senior Indebtedness shall be entitled to
receive payment in full, in cash or cash equivalents or, as acceptable to the
holders of Senior Indebtedness, in any other manner, of all Senior
Indebtedness (including principal, premium, if any and interest, if any, and
including, in the case of Designated Senior Indebtedness, any interest
accruing subsequent to the filing of a petition for bankruptcy at the rate
provided for in the documentation governing such Designated Senior
Indebtedness, to the extent that such interest is an allowed claim under
applicable law), or provision shall be made for such payment, before the
Holders of the Securities are entitled to receive any payment or distribution
of any kind or character (excluding securities of the Company or any other
person that are equity securities or are expressly subordinated in right of
payment to all Senior Indebtedness that may at the time be outstanding, to
substantially the same extent as, or to a greater extent than, the Securities
as provided in this Article; such securities are hereinafter collectively
referred to as "Permitted Junior Securities") on account of principal of,
premium, if any, or interest on the Securities;
(2) any payment or distribution of assets of the Company of any
kind or character, whether in cash, property or securities (excluding
Permitted Junior Securities), by set-off or otherwise, to which the Holders
of the Securities or the Trustee would be entitled but for the provisions of
this Article XIII shall be paid by the liquidating trustee or agent or other
person making such payment or distribution, whether a trustee in bankruptcy,
a receiver or liquidating trustee or otherwise, directly to the holders of
Senior Indebtedness or their representative or representatives or to the
trustee or trustees under any indenture under which any instruments
evidencing any of such Senior Indebtedness may have been issued, ratably
according to the aggregate amounts remaining unpaid on account of the Senior
Indebtedness held or represented by each, to the extent necessary to make
payment in full, in cash or cash equivalents or, as acceptable to the holders
of Senior Indebtedness, in any other manner, of all Senior Indebtedness
remaining unpaid, after giving effect to any concurrent payment or
distribution to or for the holders of such Senior Indebtedness; and
(3) in the event that, notwithstanding the foregoing provisions of
this Section 13.2, the Trustee or the Holder of any Security shall have
received any payment or distribution of assets of the Company of any kind or
character, whether in cash, property or securities, in respect of principal
of, premium, if any, or interest, if any, on the Securities before all Senior
Indebtedness is paid in full, in cash or cash equivalents or, as acceptable
to the holders of Senior Indebtedness, in any other manner, or payment
thereof provided for, then and in such event such payment or distribution
(excluding Permitted Junior Securities) shall be paid over or delivered
forthwith to the trustee in bankruptcy, receiver, liquidating trustee,
custodian, assignee, agent or other Person making payment or distribution of
assets of the Company for application to the payment of all Senior
Indebtedness remaining unpaid, ratably as aforesaid, to the extent necessary
to pay all Senior Indebtedness in full, in cash or cash equivalents or, as
acceptable to the holders of Senior Indebtedness, in any other manner, after
<PAGE>
giving effect to any concurrent payment or distribution to or for the holders
of Senior Indebtedness.
The consolidation of the Company with, or the merger of the Company
with or into, another person or the liquidation or dissolution of the Company
following the conveyance, transfer, lease or other disposition of its
properties and assets substantially as an entirety to another Person upon the
terms and conditions set forth in Article VIII hereof shall not be deemed a
dissolution, winding-up, liquidation, reorganization, assignment for the
benefit of creditors or marshalling of assets and liabilities of the Company
for the purposes of this Article XIII if the Person formed by such
consolidation or the surviving entity of such merger or the Person which
acquires by conveyance, transfer, lease or other disposition such properties
and assets substantially as an entirety, as the case may be, shall, as a part
of such consolidation, merger, conveyance, transfer, lease or other
disposition, comply with the conditions set forth in such Article VIII.
SECTION 13.3 No Payment on Securities in Event of Default
on Senior Indebtedness.
No payment by the Company on account of principal of, or premium,
if any, sinking funds or interest, if any, on the Securities shall be made
unless full payment of amounts then due for the principal of, and premium, if
any, sinking funds and interest, if any, on Senior Indebtedness has been made
or duly provided for in money or money's worth.
SECTION 13.4 Trustee's Relation to Senior Indebtedness.
With respect to the holders of Senior Indebtedness, the Trustee
undertakes to perform or to observe only such of its covenants and
obligations as are specifically set forth in this Article XIII, and no
implied covenants or obligations with respect to the holders of Senior
Indebtedness shall be read into this Indenture against the Trustee. The
Trustee shall not be deemed to owe any fiduciary duty to the holders of
Senior Indebtedness and the Trustee shall not be liable to any holder of
Senior Indebtedness if it shall mistakenly pay over or deliver to Holders of
Securities, the Company or any other Person moneys or assets to which any
holder of Senior Indebtedness shall be entitled by virtue of this Article
XIII or otherwise.
SECTION 13.5 Subrogation to Rights of Holders of Senior
Indebtedness.
Upon the payment in full of all Senior Indebtedness, the Holders of
the Securities shall be subrogated to the rights of the holders of such
Senior Indebtedness to receive payments and distributions of cash, property
and securities applicable to the Senior Indebtedness until the principal of,
premium, if any, and interest, if any, on the Securities shall be paid in
full in cash or cash equivalents. For purposes of such subrogation, no
payments or distributions to the holders of Senior Indebtedness of any cash,
property or securities to which the Holders of the Securities or the Trustee
would be entitled except for the provisions of this Article XIII, and no
payments over pursuant to the provisions of this Article XIII to the holders
of Senior Indebtedness by Holders of the Securities or the Trustee shall, as
among the Company, its creditors other than holders of Senior Indebtedness,
and the Holders of the Securities, be deemed to be a payment or distribution
by the Company to or on account of the Senior Indebtedness.
<PAGE>
SECTION 13.6 Provisions Solely To Define Relative Rights.
The provisions of this Article XIII are and are intended solely for
the purpose of defining the relative rights of the Holders of the Securities
on the one hand and the holders of Senior Indebtedness on the other hand.
Nothing contained in this Article XIII or elsewhere in this Indenture or in
the Securities is intended to or shall (a) impair, as among the Company, its
creditors other than holders of Senior Indebtedness and the Holders of the
Securities, the obligation of the Company, which is absolute and
unconditional, to pay to the Holders of the Securities the principal of,
premium, if any, and interest, if any, on the Securities as and when the same
shall become due and payable in accordance with their terms; or (b) affect
the relative rights of the Holders of the Securities and creditors of the
Company other than the holders of Senior Indebtedness; or (c) prevent the
Trustee or the Holder of any Security from exercising all remedies otherwise
permitted by applicable law upon a Default or an Event of Default under this
Indenture, subject to the rights, if any, under this Article XIII of the
holders of Senior Indebtedness (1) in any case, proceeding, dissolution,
liquidation or other winding up, assignment for the benefit of creditors or
other marshalling of assets and liabilities of the Company referred to in
Section 13.2, to receive, pursuant to and in accordance with such Section,
cash, property and securities otherwise payable or deliverable to the Trustee
or such Holder, or (2) under the conditions specified in Section 13.3, to
prevent any payment prohibited by such Section or enforce their rights
pursuant to Section 13.3.
The failure to make a payment on account of principal of, or
premium, if any, or interest, if any, on, or sinking funds, if any, in
respect of any Securities of any series by reason of any provision of this
Article XIII shall not be construed as preventing the occurrence of a Default
or an Event of Default with respect of the Securities of such series.
SECTION 13.7 Trustee To Effectuate Subordination.
Each Holder of a Security by such Holder's acceptance thereof
authorizes and directs the Trustee on such Holder's behalf to take such
action as may be necessary or appropriate to effectuate the subordination
provided in this Article XIII and appoints the Trustee his attorney-in-fact
for any and all such purposes, including, in the event of any dissolution,
winding-up, liquidation or reorganization of the Company, whether in
bankruptcy, insolvency, receivership proceedings or otherwise, the timely
filing of a claim for the unpaid balance of the Indebtedness of the Company
owing to such Holder in the form required in such proceedings and the causing
of such claim to be approved. If the Trustee does not file such a claim prior
to 30 days before the expiration of the time to file such a claim, the
holders of Senior Indebtedness, or any Senior Representative, may file such a
claim on behalf of Holders of the Securities.
SECTION 13.8 No Waiver of Subordination Provisions.
(a) No right of any present or future holder of any Senior
Indebtedness to enforce subordination as herein provided shall at any time in
any way be prejudiced or impaired by any act or failure to act on the part of
the Company or by any act or failure to act, in good faith, by any such
holder, or by any non-compliance by the Company with the terms, provisions
and covenants of this Indenture, regardless of any knowledge thereof any such
holder may have or be otherwise charged with.
<PAGE>
(b) Without limiting the generality of Section 13.8(a), the
holders of Senior Indebtedness may, at any time and from time to time,
without the consent of or notice to the Trustee or the Holders of the
Securities, without incurring responsibility to the Holders of the Securities
and without impairing or releasing the subordination provided in this Article
XIII or the obligations hereunder of the Holders of the Securities to the
holders of Senior Indebtedness, do any one or more of the following: (1)
change the manner, place or terms of payment or extend the time of payment
of, or renew or alter, Senior Indebtedness or any instrument evidencing the
same or any agreement under which Senior Indebtedness is outstanding; (2)
sell, exchange, release or otherwise deal with any property pledged,
mortgaged or otherwise securing Senior Indebtedness; (3) release any Person
liable in any manner for the collection or payment of Senior Indebtedness;
and (4) exercise or refrain from exercising any rights against the Company
and any other Person; provided, however, that in no event shall any such
actions limit the right of the Holders of the Securities of any series to
take any action to accelerate the maturity of such Securities pursuant to
Article V hereof or to pursue any rights or remedies hereunder or under
applicable laws if the taking of such action does not otherwise violate the
terms of this Indenture.
SECTION 13.9 Notices to Trustee.
(a) The Company shall give prompt written notice to the Trustee of
any fact known to the Company which would prohibit the making of any payment
to or by the Trustee in respect of the Securities pursuant to this Article
XIII. Failure to give such notice shall not affect the subordination of the
Securities to Senior Indebtedness. Notwithstanding the provisions of this
Article XIII or any other provisions of this Indenture, neither the Trustee
nor any Paying Agent (other than the Company) shall be charged with knowledge
of the existence of any Senior Indebtedness or of any event which would
prohibit the making of any payment of moneys to or by the Trustee or such
Paying Agent, unless and until the Trustee or such Paying Agent shall have
received (in the case of the Trustee, at its Corporate Trust Office) written
notice thereof from the Company or from the holder of any Senior Indebtedness
or from the trustee for any such holder, together with proof satisfactory to
the Trustee or such Paying Agent, as the case may be, of such holding of
Senior Indebtedness or of the authority of such trustee; provided, however,
that if at least two Business Days prior to the date upon which by the terms
hereof any such moneys may become payable for any purpose (including, without
limitation, the payment of either the principal of, or premium, if any, or
interest, if any, on any Security) the Trustee shall not have received with
respect to such moneys the notice provided for in this Section 13.9, then,
anything herein contained to the contrary notwithstanding, the Trustee shall
have full power and authority to receive such moneys and to apply the same to
the purpose for which they were received, and shall not be affected by any
notice to the contrary, which may be received by it within two Business Days
prior to such date.
(b) Subject to the provisions of Section 6.3, the Trustee shall be
entitled to rely on the delivery to it of a written notice by a Person
representing himself to be a holder of Senior Indebtedness (or a trustee on
behalf of such holder) to establish that such a notice has been given by a
holder of Senior Indebtedness or a trustee on behalf of any such holder. In
the event that the Trustee determines in good faith that further evidence is
required with respect to the right of any Person as a holder of Senior
Indebtedness (or a trustee on behalf of such holder) to participate in any
<PAGE>
payment or distribution pursuant to this Article XIII, the Trustee may
request such Person to furnish evidence to the reasonable satisfaction of the
Trustee as to the amount of Senior Indebtedness held by such Person (or the
amount of Senior Indebtedness as to which such Person is trustee), the extent
to which such Person is entitled to participate in such payment or
distribution and any other facts pertinent to the rights of such Person under
this Article XIII and, if such evidence is not furnished, the Trustee may
defer any payment to such Person pending judicial determination as to the
right of such Person to receive such payment.
SECTION 13.10 Reliance on Judicial Order or Certificate
of Liquidating Agent.
Upon any payment or distribution of assets of the Company referred
to in this Article XIII, the Trustee, subject to the provisions of Section
6.3, and the Holders shall be entitled to rely upon any order or decree
entered by any court of competent jurisdiction in which such insolvency,
bankruptcy, receivership, liquidation, reorganization, dissolution,
winding-up or similar case or proceeding is pending, or a certificate of the
trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee for
the benefit of creditors, agent or other person making such payment or
distribution, delivered to the Trustee or to the Holders, for the purpose of
ascertaining the Persons entitled to participate in such payment or
distribution, the holders of Senior Indebtedness and other Indebtedness of
the Company, the amount thereof or payable thereon, the amount or amounts
paid or distributed thereon and all other facts pertinent thereto or to this
Article.
SECTION 13.11 Rights of Trustee as a Holder of Senior
Indebtedness; Preservation of Trustee's Rights.
The Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article XIII with respect to any Senior Indebtedness
which may at any time be held by it, to the same extent as any other holder
of Senior Indebtedness, and nothing in this Indenture shall deprive the
Trustee of any of its rights as such holder. Nothing in this Article XIII
shall apply to claims of, or payments to, the Trustee under or pursuant to
Section 6.7.
SECTION 13.12 Article Applicable to Paying Agents.
In case at any time any Paying Agent other than the Trustee shall
have been appointed by the Company and be then acting hereunder, the term
"Trustee" as used in this Article XIII shall in such case (unless otherwise
expressly stated or the context otherwise requires) be construed as extending
to and including such Paying Agent within its meaning as fully for all
intents and purposes as if such Paying Agent were named in this Article XIII
in addition to or in place of the Trustee; provided, however, that Section
13.12 shall not apply to the Company or any Affiliate of the Company if it or
such Affiliate acts as Paying Agent.
SECTION 13.13 No Suspension of Remedies.
Nothing contained in this Article XIII shall limit the right of the
Trustee or the Holders of Securities of any series to take any action to
accelerate the maturity of such Securities pursuant to Article V or to pursue
any rights or remedies hereunder or under applicable law, subject to the
<PAGE>
rights, if any, under this Article XIII of the holders, from time to time, of
Senior Indebtedness.
Nothing contained in this Indenture or in any of the Securities
shall (a) affect the obligation of the Company to make, or prevent the
Company from making, at any time except as provided in Sections 13.2 and
13.3, payments of principal of, or premium, if any, or interest, if any, on
or sinking fund payments, if any, with respect to the Securities or (b)
prevent the application by the Trustee of any moneys deposited with it
hereunder to the payment of or on account of the principal of, or premium, if
any, or interest, if any, on, the Securities, unless the Trustee shall have
received at its Corporate Trust Office written notice of any event
prohibiting the making of such payment more than two Business Days prior to
the date fixed for such payment.
SECTION 13.14 Other Subordination Provisions.
Securities of any series may include such other subordination
provisions, including payment blockage provisions upon defaults other than
payment defaults, and definitions of "Senior Indebtedness and "Designated
Senior Indebtedness" as may be provided in the supplemental indenture or
provided in or pursuant to the Board Resolution or Officers' Certificate
under which such series of Securities is issued or in the form of Security
for such series.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture
to be duly executed and their respective corporate seals to be hereunto
affixed and attested, all as of the day and year first above written.
[Seal] INGERSOLL-RAND COMPANY
By________________________
Title: ________________
Attest:
_____________________________
Title: _____________________ __________________________
[Seal]
By________________________
Title:__________________
Attest:
_____________________________
Title: _____________________
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the ___ day of _______, 1997, before me personally came
___________, to me known, who, being by me duly sworn, did depose and say
that he is _______________________________ of Ingersoll-Rand Company, one of
the corporations described in and which executed the foregoing instrument;
that he knows the seal of said corporation; that the seal affixed to stud
instrument is such corporate seal; that it was so affixed by authority of the
Board of Directors of said corporation, and that he signed his name thereto
by like authority.
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the ____ day of ______, 1997, before me personally came
_______________, to me known, who, being by me duly sworn, did depose and say
that he is _______________________________, one of the corporations described
in and which executed the foregoing instrument; that he knows the seal of
skid corporation; that the seal affixed to said instrument is such corporate
seal; that it was so affixed by authority of the Board of Directors of stud
corporation, and that he signed his name thereto by like authority.
<PAGE>
Annex A
Form of Trust Agreement
<PAGE>
Annex B
Form of Amended and Restated Trust Agreement
<PAGE>
Annex C
Form of Guarantee Agreement
<PAGE>
Exhibit 4.8
========================================================================
INGERSOLL-RAND COMPANY
and
,
Trustee
INDENTURE
Dated as of , 1997
Junior Subordinated Debt Securities
========================================================================
<PAGE>
Reconciliation and tie between Trust Indenture Act of 1939 and
Indenture, dated as of , 1997.
Trust Indenture
Act SectionIndenture Section
Section 310(a)(1) . . . . . . . . . . . . . . . . . . . . . 6.9
(a)(2) . . . . . . . . . . . . . . . . . . . . . . 6.9
(a)(3) . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(4) . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . 6.8
. . . . . . . . . . . . . . . . . . . . . . . . . 6.10
Section 311(a) . . . . . . . . . . . . . . . . . . . . . . 6.13(a)
(b) . . . . . . . . . . . . . . . . . . . . . . . 6.13(b)
(b)(2) . . . . . . . . . . . . . . . . . . . . . . 7.3(a)(2)
. . . . . . . . . . . . . . . . . . . . . . . . . 7.3(b)
Section 312(a) . . . . . . . . . . . . . . . . . . . . . . 7.1
. . . . . . . . . . . . . . . . . . . . . . . . . 7.2(a)
(b) . . . . . . . . . . . . . . . . . . . . . . . 7.2(b)
(c) . . . . . . . . . . . . . . . . . . . . . . . 7.2(c)
Section 313(a) . . . . . . . . . . . . . . . . . . . . . . 7.3(a)
(b)(1) . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b)(2) . . . . . . . . . . . . . . . . . . . . . . 7.3(b)
(c) . . . . . . . . . . . . . . . . . . . . . . . 7.3(a), 7.3(b)
(d) . . . . . . . . . . . . . . . . . . . . . . . 7.3(c)
Section 314(a) . . . . . . . . . . . . . . . . . . . . . . 7.4
(b) . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . . . . . . . . . . . . . 1.2
(c)(2) . . . . . . . . . . . . . . . . . . . . . . 1.2
(c)(3) . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . . . . . . . . . 1.2
Section 315(a) . . . . . . . . . . . . . . . . . . . . . . 6.1(a)
(b) . . . . . . . . . . . . . . . . . . . . . . . 6.2
7.3(a)(6)
(c) . . . . . . . . . . . . . . . . . . . . . . . 6.1(b)
(d) . . . . . . . . . . . . . . . . . . . . . . . 6.1(c)
(d)(1) . . . . . . . . . . . . . . . . . . . . . . 6.1(a)(1)
(d)(2) . . . . . . . . . . . . . . . . . . . . . . 6.1(c)(2)
(d)(3) . . . . . . . . . . . . . . . . . . . . . . 6.1(c)(3)
(e) . . . . . . . . . . . . . . . . . . . . . . . 5.14
Section 316(a)(1)(A) . . . . . . . . . . . . . . . . . . . 5.2
5.12
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . 5.13
(a)(2) . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . 5.8
Section 317(a)(1) . . . . . . . . . . . . . . . . . . . . . 5.3
(a)(2) . . . . . . . . . . . . . . . . . . . . . . 5.4
(b) . . . . . . . . . . . . . . . . . . . . . . . 10.3
Section 318(a) . . . . . . . . . . . . . . . . . . . . . . 1.7
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to
be a part of the Indenture.
<PAGE>
TABLE OF CONTENTS
Page
RECITALS OF THE COMPANY . . . . . . . . . . . 1
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION . . . . . . . . . . . 1
SECTION 1.1 Definitions . . . . . . . . . . . . . . . . . . . 1
Act . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Administrative Trustee . . . . . . . . . . . . . . . . . 2
Affiliate . . . . . . . . . . . . . . . . . . . . . . . 2
Authenticating Agent . . . . . . . . . . . . . . . . . . 2
Board of Directors . . . . . . . . . . . . . . . . . . . 2
Board Resolution . . . . . . . . . . . . . . . . . . . . 2
Business Day . . . . . . . . . . . . . . . . . . . . . . 2
Commission . . . . . . . . . . . . . . . . . . . . . . . 2
Common Securities . . . . . . . . . . . . . . . . . . . 3
Common Stock . . . . . . . . . . . . . . . . . . . . . . 3
Company . . . . . . . . . . . . . . . . . . . . . . . . 3
Company Request . . . . . . . . . . . . . . . . . . . . 3
Company Order . . . . . . . . . . . . . . . . . . . . . 3
Corporate Trust Office . . . . . . . . . . . . . . . . . 3
Defaulted Interest . . . . . . . . . . . . . . . . . . . 3
Designated Senior Indebtedness . . . . . . . . . . . . . 3
Discharged . . . . . . . . . . . . . . . . . . . . . . . 3
Distributions . . . . . . . . . . . . . . . . . . . . . 3
Event of Default . . . . . . . . . . . . . . . . . . . . 3
Guarantee . . . . . . . . . . . . . . . . . . . . . . . 3
Guarantee Agreement . . . . . . . . . . . . . . . . . . 3
Holder . . . . . . . . . . . . . . . . . . . . . . . . . 3
Indenture . . . . . . . . . . . . . . . . . . . . . . . 3
interest . . . . . . . . . . . . . . . . . . . . . . . . 4
Interest Payment Date . . . . . . . . . . . . . . . . . 4
Maturity . . . . . . . . . . . . . . . . . . . . . . . . 4
Officers' Certificate . . . . . . . . . . . . . . . . . 4
Opinion of Counsel . . . . . . . . . . . . . . . . . . . 4
Original Issue Discount Security . . . . . . . . . . . . 4
Outstanding . . . . . . . . . . . . . . . . . . . . . . 4
Paying Agent . . . . . . . . . . . . . . . . . . . . . . 5
Place of Payment . . . . . . . . . . . . . . . . . . . . 5
Predecessor Security . . . . . . . . . . . . . . . . . . 5
Preferred Securities . . . . . . . . . . . . . . . . . . 5
Property Trustee . . . . . . . . . . . . . . . . . . . . 5
Redemption Date . . . . . . . . . . . . . . . . . . . . 5
Redemption Price . . . . . . . . . . . . . . . . . . . . 6
Regular Record Date . . . . . . . . . . . . . . . . . . 6
Responsible Officer . . . . . . . . . . . . . . . . . . 6
Securities . . . . . . . . . . . . . . . . . . . . . . . 6
Security Register . . . . . . . . . . . . . . . . . . . 6
Security Registrar . . . . . . . . . . . . . . . . . . . 6
<PAGE>
Senior Indebtedness . . . . . . . . . . . . . . . . . . 6
Senior Representative . . . . . . . . . . . . . . . . . 6
Special Record Date . . . . . . . . . . . . . . . . . . 6
Stated Maturity . . . . . . . . . . . . . . . . . . . . 6
Subsidiary . . . . . . . . . . . . . . . . . . . . . . . 6
Tax Event . . . . . . . . . . . . . . . . . . . . . . . 6
Trust . . . . . . . . . . . . . . . . . . . . . . . . . 7
Trust Agreement . . . . . . . . . . . . . . . . . . . . 7
Trust Indenture Act . . . . . . . . . . . . . . . . . . 7
Trust Securities . . . . . . . . . . . . . . . . . . . . 7
Trustee . . . . . . . . . . . . . . . . . . . . . . . . 7
U.S. Government Obligations . . . . . . . . . . . . . . 7
Vice President . . . . . . . . . . . . . . . . . . . . . 7
SECTION 1.2 Compliance Certificates and Opinions . . . . . . 8
SECTION 1.3 Form of Documents Delivered to Trustee . . . . . 8
SECTION 1.4 Acts of Holders . . . . . . . . . . . . . . . . . 9
SECTION 1.5 Notices, Etc., to Trustee and Company . . . . . . 9
SECTION 1.6 Notice to Holders; Waiver . . . . . . . . . . . . 10
SECTION 1.7 Conflict with Trust Indenture Act . . . . . . . . 10
SECTION 1.8 Effect of Headings and Table of Contents . . . . 10
SECTION 1.9 Successors and Assigns . . . . . . . . . . . . . 10
SECTION 1.10 Separability Clause . . . . . . . . . . . . . . . 10
SECTION 1.11 Benefits of Indenture . . . . . . . . . . . . . . 10
SECTION 1.12 Governing Law . . . . . . . . . . . . . . . . . . 11
SECTION 1.13 Legal Holidays . . . . . . . . . . . . . . . . . 11
SECTION 1.14 Incorporators, Stockholders, Officers and
Directors of the Company Exempt from
Individual Liability. . . . . . . . . . . . . . 11
SECTION 1.15 Counterparts . . . . . . . . . . . . . . . . . . 11
SECTION 1.16 Currency Exchange . . . . . . . . . . . . . . . . 11
ARTICLE II
SECURITY FORMS . . . . . . . . . . . . . 12
SECTION 2.1 Forms Generally . . . . . . . . . . . . . . . . . 12
SECTION 2.2 Form of Face of Security . . . . . . . . . . . . 12
SECTION 2.3 Form of Reverse of Security . . . . . . . . . . . 15
SECTION 2.4 Form of Trustee's Certificate of
Authentication. . . . . . . . . . . . . . . . . 20
ARTICLE III
THE SECURITIES . . . . . . . . . . . . . 21
SECTION 3.1 Amount Unlimited; Issuable in Series . . . . . . 21
SECTION 3.2 Denominations . . . . . . . . . . . . . . . . . . 23
SECTION 3.3 Execution, Authentication, Delivery and Dating . 23
SECTION 3.4 Temporary Securities . . . . . . . . . . . . . . 24
SECTION 3.5 Registration, Registration of Transfer and
Exchange . . . . . . . . . . . . . . . . . . . 24
SECTION 3.6 Mutilated, Destroyed, Lost and Stolen
Securities . . . . . . . . . . . . . . . . . . 25
SECTION 3.7 Payment of Interest; Interest Rights Preserved . 26
SECTION 3.8 Persons Deemed Owners . . . . . . . . . . . . . . 27
SECTION 3.9 Cancellation . . . . . . . . . . . . . . . . . . 27
SECTION 3.10 Computation of Interest . . . . . . . . . . . . . 28
<PAGE>
SECTION 3.11 Deferrals of Interest Payment Dates . . . . . . . 28
SECTION 3.12 Shortening or Extension of Stated Maturity . . . 28
ARTICLE IV
SATISFACTION AND DISCHARGE . . . . . . . . . . 28
SECTION 4.1 Satisfaction and Discharge of Indenture . . . . . 28
SECTION 4.2 Application of Trust Money . . . . . . . . . . . 29
SECTION 4.3 Satisfaction, Discharge and Defeasance of
Securities of any Series . . . . . . . . . . . 30
SECTION 4.4 Effect on Subordination Provisions . . . . . . . 32
ARTICLE V
REMEDIES . . . . . . . . . . . . . . 32
SECTION 5.1 Events of Default . . . . . . . . . . . . . . . . 32
SECTION 5.2 Acceleration of Maturity; Rescission and
Annulment . . . . . . . . . . . . . . . . . . . 33
SECTION 5.3 Collection of Indebtedness and Suits for
Enforcement by Trustee . . . . . . . . . . . . 35
SECTION 5.4 Trustee May File Proofs of Claim . . . . . . . . 35
SECTION 5.5 Trustee May Enforce Claims Without Possession
of Securities. . . . . . . . . . . . . . . . . 36
SECTION 5.6 Application of Money Collected . . . . . . . . . 36
SECTION 5.7 Limitation on Suits . . . . . . . . . . . . . . . 37
SECTION 5.8 Unconditional Right of Holders to Receive
Principal, Premium and Interest . . . . . . . . 38
SECTION 5.9 Restoration of Rights and Remedies . . . . . . . 38
SECTION 5.10 Rights and Remedies Cumulative . . . . . . . . . 38
SECTION 5.11 Delay or Omission Not Waiver . . . . . . . . . . 39
SECTION 5.12 Control by Holders . . . . . . . . . . . . . . . 39
SECTION 5.13 Waiver of Past Defaults . . . . . . . . . . . . . 39
SECTION 5.14 Undertaking for Costs . . . . . . . . . . . . . . 40
ARTICLE VI
THE TRUSTEE . . . . . . . . . . . . . . 40
SECTION 6.1 Certain Duties and Responsibilities . . . . . . . 40
SECTION 6.2 Notice of Defaults . . . . . . . . . . . . . . . 41
SECTION 6.3 Certain Rights of Trustee . . . . . . . . . . . . 41
SECTION 6.4 Not Responsible for Recitals or Issuance of
Securities . . . . . . . . . . . . . . . . . . 42
SECTION 6.5 May Hold Securities . . . . . . . . . . . . . . . 43
SECTION 6.6 Money Held in Trust . . . . . . . . . . . . . . . 43
SECTION 6.7 Compensation and Reimbursement . . . . . . . . . 43
SECTION 6.8 Disqualification; Conflicting Interests . . . . . 43
SECTION 6.9 Corporate Trustee Required; Eligibility . . . . . 48
SECTION 6.10 Resignation and Removal; Appointment of
Successor . . . . . . . . . . . . . . . . . . . 48
SECTION 6.11 Acceptance of Appointment by Successor . . . . . 50
SECTION 6.12 Merger, Conversion, Consolidation or
Succession to Business . . . . . . . . . . . . 51
SECTION 6.13 Preferential Collection of Claims Against
Company . . . . . . . . . . . . . . . . . . . . 51
<PAGE>
SECTION 6.14 Authenticating Agents . . . . . . . . . . . . . . 55
ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY . . . . 56
SECTION 7.1 Company to Furnish Trustee Names and Addresses
of Holders . . . . . . . . . . . . . . . . . . 56
SECTION 7.2 Preservation of Information; Communications to
Holders . . . . . . . . . . . . . . . . . . . . 57
SECTION 7.3 Reports by Trustee . . . . . . . . . . . . . . . 58
SECTION 7.4 Reports by Company . . . . . . . . . . . . . . . 59
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, SALE OR LEASE . . . . 60
SECTION 8.1 Company May Consolidate, Etc., on Certain
Terms . . . . . . . . . . . . . . . . . . . . . 60
SECTION 8.2 . . . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 8.3 Successor Corporation to be Substituted . . . . . 60
SECTION 8.4 Opinion of Counsel to be Given Trustee . . . . . 61
ARTICLE IX
SUPPLEMENTAL INDENTURES . . . . . . . . . . . 61
SECTION 9.1 Supplemental Indentures without Consent of
Holders . . . . . . . . . . . . . . . . . . . . 61
SECTION 9.2 Supplemental Indentures with Consent of
Holders . . . . . . . . . . . . . . . . . . . . 62
SECTION 9.3 Execution of Supplemental Indentures . . . . . . 64
SECTION 9.4 Effect of Supplemental Indentures . . . . . . . . 64
SECTION 9.5 Conformity with Trust Indenture Act . . . . . . . 64
SECTION 9.6 Reference in Securities to Supplemental
Indentures . . . . . . . . . . . . . . . . . . 64
SECTION 9.7 Effect on Senior Indebtedness . . . . . . . . . . 64
ARTICLE X
COVENANTS . . . . . . . . . . . . . . 65
SECTION 10.1 Payment of Principal, Premium and Interest . . . 65
SECTION 10.2 Maintenance of Office or Agency . . . . . . . . . 65
SECTION 10.3 Money for Securities Payments to Be Held in
Trust . . . . . . . . . . . . . . . . . . . . . 65
SECTION 10.4 [Intentionally Omitted.] . . . . . . . . . . . . 66
SECTION 10.5 [Intentionally Omitted.] . . . . . . . . . . . . 66
SECTION 10.6 Defeasance of Certain Obligations . . . . . . . . 66
SECTION 10.7 Statement by Officers as to Default . . . . . . . 68
SECTION 10.8 Waiver of Certain Covenants . . . . . . . . . . . 68
SECTION 10.9 [Intentionally Omitted] . . . . . . . . . . . . . 68
SECTION 10.10 Limitation On Dividends In Trust-Related
Transactions . . . . . . . . . . . . . . . . . 68
Section 10.11 Payment of Trust Costs and Expenses . . . . . . . 69
Section 10.12 Additional Covenants . . . . . . . . . . . . . . 69
<PAGE>
ARTICLE XI
REDEMPTION OF SECURITIES . . . . . . . . . . 70
SECTION 11.1 Applicability of Article . . . . . . . . . . . . 70
SECTION 11.2 Election to Redeem; Notice to Trustee . . . . . . 70
SECTION 11.3 Selection by Trustee of Securities to Be
Redeemed . . . . . . . . . . . . . . . . . . . 70
SECTION 11.4 Notice of Redemption . . . . . . . . . . . . . . 71
SECTION 11.5 Deposit of Redemption Price . . . . . . . . . . . 71
SECTION 11.6 Securities Payable on Redemption Date . . . . . . 71
SECTION 11.7 Securities Redeemed in Part . . . . . . . . . . . 72
SECTION 11.8 Right of Redemption of Securities Initially
Issued to a Trust . . . . . . . . . . . . . . . 72
ARTICLE XII
SINKING FUNDS . . . . . . . . . . . . . 72
SECTION 12.1 Applicability of Article . . . . . . . . . . . . 72
SECTION 12.2 Satisfaction of Sinking Fund Payments with
Securities . . . . . . . . . . . . . . . . . . 73
SECTION 12.3 Redemption of Securities for Sinking Fund . . . . 73
ARTICLE XIII
SUBORDINATION OF SECURITIES . . . . . . . . . . 74
SECTION 13.1 Agreement to Subordinate . . . . . . . . . . . . 74
SECTION 13.2 Payment Over of Proceeds upon Dissolution, etc . 74
SECTION 13.3 No Payment on Securities in Event of Default
on Senior Indebtedness . . . . . . . . . . . . 76
SECTION 13.4 Trustee's Relation to Senior Indebtedness . . . . 76
SECTION 13.5 Subrogation to Rights of Holders of Senior
Indebtedness . . . . . . . . . . . . . . . . . 76
SECTION 13.6 Provisions Solely To Define Relative Rights . . . 77
SECTION 13.7 Trustee To Effectuate Subordination . . . . . . . 77
SECTION 13.8 No Waiver of Subordination Provisions . . . . . . 77
SECTION 13.9 Notices to Trustee . . . . . . . . . . . . . . . 78
SECTION 13.10 Reliance on Judicial Order or Certificate of
Liquidating Agent . . . . . . . . . . . . . . . 79
SECTION 13.11 Rights of Trustee as a Holder of Senior
Indebtedness; Preservation of Trustee's Rights 79
SECTION 13.12 Article Applicable to Paying Agents . . . . . . . 79
SECTION 13.13 No Suspension of Remedies . . . . . . . . . . . . 79
TESTIMONIUM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
SIGNATURES AND SEALS . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
ACKNOWLEDGMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
Exhibit 4.10
CERTIFICATE OF TRUST
OF
INGERSOLL-RAND FINANCING II
THIS Certificate of Trust of Ingersoll-Rand Financing II
(the "Trust"), dated as of August 18, 1997, is being duly executed and filed
by the undersigned, as trustees, to form a business trust under the Delaware
Business Trust Act (12 Del. C. Section 3801, et seq.).
1. Name. The name of the business trust formed hereby
is Ingersoll-Rand Financing II.
2. Delaware Trustee. The name and business address of
the trustee of the Trust in the State of Delaware are Mark A. Ferrucci, c/o
The Corporation Trust Company, 1209 Orange Street, Wilmington, Delaware
19801.
3. Effective Date. This Certificate of Trust shall be
effective upon filing.
IN WITNESS WHEREOF, the undersigned, being the trustees of
the Trust, have executed this Certificate of Trust as of the date first-above
written.
NANCY CASABLANCA, not in her MARK A. FERRUCCI, not in his indi-
individual capacity but solely as vidual capacity but solely as
trustee trustee
/s/ NANCY CASABLANCA /s/ MARK A. FERRUCCI
RONALD G. HELLER, not in his PATRICIA NACHTIGAL, not in her
individual capacity but solely as individual capacity but solely as
trustee trustee
/s/ RONALD G. HELLER /s/ PATRICIA NACHTIGAL
Exhibit 4.11
CERTIFICATE OF TRUST
OF
INGERSOLL-RAND FINANCING I
THIS Certificate of Trust of Ingersoll-Rand Financing I
(the "Trust"), dated as of August 18, 1997, is being duly executed and filed
by the undersigned, as trustees, to form a business trust under the Delaware
Business Trust Act (12 Del. C. Section 3801, et seq.).
1. Name. The name of the business trust formed hereby
is Ingersoll-Rand Financing I.
2. Delaware Trustee. The name and business address of
the trustee of the Trust in the State of Delaware are Mark A. Ferrucci, c/o
The Corporation Trust Company, 1209 Orange Street, Wilmington, Delaware
19801.
3. Effective Date. This Certificate of Trust shall be
effective upon filing.
IN WITNESS WHEREOF, the undersigned, being the trustees of
the Trust, have executed this Certificate of Trust as of the date first-above
written.
NANCY CASABLANCA, not in her MARK A. FERRUCCI, not in his indi-
individual capacity but solely vidual capacity but solely
as trustee as trustee
/s/ NANCY CASABLANCA /s/ MARK A. FERRUCCI
RONALD G. HELLER, not in his PATRICIA NACHTIGAL, not in her
individual capacity but solely individual capacity but solely
as trustee as trustee
/s/ RONALD G. HELLER /s/ PATRICIA NACHTIGAL
Exhibit 4.12
TRUST AGREEMENT
OF
INGERSOLL-RAND FINANCING I
THIS TRUST AGREEMENT is made as of August 18, 1997 (this "Trust
Agreement"), by and among Ingersoll-Rand Company, as Depositor (the
"Depositor"), and Mark A. Ferrucci, as trustee, Nancy Casablanca, as trustee,
Ronald G. Heller, as trustee, and Patricia Nachtigal, as trustee
(collectively, the "Trustees"). The Depositor and the Trustees hereby agree
as follows:
1. The trust created hereby shall be known as "Ingersoll-Rand
Financing I" (the "Trust"), in which name the Trustees or the Depositor, to
the extent provided herein, may conduct the business of the Trust, make and
execute contracts, and sue and be sued.
2. The Depositor hereby assigns, transfers, conveys and sets over to
the Trust the sum of $10. It is the intention of the parties hereto that the
Trust created hereby constitute a business trust under Chapter 38 of Title 12
of the Delaware Code, 12 Del. C. Section 3801, et seq. (the "Business Trust
Act"), and that this document constitute the governing instrument of the
Trust. The Trustees are hereby authorized and directed to execute and file a
certificate of trust with the Delaware Secretary of State in such form as the
Trustees may approve.
3. An amended and restated Trust Agreement satisfactory to each party
to it and substantially in the form to be included as an exhibit to the
Registration Statement (the "1933 Act Registration Statement") referred to
below, or in such other form as the parties thereto may approve, will be
entered into to provide for the contemplated operation of the Trust created
hereby and the issuance of the Preferred or Capital Securities and Common
Securities referred to therein. Prior to the execution and delivery of such
amended and restated Trust Agreement, the Trustees shall not have any duty or
obligation hereunder or with respect of the trust estate, except as otherwise
required by applicable law or as may be necessary to obtain prior to such
execution and delivery any licenses, consents or approvals required by
applicable law or otherwise. Notwithstanding the foregoing, the Trustees may
take all actions deemed proper as are necessary to effect the transactions
contemplated herein.
4. The Depositor, as the Depositor of the Trust, is hereby authorized
(i) to file with the Securities and Exchange Commission (the "Commission")
and to execute, in the case of the 1933 Act Registration Statement and 1934
Act Registration Statement (as herein defined), on behalf of the Trust, (a)
the 1933 Act Registration Statement, including pre-effective or post-
effective amendments to such Registration Statement, relating to the
registration under the Securities Act of 1933, as amended (the "1933 Act"),
of the Preferred or Capital Securities of the Trust, (b) any preliminary
prospectus or prospectus or supplement thereto relating to the Capital or
Preferred Securities required to be filed pursuant to the 1933 Act, and (c) a
Registration Statement on Form 8-A or other appropriate form (the "1934 Act
Registration Statement") (including all pre-effective and post-effective
<PAGE>
amendments thereto) relating to the registration of the Preferred or Capital
Securities of the Trust under the Securities Exchange Act of 1934, as
amended; (ii) to file with the New York Stock Exchange or other exchange, and
execute on behalf of the Trust a listing application and all other
applications, statements, certificates, agreements and other instruments as
shall be necessary or desirable to cause the Preferred or Capital Securities
to be listed on the New York Stock Exchange or such other exchange; (iii) to
file and execute on behalf of the Trust such applications, reports, surety
bonds, irrevocable consents, appointments of attorney for service of process
and other papers and documents as shall be necessary or desirable to register
the Preferred or Capital Securities under the securities or "Blue Sky" laws
of such jurisdictions as the Depositor, on behalf of the Trust, may deem
necessary or desirable; and (iv) to execute, deliver and perform on behalf of
the Trust an underwriting agreement with the Depositor and the underwriter or
underwriters of the Preferred or Capital Securities of the Trust. In the
event that any filing referred to in clauses (i)-(iii) above is required by
the rules and regulations of the Commission, the New York Stock Exchange or
other exchange, or state securities or Blue Sky laws to be executed on behalf
of the Trust by the Trustees, the Trustees, in their capacities as trustees
of the Trust, are hereby authorized and directed to join in any such filing
and to execute on behalf of the Trust any and all of the foregoing, it being
understood that the Trustees, in their capacities as trustees of the Trust,
shall not be required to join in any such filing or execute on behalf of the
Trust any such document unless required by the rules and regulations of the
Commission, the New York Stock Exchange or other exchange, or state
securities or Blue Sky laws. In connection with all of the foregoing, the
Trustees, solely in their capacities as trustees of the Trust, and the
Depositor hereby constitute and appoint Ronald G. Heller as his, her or its,
as the case may be, true and lawful attorney-in-fact and agent with full
power of substitution and resubstitution for the Depositor or in the
Depositor's name, place and stead, in any and all capacities, to sign any and
all amendments (including all pre-effective and post-effective amendments) to
the 1933 Act Registration Statement and the 1934 Act Registration Statement
and to file the same, with all exhibits thereto, and any other documents in
connection therewith, with the Commission, granting unto said attorney-in-
fact and agent full power and authority to do and perform each and every act
and thing requisite and necessary to be done in connection therewith, as
fully to all intents and purposes as the Depositor might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact and
agent or his respective substitute or substitutes, shall do or cause to be
done by virtue hereof.
5. This Trust Agreement may be executed in one or more counterparts.
6. The number of trustees of the Trust initially shall be four and
thereafter the number of trustees of the Trust shall be such number as shall
be fixed from time to time by a written instrument signed by the Depositor
which may increase or decrease the number of trustees of the Trust; provided,
however, that to the extent required by the Business Trust Act, one trustee
of the Trust shall either be a natural person who is a resident of the State
of Delaware or, if not a natural person, an entity which has its principal
place of business in the State of Delaware. Subject to the foregoing, the
Depositor is entitled to appoint or remove without cause any trustee of the
Trust at any time. Any trustee of the Trust may resign upon thirty days'
prior notice to the Depositor.
<PAGE>
7. This Trust Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware (with regard to conflict
of laws principles).
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement
to be duly executed as of the day and year first above written.
INGERSOLL-RAND COMPANY,
as Depositor
By: /s/ PATRICIA NACHTIGAL
Name: Patricia Nachtigal
Title: Vice President and
General Counsel
NANCY CASABLANCA, as Trustee MARK A. FERRUCCI, as Trustee
/s/ NANCY CASABLANCA /s/ MARK A. FERRUCCI
RONALD G. HELLER, as Trustee PATRICIA NACHTIGAL, as Trustee
/s/ RONALD G. HELLER /s/ PATRICIA NACHTIGAL
Exhibit 4.13
TRUST AGREEMENT
OF
INGERSOLL-RAND FINANCING II
THIS TRUST AGREEMENT is made as of August 18, 1997 (this "Trust
Agreement"), by and among Ingersoll-Rand Company, as Depositor (the
"Depositor"), and Mark A. Ferrucci, as trustee, Nancy Casablanca, as trustee,
Ronald G. Heller, as trustee, and Patricia Nachtigal, as trustee
(collectively, the "Trustees"). The Depositor and the Trustees hereby agree
as follows:
1. The trust created hereby shall be known as "Ingersoll-Rand
Financing II" (the "Trust"), in which name the Trustees or the Depositor, to
the extent provided herein, may conduct the business of the Trust, make and
execute contracts, and sue and be sued.
2. The Depositor hereby assigns, transfers, conveys and sets over to
the Trust the sum of $10. It is the intention of the parties hereto that the
Trust created hereby constitute a business trust under Chapter 38 of Title 12
of the Delaware Code, 12 Del. C. Section 3801, et seq. (the "Business Trust
Act"), and that this document constitute the governing instrument of the
Trust. The Trustees are hereby authorized and directed to execute and file a
certificate of trust with the Delaware Secretary of State in such form as the
Trustees may approve.
3. An amended and restated Trust Agreement satisfactory to each party
to it and substantially in the form to be included as an exhibit to the
Registration Statement (the "1933 Act Registration Statement") referred to
below, or in such other form as the parties thereto may approve, will be
entered into to provide for the contemplated operation of the Trust created
hereby and the issuance of the Preferred or Capital Securities and Common
Securities referred to therein. Prior to the execution and delivery of such
amended and restated Trust Agreement, the Trustees shall not have any duty or
obligation hereunder or with respect of the trust estate, except as otherwise
required by applicable law or as may be necessary to obtain prior to such
execution and delivery any licenses, consents or approvals required by
applicable law or otherwise. Notwithstanding the foregoing, the Trustees may
take all actions deemed proper as are necessary to effect the transactions
contemplated herein.
4. The Depositor, as the Depositor of the Trust, is hereby authorized
(i) to file with the Securities and Exchange Commission (the "Commission")
and to execute, in the case of the 1933 Act Registration Statement and 1934
Act Registration Statement (as herein defined), on behalf of the Trust, (a)
the 1933 Act Registration Statement, including pre-effective or post-
effective amendments to such Registration Statement, relating to the
registration under the Securities Act of 1933, as amended (the "1933 Act"),
of the Preferred or Capital Securities of the Trust, (b) any preliminary
prospectus or prospectus or supplement thereto relating to the Capital or
Preferred Securities required to be filed pursuant to the 1933 Act, and (c) a
Registration Statement on Form 8-A or other appropriate form (the "1934 Act
Registration Statement") (including all pre-effective and post-effective
<PAGE>
amendments thereto) relating to the registration of the Preferred or Capital
Securities of the Trust under the Securities Exchange Act of 1934, as
amended; (ii) to file with the New York Stock Exchange or other exchange, and
execute on behalf of the Trust a listing application and all other
applications, statements, certificates, agreements and other instruments as
shall be necessary or desirable to cause the Preferred or Capital Securities
to be listed on the New York Stock Exchange or such other exchange; (iii) to
file and execute on behalf of the Trust such applications, reports, surety
bonds, irrevocable consents, appointments of attorney for service of process
and other papers and documents as shall be necessary or desirable to register
the Preferred or Capital Securities under the securities or "Blue Sky" laws
of such jurisdictions as the Depositor, on behalf of the Trust, may deem
necessary or desirable; and (iv) to execute, deliver and perform on behalf of
the Trust an underwriting agreement with the Depositor and the underwriter or
underwriters of the Preferred or Capital Securities of the Trust. In the
event that any filing referred to in clauses (i)-(iii) above is required by
the rules and regulations of the Commission, the New York Stock Exchange or
other exchange, or state securities or Blue Sky laws to be executed on behalf
of the Trust by the Trustees, the Trustees, in their capacities as trustees
of the Trust, are hereby authorized and directed to join in any such filing
and to execute on behalf of the Trust any and all of the foregoing, it being
understood that the Trustees, in their capacities as trustees of the Trust,
shall not be required to join in any such filing or execute on behalf of the
Trust any such document unless required by the rules and regulations of the
Commission, the New York Stock Exchange or other exchange, or state
securities or Blue Sky laws. In connection with all of the foregoing, the
Trustees, solely in their capacities as trustees of the Trust, and the
Depositor hereby constitute and appoint Ronald G. Heller as his, her or its,
as the case may be, true and lawful attorney-in-fact and agent with full
power of substitution and resubstitution for the Depositor or in the
Depositor's name, place and stead, in any and all capacities, to sign any and
all amendments (including all pre-effective and post-effective amendments) to
the 1933 Act Registration Statement and the 1934 Act Registration Statement
and to file the same, with all exhibits thereto, and any other documents in
connection therewith, with the Commission, granting unto said attorney-in-
fact and agent full power and authority to do and perform each and every act
and thing requisite and necessary to be done in connection therewith, as
fully to all intents and purposes as the Depositor might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact and
agent or his respective substitute or substitutes, shall do or cause to be
done by virtue hereof.
5. This Trust Agreement may be executed in one or more counterparts.
6. The number of trustees of the Trust initially shall be four and
thereafter the number of trustees of the Trust shall be such number as shall
be fixed from time to time by a written instrument signed by the Depositor
which may increase or decrease the number of trustees of the Trust; provided,
however, that to the extent required by the Business Trust Act, one trustee
of the Trust shall either be a natural person who is a resident of the State
of Delaware or, if not a natural person, an entity which has its principal
place of business in the State of Delaware. Subject to the foregoing, the
Depositor is entitled to appoint or remove without cause any trustee of the
Trust at any time. Any trustee of the Trust may resign upon thirty days'
prior notice to the Depositor.
<PAGE>
7. This Trust Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware (with regard to conflict
of laws principles).
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement
to be duly executed as of the day and year first above written.
INGERSOLL-RAND COMPANY,
as Depositor
By: /s/ PATRICIA NACHTIGAL
Name: Patricia Nachtigal
Title: Vice President and
General Counsel
NANCY CASABLANCA, as Trustee MARK A. FERRUCCI, as Trustee
/s/ NANCY CASABLANCA /s/ MARK A. FERRUCCI
RONALD G. HELLER, as Trustee PATRICIA NACHTIGAL, as Trustee
/s/ RONALD G. HELLER /s/ PATRICIA NACHTIGAL
AMENDED AND RESTATED TRUST AGREEMENT, dated as of ______ __, 1997, 1996,
among (i) Ingersoll-Rand Company, a New Jersey corporation (including any
successors or assigns, the "Depositor"), (ii) ______________, a New York
banking corporation, as property trustee (in such capacity, the "Property
Trustee" and, in its separate corporate capacity and not in its capacity as
Property Trustee, the "Bank"), (iii) _____________, a banking corporation
organized under the laws of the State of Delaware, as Delaware trustee (the
"Delaware Trustee"), (iv) ____________, an individual, ____________, an
individual, and ____________ an individual, each of whose address is c/o
Ingersoll-Rand Company, 200 Chestnut Ridge Road, P.O. Box 8738, Woodcliff
Lake, New Jersey 07675-8738 (each an "Administrative Trustee" and
collectively the "Administrative Trustees") (the Property Trustee, the
Delaware Trustee and the Administrative Trustees referred to collectively as
the "Trustees") and (v) the several Holders, as hereinafter defined.
Witnesseth
Whereas, the Depositor and certain of the Trustees have heretofore duly
declared and established a business trust pursuant to the Delaware Business
Trust Act by entering into that certain Trust Agreement, dated as of August
18, 1997 (the "Original Trust Agreement"), and by the execution and filing
with the Secretary of State of the State of Delaware of the Certificate of
Trust, filed on August 18, 1997, attached as Exhibit A (the "Original
Certificate of Trust");
Whereas, pursuant to the Original Trust Agreement, the Depositor removed
one of the Trustees and substituted a new trustee pursuant to the Removal and
Appointment of Trustees of the Trust, dated as of ________ __, 1997;
Whereas, to reflect such removal and appointment of trustees, a Restated
Certificate of Trust of the Trust was filed with the Secretary of State of
the State of Delaware on ________ __, 1997 (the "Certificate of Trust"),
which Certificate of Trust amended and restated in its entirety the Original
Certificate of Trust;
Whereas, the Depositor and the Trustees desire to amend and restate the
Original Trust Agreement in its entirety as set forth herein to provide for,
among other things, (i) the issuance of the Common Securities by the Trust to
the Depositor, (ii) the issuance and sale of the Preferred Securities by the
Trust pursuant to the Underwriting Agreement and (iii) the acquisition by the
Trust from the Depositor of all of the right, title and interest in the
Subordinated Notes;
Now Therefore, in consideration of the agreements and obligations set
forth herein and for other good and valuable consideration, the sufficiency
of which is hereby acknowledged, each party, for the benefit of the other
parties and for the benefit of the Securityholders, hereby amends and
restates the Original Trust Agreement in its entirety and agrees as follows:
<PAGE>
ARTICLE I
Defined Terms
Section 1.1 Definitions.
For all purposes of this Trust Agreement, except as otherwise expressly
provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to them
in this Article and include the plural as well as the singular;
(b) all other terms used herein that are defined in the Trust Indenture
Act, either directly or by reference therein, have the meanings assigned to
them therein;
(c) unless the context otherwise requires, any reference to an "Article"
or a "Section" refers to an Article or a Section, as the case may be, of this
Trust Agreement; and
(d) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Trust Agreement as a whole and not to any
particular Article, Section or other subdivision.
"Act" has the meaning specified in Section 6.8.
"Additional Amount" means, with respect to Trust Securities of a given
Liquidation Amount and/or a given period, the amount of Additional Interest
(as defined in the Indenture) paid by the Depositor on a Like Amount of
Subordinated Notes for such period.
"Administrative Trustee" means each of the individuals identified as an
"Administrative Trustee" in the preamble to this Trust Agreement solely in
such individual's capacity as Administrative Trustee of the Trust heretofore
created and continued hereunder and not in such individual's individual
capacity, or such Administrative Trustee's successor in interest in such
capacity, or any successor trustee appointed as herein provided.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Bankruptcy Event" means, with respect to any Person:
(a) the entry of a decree or order by a court having jurisdiction in the
premises judging such Person as bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization, arrangement, adjudication
or composition of or in respect of such Person under any applicable federal
or state bankruptcy, insolvency, reorganization or other similar law, or
appointing a receiver, liquidator, assignee, trustee, sequestrator (or other
similar official) of such Person or of any substantial part of its property
or ordering the winding up or liquidation of its affairs, and the continuance
<PAGE>
of any such decree or order unstayed and in effect for a period of 60
consecutive days; or
(b) the institution by such Person of proceedings to be adjudicated as a
bankrupt or insolvent, or the consent by it to the institution of bankruptcy
or insolvency proceedings against it, or the filing by it of a petition or
answer or consent seeking reorganization or relief under any applicable
federal or state bankruptcy, insolvency, reorganization or other similar law,
or the consent by it to the filing of any such petition or to the appointment
of a receiver, liquidator, assignee, trustee, sequestrator (or similar
official) of such Person or of any substantial part of its property, or the
making by it of an assignment for the benefit of creditors, or the admission
by it in writing of its inability to pay its debts generally as they become
due and its willingness to be adjudicated as bankrupt, or the taking of
corporate action by such Person in furtherance of any such action.
"Bankruptcy Laws" has the meaning specified in Section 10.11.
"Book-Entry Preferred Securities Certificates" means a beneficial
interest in the Preferred Securities Certificates, ownership and transfers of
which shall be made through book entries by a Clearing Agency as described in
Section 5.11.
"Business Day" means a day other than (a) a Saturday or Sunday, (b) a
day on which banking institutions in the City of New York are authorized or
required by law or executive order to remain closed, or (c) a day on which
the Property Trustee's Corporate Trust Office or the Corporate Trust Office
of the Subordinated Note Trustee is closed for business.
"Certificate Depository Agreement" means the agreement among the Trust,
the Depositor and The Depository Trust Company, as the initial Clearing
Agency, dated as of the Closing Date, relating to the Trust Securities
Certificates, substantially in the form attached as Exhibit B, as the same
may be amended and supplemented from time to time.
"Certificate of Trust" has the meaning specified in the recitals hereof,
as amended or restated from time to time.
"Clearing Agency" means an organization registered as a "clearing
agency" pursuant to Section 17A of the Securities Exchange Act of 1934, as
amended. The Depository Trust Company will be the initial Clearing Agency.
"Clearing Agency Participant" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time a Clearing
Agency effects book-entry transfers and pledges of securities deposited with
the Clearing Agency.
"Closing Date" means the date of execution and delivery of this Trust
Agreement.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Securities Exchange Act of 1934, as
amended, or, if at any time after the execution of this instrument such
Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act, then the body performing such duties at such time.
<PAGE>
"Common Securities Certificate" means a certificate evidencing ownership
of Common Securities, substantially in the form attached as Exhibit C.
"Common Security" means an undivided beneficial ownership interest in
the assets of the Trust, having a Liquidation Amount of $1,000 and having the
rights provided therefor in this Trust Agreement, including the right to
receive Distributions and a Liquidation Distribution as provided herein.
"Corporate Trust Office" means (i) when used with respect to the
Property Trustee, the principal office of the Property Trustee located in New
York, New York, and (ii) when used with respect to the Subordinated Note
Trustee, the principal office of the Subordinated Note Trustee located in New
York, New York.
"Definitive Preferred Securities Certificates" means either or both (as
the context requires) of (a) Preferred Securities Certificates issued as
Book-Entry Preferred Securities Certificates as provided in Section 5.11(a)
and (b) Preferred Securities Certificates issued in certificated, fully
registered form as provided in Section 5.13.
"Delaware Business Trust Act" means Chapter 38 of Title 12 of the
Delaware Code, 12 Del. C. 3801, et seq., as it may be amended from time to
time.
"Delaware Trustee" means the Person identified as the "Delaware Trustee"
in the preamble to this Trust Agreement solely in its capacity as Delaware
Trustee of the Trust heretofore created and continued hereunder and not in
its individual capacity, or its successor in interest in such capacity, or
any successor trustee appointed as herein provided.
"Depositor" has the meaning specified in the preamble to this Trust
Agreement.
"Distribution Date" has the meaning specified in Section 4.1(a).
"Distributions" means amounts payable in respect of the Trust Securities
as provided in Section 4.1.
"Early Termination Event" has the meaning specified in Section 9.2.
"Event of Default" means any one of the following events (whatever the
reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(a) the occurrence of a Subordinated Note Event of Default; or
(b) default by the Property Trustee in the payment of any Distribution
when it becomes due and payable, and continuation of such default for a
period of 30 days; or
(c) default by the Property Trustee in the payment of any Redemption
Price of any Trust Security when it becomes due and payable; or
(d) default in the performance, or breach, in any material respect, of
any covenant or warranty of the Trustees in this Trust Agreement (other than
<PAGE>
a covenant or warranty a default in the performance or breach of which is
dealt with in clause (b) or (c) above) and continuation of such default or
breach for a period of 90 days after there has been given, by registered or
certified mail, to the defaulting Trustee or Trustees by the Holders of at
least 25% in aggregate Liquidation Amount of the Outstanding Preferred
Securities, a written notice specifying such default or breach and requiring
it to be remedied and stating that such notice is a "Notice of Default"
hereunder; or
(e) the occurrence of a Bankruptcy Event with respect to the Property
Trustee and the failure by the Depositor to appoint a successor Property
Trustee within 90 days thereof.
"Expiration Date" has the meaning specified in Section 9.1.
"Guarantee" means the Guarantee Agreement executed and delivered by the
Depositor and ___________, as trustee, contemporaneously with the execution
and delivery of this Trust Agreement, for the benefit of the Holders of the
Trust Securities, as amended from time to time.
"Indenture" means the Junior Subordinated Indenture, dated as of
________ __, 1997, between the Depositor and the Subordinated Note Trustee,
as trustee, as amended or supplemented from time to time, including any
supplemental indenture, board resolution or officers' certificate
establishing the terms of the Subordinated Notes, as the case may be.
"Lien" means any lien, pledge, charge, encumbrance, mortgage, deed of
trust, adverse ownership interest, hypothecation, assignment, security
interest or preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever.
"Like Amount" means (a) with respect to a redemption of Trust
Securities, Trust Securities having a Liquidation Amount equal to the
principal amount of Subordinated Notes to be contemporaneously redeemed in
accordance with the Indenture the proceeds of which will be used to pay the
Redemption Price of such Trust Securities, and (b) with respect to a
distribution of Subordinated Notes to Holders of Trust Securities in
connection with a dissolution or liquidation of the Trust, Subordinated Notes
having a principal amount equal to the Liquidation Amount of the Trust
Securities of the Holder to whom such Subordinated Notes are distributed.
"Liquidation Amount" means the stated amount of $1,000 per Trust
Security.
"Liquidation Date" means the date on which Subordinated Notes are to be
distributed to Holders of Trust Securities in connection with a dissolution
and liquidation of the Trust pursuant to Section 9.4(a).
"Liquidation Distribution" has the meaning specified in Section 9.4(d).
"1940 Act" means the Investment Company Act of 1940, as amended.
"Officers' Certificate" means a certificate signed by the Chairman and
Chief Executive Officer, President or a Vice President, and by the Treasurer,
an Associate Treasurer, an Assistant Treasurer, the Controller, the Secretary
or an Assistant Secretary, of the Depositor, and delivered to the appropriate
Trustee. One of the officers signing an Officers' Certificate given pursuant
<PAGE>
to Section 8.16 shall be the principal executive, financial or accounting
officer of the Depositor. Any Officers' Certificate delivered with respect to
compliance with a condition or covenant provided for in this Trust Agreement
shall include:
(a) a statement that each officer signing the Officers' Certificate has
read the covenant or condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the Officers'
Certificate;
(c) a statement that each such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such
officer to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(d) a statement as to whether, in the opinion of each such officer, such
condition or covenant has been complied with.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Trust, the Property Trustee or the Depositor, and who shall
be reasonably acceptable to the Property Trustee.
"Original Trust Agreement" has the meaning specified in the recitals to
this Trust Agreement.
"Outstanding" when used with respect to Trust Securities, means, as of
the date of determination, all Trust Securities theretofore executed and
delivered under this Trust Agreement, except:
(a) Trust Securities theretofore cancelled by the Securities Registrar
or delivered to the Securities Registrar for cancellation;
(b) Trust Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Property Trustee or
any Paying Agent for the Holders of such Trust Securities; provided that, if
such Trust Securities are to be redeemed, notice of such redemption has been
duly given pursuant to this Trust Agreement; and
(c) Trust Securities which have been paid or in exchange for or in lieu
of which other Trust Securities have been executed and delivered pursuant to
this Trust Agreement, including pursuant to Sections 5.4, 5.5, 5.11 and 5.13;
provided, however, that in determining whether the Holders of the requisite
Liquidation Amount of the Outstanding Preferred Securities have given any
request, demand, authorization, direction, notice, consent or waiver
hereunder, Preferred Securities owned by the Depositor, any Trustee or any
Affiliate of the Depositor or any Trustee shall be disregarded and deemed not
to be Outstanding, except that (a) in determining whether any Trustee shall
be protected in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Preferred Securities that such
Trustee actually knows to be so owned shall be so disregarded and (b) the
foregoing shall not apply at any time when all of the outstanding Preferred
Securities are owned by the Depositor, one or more of the Trustees and/or any
such Affiliate. Preferred Securities so owned which have been pledged in good
<PAGE>
faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Administrative Trustees the pledgee's right so to act
with respect to such Preferred Securities and that the pledgee is not the
Depositor or any Affiliate of the Depositor.
"Owner" means each Person who is the beneficial owner of a Book-Entry
Preferred Securities Certificate as reflected in the records of the Clearing
Agency or, if a Clearing Agency Participant is not the beneficial owner, then
as reflected in the records of a Person maintaining an account with such
Clearing Agency (directly or indirectly, in accordance with the rules of such
Clearing Agency).
"Paying Agent" means any paying agent or co-paying agent appointed
pursuant to Section 5.9 and shall initially be the Bank.
"Payment Account" means a segregated non-interest-bearing corporate
trust account maintained by the Property Trustee with the Bank in its
corporate trust department for the benefit of the Securityholders in which
all amounts paid in respect of the Subordinated Notes will be held and from
which the Property Trustee, through the Paying Agent, shall make payments to
the Securityholders in accordance with Sections 4.1 and 4.2.
"Person" means any individual, corporation, partnership, joint venture,
trust, limited liability company or corporation, unincorporated organization
or government or any agency or political subdivision thereof.
"Preferred Security" means an undivided beneficial ownership interest in
the assets of the Trust, having a Liquidation Amount of $_____ and having the
rights provided therefor in this Trust Agreement, including the right to
receive Distributions and a Liquidation Distribution as provided herein.
"Preferred Securities Certificate" means a certificate evidencing
ownership of Preferred Securities, substantially in the form attached as
Exhibit D.
"Property Trustee" means the Person identified as the "Property Trustee"
in the preamble to this Trust Agreement solely in its capacity as Property
Trustee of the Trust heretofore created and continued hereunder and not in
its individual capacity, or its successor in interest in such capacity, or
any successor property trustee appointed as herein provided.
"Redemption Date" means, with respect to any Trust Security to be
redeemed, the date fixed for such redemption by or pursuant to this Trust
Agreement; provided that each Subordinated Note Redemption Date and the
stated maturity of the Subordinated Notes shall be a Redemption Date for a
Like Amount of Trust Securities.
"Redemption Price" means, with respect to any Trust Security, the
Liquidation Amount of such Trust Security, plus accumulated and unpaid
Distributions to the Redemption Date, plus the related amount of the premium,
if any, paid by the Depositor upon the concurrent redemption of a Like Amount
of Subordinated Notes, allocated on a pro rata basis (based on Liquidation
Amounts) among the Trust Securities.
"Relevant Trustee" shall have the meaning specified in Section 8.10.
<PAGE>
"Securities Register" and "Securities Registrar" have the respective
meanings specified in Section 5.4.
"Securityholder" or "Holder" means a Person in whose name a Trust
Security or Trust Securities is registered in the Securities Register; any
such Person shall be a beneficial owner within the meaning of the Delaware
Business Trust Act; provided, however, that in determining whether the
Holders of the requisite amount of Preferred Securities have voted on any
matter provided for in this Trust Agreement, then for the purpose of any such
determination, so long as Definitive Preferred Securities Certificates have
not been issued, the term Securityholders or Holders as used herein shall
refer to the Owners.
"Subordinated Notes" means $_____ aggregate principal amount of the
Depositor's ____% of Junior Subordinated Notes issued pursuant to the
Indenture.
"Subordinated Note Event of Default" means an "Event of Default" as
defined in the Indenture.
"Subordinated Note Redemption Date" means, with respect to any
Subordinated Notes to be redeemed under the Indenture, the date fixed for
redemption under the Indenture.
"Subordinated Note Tax Event" means a "Tax Event" as defined in the
Indenture.
"Subordinated Note Trustee" _________, means a New York banking
corporation, as trustee under the Indenture, and any successor trustee
appointed as provided therein.
"Tax Event" means the receipt by the Trust or the Depositor of an
Opinion of Counsel experienced in such matters to the effect that, as a
result of any amendment to, or change (including any announced proposed
change) in, the laws (or any regulations thereunder) of the United States or
any political subdivision or taxing authority thereof or therein, or as a
result of any official administrative pronouncement or judicial decision
interpreting or applying such laws or regulations, which amendment or change
is effective, or which proposed change, pronouncement or decision is
announced, on or after the date of issuance of the Preferred Securities under
this Trust Agreement, there is more than an insubstantial risk that (i) the
Trust is, or will be within 90 days after the date of such Opinion of
Counsel, subject to United States federal income tax with respect to income
received or accrued on the Subordinated Notes, (ii) interest payable by the
Depositor on the Subordinated Notes is not, or within 90 days after the date
of such Opinion of Counsel, will not be, deductible by the Depositor, in
whole or in part, for United States federal income tax purposes or (iii) the
Trust is, or will be within 90 days after the date of such Opinion of
Counsel, subject to more than a de minimis amount of other taxes, duties or
other governmental charges.
"Trust" means the Delaware business trust heretofore created and
continued hereby and identified on the cover page to this Trust Agreement.
"Trust Agreement" means this Amended and Restated Trust Agreement, as
the same may be modified, amended or supplemented in accordance with the
applicable provisions hereof, including (i) all exhibits hereto and (ii) for
<PAGE>
all purposes of this Trust Agreement and any such modification, amendment or
supplement, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this Trust Agreement and any such modification, amendment
or supplement, respectively.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force
at the date as of which this instrument was executed; provided, however, that
in the event the Trust Indenture Act of 1939 is amended after such date,
"Trust Indenture Act" means, to the extent required by any such amendment,
the Trust Indenture Act of 1939 as so amended.
"Trust Property" means (a) the Subordinated Notes, (b) any cash on
deposit in, or owing to, the Payment Account and (c) all proceeds and rights
in respect of the foregoing.
"Trust Security" means any one of the Common Securities or the Preferred
Securities.
"Trust Securities Certificate" means any one of the Common Securities
Certificates or the Preferred Securities Certificates.
"Trustees" means, collectively, the Property Trustee, the Delaware
Trustee and the Administrative Trustees.
"Underwriting Agreement" means the Underwriting Agreement, dated as of
_________ __, 1997, among the Trust, the Depositor and __________, as
representative of the underwriters named therein.
ARTICLE II
Continuation of the Trust
Section 2.1 Name.
The Trust continued hereby shall be known as "Ingersoll-Rand
Financing I," as such name may be modified from time to time by the
Administrative Trustees following written notice to the Holders of Trust
Securities and the other Trustees, in which name the Trustees engage in the
transactions contemplated hereby, make and execute contracts and other
instruments on behalf of the Trust and sue and be sued.
Section 2.2 Office of the Delaware Trustee; Principal Place of
Business.
The address of the Delaware Trustee in the State of Delaware is c/o
__________ ____________________, Attention: Corporate Trust Department or
such other address in the State of Delaware as the Delaware Trustee may
designate by written notice to the Securityholders and the Depositor. The
principal executive office of the Trust is c/o Ingersoll-Rand Company, 200
Chestnut Ridge Road, P.O. Box 8738, Woodcliff Lake, New Jersey 07675-8738.
Section 2.3 Initial Contribution of Trust Property; Organizational
Expenses.
The Property Trustee acknowledges receipt in trust from the Depositor
in connection with the Original Trust Agreement of the sum of $10, which
constituted the initial Trust Property. Pursuant to the covenant "Payment of
Trust Costs and Expenses" contained in the Indenture, the Depositor, in its
capacity as the issuer of the Subordinated Notes, shall pay organizational
<PAGE>
expenses of the Trust as they arise or shall, upon request of any Trustee,
promptly reimburse such Trustee for any such expenses paid by such Trustee.
The Depositor shall make no claim upon the Trust Property for the payment of
such expenses.
Section 2.4 Issuance of the Preferred Securities.
The Depositor, on behalf of the Trust and pursuant to the Original
Trust Agreement, executed and delivered the Underwriting Agreement on
____________. Contemporaneously with the execution and delivery of this
Trust Agreement, an Administrative Trustee, on behalf of the Trust, shall
execute in accordance with Section 5.2 and deliver to the Underwriters named
in the Underwriting Agreement Preferred Securities Certificates, registered
in the name of the nominee of the initial Clearing Agency, in an aggregate
amount of ______ Preferred Securities having an aggregate Liquidation Amount
of $____________, against receipt of an aggregate purchase price of such
Preferred Securities of $____________, which amount such Administrative
Trustee shall promptly deliver to the Property Trustee.
Section 2.5 Issuance of the Common Securities; Subscription and
Purchase of Subordinated Notes.
Contemporaneously with the execution and delivery of this Trust
Agreement, an Administrative Trustee, on behalf of the Trust, shall execute
in accordance with Section 5.2 and deliver to the Depositor Common Securities
Certificates, registered in the name of the Depositor, in an aggregate amount
of _______ Common Securities having an aggregate Liquidation Amount of
$__________ against payment by the Depositor of an aggregate purchase price
therefor of $___________ which amount such Administrative Trustee shall
promptly deliver to the Property Trustee. Contemporaneously therewith, an
Administrative Trustee, on behalf of the Trust, shall subscribe to and
purchase from the Depositor Subordinated Notes, registered in the name of the
Trust and having an aggregate principal amount equal to $_____________, and,
in satisfaction of the purchase price for such Subordinated Notes, the
Property Trustee, on behalf of the Trust, shall deliver to the Depositor the
sum of $_______________ (being the sum of the amounts delivered to the
Property Trustee pursuant to (i) the second sentence of Section 2.4 and (ii)
the first sentence of this Section 2.5).
Section 2.6 Declaration of Trust.
The exclusive purposes and functions of the Trust are (a) to issue
and sell Trust Securities, (b) to use the proceeds from such sale to acquire
the Subordinated Notes and (c) to engage in those activities necessary or
incidental thereto. The Depositor hereby appoints the Trustees as trustees of
the Trust, to have all the rights, powers and duties to the extent set forth
herein, and the Trustees hereby accept such appointment. The Property
Trustee hereby declares that it will hold the Trust Property in trust upon
and subject to the conditions set forth herein for the benefit of the Trust
and the Securityholders. The Administrative Trustees shall have all rights,
powers and duties set forth herein and in accordance with applicable law with
respect to accomplishing the purposes of the Trust. The Delaware Trustee
shall not be entitled to exercise any powers, nor shall the Delaware Trustee
have any of the duties and responsibilities, of the Property Trustee or the
Administrative Trustees set forth herein. The Delaware Trustee shall be one
of the Trustees of the Trust for the sole and limited purpose of fulfilling
the requirements of Section 3807 of the Delaware Business Trust Act.
<PAGE>
Section 2.7 Authorization to Enter into Certain Transactions.
(a) The Trustees shall conduct the affairs of the Trust in accordance
with the terms of this Trust Agreement. Subject to the limitations set forth
in paragraph (b) of this Section, Article VIII and in accordance with the
following provisions (i) and (ii), the Trustees shall have the authority to
enter into all transactions and agreements determined by the Trustees to be
appropriate in exercising the authority, express or implied, otherwise
granted to the Trustees under this Trust Agreement, and to perform all acts
in furtherance thereof, including without limitation, the following:
(i) As among the Trustees, each Administrative
Trustee shall have the power and authority to act on behalf of the
Trust with respect to the following matters:
(A) the issuance and sale of the Trust Securities;
(B) to cause the Trust to enter into, and to
execute, deliver and perform on behalf of the Trust, the
Certificate Depository Agreement, and such other agreements
as may be necessary or desirable in connection with the
purposes and function of the Trust;
(C) assisting in the registration of the Preferred
Securities under the Securities Act of 1933, as amended, and
under state securities or blue sky laws, and the
qualification of this Trust Agreement as a trust indenture
under the Trust Indenture Act;
(D) assisting in the listing, if any, of the
Preferred Securities upon such national or international
securities exchange or exchanges or automated quotation
system or systems as shall be determined by the Depositor
and the registration of the Preferred Securities under the
Securities Exchange Act of 1934, as amended, and the
preparation and filing of all periodic and other reports and
other documents pursuant to the foregoing;
(E) the sending of notices (other than notices of
default) and other information regarding the Trust
Securities and the Subordinated Notes to the Securityholders
in accordance with this Trust Agreement;
(F) the appointment of a Paying Agent and
Securities Registrar in accordance with this Trust
Agreement;
(G) registering transfer of the Trust Securities in
accordance with this Trust Agreement;
(H) to the extent provided in this Trust Agreement,
the winding up of the affairs of and liquidation of the
Trust and the execution and filing of the certificate of
cancellation with the Secretary of State of the State of
Delaware; and
(I) the taking of any action incidental to the
foregoing as the Trustees may from time to time determine is
<PAGE>
necessary or advisable to give effect to the terms of this
Trust Agreement for the benefit of the Securityholders
(without consideration of the effect of any such action on
any particular Securityholder).
(ii) As among the Trustees, the Property Trustee
shall have the power, duty and authority to act on behalf of the
Trust with respect to the following matters:
(A) the establishment of the Payment Account;
(B) the receipt of the Subordinated Notes;
(C) the collection of interest, principal and any
other payments made in respect of the Subordinated Notes in
the Payment Account;
(D) the distribution through the Paying Agent of
amounts owed to the Securityholders in respect of the Trust
Securities;
(E) the exercise of all of the rights, powers and
privileges of a holder of the Subordinated Notes;
(F) the sending of notices of default and other
information regarding the Trust Securities and the
Subordinated Notes to the Securityholders in accordance with
this Trust Agreement;
(G) the distribution of the Trust Property in
accordance with the terms of this Trust Agreement;
(H) to the extent provided in this Trust Agreement,
the winding up of the affairs of and liquidation of the
Trust and the execution and filing of the certificate of
cancellation with the Secretary of State of the State of
Delaware;
(I) after an Event of Default (other than under
paragraph (b), (c), (d) or (e) of the definition of such
term if such Event of Default is by or with respect to the
Property Trustee) the taking of any action incidental to the
foregoing as the Property Trustee may from time to time
determine is necessary or advisable to give effect to the
terms of this Trust Agreement and protect and conserve the
Trust Property for the benefit of the Securityholders
(without consideration of the effect of any such action on
any particular Securityholder); and
(J) except as otherwise provided in this Section
2.7(a)(ii), the Property Trustee shall have none of the
duties, liabilities, powers or the authority of the
Administrative Trustees set forth in Section 2.7(a)(i).
(b) So long as this Trust Agreement remains in effect, the Trust (or
the Trustees acting on behalf of the Trust) shall not undertake any business,
activities or transactions except as expressly provided herein or
contemplated hereby. In particular, the Trustees shall not (i) acquire any
<PAGE>
investments or engage in any activities not authorized by this Trust
Agreement, (ii) sell, assign, transfer, exchange, mortgage, pledge, set-off
or otherwise dispose of any of the Trust Property or interests therein,
including to Securityholders, except as expressly provided herein, (iii) take
any action that would cause the Trust to fail or cease to qualify as a
"grantor trust" for United States federal income tax purposes, (iv) incur any
indebtedness for borrowed money or issue any other debt, (v) take or consent
to any action that would result in the placement of a Lien on any of the
Trust Property, (vi) invest any proceeds received by the Trust from holding
the Subordinated Notes, but shall distribute all such proceeds to Holders of
Trust Securities pursuant to the terms of this Trust Agreement and of the
Trust Securities; (vii) acquire any assets other than the Trust Property;
(viii) possess any power or otherwise act in such a way as to vary the Trust
Property; (ix) possess any power or otherwise act in such a way as to vary
the terms of the Trust Securities in any way whatsoever (except to the extent
expressly authorized in this Trust Agreement or by the terms of the Trust
Securities); or (x) issue any securities or other evidences of beneficial
ownership of, or beneficial interest in, the Trust other than the Trust
Securities. The Administrative Trustees shall defend all claims and demands
of all Persons at any time claiming any Lien on any of the Trust Property
adverse to the interest of the Trust or the Securityholders in their capacity
as Securityholders.
(c) In connection with the issue and sale of the Preferred
Securities, the Depositor shall have the right and responsibility to assist
the Trust with respect to, or effect on behalf of the Trust, the following
(and any actions taken by the Depositor in furtherance of the following prior
to the date of this Trust Agreement are hereby ratified and confirmed in all
respects):
(i) the preparation and filing by the Trust with the
Commission and the execution on behalf of the Trust of a registration
statement on the appropriate form in relation to the Preferred
Securities, including any amendments thereto;
(ii) the determination of the states in which to take
appropriate action to qualify or register for sale all or part of the
Preferred Securities and the determination of any and all such acts,
other than actions which must be taken by or on behalf of the Trust,
and the advice to the Trustees of actions they must take on behalf of
the Trust, and the preparation for execution and filing of any
documents to be executed and filed by the Trust or on behalf of the
Trust, as the Depositor deems necessary or advisable in order to
comply with the applicable laws of any such states;
(iii) the preparation for filing by the Trust and
execution on behalf of the Trust of an application to the New York
Stock Exchange or any other national or international stock exchange
or the NASDAQ National Market or any other automated quotation system
for listing upon notice of issuance of any Preferred Securities and
filing with such exchange or self regulatory organization such
notifications and documents as may be necessary from time to time to
maintain such listing;
(iv) the negotiation of the terms of, and the
execution and delivery of, the Underwriting Agreement providing for
the sale of the Preferred Securities; and
<PAGE>
(v) the taking of any other actions necessary or
desirable to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the
Administrative Trustees are authorized and directed to conduct the affairs of
the Trust and to operate the Trust so that the Trust will not be deemed to be
an "investment company" required to be registered under the 1940 Act, or fail
to be classified as a grantor trust for United States federal income tax
purposes and so that the Subordinated Notes will be treated as indebtedness
of the Depositor for United States federal income tax purposes. In this
connection, the Depositor and the Administrative Trustees are authorized to
take any action, not inconsistent with applicable law, the Certificate of
Trust or this Trust Agreement, that each of the Depositor and any
Administrative Trustee determines in its discretion to be necessary or
desirable for such purposes, as long as such action does not adversely affect
in any material respect the interests of the Holders of the Preferred
Securities.
Section 2.8 Assets of Trust.
The assets of the Trust shall consist solely of the Trust Property.
Section 2.9 Title to Trust Property.
Legal title to all Trust Property shall be vested at all times in the
Property Trustee (in its capacity as such) and shall be held and administered
by the Property Trustee for the benefit of the Trust and the Securityholders
in accordance with this Trust Agreement.
ARTICLE III
Payment Account
Section 3.1 Payment Account.
(a) On or prior to the Closing Date, the Property Trustee shall
establish the Payment Account. The Property Trustee and any agent of the
Property Trustee shall have exclusive control and sole right of withdrawal
with respect to the Payment Account for the purpose of making deposits in and
withdrawals from the Payment Account in accordance with this Trust Agreement.
All monies and other property deposited or held from time to time in the
Payment Account shall be held by the Property Trustee in the Payment Account
for the exclusive benefit of the Securityholders and for distribution as
herein provided, including (and subject to) any priority of payments provided
for herein.
(b) The Property Trustee shall deposit in the Payment Account,
promptly upon receipt, all payments of principal of or interest or premium
on, and any other payments or proceeds with respect to, the Subordinated
Notes. Amounts held in the Payment Account shall not be invested by the
Property Trustee.
<PAGE>
ARTICLE IV
Distributions; Redemption
Section 4.1 Distributions.
(a) The Trust Securities represent undivided beneficial ownership
interests in the Trust Property, and Distributions will be made on the Trust
Securities at the rate and on the dates that payments of interest are made on
the Subordinated Notes. Accordingly:
(i) Distributions on the Trust Securities shall be
cumulative, and will accumulate whether or not there are funds of the
Trust available for the payment of Distributions. Distributions shall
accrue from _________, and, except in the event (and to the extent)
that the Depositor exercises its right to defer the payment of
interest on the Subordinated Notes pursuant to the Indenture, shall
be payable [quarterly] [semi-annually] in arrears on ________ 1,
_____ 1, [_______ 1 and ______ 1] of each year, commencing on
________ 1, 199_. If any date on which a Distribution is otherwise
payable on the Trust Securities is not a Business Day, then the
payment of such Distribution shall be made on the next succeeding day
that is a Business Day (and without any interest or other payment in
respect of any such delay) except that, if such Business Day is in
the next succeeding calendar year, payment of such Distribution shall
be made on the immediately preceding Business Day, in each case with
the same force and effect as if made on such date (each date on which
Distributions are payable in accordance with this Section 4.1(a), a
"Distribution Date").
(ii) Assuming payments of interest on the
Subordinated Notes are made when due, Distributions on the Trust
Securities shall be payable at the rate of ____% per annum on the
Liquidation Amount of the Trust Securities. The amount of
Distributions shall be computed on the basis of the actual number of
days in the period and a 360 day year.
(iii) Distributions on the Trust Securities shall be
made by the Property Trustee from the Payment Account and shall be
payable on each Distribution Date only to the extent that the Trust
has funds then on hand and available in the Payment Account for the
payment of such Distributions.
(b) Distributions on the Trust Securities with respect to a
Distribution Date shall be payable to the Holders thereof as they appear on
the Securities Register for the Trust Securities on the relevant record date,
which shall be one Business Day prior to such Distribution Date; provided,
however, that in the event that the Preferred Securities do not remain in
book-entry-only form, the relevant record date shall be the 15th day of the
month prior to the relevant Distribution Date (whether or not such record
date is a Business Day).
Section 4.2 Redemption.
(a) On each Subordinated Note Redemption Date and on the stated
maturity of the Subordinated Notes, the Trust will be required to redeem a
Like Amount of Trust Securities at the Redemption Price.
(b) Notice of redemption shall be given by the Property Trustee by
first-class mail, postage prepaid, mailed not less than 30 nor more than 60
days prior to the Redemption Date to each Holder of Trust Securities to be
<PAGE>
redeemed, at such Holder's address appearing in the Security Register. All
notices of redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) the CUSIP number, International Securities
Identification Number and Common Code;
(iv) if less than all the Outstanding Trust
Securities are to be redeemed, the identification and the total
Liquidation Amount of the particular Trust Securities to be redeemed;
(v) that on the Redemption Date the Redemption Price
will become due and payable upon each such Trust Security to be
redeemed and that Distributions thereon will cease to accrue on and
after said date; and
(vi) if the Preferred Securities are no longer in
book-entry-only form, the place and address where the Holders shall
surrender their Preferred Securities Certificates.
(c) The Trust Securities redeemed on each Redemption Date shall be
redeemed at the Redemption Price with the proceeds from the contemporaneous
redemption or payment at stated maturity of Subordinated Notes. Redemptions
of the Trust Securities shall be made and the Redemption Price shall be
payable on each Redemption Date only to the extent that the Trust has funds
then on hand and available in the Payment Account for the payment of such
Redemption Price.
(d) If the Property Trustee gives a notice of redemption in respect
of any Preferred Securities, then, by 12:00 noon, New York City time, on the
Redemption Date, subject to Section 4.2(c), the Property Trustee will, so
long as the Preferred Securities are in book-entry-only form, irrevocably
deposit with the Clearing Agency for the Preferred Securities funds
sufficient to pay the applicable Redemption Price and will give such Clearing
Agency irrevocable instructions and authority to pay the Redemption Price to
the Owners thereof. If the Preferred Securities are no longer in book-entry-
only form, the Property Trustee, subject to Section 4.2(c), will irrevocably
deposit with the Paying Agent funds sufficient to pay the applicable
Redemption Price and will give the Paying Agent irrevocable instructions and
authority to pay the Redemption Price to the Holders thereof upon surrender
of their Preferred Securities Certificates. Notwithstanding the foregoing,
Distributions payable on or prior to the Redemption Date for any Trust
Securities called for redemption shall be payable to the Holders of such
Trust Securities as they appear on the Securities Register for the Trust
Securities on the relevant record dates for the related Distribution Dates.
If notice of redemption shall have been given and funds deposited as
required, then upon the date of such deposit, all rights of Securityholders
holding Trust Securities so called for redemption will cease, except the
right of such Securityholders to receive the Redemption Price and any
Distribution payable on or prior to the Redemption Date, but without interest
thereon, and such Trust Securities will cease to be outstanding. In the event
that any date on which any Redemption Price is payable is not a Business Day,
then payment of the Redemption Price payable on such date will be made on the
<PAGE>
next succeeding day that is a Business Day (and without any interest or other
payment in respect of any such delay), except that, if such Business Day
falls in the next calendar year, such payment will be made on the immediately
preceding Business Day, in each case, with the same force and effect as if
made on such date. In the event that payment of the Redemption Price in
respect of any Trust Securities called for redemption is improperly withheld
or refused and not paid either by the Trust or by the Depositor pursuant to
the Guarantee, Distributions on such Trust Securities will continue to
accrue, at the then applicable rate, from the Redemption Date originally
established by the Trust for such Trust Securities to the date such
Redemption Price is actually paid, in which case the actual payment date will
be the date fixed for redemption for purposes of calculating the Redemption
Price.
(e) Payment of the Redemption Price on the Trust Securities shall be
made to the recordholders thereof as they appear on the Securities Register
for the Trust Securities on the relevant record date, which shall be one
Business Day prior to the relevant Redemption Date; provided, however, that
in the event that the Preferred Securities do not remain in book-entry-only
form, the relevant record date shall be the date fifteen days prior to the
relevant Redemption Date.
(f) Subject to Section 4.3(a), if less than all the Outstanding Trust
Securities are to be redeemed on a Redemption Date, then the aggregate
Liquidation Amount of Trust Securities to be redeemed shall be allocated on a
pro rata basis (based on Liquidation Amounts) among the Common Securities and
the Preferred Securities. The particular Preferred Securities to be redeemed
shall be selected on a pro rata basis (based upon Liquidation Amounts) not
more than 60 days prior to the Redemption Date by the Property Trustee from
the Outstanding Preferred Securities not previously called for redemption, by
such method as may provide for the selection for redemption of portions
(equal to $1,000 or an integral multiple of $1,000 in excess thereof) of the
Liquidation Amount of Preferred Securities of a denomination larger than
$1,000. The Property Trustee shall promptly notify the Security Registrar in
writing of the Preferred Securities selected for redemption and, in the case
of any Preferred Securities selected for partial redemption, the Liquidation
Amount thereof to be redeemed. For all purposes of this Trust Agreement,
unless the context otherwise requires, all provisions relating to the
redemption of Preferred Securities shall relate, in the case of any Preferred
Securities redeemed or to be redeemed only in part, to the portion of the
Liquidation Amount of Preferred Securities that has been or is to be
redeemed.
Section 4.3 Subordination of Common Securities.
(a) Payment of Distributions on, and the Redemption Price of, the
Trust Securities, as applicable, shall be made pro rata among the Common
Securities and the Preferred Securities based on the Liquidation Amount of
the Trust Securities; provided, however, that if on any Distribution Date or
Redemption Date any Event of Default resulting from a Subordinated Note Event
of Default shall have occurred and be continuing, no payment of any
Distribution on, or Redemption Price of, any Common Security, and no other
payment on account of the redemption, liquidation or other acquisition of
Common Securities, shall be made unless payment in full in cash of all
accumulated and unpaid Distributions on all Outstanding Preferred Securities
for all Distribution periods terminating on or prior thereto, or in the case
of payment of the Redemption Price the full amount of such Redemption Price
<PAGE>
on all Outstanding Preferred Securities then called for redemption, shall
have been made or provided for, and all funds immediately available to the
Property Trustee shall first be applied to the payment in full in cash of all
Distributions on, or the Redemption Price of, Preferred Securities then due
and payable.
(b) In the case of the occurrence of any Event of Default resulting
from any Subordinated Note Event of Default, the Holder of Common Securities
will be deemed to have waived any right to act with respect to any such Event
of Default under this Trust Agreement until the effect of all such Events of
Default with respect to the Preferred Securities have been cured, waived or
otherwise eliminated. Until any such Event of Default under this Trust
Agreement with respect to the Preferred Securities has been so cured, waived
or otherwise eliminated, the Property Trustee shall act solely on behalf of
the Holders of the Preferred Securities and not the Holder of the Common
Securities, and only the Holders of the Preferred Securities will have the
right to direct the Property Trustee to act on their behalf.
Section 4.4 Payment Procedures.
Payments of Distributions in respect of the Preferred Securities
shall be made by check mailed to the address of the Person entitled thereto
as such address shall appear on the Securities Register or, if the Preferred
Securities are held by a Clearing Agency, such Distributions shall be made to
the Clearing Agency in immediately available funds, which shall credit the
relevant Persons' accounts at such Clearing Agency on the applicable
Distribution Dates. Payments in respect of the Common Securities shall be
made in such manner as shall be mutually agreed in writing between the
Property Trustee and the Common Securityholder.
Section 4.5 Tax Returns and Reports.
The Administrative Trustees shall prepare (or cause to be prepared),
at the expense of the issuer of the Subordinated Notes, and file all United
States federal, state and local tax and information returns and reports
required to be filed by or in respect of the Trust. In this regard, the
Administrative Trustees shall (a) prepare and file (or cause to be prepared
and filed) the appropriate Internal Revenue Service Form required to be filed
in respect of the Trust in each taxable year of the Trust and (b) prepare and
furnish (or cause to be prepared and furnished) to each Securityholder the
appropriate Internal Revenue Service form and the information required to be
provided on such form. The Administrative Trustees shall provide the
Depositor and the Property Trustee with a copy of all such returns and
reports promptly after such filing or furnishing. The Trustees shall comply
with United States federal withholding and backup withholding tax laws and
information reporting requirements with respect to any payments to
Securityholders under the Trust Securities.
Section 4.6 Payment of Expenses of the Trust.
(a) Pursuant to the covenant "Payment of Trust Costs and Expenses"
contained in the Indenture, the Depositor, in its capacity as the issuer of
the Subordinated Notes, has agreed to pay to the Trust, and reimburse the
Trust for, the full amount of any costs, expenses or liabilities of the Trust
(other than obligations of the Trust to pay the Holders of any Trust
Securities or other similar interests in the Trust the amounts due such
Holders pursuant to the terms of this Trust Agreement or such other similar
<PAGE>
interests, as the case may be), including without limitation, any taxes,
duties or other governmental charges of whatever nature (other than United
States withholding taxes) imposed on the Trust by the United States or any
other taxing authority. Such payment obligation includes any such costs,
expenses or liabilities of the Trust that are required by applicable law to
be satisfied in connection with a termination of such Trust.
(b) Upon receipt by the Trust of the amounts described in subsection
4.6(a), the Trust shall promptly pay any taxes, duties or other governmental
charges of whatever nature (other than United States withholding taxes)
imposed on the Trust by the United States or any other taxing authority.
Section 4.7 Payments under Indenture or Pursuant to Direct Actions.
Any amount payable hereunder to any Holder of Preferred Securities
shall be reduced by the amount of any corresponding payment such Holder (or
an Owner with respect to the Holder's Preferred Securities) has directly
received pursuant to Section 5.8 of the Indenture or Section 5.14 of this
Trust Agreement.
ARTICLE V
Trust Securities Certificates
Section 5.1 Initial Ownership.
Upon the creation of the Trust and the contribution by the Depositor
referred to in Section 2.3 and until the issuance of the Trust Securities,
and at any time during which no Trust Securities are outstanding, the
Depositor shall be the sole beneficial owner of the Trust.
Section 5.2 The Trust Securities Certificates.
The Preferred Securities Certificates shall be issued in minimum
denominations of $1,000 Liquidation Amount and integral multiples of $1,000
in excess thereof, and the Common Securities Certificates shall be issued in
denominations of $1,000 Liquidation Amount and integral multiples thereof.
The Trust Securities Certificates shall be executed on behalf of the Trust
by manual or facsimile signature of at least one Administrative Trustee and,
if executed on behalf of the Trust by facsimile, countersigned by a transfer
agent or its agent. The Preferred Securities Certificates shall be
authenticated by the Property Trustee by manual or facsimile signature of an
authorized signatory thereof and, if executed by such authorized signatory of
the Property Trustee by facsimile, countersigned by a transfer agent or its
agent. Trust Securities Certificates bearing the manual signatures of
individuals who were, at the time when such signatures shall have been
affixed, authorized to sign on behalf of the Trust or the Property Trustee
or, if executed on behalf of the Trust or the Property Trustee by facsimile,
countersigned by a transfer agent or its agent, shall be validly issued and
entitled to the benefits of this Trust Agreement, notwithstanding that such
individuals or any of them shall have ceased to be so authorized prior to the
delivery of such Trust Securities Certificates or did not hold such offices
at the date of delivery of such Trust Securities Certificates. A transferee
of a Trust Securities Certificate shall become a Securityholder, and shall be
entitled to the rights and subject to the obligations of a Securityholder
<PAGE>
hereunder, upon due registration of such Trust Securities Certificate in such
transferee's name pursuant to Sections 5.4, 5.11 and 5.13.
Section 5.3 Execution and Delivery of Trust Securities Certificates.
On the Closing Date, the Administrative Trustees shall cause Trust
Securities Certificates, in an aggregate Liquidation Amount as provided in
Sections 2.4 and 2.5, to be executed on behalf of the Trust and delivered to
or upon the written order of the Depositor, signed by its chairman of the
board, its president, any executive vice president or any vice president,
treasurer or assistant treasurer or controller without further corporate
action by the Depositor, in authorized denominations.
Section 5.4 Registration of Transfer and Exchange of Preferred
Securities Certificates.
The Depositor shall keep or cause to be kept, at the office or agency
maintained pursuant to Section 5.8, a register or registers for the purpose
of registering Trust Securities Certificates and transfers and exchanges of
Preferred Securities Certificates (the "Securities Register") in which the
transfer agent and registrar designated by the Depositor (the "Securities
Registrar"), subject to such reasonable regulations as it may prescribe,
shall provide for the registration of Preferred Securities Certificates and
Common Securities Certificates (subject to Section 5.10 in the case of the
Common Securities Certificates) and registration of transfers and exchanges
of Preferred Securities Certificates as herein provided. The Bank shall be
the initial Securities Registrar.
Upon surrender for registration of transfer of any Preferred
Securities Certificate at the office or agency maintained pursuant to Section
5.8, the Administrative Trustees or any one of them shall execute on behalf
of the Trust (and if executed on behalf of the Trust by a facsimile
signature, such certificate shall be countersigned by a transfer agent or its
agent) and deliver, in the name of the designated transferee or transferees,
one or more new Preferred Securities Certificates in authorized denominations
of a like aggregate Liquidation Amount dated the date of execution by such
Administrative Trustee or Trustees. The Securities Registrar shall not be
required to register the transfer of any Preferred Securities that have been
called for redemption during a period beginning at the opening of business 15
days before the day of the mailing of a notice of redemption and ending at
the close of business on the day of such mailing.
At the option of a Holder, Preferred Securities Certificates may be
exchanged for other Preferred Securities Certificates in authorized
denominations of the same class and of a like aggregate Liquidation Amount
upon surrender of the Preferred Securities Certificates to be exchanged at
the office or agency maintained pursuant to Section 5.8.
Every Preferred Securities Certificate presented or surrendered for
registration of transfer or exchange shall be accompanied by a written
instrument of transfer in form satisfactory to an Administrative Trustee and
the Securities Registrar duly executed by the Holder or his attorney duly
authorized in writing. Each Preferred Securities Certificate surrendered for
registration of transfer or exchange shall be cancelled and subsequently
disposed of by an Administrative Trustee or the Securities Registrar in
accordance with such Person's customary practice.
<PAGE>
No service charge shall be made for any registration of transfer or
exchange of Preferred Securities Certificates, but the Securities Registrar
may require payment of a sum sufficient to cover any tax or governmental
charge that may be imposed in connection with any transfer or exchange of
Preferred Securities Certificates.
Section 5.5 Mutilated, Destroyed, Lost or Stolen Trust Securities
Certificates.
If (a) any mutilated Trust Securities Certificate shall be
surrendered to the Securities Registrar, or if the Securities Registrar shall
receive evidence to its satisfaction of the destruction, loss or theft of any
Trust Securities Certificate and (b) there shall be delivered to the
Securities Registrar and the Administrative Trustees such security or
indemnity as may be required by them to save each of them harmless, then in
the absence of notice that such Trust Securities Certificate shall have been
acquired by a bona fide purchaser, the Administrative Trustees, or any one of
them, on behalf of the Trust shall execute by manual or facsimile signature
and, if executed on behalf of the Trust by facsimile signature, such
certificate shall be countersigned by a transfer agent, and make available
for delivery, in exchange for or in lieu of any such mutilated, destroyed,
lost or stolen Trust Securities Certificate, a new Trust Securities
Certificate of like class, tenor and denomination. In connection with the
issuance of any new Trust Securities Certificate under this Section, the
Administrative Trustees or the Securities Registrar may require the payment
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection therewith. Any duplicate Trust Securities Certificate
issued pursuant to this Section shall constitute conclusive evidence of an
undivided beneficial interest in the Trust Property, as if originally issued,
whether or not the lost, stolen or destroyed Trust Securities Certificate
shall be found at any time.
Section 5.6 Persons Deemed Securityholders.
The Trustees or the Securities Registrar shall treat the Person in
whose name any Trust Securities Certificate shall be registered in the
Securities Register as the owner of such Trust Securities Certificate for the
purpose of receiving Distributions and for all other purposes whatsoever, and
neither the Trustees nor the Securities Registrar shall be bound by any
notice to the contrary.
Section 5.7 Access to List of Securityholders' Names and Addresses.
Each Holder and each Owner shall be deemed to have agreed not to hold
the Depositor, the Property Trustee or the Administrative Trustees
accountable by reason of the disclosure of its name and address, regardless
of the source from which such information was derived.
Section 5.8 Maintenance of Office or Agency.
The Administrative Trustees shall maintain an office or offices or
agency or agencies where Preferred Securities Certificates may be surrendered
for registration of transfer or exchange and where notices and demands to or
upon the Trustees in respect of the Trust Securities Certificates may be
served. The Administrative Trustees initially designate ____________________
Attn: Corporate Trust Administration, as its principal corporate trust office
for such purposes. The Administrative Trustees shall give prompt written
<PAGE>
notice to the Depositor, the Property Trustee and to the Securityholders of
any change in the location of the Securities Register or any such office or
agency.
Section 5.9 Appointment of Paying Agent.
The Paying Agent shall make Distributions to Securityholders from the
Payment Account and shall report the amounts of such Distributions to the
Property Trustee and the Administrative Trustees. Any Paying Agent shall have
the revocable power to withdraw funds from the Payment Account for the
purpose of making the Distributions referred to above. The Administrative
Trustees may revoke such power and remove the Paying Agent if such Trustees
determine in their sole discretion that the Paying Agent shall have failed to
perform its obligations under this Trust Agreement in any material respect.
The Paying Agent shall initially be the Bank, and any co-paying agent chosen
by the Bank, and acceptable to the Administrative Trustees and the Depositor.
Any Person acting as Paying Agent shall be permitted to resign as Paying
Agent upon 30 days' written notice to the Administrative Trustees, the
Property Trustee and the Depositor. In the event that the Bank shall no
longer be the Paying Agent or a successor Paying Agent shall resign or its
authority to act be revoked, the Administrative Trustees shall appoint a
successor that is acceptable to the Property Trustee and the Depositor to act
as Paying Agent (which shall be a bank or trust company). The Administrative
Trustees shall cause such successor Paying Agent or any additional Paying
Agent appointed by the Administrative Trustees to execute and deliver to the
Trustees an instrument in which such successor Paying Agent or additional
Paying Agent shall agree with the Trustees that as Paying Agent, such
successor Paying Agent or additional Paying Agent will hold all sums, if any,
held by it for payment to the Securityholders in trust for the benefit of the
Securityholders entitled thereto until such sums shall be paid to such
Securityholders. The Paying Agent shall return all unclaimed funds to the
Property Trustee and upon resignation or removal of a Paying Agent such
Paying Agent shall also return all funds in its possession to the Property
Trustee. The provisions of Sections 8.1, 8.3 and 8.6 herein shall apply to
the Bank also in its role as Paying Agent, for so long as the Bank shall act
as Paying Agent and, to the extent applicable, to any other paying agent
appointed hereunder, and any Paying Agent shall be bound by the requirements
with respect to paying agents of securities issued pursuant to the Trust
Indenture Act. Any reference in this Agreement to the Paying Agent shall
include any co-paying agent unless the context requires otherwise.
Section 5.10 Ownership of Common Securities by Depositor.
On the Closing Date, the Depositor shall acquire and retain
beneficial and record ownership of the Common Securities. To the fullest
extent permitted by law, other than a transfer in connection with a
consolidation or merger of the Depositor into another Person, or any
conveyance, transfer or lease by the Depositor of its properties and assets
substantially as an entirety to any Person, pursuant to Section 8.1 of the
Indenture, any attempted transfer of the Common Securities shall be void. The
Administrative Trustees shall cause each Common Securities Certificate issued
to the Depositor to contain a legend stating "THIS CERTIFICATE IS NOT
TRANSFERABLE TO ANY PERSON, OTHER THAN AS PROVIDED IN THE TRUST AGREEMENT
DATED AS OF _________ __, ______".
Section 5.11 Book-Entry Preferred Securities Certificates; Common
Securities Certificate.
<PAGE>
(a) The Preferred Securities Certificates, upon original issuance,
will be issued in the form of a typewritten Preferred Securities Certificate
or Certificates representing Book-Entry Preferred Securities Certificates, to
be delivered to The Depository Trust Company, the initial Clearing Agency,
by, or on behalf of, the Trust. Such Preferred Securities Certificate or
Certificates shall initially be registered on the Securities Register in the
name of Cede & Co., the nominee of the initial Clearing Agency, and no Owner
will receive a Definitive Preferred Securities Certificate representing such
Owner's interest in such Preferred Securities, except as provided in Section
5.13. Unless and until Definitive Preferred Securities Certificates have been
issued to Owners pursuant to Section 5.13:
(i) the provisions of this Section 5.11(a) shall be
in full force and effect;
(ii) the Securities Registrar and the Trustees shall
be entitled to deal with the Clearing Agency for all purposes of this
Trust Agreement relating to the Book-Entry Preferred Securities
Certificates (including the payment of the Liquidation Amount of and
Distributions on the Preferred Securities evidenced by Book-Entry
Preferred Securities Certificates and the giving of instructions or
directions to Owners of Preferred Securities evidenced by Book-Entry
Preferred Securities Certificates) as the sole Holder of Preferred
Securities evidenced by Book-Entry Preferred Securities Certificates
and shall have no obligations to the Owners thereof;
(iii) to the extent that the provisions of this
Section 5.11 conflict with any other provisions of this Trust
Agreement, the provisions of this Section 5.11 shall control; and
(iv) the rights of the Owners of the Book-Entry
Preferred Securities Certificates shall be exercised only through the
Clearing Agency and shall be limited to those established by law and
agreements between such Owners and the Clearing Agency and/or the
Clearing Agency Participants. Pursuant to the Certificate Depository
Agreement, unless and until Definitive Preferred Securities
Certificates are issued pursuant to Section 5.13, the initial
Clearing Agency will make book-entry transfers among the Clearing
Agency Participants and receive and transmit payments on the
Preferred Securities to such Clearing Agency Participants.
(b) A single Common Securities Certificate representing the Common
Securities shall be issued to the Depositor in the form of a definitive
Common Securities Certificate.
Section 5.12 Notices to Clearing Agency.
To the extent that a notice or other communication to the Owners is
required under this Trust Agreement, unless and until Definitive Preferred
Securities Certificates shall have been issued to Owners pursuant to Section
5.13, the Trustees shall give all such notices and communications specified
herein to be given to Owners to the Clearing Agency, and shall have no
obligations to the Owners.
Section 5.13 Definitive Preferred Securities Certificates.
<PAGE>
If (a) the Depositor or the Clearing Agency advises the Trustees in
writing that the Clearing Agency is no longer willing or able to properly
discharge its responsibilities with respect to the Preferred Securities
Certificates, and the Depositor is unable to locate a qualified successor, or
if at anytime the Clearing Agency ceases to be a clearing agency registered
under the Securities Exchange Act of 1934, as amended, at a time when the
Clearing Agency is required to be so registered to act as such depositary,
(b) the Depositor at its option advises the Trustees in writing that it
elects to terminate the book-entry system through the Clearing Agency or (c)
after the occurrence of a Subordinated Note Event of Default, Owners of
Preferred Securities Certificates representing beneficial interests
aggregating at least a majority of the Liquidation Amount advise the
Administrative Trustees in writing that the continuation of a book-entry
system through the Clearing Agency is no longer in the best interest of the
Owners of Preferred Securities Certificates, then the Administrative Trustees
shall notify other Trustees and the Clearing Agency, and the Clearing Agency,
in accordance with its customary rules and procedures, shall notify all
Clearing Agency Participants for whom it holds Preferred Securities of the
occurrence of any such event and of the availability of the Definitive
Preferred Securities Certificates to Owners of such class or classes, as
applicable, requesting the same. Upon surrender to the Administrative
Trustees of the typewritten Preferred Securities Certificate or Certificates
representing the Book-Entry Preferred Securities Certificates by the Clearing
Agency, accompanied by registration instructions, the Administrative
Trustees, or any one of them, shall execute the Definitive Preferred
Securities Certificates in accordance with the instructions of the Clearing
Agency or, if executed on behalf of the Trust by facsimile, countersigned by
a transfer agent or its agent. Neither the Securities Registrar nor the
Trustees shall be liable for any delay in delivery of such instructions and
may conclusively rely on, and shall be protected in relying on, such
instructions. Upon the issuance of Definitive Preferred Securities
Certificates, the Trustees shall recognize the Holders of the Definitive
Preferred Securities Certificates as Securityholders. The Definitive
Preferred Securities Certificates shall be printed, lithographed or engraved
or may be produced in any other manner as is reasonably acceptable to the
Administrative Trustees that meets the requirements of any stock exchange or
automated quotation system on which the Preferred Securities are then listed
or approved for trading, as evidenced by the execution thereof by the
Administrative Trustees or any one of them.
Section 5.14 Rights of Securityholders.
(a) The legal title to the Trust Property is vested exclusively in
the Property Trustee (in its capacity as such) in accordance with Section
2.9, and the Securityholders shall not have any right or title therein other
than the undivided beneficial ownership interest in the assets of the Trust
conferred by their Trust Securities and they shall have no right to call for
any partition or division of property, profits or rights of the Trust except
as described below. The Trust Securities shall be personal property giving
only the rights specifically set forth therein and in this Trust Agreement.
The Trust Securities shall have no preemptive or similar rights and when
issued and delivered to Securityholders against payment of the purchase price
therefor will be fully paid and nonassessable by the Trust. Except to the
extent set forth in Section 10.2, the Holders of the Trust Securities, in
their capacities as such, shall be entitled to the same limitation of
personal liability extended to stockholders of private corporations for
profit organized under the General Corporation Law of the State of Delaware.
<PAGE>
(b) For so long as any Preferred Securities remain Outstanding, if,
upon a Subordinated Note Event of Default, the Subordinated Note Trustee
fails or the holders of not less than 25% in principal amount of the
outstanding Subordinated Notes fail to declare the principal of all of the
Subordinated Notes to be immediately due and payable, the Holders of at least
25% in Liquidation Amount of the Preferred Securities then Outstanding shall
have such right by a notice in writing to the Depositor and the Subordinated
Note Trustee; and upon any such declaration such principal amount of and the
accrued interest on all of the Subordinated Notes shall become immediately
due and payable as set forth in the Indenture, provided that the payment of
principal, premium and interest on such Subordinated Notes shall remain
subordinated to the extent provided in the Indenture.
At any time after such a declaration of acceleration with respect to
the Subordinated Notes has been made and before a judgment or decree for
payment of the money due has been obtained by the Subordinated Note Trustee
as in the Indenture provided, the Holders of a majority in Liquidation Amount
of the Preferred Securities, by written notice to the Property Trustee, the
Depositor and the Subordinated Note Trustee, may rescind and annul such
declaration and its consequences if:
(i) the Depositor has paid or deposited with the
Subordinated Note Trustee a sum sufficient to pay
(A) all overdue installments of interest on all of
the Subordinated Notes,
(B) the principal of (and premium, if any, on) any
Subordinated Notes which have become due otherwise than by
such declaration of acceleration and interest thereon at the
rate borne by the Subordinated Notes, and
(C) all sums paid or advanced by the Subordinated
Note Trustee under the Indenture and the reasonable
compensation, expenses, disbursements and advances of the
Subordinated Note Trustee and the Property Trustee, their
agents and counsel; and
(ii) all Events of Default with respect to the
Subordinated Notes, other than the non-payment of the principal of
the Subordinated Notes which has become due solely by such
acceleration, have been cured or waived as provided in Section 5.13
of the Indenture.
The holders of a majority in aggregate Liquidation Amount of the
Preferred Securities may, on behalf of the Holders of all the Preferred
Securities, waive any past default under the Indenture, except a default in
the payment of principal, premium or interest (unless all Events of Default
with respect to the Subordinated Notes, other than the non-payment of the
principal of the Subordinated Notes which has become due solely by such
acceleration, have been cured or annulled as provided in Section 5.3 of the
Indenture and the Company has paid or deposited with the Subordinated Note
Trustee a sum sufficient to pay all overdue installments of interest on the
Subordinated Notes, the principal of (and premium, if any, on) any
Subordinated Notes which have become due otherwise than by such declaration
of acceleration and interest thereon at the rate borne by the Subordinated
Notes, and all sums paid or advanced by the Subordinated Note Trustee under
<PAGE>
the Indenture and the reasonable compensation, expenses, disbursements and
advances of the Subordinated Note Trustee and the Property Trustee, their
agents and counsel) or a default in respect of a covenant or provision which
under the Indenture cannot be modified or amended without the consent of the
holder of each outstanding Subordinated Note. No such rescission shall affect
any subsequent default or impair any right consequent thereon.
Upon receipt by the Property Trustee of written notice declaring such
an acceleration, or rescission and annulment thereof, by Holders of the
Preferred Securities all or part of which is represented by Book-Entry
Preferred Securities Certificates, a record date shall be established for
determining Holders of Outstanding Preferred Securities entitled to join in
such notice, which record date shall be at the close of business on the day
the Property Trustee receives such notice. The Holders of Outstanding
Preferred Securities on such record date, or their duly designated proxies,
and only such Persons, shall be entitled to join in such notice, whether or
not such Holders remain Holders after such record date; provided, that,
unless such declaration of acceleration, or rescission and annulment, as the
case may be, shall have become effective by virtue of the requisite
percentage having joined in such notice prior to the day which is 90 days
after such record date, such notice of declaration of acceleration, or
rescission and annulment, as the case may be, shall automatically and without
further action by any Holder be canceled and of no further effect. Nothing in
this paragraph shall prevent a Holder, or a proxy of a Holder, from giving,
after expiration of such 90-day period, a new written notice of declaration
of acceleration, or rescission and annulment thereof, as the case may be,
that is identical to a written notice which has been canceled pursuant to the
proviso to the preceding sentence, in which event a new record date shall be
established pursuant to the provisions of this Section 5.14(b).
(c) For so long as any Preferred Securities remain Outstanding, to
the fullest extent permitted by law and subject to the terms of this Trust
Agreement and the Indenture, upon a Subordinated Note Event of Default
specified in Section 5.1(1) or 5.1(2) of the Indenture, any Holder of
Preferred Securities shall have the right to institute a proceeding directly
against the Depositor, pursuant to Section 5.8 of the Indenture, for
enforcement of payment to such Holder of the principal amount of or premium
or interest on Subordinated Notes having a principal amount equal to the
Liquidation Amount of the Preferred Securities of such Holder (a "Direct
Action"). Except as set forth in Section 5.14(b) and this Section 5.14(c),
the Holders of Preferred Securities shall have no right to exercise directly
any right or remedy available to the holders of, or in respect of, the
Subordinated Notes.
Section 5.15 CUSIP Numbers, International Securities Identification
Numbers and Common Codes.
The Administrative Trustees in issuing the Preferred Securities may
use "CUSIP" numbers, International Securities Identification Numbers and
Common Codes (each, if then generally in use), and, if so, the Property
Trustee shall use "CUSIP" numbers, International Securities Identification
Numbers and Common Codes in notices of redemption as a convenience to
Holders; provided that any such notice may state that no representation is
made as to the correctness of such numbers either as printed on the Preferred
Securities or as contained in any notice of a redemption and that reliance
may be placed only on the other identification numbers printed on the
Preferred Securities, and any such redemption shall not be affected by any
<PAGE>
defect in or omission of such numbers. The Administrative Trustees will
promptly notify the Property Trustee of any change in the CUSIP numbers,
International Securities Identification Numbers or Common Codes.
ARTICLE VI
Acts of Securityholders; Meetings; Voting
Section 6.1 Limitations on Voting Rights.
(a) Except as provided in this Section, in Sections 5.14, 8.10 and
10.3 and in the Indenture and as otherwise required by law, no Holder of
Preferred Securities shall have any right to vote or in any manner otherwise
control the administration, operation and management of the Trust or the
obligations of the parties hereto, nor shall anything herein set forth, or
contained in the terms of the Trust Securities Certificates, be construed so
as to constitute the Securityholders from time to time as partners or members
of an association.
(b) So long as any Subordinated Notes are held by the Property
Trustee, the Trustees shall not (i) direct the time, method and place of
conducting any proceeding for any remedy available to the Subordinated Note
Trustee, or executing any trust or power conferred on the Subordinated Note
Trustee with respect to such Subordinated Notes, (ii) waive any past default
which is waiveable under Section 5.13 of the Indenture, (iii) exercise any
right to rescind or annul a declaration that the principal of all the
Subordinated Notes shall be due and payable or (iv) consent to any amendment,
modification or termination of the Indenture or the Subordinated Notes, where
such consent shall be required, without, in each case, obtaining the prior
approval of the Holders of at least a majority in Liquidation Amount of all
Outstanding Preferred Securities, provided, however, that where a consent
under the Indenture would require the consent of each holder of Subordinated
Notes affected thereby, no such consent shall be given by the Property
Trustee without the prior written consent of each Holder of Preferred
Securities. The Trustees shall not revoke any action previously authorized or
approved by a vote of the Holders of Preferred Securities, except by a
subsequent vote of the Holders of Preferred Securities. The Property Trustee
shall notify all Holders of the Preferred Securities of any notice of default
received from the Subordinated Note Trustee with respect to the Subordinated
Notes. In addition to obtaining the foregoing approvals of the Holders of the
Preferred Securities, prior to taking any of the foregoing actions, the
Administrative Trustees shall, at the expense of the Depositor, obtain an
Opinion of Counsel experienced in such matters to the effect that such action
shall not cause the Trust to fail to be classified as a grantor trust for
United States federal income tax purposes.
(c) If any proposed amendment to the Trust Agreement provides for, or
the Trustees otherwise propose to effect, (i) any action that would adversely
affect in any material respect the powers, preferences or special rights of
the Preferred Securities, whether by way of amendment to this Trust Agreement
or otherwise, or (ii) the dissolution, winding-up or termination of the
Trust, other than pursuant to the terms of this Trust Agreement, then the
Holders of Outstanding Preferred Securities as a class will be entitled to
vote on such amendment or proposal and such amendment or proposal shall not
be effective except with the approval of the Holders of at least a majority
in Liquidation Amount of the Outstanding Preferred Securities.
Notwithstanding any other provision of this Trust Agreement, no amendment to
<PAGE>
this Trust Agreement may be made if, as a result of such amendment, it would
cause the Trust to fail to be classified as a grantor trust for United States
federal income tax purposes.
Section 6.2 Notice of Meetings.
Notice of all meetings of the Preferred Securityholders, stating the
time, place and purpose of the meeting, shall be given by the Property
Trustee pursuant to Section 10.10 to each Preferred Securityholder of record,
at his registered address, at least 15 days and not more than 90 days before
the meeting. At any such meeting, any business properly before the meeting
may be so considered whether or not stated in the notice of the meeting. Any
adjourned meeting may be held as adjourned without further notice.
Section 6.3 Meetings of Preferred Securityholders.
No annual meeting of Securityholders is required to be held. The
Administrative Trustees, however, shall call a meeting of Preferred
Securityholders to vote on any matter upon the written request of the
Preferred Securityholders of record of 25% of the Outstanding Preferred
Securities (based upon their Liquidation Amount) and the Administrative
Trustees or the Property Trustee may, at any time in their discretion, call a
meeting of Preferred Securityholders to vote on any matters as to which
Preferred Securityholders are entitled to vote.
Preferred Securityholders of record of 50% of the Outstanding
Preferred Securities (based upon their Liquidation Amount), present in person
or by proxy, shall constitute a quorum at any meeting of Preferred
Securityholders.
If a quorum is present at a meeting, an affirmative vote by the
Preferred Securityholders of record present, in person or by proxy, holding
more than a majority of the Outstanding Preferred Securities (based upon
their Liquidation Amount) held by holders of record of Outstanding Preferred
Securities present, either in person or by proxy, at such meeting shall
constitute the action of the Preferred Securityholders, unless this Trust
Agreement requires a greater number of affirmative votes.
Section 6.4 Voting Rights.
Securityholders shall be entitled to one vote for each $1,000 of
Liquidation Amount represented by their Trust Securities in respect of any
matter as to which such Securityholders are entitled to vote.
Section 6.5 Proxies, etc.
At any meeting of Securityholders, any Securityholder entitled to
vote thereat may vote by proxy, provided that no proxy shall be voted at any
meeting unless it shall have been placed on file with the Administrative
Trustees, or with such other officer or agent of the Trust as the
Administrative Trustees may direct, for verification prior to the time at
which such vote shall be taken. Pursuant to a resolution of the Property
Trustee, proxies may be solicited in the name of the Property Trustee or one
or more officers of the Property Trustee. Only Securityholders of record
shall be entitled to vote. When Trust Securities are held jointly by several
Persons, any one of them may vote at any meeting in person or by proxy in
respect of such Trust Securities, but if more than one of them shall be
<PAGE>
present at such meeting in person or by proxy, and such joint owners or their
proxies so present disagree as to any vote to be cast, such vote shall not be
received in respect of such Trust Securities. A proxy purporting to be
executed by or on behalf of a Securityholder shall be deemed valid unless
challenged at or prior to its exercise, and the burden of proving invalidity
shall rest on the challenger. No proxy shall be valid more than three years
after its date of execution.
Section 6.6 Securityholder Action by Written Consent.
Any action which may be taken by Securityholders at a meeting may be
taken without a meeting if Securityholders holding a majority of all
Outstanding Trust Securities (based upon their Liquidation Amount) entitled
to vote in respect of such action (or such larger proportion thereof as shall
be required by any express provision of this Trust Agreement) shall consent
to the action in writing.
Section 6.7 Record Date for Voting and Other Purposes.
For the purposes of determining the Securityholders who are entitled
to notice of and to vote at any meeting or by written consent, or to
participate in any Distribution on the Trust Securities in respect of which a
record date is not otherwise provided for in this Trust Agreement, or for the
purpose of any other action, the Administrative Trustees may from time to
time fix a date, not more than 90 days prior to the date of any meeting of
Securityholders or the payment of a Distribution or other action, as the case
may be, as a record date for the determination of the identity of the
Securityholders of record for such purposes.
Section 6.8 Acts of Securityholders.
Any request, demand, authorization, direction, notice, consent,
waiver or other action provided or permitted by this Trust Agreement to be
given, made or taken by Securityholders or Owners may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed by
such Securityholders or Owners in person or by an agent duly appointed in
writing; and, except as otherwise expressly provided herein, such action
shall become effective when such instrument or instruments are delivered to
an Administrative Trustee. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as
the "Act" of the Securityholders or Owners signing such instrument or
instruments. Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this Trust
Agreement and (subject to Section 8.1) conclusive in favor of the Trustees,
if made in the manner provided in this Section.
The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized
by law to take acknowledgments of deeds, certifying that the individual
signing such instrument or writing acknowledged to him the execution thereof.
Where such execution is by a signer acting in a capacity other than his
individual capacity, such certificate or affidavit shall also constitute
sufficient proof of his authority. The fact and date of the execution of any
such instrument or writing, or the authority of the Person executing the
same, may also be proved in any other manner which any Trustee receiving the
same deems sufficient.
<PAGE>
The ownership of Preferred Securities shall be proved by the
Securities Register.
Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Securityholder of any Trust Security shall bind
every future Securityholder of the same Trust Security and the Securityholder
of every Trust Security issued upon the registration of transfer thereof or
in exchange therefor or in lieu thereof in respect of anything done, omitted
or suffered to be done by the Trustees or the Trust in reliance thereon,
whether or not notation of such action is made upon such Trust Security.
Without limiting the foregoing, a Securityholder entitled hereunder
to take any action hereunder with regard to any particular Trust Security may
do so with regard to all or any part of the Liquidation Amount of such Trust
Security or by one or more duly appointed agents each of which may do so
pursuant to such appointment with regard to all or any part of such
Liquidation Amount.
If any dispute shall arise between the Securityholders and the
Administrative Trustees or among such Securityholders or Trustees with
respect to the authenticity, validity or binding nature of any request,
demand, authorization, direction, consent, waiver or other Act of such
Securityholder or Trustee under this Article VI, then the determination of
such matter by the Property Trustee shall be conclusive with respect to such
matter.
Section 6.9 Inspection of Records.
Upon reasonable notice to the Administrative Trustees and the
Property Trustee, the records of the Trust shall be open to inspection by
Securityholders during normal business hours for any purpose reasonably
related to such Securityholder's interest as a Securityholder.
ARTICLE VII
Representations and Warranties
Section 7.1 Representations and Warranties of the Property Trustee
and the Delaware Trustee.
The Property Trustee and the Delaware Trustee, each severally on
behalf of and as to itself, hereby represents and warrants for the benefit of
the Depositor and the Securityholders that:
(a) the Property Trustee is a New York banking corporation duly
organized, validly existing and in good standing under the laws of the State
of New York;
(b) the Property Trustee has full corporate power, authority and
legal right to execute, deliver and perform its obligations under this Trust
Agreement and has taken all necessary action to authorize the execution,
delivery and performance by it of this Trust Agreement;
(c) the Delaware Trustee is a Delaware banking corporation duly
organized, validly existing and in good standing in the State of Delaware;
<PAGE>
(d) the Delaware Trustee has full corporate power, authority and
legal right to execute, deliver and perform its obligations under this Trust
Agreement and has taken all necessary action to authorize the execution,
delivery and performance by it of this Trust Agreement;
(e) this Trust Agreement has been duly authorized, executed and
delivered by the Property Trustee and the Delaware Trustee and constitutes
the valid and legally binding agreement of each of the Property Trustee and
the Delaware Trustee enforceable against each of them in accordance with its
terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability relating
to or affecting creditors' rights and to general equity principles;
(f) the execution, delivery and performance of this Trust Agreement
has been duly authorized by all necessary corporate or other action on the
part of the Property Trustee and the Delaware Trustee and does not require
any approval of stockholders of the Property Trustee and the Delaware Trustee
and such execution, delivery and performance will not (i) violate the charter
or by-laws of the Property Trustee or the Delaware Trustee, (ii) violate any
provision of, or constitute, with or without notice or lapse of time, a
default under, or result in the creation or imposition of, any Lien on any
properties included in the Trust Property pursuant to the provisions of, any
indenture, mortgage, credit agreement, license or other agreement or
instrument to which the Property Trustee or the Delaware Trustee is a party
or by which it is bound, or (iii) violate any law, governmental rule or
regulation of the State of New York or the State of Delaware, as the case may
be, governing the banking, trust or general powers of the Property Trustee or
the Delaware Trustee (as appropriate in context) or any order, judgment or
decree applicable to the Property Trustee or the Delaware Trustee;
(g) neither the authorization, execution or delivery by the Property
Trustee or the Delaware Trustee of this Trust Agreement nor the consummation
of any of the transactions by the Property Trustee or the Delaware Trustee
(as appropriate in context) contemplated herein or therein requires the
consent or approval of, the giving of notice to, the registration with or the
taking of any other action with respect to any governmental authority or
agency under any existing New York or Delaware law governing the banking,
trust or general powers of the Property Trustee or the Delaware Trustee, as
the case may be; and
(h) there are no proceedings pending or, to the best of each of the
Property Trustee's and the Delaware Trustee's knowledge, threatened against
or affecting the Property Trustee or the Delaware Trustee in any court or
before any governmental authority, agency or arbitration board or tribunal
which, individually or in the aggregate, would materially and adversely
affect the Trust or would question the right, power and authority of the
Property Trustee or the Delaware Trustee, as the case may be, to enter into
or perform its obligations as one of the Trustees under this Trust Agreement.
Section 7.2 Representations and Warranties of Depositor.
The Depositor hereby represents and warrants for the benefit of the
Securityholders that:
(a) the Trust Securities Certificates issued at the Closing Date on
behalf of the Trust have been duly authorized and will have been, duly and
<PAGE>
validly executed, issued and delivered by the Trustees pursuant to the terms
and provisions of, and in accordance with the requirements of, this Trust
Agreement and the Securityholders will be, as of such date, entitled to the
benefits of this Trust Agreement; and
(b) there are no taxes, fees or other governmental charges payable by
the Trust (or the Trustees on behalf of the Trust) under the laws of the
State of Delaware or any political subdivision thereof in connection with the
execution, delivery and performance by the Property Trustee or the Delaware
Trustee, as the case may be, of this Trust Agreement.
ARTICLE VIII
The Trustees
Section 8.1 Certain Duties and Responsibilities.
(a) The duties and responsibilities of the Trustees shall be as
provided by this Trust Agreement and, in the case of the Property Trustee, by
the Trust Indenture Act. Notwithstanding the foregoing, no provision of this
Trust Agreement shall require the Trustees to expend or risk their own funds
or otherwise incur any financial liability in the performance of any of their
duties hereunder, or in the exercise of any of their rights or powers, if
they shall have reasonable grounds for believing that repayment of such funds
or adequate indemnity against such risk or liability is not reasonably
assured to them. Whether or not therein expressly so provided, every
provision of this Trust Agreement relating to the conduct or affecting the
liability of or affording protection to the Trustees shall be subject to the
provisions of this Section. Nothing in this Trust Agreement shall be
construed to release an Administrative Trustee from liability for its own
gross negligent action, its own gross negligent failure to act, or its own
willful misconduct. To the extent that, at law or in equity, an
Administrative Trustee has duties (including fiduciary duties) and
liabilities relating thereto to the Trust or to the Securityholders, such
Administrative Trustee shall not be liable to the Trust, any trustee or to
any Securityholder for such Trustee's good faith reliance on the provisions
of this Trust Agreement. The Administrative Trustees shall not be liable for
the default or misconduct of the Property Trustee or the Delaware Trustee.
The provisions of this Trust Agreement, to the extent that they restrict the
duties and liabilities of the Administrative Trustees otherwise existing at
law or in equity, are agreed by the Depositor, the Trustees and the
Securityholders to replace such other duties and liabilities of the
Administrative Trustees. No provision of this Trust Agreement shall be
deemed to impose any duty or obligation on any Administrative Trustee to
perform any act or acts or exercise any right, power, duty or obligation
conferred or imposed on it, in any jurisdiction in which it shall be illegal,
or in which such Administrative Trustee shall be unqualified or incompetent
in accordance with applicable law, to perform any such act or acts, or to
exercise any such right, power, duty or obligation. No permissive power or
authority available to any Administrative Trustee shall be construed to be a
duty.
(b) All payments made by the Property Trustee or a Paying Agent in
respect of the Trust Securities shall be made only from the revenue and
proceeds from the Trust Property and only to the extent that there shall be
sufficient revenue or proceeds from the Trust Property to enable the Property
<PAGE>
Trustee or a Paying Agent to make payments in accordance with the terms
hereof. Each Securityholder, by its acceptance of a Trust Security, agrees
that it will look solely to the revenue and proceeds from the Trust Property
to the extent legally available for distribution to it as herein provided and
that the Trustees are not personally liable to it for any amount
distributable in respect of any Trust Security or for any other liability in
respect of any Trust Security. This Section 8.1(b) does not limit the
liability of the Trustees expressly set forth elsewhere in this Trust
Agreement or, in the case of the Property Trustee, in the Trust Indenture
Act.
(c) No provision of this Trust Agreement shall be construed to
relieve the Property Trustee from liability for its own negligent action, its
own negligent failure to act, or its own willful misconduct, except that:
(i) the Property Trustee shall not be liable for any
error of judgment made in good faith by an authorized officer of the
Property Trustee, unless it shall be proved that the Property Trustee
was negligent in ascertaining the pertinent facts;
(ii) the Property Trustee shall not be liable with
respect to any action taken or omitted to be taken by it in good
faith in accordance with the direction of the Holders of not less
than a majority in Liquidation Amount of the Trust Securities
relating to the time, method and place of conducting any proceeding
for any remedy available to the Property Trustee, or exercising any
trust or power conferred upon the Property Trustee under this Trust
Agreement;
(iii) the Property Trustee's sole duty with respect to
the custody, safe keeping and physical preservation of the
Subordinated Notes and the Payment Account shall be to deal with such
property in a similar manner as the Property Trustee deals with
similar property for its own account, subject to the protections and
limitations on liability afforded to the Property Trustee under this
Trust Agreement and the Trust Indenture Act;
(iv) the Property Trustee shall not be liable for any
interest on any money received by it except as it may otherwise agree
in writing with the Depositor; and money held by the Property Trustee
need not be segregated from other funds held by it except in relation
to the Payment Account maintained by the Property Trustee pursuant to
Section 3.1 and except to the extent otherwise required by law; and
(v) the Property Trustee shall not be responsible
for monitoring the compliance by the Administrative Trustees or the
Depositor with their respective duties under this Trust Agreement,
nor shall the Property Trustee be liable for the default or
misconduct of the Administrative Trustees or the Depositor.
<PAGE>
Section 8.2 Certain Notices.
Within five Business Days after the occurrence of any Event of
Default actually known to the Property Trustee, the Property Trustee shall
transmit, in the manner and to the extent provided in Section 10.10, notice
of such Event of Default to the Securityholders, the Administrative Trustees
and the Depositor, unless such Event of Default shall have been cured or
waived.
Within five Business Days after the receipt of notice of the
Depositor's exercise of its right to defer the payment of interest on the
Subordinated Notes pursuant to the Indenture, the Administrative Trustee
shall transmit, in the manner and to the extent provided in Section 10.10,
notice of such exercise to the Securityholders and the Property Trustee,
unless such exercise shall have been revoked.
Section 8.3 Certain Rights of Property Trustee.
Subject to the provisions of Section 8.1:
(a) the Property Trustee may rely and shall be protected in acting or
refraining from acting in good faith upon any resolution, Opinion of Counsel,
certificate, written representation of a Holder or transferee, certificate of
auditors or any other certificate, statement, instrument, opinion, report,
notice, request, consent, order, appraisal, bond, debenture, note, other
evidence of indebtedness or other paper or document believed by it to be
genuine and to have been signed or presented by the proper party or parties;
(b) if (i) in performing its duties under this Trust Agreement the
Property Trustee is required to decide between alternative courses of action
or (ii) in construing any of the provisions of this Trust Agreement the
Property Trustee finds the same ambiguous or inconsistent with any other
provisions contained herein or (iii) the Property Trustee is unsure of the
application of any provision of this Trust Agreement, then, except as to any
matter as to which the Preferred Securityholders are entitled to vote under
the terms of this Trust Agreement, the Property Trustee shall deliver a
notice to the Depositor requesting written instructions of the Depositor as
to the course of action to be taken and the Property Trustee shall take such
action, or refrain from taking such action, as the Property Trustee shall be
instructed in writing to take, or to refrain from taking, by the Depositor;
provided, however, that if the Property Trustee does not receive such
instructions of the Depositor within ten Business Days after it has delivered
such notice, or such reasonably shorter period of time set forth in such
notice (which to the extent practicable shall not be less than two Business
Days), it may, but shall be under no duty to, take or refrain from taking
such action not inconsistent with this Trust Agreement as it shall deem
advisable and in the best interests of the Securityholders, in which event
the Property Trustee shall have no liability except for its own bad faith,
negligence or willful misconduct;
(c) any direction or act of the Depositor or the Administrative
Trustees contemplated by this Trust Agreement shall be sufficiently evidenced
by an Officers' Certificate;
(d) whenever in the administration of this Trust Agreement, the
Property Trustee shall deem it desirable that a matter be established before
undertaking, suffering or omitting any action hereunder, the Property Trustee
<PAGE>
(unless other evidence is herein specifically prescribed) may, in the absence
of bad faith on its part, request and rely upon an Officers' Certificate
which, upon receipt of such request, shall be promptly delivered by the
Depositor or the Administrative Trustees;
(e) the Property Trustee shall have no duty to see to any recording,
filing or registration of any instrument (including any financing or
continuation statement or any filing under tax or securities laws) or any
rerecording, refiling or reregistration thereof;
(f) the Property Trustee may consult with counsel of its selection
(which counsel may be counsel to the Depositor or any of its Affiliates, and
may include any of its employees) and the advice of such counsel shall be
full and complete authorization and protection in respect of any action
taken, suffered or omitted by it hereunder in good faith and in reliance
thereon and in accordance with such advice, such counsel may be counsel to
the Depositor or any of its Affiliates, and may include any of its employees;
the Property Trustee shall have the right at any time to seek instructions
concerning the administration of this Trust Agreement from any court of
competent jurisdiction;
(g) the Property Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Trust Agreement at the request
or direction of any of the Securityholders pursuant to this Trust Agreement,
unless such Securityholders shall have offered to the Property Trustee
reasonable security or indemnity against the costs, expenses and liabilities
which might be incurred by it in compliance with such request or direction;
(h) the Property Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond,
debenture, note or other evidence of indebtedness or other paper or document,
unless requested in writing to do so by one or more Securityholders, but the
Property Trustee may make such further inquiry or investigation into such
facts or matters as it may see fit;
(i) the Property Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
its agents or attorneys, provided that the Property Trustee shall be
responsible for its own negligence or recklessness with respect to selection
of any agent or attorney appointed by it hereunder;
(j) whenever in the administration of this Trust Agreement the
Property Trustee shall deem it desirable to receive written instructions with
respect to enforcing any remedy or right or taking any other action hereunder
the Property Trustee (i) may request written instructions from the Holders of
the Trust Securities which written instructions may only be given by the
Holders of the same proportion in Liquidation Amount of the Trust Securities
as would be entitled to direct the Property Trustee under the terms of the
Trust Securities in respect of such remedy, right or action, (ii) may refrain
from enforcing such remedy or right or taking such other action until such
written instructions are received, and (iii) shall be protected in acting in
accordance with such written instructions; and
(k) except as otherwise expressly provided by this Trust Agreement,
the Property Trustee shall not be under any obligation to take any action
that is discretionary under the provisions of this Trust Agreement.
<PAGE>
No provision of this Trust Agreement shall be deemed to impose any
duty or obligation on the Property Trustee to perform any act or acts or
exercise any right, power, duty or obligation conferred or imposed on it, in
any jurisdiction in which it shall be illegal, or in which the Property
Trustee shall be unqualified or incompetent in accordance with applicable
law, to perform any such act or acts, or to exercise any such right, power,
duty or obligation. No permissive power or authority available to the
Property Trustee shall be construed to be a duty.
Section 8.4 Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Trust Securities
Certificates shall be taken as the statements of the Trust, and the Trustees
do not assume any responsibility for their correctness. The Trustees shall
not be accountable for the use or application by the Depositor of the
proceeds of the Subordinated Notes.
Section 8.5 May Hold Securities.
Any Trustee or any other agent of any Trustee or the Trust, in its
individual or any other capacity, may become the owner or pledgee of Trust
Securities and, subject to Sections 8.8 and 8.13, except as provided in the
definition of the term "Outstanding" in Article I, may otherwise deal with
the Trust with the same rights it would have if it were not a Trustee or such
other agent.
Section 8.6 Compensation; Indemnity; Fees.
Pursuant to the covenant "Payment of Trust Costs and Expenses"
contained in the Indenture, the Depositor, in its capacity as the issuer of
the Subordinated Notes, agrees:
(a) to pay to the Trustees from time to time such compensation as
shall be agreed in writing with the Depositor for all services rendered by
them hereunder (which compensation shall not be limited by any provision of
law in regard to the compensation of a trustee of an express trust);
(b) except as otherwise expressly provided herein, to reimburse the
Trustees upon request for all reasonable expenses, disbursements and advances
incurred or made by the Trustees in accordance with any provision of this
Trust Agreement (including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad
faith; and
(c) to the fullest extent permitted by applicable law, to indemnify
and hold harmless (i) each Trustee, (ii) any Affiliate of any Trustee, (iii)
any officer, director, shareholder, employee, representative or agent of any
Trustee, and (iv) any employee or agent of the Trust or its Affiliates,
(referred to herein as an "Indemnified Person") from and against any and all
loss, damage, liability, tax, penalty, expense or claim of any kind or nature
whatsoever incurred by such Indemnified Person by reason of the creation,
operation or termination of the Trust or any act or omission performed or
omitted by such Indemnified Person in good faith on behalf of the Trust and
in a manner such Indemnified Person reasonably believed to be within the
scope of authority conferred on such Indemnified Person by this Trust
Agreement, except that no Indemnified Person shall be entitled to be
<PAGE>
indemnified in respect of any loss, damage or claim incurred by such
Indemnified Person by reason of negligence, bad faith, or willful or
intentional misconduct with respect to such acts or omissions. When the
Property Trustee incurs expenses or renders services in connection with an
Event of Default specified in Section 5.1(5) or Section 5.1(6) of the
Indenture, the expenses (including the reasonable charges and expenses of its
counsel) and the compensation for the services are intended to constitute
expenses of administration under any applicable federal or state bankruptcy,
insolvency or other similar law.
The provisions of this Section 8.6 shall survive the termination of
this Trust Agreement.
No Trustee may claim any lien or charge on any Trust Property as a
result of any amount due pursuant to this Section 8.6.
The Depositor and any Trustee (in the case of the Property Trustee,
subject to Section 8.8 hereof) may engage in or possess an interest in other
business ventures of any nature or description, independently or with others,
similar or dissimilar to the business of the Trust, and the Trust and the
Holders of Trust Securities shall have no rights by virtue of this Trust
Agreement in and to such independent ventures or the income or profits
derived therefrom, and the pursuit of any such venture, even if competitive
with the business of the Trust, shall not be deemed wrongful or improper.
Neither the Depositor, nor any Trustee, shall be obligated to present any
particular investment or other opportunity to the Trust even if such
opportunity is of a character that, if presented to the Trust, could be taken
by the Trust, and the Depositor or any Trustee shall have the right to take
for its own account (individually or as a partner or fiduciary) or to
recommend to others any such particular investment or other opportunity. Any
Trustee may engage or be interested in any financial or other transaction
with the Depositor or any Affiliate of the Depositor, or may act as
depository for, trustee or agent for, or act on any committee or body of
holders of, securities or other obligations of the Depositor or its
Affiliates.
Section 8.7 Corporate Property Trustee Required; Eligibility of
Trustees.
(a) There shall at all times be a Property Trustee hereunder with
respect to the Trust Securities. The Property Trustee shall be a Person that
is eligible pursuant to the Trust Indenture Act to act as such and has a
combined capital and surplus of at least $50,000,000. If any such Person
publishes reports of condition at least annually, pursuant to law or to the
requirements of its supervising or examining authority, then for the purposes
of this Section, the combined capital and surplus of such Person shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. If at any time the Property Trustee with
respect to the Trust Securities shall cease to be eligible in accordance with
the provisions of this Section, it shall resign immediately in the manner and
with the effect hereinafter specified in this Article.
(b) There shall at all times be one or more Administrative Trustees
hereunder with respect to the Trust Securities. Each Administrative Trustee
shall be either a natural person who is at least 21 years of age or a legal
entity that shall act through one or more persons authorized to bind that
entity.
<PAGE>
(c) There shall at all times be a Delaware Trustee with respect to
the Trust Securities. The Delaware Trustee shall either be (i) a natural
person who is at least 21 years of age and a resident of the State of
Delaware or (ii) a legal entity with its principal place of business in the
State of Delaware and that otherwise meets the requirements of applicable
Delaware law that shall act through one or more persons authorized to bind
such entity.
Section 8.8 Conflicting Interests.
If the Property Trustee has or shall acquire a conflicting interest
within the meaning of the Trust Indenture Act, the Property Trustee shall
either eliminate such interest or resign, to the extent and in the manner
provided by, and subject to the provisions of, the Trust Indenture Act and
this Trust Agreement.
Section 8.9 Co-Trustees and Separate Trustee.
Unless an Event of Default shall have occurred and be continuing, at
any time or times, for the purpose of meeting the legal requirements of the
Trust Indenture Act or of any jurisdiction in which any part of the Trust
Property may at the time be located, the Depositor and the Administrative
Trustees, by agreed action of the majority of such Trustees, shall have power
to appoint, and upon the written request of the Administrative Trustees, the
Depositor shall for such purpose join with the Administrative Trustees in the
execution, delivery, and performance of all instruments and agreements
necessary or proper to appoint, one or more Persons approved by the Property
Trustee either to act as co-trustee, jointly with the Property Trustee, of
all or any part of such Trust Property, or to the extent required by law to
act as separate trustee of any such property, in either case with such powers
as may be provided in the instrument of appointment, and to vest in such
Person or Persons in the capacity aforesaid, any property, title, right or
power deemed necessary or desirable, subject to the other provisions of this
Section. If the Depositor does not join in such appointment within 15 days
after the receipt by it of a request so to do, or in case a Subordinated Note
Event of Default has occurred and is continuing, the Property Trustee alone
shall have power to make such appointment. Any co-trustee or separate trustee
appointed pursuant to this Section shall either be (i) a natural person who
is at least 21 years of age and a resident of the United States or (ii) a
legal entity with its principal place of business in the United States that
shall act through one or more persons authorized to bind such entity.
Should any written instrument from the Depositor be required by any
co-trustee or separate trustee so appointed for more fully confirming to such
co-trustee or separate trustee such property, title, right, or power, any and
all such instruments shall, on request, be executed, acknowledged and
delivered by the Depositor.
Every co-trustee or separate trustee shall, to the extent permitted
by law, but to such extent only, be appointed subject to the following terms,
namely:
(a) The Trust Securities shall be executed and delivered and all
rights, powers, duties, and obligations hereunder in respect of the custody
of securities, cash and other personal property held by, or required to be
deposited or pledged with, the Trustees specified hereunder shall be
<PAGE>
exercised solely by such Trustees and not by such co-trustee or separate
trustee.
(b) The rights, powers, duties, and obligations hereby conferred or
imposed upon the Property Trustee in respect of any property covered by such
appointment shall be conferred or imposed upon and exercised or performed by
the Property Trustee or by the Property Trustee and such co-trustee or
separate trustee jointly, as shall be provided in the instrument appointing
such co-trustee or separate trustee, except to the extent that under any law
of any jurisdiction in which any particular act is to be performed, the
Property Trustee shall be incompetent or unqualified to perform such act, in
which event such rights, powers, duties and obligations shall be exercised
and performed by such co-trustee or separate trustee.
(c) The Property Trustee at any time, by an instrument in writing
executed by it, with the written concurrence of the Depositor, may accept the
resignation of or remove any co-trustee or separate trustee appointed under
this Section, and, in case a Subordinated Note Event of Default has occurred
and is continuing, the Property Trustee shall have power to accept the
resignation of, or remove, any such co-trustee or separate trustee without
the concurrence of the Depositor. Upon the written request of the Property
Trustee, the Depositor shall join with the Property Trustee in the execution,
delivery and performance of all instruments and agreements necessary or
proper to effectuate such resignation or removal. A successor to any co-
trustee or separate trustee so resigned or removed may be appointed in the
manner provided in this Section.
(d) No co-trustee or separate trustee hereunder shall be personally
liable by reason of any act or omission of the Property Trustee or any other
trustee hereunder.
(e) The Property Trustee shall not be liable by reason of any act of
a co-trustee or separate trustee.
(f) Any Act of Holders delivered to the Property Trustee shall be
deemed to have been delivered to each such co-trustee and separate trustee.
Section 8.10 Resignation and Removal; Appointment of Successor.
No resignation or removal of any Trustee (the "Relevant Trustee") and
no appointment of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of Section 8.11.
Subject to the immediately preceding paragraph, the Relevant Trustee
may resign at any time. The Property Trustee and the Delaware Trustee shall
give written notice thereof to the Securityholders and the Administrative
Trustee shall give notice thereof to the Depositor. If the instrument of
acceptance by the successor Trustee required by Section 8.11 shall not have
been delivered to the Relevant Trustee within 30 days after the giving of
such notice of resignation, the Relevant Trustee may petition, at the expense
of the Trust, any court of competent jurisdiction for the appointment of a
successor Relevant Trustee.
Unless a Subordinated Note Event of Default shall have occurred and
be continuing, any Trustee may be removed at any time by Act of the Common
Securityholder. If a Subordinated Note Event of Default shall have occurred
and be continuing, the Property Trustee or the Delaware Trustee, or both of
<PAGE>
them, may be removed at such time by Act of the Holders of a majority in
Liquidation Amount of the Preferred Securities, delivered to the Relevant
Trustee (in its individual capacity and on behalf of the Trust). An
Administrative Trustee may be removed by the Common Securityholder at any
time. If the instrument of acceptance by the successor Trustee required by
Section 8.11 shall not have been delivered to the Relevant Trustee within 30
days after such removal, the Relevant Trustee may petition, at the expense of
the Trust, any court of competent jurisdiction for the appointment of a
successor Relevant Trustee.
If any Trustee shall resign, be removed or become incapable of acting
as Trustee, or if a vacancy shall occur in the office of any Trustee for any
cause, at a time when no Subordinated Note Event of Default shall have
occurred and be continuing, the Common Securityholder, by Act of the Common
Securityholder delivered to the retiring Trustee, shall promptly appoint a
successor Trustee or Trustees, and the retiring Trustee shall comply with the
applicable requirements of Section 8.11. If the Property Trustee or the
Delaware Trustee shall resign, be removed or become incapable of continuing
to act as the Property Trustee or the Delaware Trustee, as the case may be,
at a time when a Subordinated Note Event of Default shall have occurred and
be continuing, the Preferred Securityholders, by Act of the Securityholders
of a majority in Liquidation Amount of the Preferred Securities then
Outstanding delivered to the retiring Relevant Trustee, shall promptly
appoint a successor Relevant Trustee or Trustees, and such successor Trustee
shall comply with the applicable requirements of Section 8.11. If an
Administrative Trustee shall resign, be removed or become incapable of acting
as Administrative Trustee, at a time when a Subordinated Note Event of
Default shall have occurred and be continuing, the Common Securityholder by
Act of the Common Securityholder delivered to the Administrative Trustee
shall promptly appoint a successor Administrative Trustee or Administrative
Trustees and such successor Administrative Trustee or Trustees shall comply
with the applicable requirements of Section 8.11. If no successor Relevant
Trustee shall have been so appointed by the Common Securityholder or the
Preferred Securityholders and accepted appointment in the manner required by
Section 8.11, any Securityholder who has been a Securityholder of Trust
Securities for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Relevant Trustee.
The Property Trustee shall give notice of each resignation and each
removal of a Trustee (other than an Administrative Trustee) and each
appointment of a successor Trustee (other than an Administrative Trustee) to
all Securityholders in the manner provided in Section 10.10 and shall give
notice to the Depositor. Each notice shall include the name of the successor
Relevant Trustee and the address of its Corporate Trust Office if it is the
Property Trustee.
Notwithstanding the foregoing or any other provision of this Trust
Agreement, in the event any Administrative Trustee or a Delaware Trustee who
is a natural person dies or becomes, in the opinion of the Depositor,
incompetent or incapacitated, the vacancy created by such death, incompetence
or incapacity may be filled by (a) the unanimous act of the remaining
Administrative Trustees if there are at least two of them or (b) otherwise by
the Depositor (with the successor in each case being a Person who satisfies
the eligibility requirement for Administrative Trustees or Delaware Trustee,
as the case may be, set forth in Section 8.7).
<PAGE>
Section 8.11 Acceptance of Appointment by Successor.
In case of the appointment hereunder of a successor Relevant Trustee,
the retiring Relevant Trustee and each successor Relevant Trustee with
respect to the Trust Securities shall execute and deliver an amendment hereto
wherein each successor Relevant Trustee shall accept such appointment and
which (a) shall contain such provisions as shall be necessary or desirable to
transfer and confirm to, and to vest in, each successor Relevant Trustee all
the rights, powers, trusts and duties of the retiring Relevant Trustee with
respect to the Trust Securities and the Trust and (b) shall add to or change
any of the provisions of this Trust Agreement as shall be necessary to
provide for or facilitate the administration of the Trust by more than one
Relevant Trustee, it being understood that nothing herein or in such
amendment shall constitute such Relevant Trustees co-trustees and upon the
execution and delivery of such amendment the resignation or removal of the
retiring Relevant Trustee shall become effective to the extent provided
therein and each such successor Relevant Trustee, without any further act,
deed or conveyance, shall become vested with all the rights, powers, trusts
and duties of the retiring Relevant Trustee; but, on written request of the
Trust or any successor Relevant Trustee such retiring Relevant Trustee shall
duly assign, transfer and deliver to such successor Relevant Trustee all
Trust Property, all proceeds thereof and money held by such retiring Relevant
Trustee hereunder with respect to the Trust Securities and the Trust.
Upon written request of any such successor Relevant Trustee, the
Trust shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Relevant Trustee all such rights,
powers and trusts referred to in the first or second preceding paragraph, as
the case may be.
No successor Relevant Trustee shall accept its appointment unless at
the time of such acceptance such successor Relevant Trustee shall be
qualified and eligible under this Article.
Section 8.12 Merger, Conversion, Consolidation or Succession to
Business.
Any Person into which the Property Trustee or the Delaware Trustee
may be merged or converted or with which it may be consolidated, or any
Person resulting from any merger, conversion or consolidation to which such
Relevant Trustee shall be a party, or any Person succeeding to all or
substantially all the corporate trust business of such Relevant Trustee,
shall be the successor of such Relevant Trustee hereunder, provided such
Person shall be otherwise qualified and eligible under this Article, without
the execution or filing of any paper or any further act on the part of any of
the parties hereto.
Section 8.13 Preferential Collection of Claims Against Depositor or
Trust.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
similar judicial proceeding relative to the Trust or any other obligor upon
the Trust Securities or the property of the Trust or of such other obligor or
their creditors, the Property Trustee (irrespective of whether any
Distributions on the Trust Securities shall then be due and payable as
therein expressed or by declaration or otherwise and irrespective of whether
the Property Trustee shall have made any demand on the Trust for the payment
<PAGE>
of any past due Distributions) shall be entitled and empowered, to the
fullest extent permitted by law, by intervention in such proceeding or
otherwise:
(a) to file and prove a claim for the whole amount of any
Distributions owing and unpaid in respect of the Trust Securities and to file
such other papers or documents as may be necessary or advisable in order to
have the claims of the Property Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of the Property
Trustee, its agents and counsel) and of the Holders allowed in such judicial
proceeding, and
(b) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized
by each Holder to make such payments to the Property Trustee and, in the
event the Property Trustee shall consent to the making of such payments
directly to the Holders, to pay to the Property Trustee any amount due it for
the reasonable compensation, expenses, disbursements and advances of the
Property Trustee, its agents and counsel, and any other amounts due the
Property Trustee.
Nothing herein contained shall be deemed to authorize the Property
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement adjustment or compensation affecting
the Trust Securities or the rights of any Holder thereof or to authorize the
Property Trustee to vote in respect of the claim of any Holder in any such
proceeding.
Section 8.14 Reports by Property Trustee.
(a) The Property Trustee shall transmit to Securityholders such
reports concerning the Property Trustee and its actions under this Trust
Agreement as may be required pursuant to the Trust Indenture Act at the times
and in the manner provided pursuant thereto. If required by Section 313(a)
of the Trust Indenture Act, the Property Trustee shall, within sixty days
after each May 15 following the date of this Trust Agreement deliver to
Securityholders a brief report, dated as of such May 15, which complies with
the provisions of such Section 313(a).
(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Property Trustee with each national
stock exchange, the Nasdaq National Market or such other interdealer
quotation system or self-regulatory organization upon which the Trust
Securities are listed or traded, if any, with the Commission and with the
Depositor. The Depositor will promptly notify the Property Trustee of any
such listing or trading.
Section 8.15 Reports to the Property Trustee.
The Depositor and the Administrative Trustees on behalf of the Trust
shall provide to the Property Trustee such documents, reports and information
as required by Section 314 of the Trust Indenture Act (if any) and the
compliance certificate required by Section 314(a) of the Trust Indenture Act
in the form, in the manner and at the times required by Section 314 of the
<PAGE>
Trust Indenture Act. Delivery of such reports, information and documents to
the Property Trustee is for informational purposes only and the Property
Trustee's receipt of such shall not constitute constructive notice of any
information contained therein or determinable from information contained
therein, including the Trust's compliance with any of its covenants hereunder
(as to which the Property Trustee is entitled to rely exclusively on
Officers' Certificates).
Section 8.16 Evidence of Compliance with Conditions Precedent.
Each of the Depositor and the Administrative Trustees on behalf of
the Trust shall provide to the Property Trustee such evidence of compliance
with any conditions precedent, if any, provided for in this Trust Agreement
that relate to any of the matters set forth in Section 314 (c) of the Trust
Indenture Act. Any certificate or opinion required to be given by an officer
pursuant to Section 314(c)(1) of the Trust Indenture Act shall be given in
the form of an Officers' Certificate.
Section 8.17 Number of Trustees.
(a) The number of Trustees shall be five, provided that the Holder of
all of the Common Securities by written instrument may increase or decrease
the number of Administrative Trustees. The Property Trustee and the Delaware
Trustee may be the same Person.
(b) If a Trustee ceases to hold office for any reason and the number
of Administrative Trustees is not reduced pursuant to Section 8.17(a), or if
the number of Trustees is increased pursuant to Section 8.17(a), a vacancy
shall occur. The vacancy shall be filled with a Trustee appointed in
accordance with Section 8.10.
(c) The death, resignation, retirement, removal, bankruptcy,
incompetence or incapacity to perform the duties of a Trustee shall not
operate to dissolve, terminate or annul the Trust. Whenever a vacancy in the
number of Administrative Trustees shall occur, until such vacancy is filled
by the appointment of an Administrative Trustee in accordance with Section
8.10, the Administrative Trustees in office, regardless of their number (and
notwithstanding any other provision of this Agreement), shall have all the
powers granted to the Administrative Trustees and shall discharge all the
duties imposed upon the Administrative Trustees by this Trust Agreement.
Section 8.18 Delegation of Power.
(a) Any Administrative Trustee may, by power of attorney consistent
with applicable law, delegate to any other natural person over the age of 21
his or her power for the purpose of executing any documents contemplated in
Section 2.7(a), including any registration statement or amendment thereto
filed with the Commission, or making any other governmental filing; and
(b) The Administrative Trustees shall have power to delegate from
time to time to such of their number or to the Depositor the doing of such
things and the execution of such instruments either in the name of the Trust
or the names of the Administrative Trustees or otherwise as the
Administrative Trustees may deem expedient, to the extent such delegation is
not prohibited by applicable law or contrary to the provisions of this Trust
Agreement, as set forth herein.
<PAGE>
ARTICLE IX
Dissolution, Liquidation and Merger
Section 9.1 Dissolution Upon Expiration Date.
Unless earlier dissolved, the Trust shall automatically dissolve on
________ __, 2052 (the "Expiration Date"), following the distribution of the
Trust Property in accordance with Section 9.4.
Section 9.2 Early Dissolution.
The first to occur of any of the following events is an "Early
Termination Event", which will cause a dissolution of the Trust:
(a) the occurrence of a Bankruptcy Event in respect of, or the
dissolution or liquidation of, the Depositor or the Holder of the Common
Securities;
(b) the written direction to the Property Trustee from the Depositor
at any time to dissolve the Trust and, after satisfaction of liabilities to
creditors of the Trust as provided by applicable law, distribute Subordinated
Notes to Securityholders in exchange for the Preferred Securities (which
direction is optional and wholly within the discretion of the Depositor);
(c) the redemption of all of the Preferred Securities in connection
with the redemption of all of the Subordinated Notes; and
(d) the entry of an order for dissolution of the Trust by a court of
competent jurisdiction.
Section 9.3 Termination.
The respective obligations and responsibilities of the Trustees and
the Trust created and continued hereby shall terminate upon the latest to
occur of the following: (a) the distribution by the Property Trustee to
Securityholders upon the liquidation of the Trust pursuant to Section 9.4, or
upon the redemption of all of the Trust Securities pursuant to Section 4.2,
of all amounts required to be distributed hereunder upon the final payment of
the Trust Securities; (b) the payment of any expenses owed by the Trust; and
(c) the discharge of all administrative duties of the Administrative
Trustees, including the performance of any tax reporting obligations with
respect to the Trust or the Securityholders.
Section 9.4 Liquidation.
(a) If an Early Termination Event specified in clause (a), (b) or (d)
of Section 9.2 occurs or upon the Expiration Date, the Trust shall be
liquidated by the Trustees as expeditiously as the Trustees determine to be
possible by distributing, after satisfaction or the making of reasonable
provisions for the payment of liabilities to creditors of the Trust as
provided by applicable law, to each Securityholder a Like Amount of
Subordinated Notes, subject to Section 9.4(d). Notice of liquidation shall be
given by the Property Trustee by first-class mail, postage prepaid mailed not
later than 30 nor more than 60 days prior to the Liquidation Date to each
Holder of Trust Securities at such Holder's address appearing in the
Securities Register. All notices of liquidation shall:
<PAGE>
(i) state the CUSIP Number, International Securities
Identification Number and Common Code of the Trust Securities;
(ii) state the Liquidation Date;
(iii) state that from and after the Liquidation Date,
the Trust Securities will no longer be deemed to be Outstanding and
any Trust Securities Certificates not surrendered for exchange will
be deemed to represent a Like Amount of Subordinated Notes; and
(iv) provide such information with respect to the
mechanics by which Holders may exchange Trust Securities Certificates
for Subordinated Notes, or if Section 9.4(d) applies receive a
Liquidation Distribution, as the Administrative Trustees or the
Property Trustee shall deem appropriate.
(b) Except where Section 9.2(c) or 9.4(d) applies, in order to effect
the liquidation of the Trust and distribution of the Subordinated Notes to
Securityholders, the Property Trustee shall establish a record date for such
distribution (which shall be not more than 45 days prior to the Liquidation
Date) and, either itself acting as exchange agent or through the appointment
of a separate exchange agent, shall establish such procedures as it shall
deem appropriate to effect the distribution of Subordinated Notes in exchange
for the Outstanding Trust Securities Certificates.
(c) Except where Section 9.2(c) or 9.4(d) applies, after the
Liquidation Date, (i) the Trust Securities will no longer be deemed to be
Outstanding, (ii) certificates representing a Like Amount of Subordinated
Notes will be issued to Holders of Trust Securities Certificates, upon
surrender of such certificates to the Administrative Trustees or their agent
for exchange, (iii) the Depositor shall use its best efforts to have the
Subordinated Notes listed on the New York Stock Exchange or on such other
exchange, interdealer quotation system or self-regulatory organization as the
Preferred Securities are then listed or traded, (iv) any Trust Securities
Certificates not so surrendered for exchange will be deemed to represent a
Like Amount of Subordinated Notes, accruing interest at the rate provided for
in the Subordinated Notes from the last Distribution Date on which a
Distribution was made on such Trust Securities Certificates until such
certificates are so surrendered (and until such certificates are so
surrendered, no payments of interest or principal will be made to Holders of
Trust Securities Certificates with respect to such Subordinated Notes) and
(v) all rights of Securityholders holding Trust Securities will cease, except
the right of such Securityholders to receive Subordinated Notes upon
surrender of Trust Securities Certificates.
(d) In the event that, notwithstanding the other provisions of this
Section 9.4, whether because of an order for dissolution entered by a court
of competent jurisdiction or otherwise, distribution of the Subordinated
Notes in the manner provided herein is determined by the Property Trustee not
to be practical, the Trust Property shall be liquidated, and the Trust shall
be wound-up or terminated, by the Property Trustee. In such event,
Securityholders will be entitled to receive out of the assets of the Trust
available for distribution to Securityholders, after satisfaction of
liabilities to creditors of the Trust as provided by applicable law, an
amount equal to the Liquidation Amount per Trust Security plus accumulated
and unpaid Distributions thereon to the date of payment (such amount being
the "Liquidation Distribution"). If, upon any such dissolution, winding up or
<PAGE>
termination, the Liquidation Distribution can be paid only in part because
the Trust has insufficient assets available to pay in full the aggregate
Liquidation Distribution, then, subject to the next succeeding sentence, the
amounts payable by the Trust on the Trust Securities shall be paid on a pro
rata basis (based upon Liquidation Amounts). The Holder of the Common
Securities will be entitled to receive Liquidation Distributions upon any
such dissolution, winding-up or termination pro rata (determined as
aforesaid) with Holders of Preferred Securities, except that, if a
Subordinated Note Event of Default has occurred and is continuing, the
Preferred Securities shall have a priority over the Common Securities.
Section 9.5 Mergers, Consolidations, Amalgamations or Replacements
of the Trust.
The Trust may not merge with or into, consolidate, amalgamate, or be
replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to any corporation or other Person, except
pursuant to this Article IX. At the request of the Depositor, with the
consent of the Administrative Trustees and without the consent of the Holders
of the Preferred Securities, the Property Trustee or the Delaware Trustee,
the Trust may merge with or into, consolidate, amalgamate, or be replaced by
or convey, transfer or lease its properties and assets substantially as an
entirety to a trust organized as such under the laws of any State; provided,
that (i) such successor entity either (a) expressly assumes all of the
obligations of the Trust with respect to the Preferred Securities or (b)
substitutes for the Preferred Securities other securities having
substantially the same terms as the Preferred Securities (the "Successor
Securities") so long as the Successor Securities rank the same as the
Preferred Securities rank in priority with respect to distributions and
payments upon liquidation, redemption and otherwise, (ii) the Depositor
expressly appoints a trustee of such successor entity possessing the same
powers and duties as the Property Trustee as the holder of the Subordinated
Notes, (iii) the Successor Securities are listed or traded, or any Successor
Securities will be listed upon notification of issuance, on any national
securities exchange or other organization on which the Preferred Securities
are then listed or traded, if any, (iv) such merger, consolidation,
amalgamation, replacement, conveyance, transfer or lease does not cause the
Preferred Securities (including any Successor Securities) to be downgraded by
any nationally recognized statistical rating organization, (v) such merger,
consolidation, amalgamation, replacement, conveyance, transfer or lease does
not adversely affect the rights, preferences and privileges of the holders of
the Preferred Securities (including any Successor Securities) in any material
respect, (vi) such successor entity has a purpose substantially identical to
that of the Trust, (vii) prior to such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease, the Depositor has received an
Opinion of Counsel to the effect that (a) such merger, consolidation,
amalgamation, replacement, conveyance, transfer or lease does not adversely
affect the rights, preferences and privileges of the holders of the Preferred
Securities (including any Successor Securities) in any material respect, and
(b) following such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease, neither the Trust nor such successor entity
will be required to register as an investment company under the 1940 Act and
(viii) the Depositor owns all of the common securities of such successor
entity and guarantees the obligations of such successor entity under the
Successor Securities at least to the extent provided by the Guarantee.
Notwithstanding the foregoing, the Trust shall not, except with the consent
of Holders of 100% in Liquidation Amount of the Preferred Securities,
<PAGE>
consolidate, amalgamate, merge with or into, or be replaced by or convey,
transfer or lease its properties and assets substantially as an entirety to
any other Person or permit any other Person to consolidate, amalgamate, merge
with or into, or replace it if such consolidation, amalgamation, merger,
replacement, conveyance, transfer or lease would cause the Trust or the
successor entity to be classified as other than a grantor trust for United
States federal income tax purposes.
ARTICLE X
Miscellaneous Provisions
Section 10.1 Limitation of Rights of Securityholders.
Except to the extent otherwise provided in Section 9.2, the death,
incapacity, liquidation, dissolution, termination or bankruptcy of any Person
having an interest, beneficial or otherwise, in Trust Securities shall not
operate to terminate this Trust Agreement, nor annul, dissolve or terminate
the Trust, nor entitle the legal representatives or heirs of such Person or
any Securityholder for such Person, to claim an accounting, take any action
or bring any proceeding in any court for a partition or winding up of the
arrangements contemplated hereby, nor otherwise affect the rights,
obligations and liabilities of the parties hereto or any of them.
Section 10.2 Liability of the Common Securityholder.
The Holder of the Common Securities shall be liable for all of the
debts and obligations of the Trust (other than with respect to the Trust
Securities) to the extent not satisfied out of the Trust's assets.
Section 10.3 Amendment.
(a) This Trust Agreement may be amended from time to time by the
Property Trustee, the Delaware Trustee, the Administrative Trustees and the
Depositor, without the consent of any Securityholders, (i) to cure any
ambiguity, correct or supplement any provision herein which may be
inconsistent with any other provision herein, or to make any other provisions
with respect to matters or questions arising under this Trust Agreement,
which shall not be inconsistent with the other provisions of this Trust
Agreement, or (ii) to modify, eliminate or add to any provisions of this
Trust Agreement to such extent as shall be necessary to ensure that the Trust
will be classified for United States federal income tax purposes as a grantor
trust at all times that any Trust Securities are outstanding or to ensure
that the Trust will not be required to register as an investment company
under the 1940 Act; provided, however, that in the case of clause (i) or
clause (ii), such action shall not adversely affect in any material respect
the interests of any Securityholder, and any such amendments of this Trust
Agreement shall become effective when notice thereof is given to the
Securityholders.
(b) Except as provided in Section 10.3(c) hereof, any provision of
this Trust Agreement may be amended by the Trustees and the Depositor with
(i) the consent of Trust Securityholders representing not less than a
majority (based upon Liquidation Amounts) of the Trust Securities then
Outstanding and (ii) receipt by the Trustees of an Opinion of Counsel to the
effect that such amendment or the exercise of any power granted to the
<PAGE>
Trustees in accordance with such amendment will not affect the Trust's status
as a grantor trust for United States federal income tax purposes or the
Trust's exemption from status of an investment company under the 1940 Act.
(c) In addition to and notwithstanding any other provision in this
Trust Agreement, without the consent of each affected Securityholder (such
consent being obtained in accordance with Section 6.3 or 6.6 hereof), this
Trust Agreement may not be amended to (i) change the amount or timing of any
Distribution on the Trust Securities or otherwise adversely affect the amount
of any Distribution required to be made in respect of the Trust Securities as
of a specified date or (ii) restrict the right of a Securityholder to
institute suit for the enforcement of any such payment on or after such date;
notwithstanding any other provision herein, without the unanimous consent of
the Securityholders (such consent being obtained in accordance with Section
6.3 or 6.6 hereof), this paragraph (c) of this Section 10.3 may not be
amended.
(d) Notwithstanding any other provisions of this Trust Agreement, no
Trustee shall enter into or consent to any amendment to this Trust Agreement
which would cause the Trust to fail or cease to qualify for the exemption
from status of an investment company under the 1940 Act or fail or cease to
be classified as a grantor trust for United States federal income tax
purposes.
(e) Notwithstanding anything in this Trust Agreement to the contrary,
without the consent of the Depositor, this Trust Agreement may not be amended
in a manner which imposes any additional obligation on the Depositor.
(f) In the event that any amendment to this Trust Agreement is made,
the Administrative Trustees shall promptly provide to the Depositor a copy of
such amendment.
(g) Neither the Property Trustee nor the Delaware Trustee shall be
required to enter into any amendment to this Trust Agreement which affects
its own rights, duties or immunities under this Trust Agreement. The Property
Trustee shall be entitled to receive an Opinion of Counsel and an Officers'
Certificate stating that any amendment to this Trust Agreement is in
compliance with this Trust Agreement.
Section 10.4 Consolidation, Merger, Conveyance, Transfer or Lease.
The Depositor shall not consolidate with or merge into any other
Person or convey, transfer or lease its properties and assets substantially
as an entirety to any Person, and no Person shall consolidate with or merge
into the Depositor or convey, transfer or lease its properties and assets
substantially as an entirety to the Depositor, unless it has complied with
the terms of Section 8.1 of the Indenture.
Section 10.5 Separability.
In case any provision in this Trust Agreement or in the Trust
Securities Certificates shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby.
Section 10.6 Governing Law.
<PAGE>
THIS TRUST AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF EACH OF THE
SECURITYHOLDERS, THE TRUST AND THE TRUSTEES WITH RESPECT TO THIS TRUST
AGREEMENT AND THE TRUST SECURITIES SHALL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAWS OF THE STATE OF DELAWARE (WITHOUT REGARD TO CONFLICT OF
LAWS PRINCIPLES).
Section 10.7 Payments Due on Non-Business Day.
If the date fixed for any payment on any Trust Security shall be a
day that is not a Business Day, then such payment need not be made on such
date but may be made on the next succeeding day that is a Business Day
(except as otherwise provided in Sections 4.1(a) and 4.2(d)), with the same
force and effect as though made on the date fixed for such payment, and no
interest shall accrue thereon for the period after such date.
Section 10.8 Successors.
This Trust Agreement shall be binding upon and shall inure to the
benefit of any successor to the Depositor, the Trust or the Relevant Trustee,
including any successor by operation of law. Except in connection with a
consolidation, merger or sale involving the Depositor that is permitted under
Article Eight of the Indenture and pursuant to which the assignee agrees in
writing to perform the Depositor's obligations hereunder, the Depositor shall
not assign its obligations hereunder.
Section 10.9 Headings.
The Article and Section headings are for convenience only and shall
not affect the construction of this Trust Agreement.
Section 10.10 Reports, Notices and Demands.
Any report, notice, demand or other communication which by any
provision of this Trust Agreement is required or permitted to be given or
served to or upon any Securityholder or the Depositor may be given or served
in writing by deposit thereof, first-class postage prepaid, in the United
States mail, hand delivery or facsimile transmission, in each case,
addressed, (a) in the case of a Preferred Securityholder, to such Preferred
Securityholder as such Securityholder's name and address may appear on the
Securities Register; and (b) in the case of the Common Securityholder or the
Depositor, to Ingersoll-Rand Company, Attention: ___________, facsimile no.:
___________. Such notice, demand or other communication to or upon a
Securityholder shall be deemed to have been sufficiently given or made, for
all purposes, upon hand delivery, mailing or transmission.
Any notice, demand or other communication which by any provision of
this Trust Agreement is required or permitted to be given or served to or
upon the Trust, the Property Trustee, the Delaware Trustee or the
Administrative Trustees shall be given in writing addressed (until another
address is published by the Trust) as follows: (a) with respect to the
Property Trustee to _______________, Attention: ____________; (b) with
respect to the Delaware Trustee, to _________________________, with a copy to
the Property Trustee at the address set forth in Clause (a); and (c) with
respect to the Administrative Trustees, to them at the address above for
notices to the Depositor, marked "Attention Administrative Trustees of
Ingersoll-Rand Financing I." Such notice, demand or other communication to or
upon the Trust or the Property Trustee shall be deemed to have been
<PAGE>
sufficiently given or made only upon actual receipt of the writing by the
Trust or the Property Trustee.
Section 10.11 Agreement Not to Petition.
Each of the Trustees and the Depositor agree for the benefit of the
Securityholders that, until at least one year and one day after the Trust has
been terminated in accordance with Article IX, they shall not file, or join
in the filing of, a petition against the Trust under any bankruptcy,
insolvency, reorganization or other similar law (including, without
limitation, the United States Bankruptcy Code) (collectively, "Bankruptcy
Laws") or otherwise join in the commencement of any proceeding against the
Trust under any Bankruptcy Law. In the event the Depositor takes action in
violation of this Section 10.11, the Property Trustee agrees, for the benefit
of Securityholders, that at the expense of the Depositor, it shall file an
answer with the bankruptcy court or otherwise properly contest the filing of
such petition by the Depositor against the Trust or the commencement of such
action and raise the defense that the Depositor has agreed in writing not to
take such action and should be stopped and precluded therefrom and such other
defenses, if any, as counsel for the Trustee or the Trust may assert. The
provisions of this Section 10.11 shall survive the termination of this Trust
Agreement.
Section 10.12 Trust Indenture Act; Conflict with Trust Indenture
Act.
(a) This Trust Agreement is subject to the provisions of the Trust
Indenture Act that are required or deemed to be part of this Trust Agreement
and shall, to the extent applicable, be governed by such provisions.
(b) The Property Trustee shall be the only Trustee which is a trustee
for the purposes of the Trust Indenture Act.
(c) If any provision hereof limits, qualifies or conflicts with
another provision hereof which is required or deemed to be included in this
Trust Agreement by any of the provisions of the Trust Indenture Act, such
required or deemed provision shall control. If any provision of this Trust
Agreement modifies or excludes any provision of the Trust Indenture Act which
may be so modified or excluded, the latter provision shall be deemed to apply
to this Trust Agreement as so modified or excluded, as the case may be.
(d) The application of the Trust Indenture Act to this Trust
Agreement shall not affect the nature of the Trust Securities as equity
securities representing undivided beneficial interests in the assets of the
Trust.
Section 10.13 Acceptance of Terms of Trust Agreement, Guarantee and
Indenture.
THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST
THEREIN BY OR ON BEHALF OF A SECURITYHOLDER OR ANY BENEFICIAL OWNER, WITHOUT
ANY SIGNATURE OR FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE THE
UNCONDITIONAL ACCEPTANCE BY THE SECURITYHOLDER AND ALL OTHERS HAVING A
BENEFICIAL INTEREST IN SUCH TRUST SECURITY OF ALL THE TERMS AND PROVISIONS OF
THIS TRUST AGREEMENT AND AGREEMENT TO THE SUBORDINATION PROVISIONS AND OTHER
TERMS OF THE GUARANTEE AND THE INDENTURE, AND SHALL CONSTITUTE THE AGREEMENT
OF THE TRUST, SUCH SECURITYHOLDER AND SUCH OTHERS THAT THE TERMS AND
<PAGE>
PROVISIONS OF THIS TRUST AGREEMENT SHALL BE BINDING, OPERATIVE AND EFFECTIVE
AS BETWEEN THE TRUST AND SUCH SECURITYHOLDER AND SUCH OTHERS.
<PAGE>
Section 10.14 Counterparts.
This Trust Agreement may contain more than one counterpart of the
signature page and this Trust Agreement may be executed by the affixing of
the signature of each of the Trustees of one of such counterpart signature
pages. All of such counterpart signature pages shall be read as though one,
and they shall have the same force and effect as though all of the signers
had signed a single signature page.
INGERSOLL-RAND COMPANY
By:______________________________________
Name:
Title:
__________________________,
as Property Trustee
By:______________________________________
Name:
Title:
____________________________,
as Delaware Trustee
By:______________________________________
Name:
Title:
_________________________________________
as Administrative Trustee
_________________________________________
as Administrative Trustee
<PAGE>
Exhibit 4.14
=============================================================================
FORM OF
AMENDED AND RESTATED
TRUST AGREEMENT
among
INGERSOLL-RAND COMPANY, as Depositor,
_____________________________________,
as Property Trustee,
_____________________________________,
as Delaware Trustee,
and
THE ADMINISTRATIVE TRUSTEES NAMED HEREIN
Dated as of ______________ __, 1997
INGERSOLL-RAND FINANCING I
=============================================================================
<PAGE>
Certain Sections of this Trust Agreement relating to Sections 310
through 318 of the Trust Indenture Act of 1939:
Trust Indenture Trust Agreement
Act Section Section
- --------------- ---------------
(Section ) 310 (a)(1) . . . . . . . . . . . 8.7
(a)(2) . . . . . . . . . . . 8.7
(a)(3) . . . . . . . . . . . 8.9
(a)(4) . . . . . . . . . . . 2.7(a)(ii)
(b) . . . . . . . . . . . . . 8.8
(Section ) 311 (a) . . . . . . . . . . . . . 8.13
(b) . . . . . . . . . . . . . 8.13
(Section ) 312 (a) . . . . . . . . . . . . . 5.7
(b) . . . . . . . . . . . . . 5.7
(c) . . . . . . . . . . . . . 5.7
(Section ) 313 (a) . . . . . . . . . . . . . 8.14(a)
(a)(4) . . . . . . . . . . . 8.14(b)
(b) . . . . . . . . . . . . . 8.14(a)
(c) . . . . . . . . . . . . . 10.10
(d) . . . . . . . . . . . . . 8.14(b)
(Section ) 314 (a) . . . . . . . . . . . . . 8.15
(b) . . . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . . 8.16
(c)(2) . . . . . . . . . . . 8.16
(c)(3) . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . 1.1, 8.16
(Section ) 315 (a) . . . . . . . . . . . . . 8.1(a), 8.3(a)
(b) . . . . . . . . . . . . . 8.2, 10.10
(c) . . . . . . . . . . . . . 8.1(a)
(d) . . . . . . . . . . . . . 8.1, 8.3
(e) . . . . . . . . . . . . . Not Applicable
(Section ) 316 (a) . . . . . . . . . . . . . Not Applicable
(a)(1)(A) . . . . . . . . . . Not Applicable
(a)(1)(B) . . . . . . . . . . Not Applicable
(a)(2) . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . 5.14
(c) . . . . . . . . . . . . . 6.7
(Section ) 317 (a)(1) . . . . . . . . . . . Not Applicable
(a)(2) . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . 5.9
(Section ) 318 (a) . . . . . . . . . . . . . 10.11
____________
Note: This reconciliation and tie sheet shall not, for any purpose, be deemed
to be a part of the Trust Agreement.
<PAGE>
TABLE OF CONTENTS
ARTICLE I
Defined Terms . . . . . . . . . . . . . .
Section 1.1 Definitions. . . . . . . . . . . . . . . . . . . .
ARTICLE II
Continuation of the Trust . . . . . . . . . . .
Section 2.1 Name. . . . . . . . . . . . . . . . . . . . . .
Section 2.2 Office of the Delaware Trustee; Principal
Place of Business. . . . . . . . . . . .
Section 2.3 Initial Contribution of Trust Property;
Organizational Expenses. . . . . . . . .
Section 2.4 Issuance of the Preferred Securities. . . . . .
Section 2.5 Issuance of the Common Securities;
Subscription and Purchase of
Subordinated Notes. . . . . . . . . . . .
Section 2.6 Declaration of Trust. . . . . . . . . . . . . .
Section 2.7 Authorization to Enter into Certain
Transactions. . . . . . . . . . . . . . .
Section 2.8 Assets of Trust. . . . . . . . . . . . . . . . .
Section 2.9 Title to Trust Property. . . . . . . . . . . . .
ARTICLE III
Payment Account . . . . . . . . . . . . . .
Section 3.1 Payment Account. . . . . . . . . . . . . . . . .
ARTICLE IV
Distributions; Redemption . . . . . . . . . . .
Section 4.1 Distributions. . . . . . . . . . . . . . . . . .
Section 4.2 Redemption. . . . . . . . . . . . . . . . . . .
Section 4.3 Subordination of Common Securities. . . . . . .
Section 4.4 Payment Procedures. . . . . . . . . . . . . . .
Section 4.5 Tax Returns and Reports. . . . . . . . . . . . .
Section 4.6 Payment of Expenses of the Trust. . . . . . . .
Section 4.7 Payments under Indenture or Pursuant to
Direct Actions. . . . . . . . . . . . . .
ARTICLE V
Trust Securities Certificates . . . . . . . . . .
Section 5.1 Initial Ownership. . . . . . . . . . . . . . . .
Section 5.2 The Trust Securities Certificates. . . . . . . .
Section 5.3 Execution and Delivery of Trust Securities
Certificates. . . . . . . . . . . . . . .
Section 5.4 Registration of Transfer and Exchange of
Preferred Securities Certificates. . . . .
Section 5.5 Mutilated, Destroyed, Lost or Stolen Trust
Securities Certificates. . . . . . . . .
<PAGE>
Section 5.6 Persons Deemed Securityholders. . . . . . . . .
Section 5.7 Access to List of Securityholders' Names
and Addresses. . . . . . . . . . . . . .
Section 5.8 Maintenance of Office or Agency. . . . . . . . .
Section 5.9 Appointment of Paying Agent. . . . . . . . . . .
Section 5.10 Ownership of Common Securities by
Depositor. . . . . . . . . . . . . . . .
Section 5.11 Book-Entry Preferred Securities
Certificates; Common Securities
Certificate. . . . . . . . . . . . . . .
Section 5.12 Notices to Clearing Agency. . . . . . . . . . .
Section 5.13 Definitive Preferred Securities
Certificates. . . . . . . . . . . . . . .
Section 5.14 Rights of Securityholders. . . . . . . . . . . .
Section 5.15 CUSIP Numbers, International Securities
Identification Numbers and Common
Codes. . . . . . . . . . . . . . . . . . .
ARTICLE VI
Acts of Securityholders; Meetings; Voting . . . . . . .
Section 6.1 Limitations on Voting Rights. . . . . . . . . .
Section 6.2 Notice of Meetings. . . . . . . . . . . . . . .
Section 6.3 Meetings of Preferred Securityholders. . . . . .
Section 6.4 Voting Rights. . . . . . . . . . . . . . . . . .
Section 6.5 Proxies, etc. . . . . . . . . . . . . . . . . .
Section 6.6 Securityholder Action by Written Consent. . . .
Section 6.7 Record Date for Voting and Other Purposes. . . .
Section 6.8 Acts of Securityholders. . . . . . . . . . . . .
Section 6.9 Inspection of Records. . . . . . . . . . . . . .
ARTICLE VII
Representations and Warranties . . . . . . . . . .
Section 7.1 Representations and Warranties of the
Property Trustee and the Delaware . . . .
Section 7.2 Representations and Warranties of
Depositor. . . . . . . . . . . . . . . .
ARTICLE VIII
The Trustees . . . . . . . . . . . . . .
Section 8.1 Certain Duties and Responsibilities. . . . . . .
Section 8.2 Certain Notices. . . . . . . . . . . . . . . . .
Section 8.3 Certain Rights of Property Trustee. . . . . . .
Section 8.4 Not Responsible for Recitals or Issuance of
Securities. . . . . . . . . . . . . . . .
Section 8.5 May Hold Securities. . . . . . . . . . . . . . .
Section 8.6 Compensation; Indemnity; Fees. . . . . . . . . .
Section 8.7 Corporate Property Trustee Required;
Eligibility of Trustees. . . . . . . . .
Section 8.8 Conflicting Interests. . . . . . . . . . . . . .
Section 8.9 Co-Trustees and Separate Trustee. . . . . . . .
Section 8.10 Resignation and Removal; Appointment of
Successor. . . . . . . . . . . . . . . .
<PAGE>
Section 8.11 Acceptance of Appointment by Successor. . . . .
Section 8.12 Merger, Conversion, Consolidation or
Succession to Business. . . . . . . . . .
Section 8.13 Preferential Collection of Claims Against
Depositor or Trust. . . . . . . . . . . .
Section 8.14 Reports by Property Trustee. . . . . . . . . . .
Section 8.15 Reports to the Property Trustee. . . . . . . . .
Section 8.16 Evidence of Compliance with Conditions
Precedent. . . . . . . . . . . . . . . .
Section 8.17 Number of Trustees. . . . . . . . . . . . . . .
Section 8.18 Delegation of Power. . . . . . . . . . . . . . .
ARTICLE IX
Dissolution, Liquidation and Merger . . . . . . . . .
Section 9.1 Dissolution Upon Expiration Date. . . . . . . .
Section 9.2 Early Dissolution. . . . . . . . . . . . . . . .
Section 9.3 Termination. . . . . . . . . . . . . . . . . . .
Section 9.4 Liquidation. . . . . . . . . . . . . . . . . . .
Section 9.5 Mergers, Consolidations, Amalgamations or
Replacements of the Trust. . . . . . . .
ARTICLE X
Miscellaneous Provisions . . . . . . . . . . .
Section 10.1 Limitation of Rights of Securityholders. . . . .
Section 10.2 Liability of the Common Securityholder . . . . .
Section 10.3 Amendment. . . . . . . . . . . . . . . . . . . .
Section 10.4 Consolidation, Merger, Conveyance, Transfer
or Lease . . . . . . . . . . . . . . . . .
Section 10.5 Separability. . . . . . . . . . . . . . . . . .
Section 10.6 Governing Law . . . . . . . . . . . . . . . . . .
Section 10.7 Payments Due on Non-Business Day. . . . . . . .
Section 10.8 Successors. . . . . . . . . . . . . . . . . . .
Section 10.9 Headings. . . . . . . . . . . . . . . . . . . .
Section 10.10 Reports, Notices and Demands. . . . . . . . . .
Section 10.11 Agreement Not to Petition. . . . . . . . . . . .
Section 10.12 Trust Indenture Act; Conflict with Trust
Indenture Act. . . . . . . . . . . . . .
Section 10.13 Acceptance of Terms of Trust Agreement,
Guarantee and Indenture. . . . . . . . .
Section 10.14 Counterparts. . . . . . . . . . . . . . . . . . .
GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT, dated as of ________ __, 1997, is executed and
delivered by INGERSOLL-RAND COMPANY, a New Jersey corporation (the
"Guarantor"), having its principal office at 200 Chestnut Ridge Road,
Woodcliff Lake, NJ 07675-8738, and , a
banking corporation, as trustee (the "Guarantee Trustee"), for the benefit of
the Holders (as defined herein) from time to time of the Preferred Securities
and Common Securities (each as defined herein and together, the "Securities")
of Ingersoll-Rand Financing I, a Delaware statutory business trust (the
"Issuer").
WHEREAS, pursuant to an Amended and Restated Trust Agreement, dated as
of _______ __, 1997 (the "Trust Agreement"), among the Guarantor, as
Depositor, the Property Trustee and the Delaware Trustee named therein, the
Administrative Trustees named therein and the Holders from time to time of
undivided beneficial ownership interests in the assets of the Issuer, the
Issuer is issuing $_______ aggregate Liquidation Amount (as defined in the
Trust Agreement) of its Preferred Securities, Liquidation Amount $____ per
preferred security) (the "Preferred Securities") representing undivided
beneficial ownership interests in the assets of the Issuer and having the
terms set forth in the Trust Agreement;
WHEREAS, the Preferred Securities will be issued by the Issuer and the
proceeds thereof, together with the proceeds from the issuance of the
Issuer's Common Securities (as defined herein), will be used to purchase the
Subordinated Notes (as defined in the Trust Agreement) of the Guarantor which
will be deposited with __________, as Property Trustee under the Trust
Agreement, as trust assets; and
WHEREAS, as incentive for the Holders to purchase Securities the
Guarantor desires irrevocably and unconditionally to agree, to the extent set
forth herein, to pay to the Holders of the Securities the Guarantee Payments
(as defined herein) and to make certain other payments on the terms and
conditions set forth herein.
NOW, THEREFORE, in consideration of the purchase by each Holder of
Securities, which purchase the Guarantor hereby agrees shall benefit the
Guarantor, the Guarantor executes and delivers this Guarantee Agreement for
the benefit of the Holders from time to time of the Securities.
ARTICLE I. DEFINITIONS
Section 1.1. Definitions.
As used in this Guarantee Agreement, the terms set forth below shall,
unless the context otherwise requires, have the following meanings.
Capitalized or otherwise defined terms used but not otherwise defined herein
shall have the meanings assigned to such terms in the Trust Agreement as in
effect on the date hereof.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
<PAGE>
control with such specified Person; provided, however, that an Affiliate of
the Guarantor shall not be deemed to be an Affiliate of the Issuer. For the
purposes of this definition, "control" when used with respect to any
specified Person means the power to direct the management and policies of
such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Board of Directors" means either the board of directors of the
Guarantor or any committee of that board duly authorized to act hereunder.
"Common Securities" means the securities representing common undivided
beneficial ownership interests in the assets of the Issuer.
"Event of Default" means a default by the Guarantor on any of its
payment or other obligations under this Guarantee Agreement; provided,
however, that, except with respect to a default in payment of any Guarantee
Payments, the Guarantor shall have received notice of default and shall not
have cured such default within 90 days after receipt of such notice.
"Guarantee Payments" means the following payments or distributions,
without duplication, with respect to the Securities, to the extent not paid
or made by or on behalf of the Issuer: (i) any accumulated and unpaid
Distributions (as defined in the Trust Agreement) required to be paid on the
Securities, to the extent the Issuer shall have funds on hand available
therefor at such time, (ii) the redemption price, including all accrued and
unpaid Distributions to the date of redemption (the"Redemption Price"), with
respect to any Securities called for redemption by the Issuer, to the extent
the Issuer shall have funds on hand available therefor at such time, and
(iii) upon a voluntary or involuntary termination, winding up or liquidation
of the Issuer, unless Subordinated Notes are distributed to the Holders, the
lesser of (a) the aggregate of the Liquidation Amount plus accrued and unpaid
Distributions to the date of payment and (b) the amount of assets of the
Issuer remaining available for distribution to Holders in liquidation of the
Issuer after satisfaction of liabilities to creditors of the Issuer as
required by applicable law (in either case, the "Liquidation Distribution").
"Guarantee Trustee" means ___________, until a Successor Guarantee
Trustee has been appointed and has accepted such appointment pursuant to the
terms of this Guarantee Agreement, and thereafter means each such Successor
Guarantee Trustee.
"Holder" means any holder, as registered on the books and records of the
Issuer, of any Securities; provided, however, that in determining whether the
holders of the requisite percentage of Securities have given any request,
notice, consent or waiver hereunder, "Holder" shall not include the
Guarantor, the Guarantee Trustee, or any Affiliate of the Guarantor or the
Guarantee Trustee.
"Indenture" means the Junior Subordinated Indenture dated as of
_________ __, 1997, as supplemented and amended (including pursuant to any
supplemental indenture, board resolution or officers' certificate
establishing the terms of a series of Securities thereunder) between the
Guarantor and ______________, as trustee.
"List of Holders" has the meaning specified in Section 2.2(a).
<PAGE>
"Majority in aggregate Liquidation Amount of the Securities" means,
except as provided by the Trust Indenture Act, a vote by the Holder(s),
voting separately as a class, of more than 50% of the aggregate Liquidation
Amount of all then outstanding Securities issued by the Issuer.
"Officers' Certificate" means, with respect to any Person, a certificate
signed by the Chairman or a Vice Chairman of the Board of Directors of such
Person or the President or a Vice President of such Person, and by the
Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary of
such Person, and delivered to the Guarantee Trustee. Any Officers'
Certificate delivered with respect to compliance with a condition or covenant
provided for in this Guarantee Agreement shall include:
(a) a statement that each officer signing the Officers' Certificate has
read the covenant or condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the Officers'
Certificate;
(c) a statement that each officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such
officer to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(d) a statement as to whether, in the opinion of each officer, such
condition or covenant has been complied with.
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, limited
liability company, trust, unincorporated association, or government or any
agency or political subdivision thereof, or any other entity of whatever
nature.
"Preferred Securities" has the meaning specified in the preamble to this
Agreement.
"Responsible Officer" when used with respect to the Guarantee Trustee
means any officer of the Guarantee Trustee assigned by the Guarantee Trustee
from time to time to administer its corporate trust matters.
"Securities" has the meaning specified in the preamble to this
Agreement.
"Successor Guarantee Trustee" means a successor Guarantee Trustee
possessing the qualifications to act as Guarantee Trustee under Section 4.1.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended.
ARTICLE II. TRUST INDENTURE ACT
Section 2.1. Trust Indenture Act; Application.
(a) This Guarantee Agreement is subject to the provisions of the Trust
Indenture Act that are required to be part of this Guarantee Agreement and
shall, to the extent applicable, be governed by such provisions.
<PAGE>
(b) If and to the extent that any provision of this Guarantee Agreement
limits, qualifies or conflicts with the duties imposed by Sections 310 to
317, inclusive, of the Trust Indenture Act, such imposed duties shall
control.
Section 2.2. List of Holders.
(a) The Guarantor will furnish or cause to be furnished to the Guarantee
Trustee:
(i) semi-annually, not more than 15 days after __________ and
_________ in each year, a list, in such form as the Guarantee Trustee
may reasonably require, of the names and addresses of the Holders as of
such ________ and _________, and
(ii) at such other times as the Guarantee Trustee may request in
writing, within 30 days after the receipt by the Guarantor of any such
request, a list of similar form and content as of a date not more than
15 days prior to the time such list is furnished,
excluding from any such list names and addresses received by the
Guarantee Trustee in its capacity as Securities Registrar.
(b) The Guarantee Trustee shall comply with its obligations under
Section 311(a), Section 311(b) and Section 312(b) of the Trust Indenture Act.
Section 2.3. Reports by the Guarantee Trustee.
The Guarantee Trustee shall transmit to Holders such reports concerning
the Guarantee Trustee and its actions under this Guarantee Agreement as may
be required pursuant to the Trust Indenture Act at the times and in the
manner provided pursuant thereto. If required by Section 313(a) of the Trust
Indenture Act, the Guarantee Trustee shall, within sixty days after each May
15 following the date of this Guarantee Agreement deliver to Holders a brief
report, dated as of such May 15, which complies with the provisions of such
Section 313(a).
Section 2.4. Periodic Reports to the Guarantee Trustee.
The Guarantor shall provide to the Guarantee Trustee, the Securities and
Exchange Commission and the Holders such documents, reports and information,
if any, as required by Section 314 of the Trust Indenture Act and the
compliance certificate required by Section 314 of the Trust Indenture Act, in
the form, in the manner and at the times required by Section 314 of the Trust
Indenture Act. Delivery of such reports, information and documents to the
Guarantee Trustee is for informational purposes only and the Guarantee
Trustee's receipt of such shall not constitute constructive notice of any
information contained therein, including the Guarantor's compliance with any
of its covenants hereunder (as to which the Guarantee Trustee is entitled to
rely exclusively on Officers' Certificates).
Section 2.5. Evidence of Compliance with Conditions Precedent.
The Guarantor shall provide to the Guarantee Trustee such evidence of
compliance with such conditions precedent, if any, provided for in this
Guarantee Agreement that relate to any of the matters set forth in Section
314(c) of the Trust Indenture Act. Any certificate or opinion required to be
<PAGE>
given by an officer pursuant to Section 314(c)(1) may be given in the form of
an Officers' Certificate.
Section 2.6. Events of Default; Waiver.
The Holders of a Majority in aggregate Liquidation Amount of the
Securities may, by vote, on behalf of the Holders, waive any past Event of
Default and its consequences. Upon such waiver, any such Event of Default
shall cease to exist, and any Event of Default arising therefrom shall be
deemed to have been cured, for every purpose of this Guarantee Agreement, but
no such waiver shall extend to any subsequent or other default or Event of
Default or impair any right consequent therefrom.
Section 2.7. Event of Default; Notice.
(a) The Guarantee Trustee shall, within 90 days after the occurrence of
an Event of Default, transmit by mail, first class postage prepaid, to the
Holders, notices of all Events of Default actually known to the Guarantee
Trustee, unless such defaults have been cured before the giving of such
notice, provided, that, except in the case of a default in the payment of a
Guarantee Payment, the Guarantee Trustee shall be protected in withholding
such notice if and so long as the Board of Directors, the executive committee
or a trust committee of directors and/or Responsible Officers of the
Guarantee Trustee in good faith determines that the withholding of such
notice is in the interests of the Holders.
(b) The Guarantee Trustee shall not be deemed to have knowledge of any
Event of Default unless the Guarantee Trustee shall have received written
notice, or a Responsible Officer charged with the administration of this
Guarantee Agreement shall have obtained written notice, of such Event of
Default.
Section 2.8. Conflicting Interests.
The Trust Agreement shall be deemed to be specifically described in this
Guarantee Agreement for the purposes of clause (i) of the first proviso
contained in Section 310(b) of the Trust Indenture Act.
ARTICLE III. POWERS, DUTIES AND RIGHTS OF THE GUARANTEE TRUSTEE
Section 3.1. Powers and Duties of the Guarantee Trustee.
(a) This Guarantee Agreement shall be held by the Guarantee Trustee for
the benefit of the Holders, and the Guarantee Trustee shall not transfer this
Guarantee Agreement to any Person except a Holder exercising his or her
rights pursuant to Section 5.4(iv) or to a Successor Guarantee Trustee on
acceptance by such Successor Guarantee Trustee of its appointment to act as
Successor Guarantee Trustee. The right, title and interest of the Guarantee
Trustee shall automatically vest in any Successor Guarantee Trustee, upon
acceptance by such Successor Guarantee Trustee of its appointment hereunder,
and such vesting and cessation of title shall be effective whether or not
conveyancing documents have been executed and delivered pursuant to the
appointment of such Successor Guarantee Trustee.
<PAGE>
(b) If an Event of Default has occurred and is continuing, the Guarantee
Trustee shall enforce this Guarantee Agreement for the benefit of the
Holders.
(c) The Guarantee Trustee, before the occurrence of any Event of Default
and after the curing of all Events of Default that may have occurred, shall
undertake to perform only such duties as are specifically set forth in this
Guarantee Agreement, and no implied covenants shall be read into this
Guarantee Agreement against the Guarantee Trustee. In case an Event of
Default has occurred (that has not been cured or waived pursuant to Section
2.6), the Guarantee Trustee shall exercise such of the rights and powers
vested in it by this Guarantee Agreement, and use the same degree of care and
skill in its exercise thereof, as a prudent person would exercise or use
under the circumstances in the conduct of his or her own affairs.
(d) No provision of this Guarantee Agreement shall be construed to
relieve the Guarantee Trustee from liability for its own negligent action,
its own negligent failure to act or its own willful misconduct, except that:
(i) prior to the occurrence of any Event of Default and after the
curing or waiving of all such Events of Default that may have occurred:
(A) the duties and obligations of the Guarantee Trustee shall be
determined solely by the express provisions of this Guarantee Agreement,
and the Guarantee Trustee shall not be liable except for the performance
of such duties and obligations as are specifically set forth in this
Guarantee Agreement; and
(B) in the absence of bad faith on the part of the Guarantee
Trustee, the Guarantee Trustee may conclusively rely, as to the truth of
the statements and the correctness of the opinions expressed therein,
upon any certificates or opinions furnished to the Guarantee Trustee and
conforming to the requirements of this Guarantee Agreement; but in the
case of any such certificates or opinions that by any provision hereof
or of the Trust Indenture Act are specifically required to be furnished
to the Guarantee Trustee, the Guarantee Trustee shall be under a duty to
examine the same to determine whether or not they conform to the
requirements of this Guarantee Agreement;
(ii) the Guarantee Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer of the Guarantee
Trustee, unless it shall be proved that the Guarantee Trustee was
negligent in ascertaining the pertinent facts upon which such judgment
was made;
(iii) the Guarantee Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in accordance
with the direction of the Holders of not less than a Majority in
aggregate Liquidation Amount of the Securities relating to the time,
method and place of conducting any proceeding for any remedy available
to the Guarantee Trustee, or exercising any trust or power conferred
upon the Guarantee Trustee under this Guarantee Agreement; and
(iv) no provision of this Guarantee Agreement shall require the
Guarantee Trustee to expend or risk its own funds or otherwise incur
personal financial liability in the performance of any of its duties or
in the exercise of any of its rights or powers, if the Guarantee Trustee
<PAGE>
shall have reasonable grounds for believing that the repayment of such
funds or liability is not reasonably assured to it under the terms of
this Guarantee Agreement or adequate indemnity against such risk or
liability is not reasonably assured to it.
Section 3.2. Certain Rights of Guarantee Trustee.
(a) Subject to the provisions of Section 3.1:
(i) The Guarantee Trustee may rely and shall be fully protected in
acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness or
other paper or document reasonably believed by it to be genuine and to
have been signed, sent or presented by the proper party or parties.
(ii) Any direction or act of the Guarantor contemplated by this
Guarantee Agreement shall be sufficiently evidenced by an Officers'
Certificate unless otherwise prescribed herein.
(iii) Whenever, in the administration of this Guarantee Agreement,
the Guarantee Trustee shall deem it desirable that a matter be proved or
established before taking, suffering or omitting to take any action
hereunder, the Guarantee Trustee (unless other evidence is herein
specifically prescribed) may, in the absence of bad faith on its part,
request and rely upon an Officers' Certificate which, upon receipt of
such request from the Guarantee Trustee, shall be promptly delivered by
the Guarantor.
(iv) The Guarantee Trustee may consult with legal counsel of its
selection, and the advice or opinion of such legal counsel with respect
to legal matters shall be full and complete authorization and protection
in respect of any action taken, suffered or omitted to be taken by it
hereunder in good faith and in accordance with such advice or opinion.
Such legal counsel may be legal counsel to the Guarantor or any of its
Affiliates and may be one of its employees. The Guarantee Trustee shall
have the right at any time to seek instructions concerning the
administration of this Guarantee Agreement from any court of competent
jurisdiction.
(v) The Guarantee Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Guarantee Agreement at
the request or direction of any Holder, unless such Holder shall have
provided to the Guarantee Trustee such adequate security and indemnity
as would satisfy a reasonable person in the position of the Guarantee
Trustee, against the costs, expenses (including attorneys' fees and
expenses) and liabilities that might be incurred by it in complying with
such request or direction, including such reasonable advances as may be
requested by the Guarantee Trustee; provided that, nothing contained in
this Section 3.2(a)(v) shall be taken to relieve the Guarantee Trustee,
upon the occurrence of an Event of Default, of its obligation to
exercise the rights and powers vested in it by this Guarantee Agreement.
(vi) The Guarantee Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
<PAGE>
indebtedness or other paper or document, but the Guarantee Trustee, in
its discretion, may make such further inquiry or investigation into such
facts or matters as it may see fit.
(vii) The Guarantee Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through its agents or attorneys, and the Guarantee Trustee shall not be
responsible for any misconduct or negligence on the part of any such
agent or attorney appointed with due care by it hereunder.
(viii) Whenever in the administration of this Guarantee Agreement
the Guarantee Trustee shall deem it desirable to receive written
instructions with respect to enforcing any remedy or right or taking any
other action hereunder, the Guarantee Trustee (A) may request written
instructions from the Holders, (B) may refrain from enforcing such
remedy or right or taking such other action until such written
instructions are received, and (C) shall be protected in acting in
accordance with such written instructions.
(ix) The Guarantee Trustee shall not be liable for any action
taken, suffered, or omitted to be taken by it in good faith and
reasonably believed by it to be authorized or within the discretion or
rights or powers conferred upon it by this Guarantee Agreement.
(b) No provision of this Guarantee Agreement shall be deemed to impose
any duty or obligation on the Guarantee Trustee to perform any act or acts or
exercise any right, power, duty or obligation conferred or imposed on it in
any jurisdiction in which it shall be illegal, or in which the Guarantee
Trustee shall be unqualified or incompetent in accordance with applicable
law, to perform any such act or acts or to exercise any such right, power,
duty or obligation. No permissive power or authority available to the
Guarantee Trustee shall be construed to be a duty to act in accordance with
such power and authority.
Section 3.3. Indemnity.
The Guarantor agrees to indemnify the Guarantee Trustee for, and to hold
it harmless against, any loss, liability or expense incurred without
negligence or bad faith on the part of the Guarantee Trustee, arising out of
or in connection with the acceptance or administration of this Guarantee
Agreement, including the costs and expenses of defending itself against any
claim or liability in connection with the exercise or performance of any of
its powers or duties hereunder.
ARTICLE IV. GUARANTEE TRUSTEE
Section 4.1. Guarantee Trustee: Eligibility.
(a) There shall at all times be a Guarantee Trustee which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a Person that is eligible pursuant to the Trust Indenture
Act to act as such and has a combined capital and surplus of at least
$50,000,000, and shall be a corporation meeting the requirements of
Section 310(a) of the Trust Indenture Act. If such corporation publishes
<PAGE>
reports of condition at least annually, pursuant to law or to the
requirements of the supervising or examining authority, then, for the
purposes of this Section and to the extent permitted by the Trust
Indenture Act, the combined capital and surplus of such corporation
shall be deemed to be its combined capital and surplus as set forth in
its most recent report of condition so published.
(b) If at any time the Guarantee Trustee shall cease to be eligible to
so act under Section 4.1(a), the Guarantee Trustee shall immediately resign
in the manner and with the effect set out in Section 4.2(c).
(c) If the Guarantee Trustee has or shall acquire any "conflicting
interest" within the meaning of Section 310(b) of the Trust Indenture Act,
the Guarantee Trustee and Guarantor shall in all respects comply with the
provisions of Section 310(b) of the Trust Indenture Act.
Section 4.2. Appointment, Removal and Resignation of the Guarantee
Trustee.
(a) Subject to Section 4.2(b), the Guarantee Trustee may be appointed or
removed without cause at any time by the Guarantor.
(b) The Guarantee Trustee shall not be removed until a Successor
Guarantee Trustee has been appointed and has accepted such appointment by
written instrument executed by such Successor Guarantee Trustee and delivered
to the Guarantor. If an instrument of acceptance by a Successor Guarantee
Trustee shall not have been delivered to the Guarantee Trustee within 30 days
after such removal, the Guarantee Trustee being removed may petition any
court of competent jurisdiction for the appointment of a Successor Guarantee
Trustee.
(c) The Guarantee Trustee appointed hereunder shall hold office until a
Successor Guarantee Trustee shall have been appointed or until its removal or
resignation. The Guarantee Trustee may resign from office (without need for
prior or subsequent accounting) by an instrument in writing executed by the
Guarantee Trustee and delivered to the Guarantor, which resignation shall not
take effect until a Successor Guarantee Trustee has been appointed and has
accepted such appointment by instrument in writing executed by such Successor
Guarantee Trustee and delivered to the Guarantor and the resigning Guarantee
Trustee.
(d) If no Successor Guarantee Trustee shall have been appointed and
accepted appointment as provided in this Section 4.2 within 60 days after
delivery to the Guarantor of an instrument of resignation, the resigning
Guarantee Trustee may petition, at the expense of the Guarantor, any court of
competent jurisdiction for appointment of a Successor Guarantee Trustee. Such
court may thereupon, after prescribing such notice, if any, as it may deem
proper, appoint a Successor Guarantee Trustee.
ARTICLE V. GUARANTEE
Section 5.1. Guarantee.
The Guarantor irrevocably and unconditionally agrees to pay in full to
the Holders the Guarantee Payments (without duplication of amounts
theretofore paid by or on behalf of the Issuer), as and when due, regardless
<PAGE>
of any defense, right of set-off or counterclaim which the Issuer may have or
assert. The Guarantor's obligation to make a Guarantee Payment may be
satisfied by direct payment of the required amounts by the Guarantor to the
Holders or by causing the Issuer to pay such amounts to the Holders.
Section 5.2. Waiver of Notice and Demand.
The Guarantor hereby waives notice of acceptance of the Guarantee
Agreement and of any liability to which it applies or may apply, presentment,
demand for payment, any right to require a proceeding first against the
Guarantee Trustee, Issuer or any other Person before proceeding against the
Guarantor, protest, notice of nonpayment, notice of dishonor, notice of
redemption and all other notices and demands.
Section 5.3. Obligations Not Affected.
The obligations, covenants, agreements and duties of the Guarantor under
this Guarantee Agreement shall in no way be affected or impaired by reason of
the happening from time to time of any of the following:
(a) the release or waiver, by operation of law or otherwise, of the
performance or observance by the Issuer of any express or implied agreement,
covenant, term or condition relating to the Securities to be performed or
observed by the Issuer;
(b) the extension of time for the payment by the Issuer of all or any
portion of the Distributions (other than an extension of time for payment of
Distributions that results from the extension of any interest payment period
on the Subordinated Notes as provided in the Indenture), Redemption Price,
Liquidation Distribution or any other sums payable under the terms of the
Securities or the extension of time for the performance of any other
obligation under, arising out of, or in connection with, the Securities;
(c) any failure, omission, delay or lack of diligence on the part of the
Holders to enforce, assert or exercise any right, privilege, power or remedy
conferred on the Holders pursuant to the terms of the Securities, or any
action on the part of the Issuer granting indulgence or extension of any
kind;
(d) the voluntary or involuntary liquidation, dissolution, sale of any
collateral, receivership, insolvency, bankruptcy, assignment for the benefit
of creditors, reorganization, arrangement, composition or readjustment of
debt of, or other similar proceedings affecting, the Issuer or any of the
assets of the Issuer;
(e) any invalidity of, or defect or deficiency in, the Securities;
(f) the settlement or compromise of any obligation guaranteed hereby or
hereby incurred; or
(g) any other circumstance whatsoever that might otherwise constitute a
legal or equitable discharge or defense of a guarantor, it being the intent
of this Section 5.3 that the obligations of the Guarantor hereunder shall be
absolute and unconditional under any and all circumstances.
<PAGE>
There shall be no obligation of the Holders to give notice to, or obtain the
consent of, the Guarantor with respect to the happening of any of the
foregoing.
Section 5.4. Rights of Holders.
The Guarantor expressly acknowledges that: (i) this Guarantee Agreement
will be deposited with the Guarantee Trustee to be held for the benefit of
the Holders; (ii) the Guarantee Trustee has the right to enforce this
Guarantee Agreement on behalf of the Holders; (iii) the Holders of a Majority
in liquidation preference of the Securities have the right to direct the
time, method and place of conducting any proceeding for any remedy available
to the Guarantee Trustee in respect of this Guarantee Agreement or exercising
any trust or power conferred upon the Guarantee Trustee under this Guarantee
Agreement; and (iv) any Holder may institute a legal proceeding directly
against the Guarantor to enforce its rights under this Guarantee Agreement,
without first instituting a legal proceeding against the Guarantee Trustee,
the Issuer or any other Person.
Section 5.5. Guarantee of Payment
This Guarantee Agreement creates a guarantee of payment and not of
collection. This Guarantee Agreement will not be discharged except by payment
of the Guarantee Payments in full (without duplication of amounts theretofore
paid by the Issuer) or upon distribution of Subordinated Notes to Holders as
provided in the Trust Agreement.
Section 5.6. Subrogation.
The Guarantor shall be subrogated to all (if any) rights of the Holders
against the Issuer in respect of any amounts paid to the Holders by the
Guarantor under this Guarantee Agreement and shall have the right to waive
payment by the Issuer pursuant to Section 5.1; provided, however, that the
Guarantor shall not (except to the extent required by mandatory provisions of
law) be entitled to enforce or exercise any rights which it may acquire by
way of subrogation or any indemnity, reimbursement or other agreement, in all
cases as a result of payment under this Guarantee Agreement, if, at the time
of any such payment, any amounts are due and unpaid under this Guarantee
Agreement. If any amount shall be paid to the Guarantor in violation of the
preceding sentence, the Guarantor agrees to hold such amount in trust for the
Holders and to pay over such amount to the Holders.
Section 5.7. Independent Obligations.
The Guarantor acknowledges that its obligations hereunder are
independent of the obligations of the Issuer with respect to the Securities
and that the Guarantor shall be liable as principal and as debtor hereunder
to make Guarantee Payments pursuant to the terms of this Guarantee Agreement
notwithstanding the occurrence of any event referred to in subsections (a)
through (g), inclusive, of Section 5.3 hereof.
<PAGE>
ARTICLE VI. COVENANTS AND SUBORDINATION
Section 6.1. Subordination.
The obligations of the Guarantor under this Guarantee Agreement will
constitute unsecured obligations of the Guarantor and will rank subordinate
and junior in right of payment to all Senior Debt (as defined in the
Indenture) of the Guarantor, except those made pari passu or subordinate to
such obligations expressly by their terms. in the same manner as set forth in
Article XIII of the Indenture.
Section 6.2. Pari Passu Guarantees.
The obligations of the Guarantor under this Guarantee Agreement shall
rank pari passu with the obligations of the Guarantor under any similar
Guarantee Agreements issued by the Guarantor on behalf of the holders of
preferred securities issued by any Trust (as defined in the Indenture).
Section 6.3 Limitation of Transactions.
So long as any Preferred Securities remain outstanding, if there shall
have occurred an Event of Default hereunder or an Event of Default under the
Trust Agreement, the (a) the Guarantor shall not declare or pay any dividend
on, or make any distribution with respect to, or redeem, purchase, acquire or
make any distribution with respect to, any of its capital stock; and (b) the
Guarantor shall not make any payment of interest, principal or premium, if
any, on or repay, repurchase or redeem any debt securities issued by the
Guarantor which rank pari passu with or junior to the Subordinated Notes,
provided, that, the foregoing restriction in this Section 6.3 shall not apply
to any stock dividends paid by the Guarantor, or any of its subsidiaries,
where the dividend stock is the same stock as that on which the dividend is
being paid.
Section 6.4 Corporate Existence.
The Guarantor covenants that so long as any of the Preferred Guarantees
are Outstanding, it will maintain its existence, will not dissolve, sell or
otherwise dispose of all or substantially all of its assets and will not
consolidate with or merge into another entity or permit one or more other
entities to consolidate with or merge into it; provided that the Guarantor
may, without violating the covenants in this Section 6.4 contained,
consolidate with or merger into another entity or permit one or more other
entities to consolidate with or merge into it, or sell or otherwise transfer
to another entity all or substantially all of its assets as an entirety and
thereafter dissolve, if the surviving, resulting or transferee entity, as the
case may be, (i) shall be organized and existing under the laws of one of the
States of the United States of America, (ii) assumes, if such entity is not
the Guarantor, all of the obligations of the Guarantor hereunder and (iii) is
not, after such transaction, otherwise in default under any provisions
hereof.
<PAGE>
ARTICLE VII. TERMINATION
Section 7.1. Termination.
This Guarantee Agreement shall terminate and be of no further force and
effect upon (i) full payment of the Redemption Price of all Securities, (ii)
the distribution of Subordinated Notes to the Holders in exchange for all of
the Securities or (iii) full payment of the amounts payable in accordance
with the Trust Agreement upon liquidation of the Issuer. Notwithstanding the
foregoing, this Guarantee Agreement will continue to be effective or will be
reinstated, as the case may be, if at any time any Holder must restore
payment of any sums paid with respect to Securities or this Guarantee
Agreement.
ARTICLE VIII. MISCELLANEOUS
Section 8.1. Successors and Assigns.
All guarantees and agreements contained in this Guarantee Agreement
shall bind the successors, assigns, receivers, trustees and representatives
of the Guarantor and shall inure to the benefit of the Holders of the
Securities then outstanding. Except in connection with a consolidation,
merger or sale involving the Guarantor that is permitted under Article VIII
of the Indenture and pursuant to which the successor or assignee agrees in
writing to perform the Guarantor's obligations hereunder, the Guarantor shall
not assign its obligations hereunder.
Section 8.2. Amendments.
Except with respect to any changes which do not adversely affect the
rights of the Holders or the Guarantee Trustee in any material respect (in
which case no consent of the Holders or the Guarantee Trustee, as the case
may be, will be required), this Guarantee Agreement may only be amended with
the prior approval of the Holders of not less than a Majority in Liquidation
Amount of all the outstanding Securities and of the Guarantee Trustee. The
provisions of Article VI of the Trust Agreement concerning meetings of the
Holders shall apply to the giving of such approval.
Section 8.3. Notices.
Any notice, request or other communication required or permitted to be
given hereunder shall be in writing, duly signed by the party giving such
notice, and delivered, telecopied or mailed by first class mail as follows:
<PAGE>
(a) if given to the Guarantor, to the address set forth below or such
other address, facsimile number or to the attention of such other Person as
the Guarantor may give notice to the Holders:
Ingersoll-Rand Company
200 Chestnut Ridge Road
P.O. Box 8738
Woodcliff Lake, NJ 07675-8738
Facsimile No.: _________________
Attention: _____________________
(b) if given to the Issuer, in care of the Guarantee Trustee, at the
Issuer's (and the Guarantee Trustee's) address set forth below or such other
address as the Guarantee Trustee on behalf of the Issuer may give notice to
the Holders:
Ingersoll-Rand Financing I
c/o Ingersoll-Rand Company
200 Chestnut Ridge Road
P.O. Box 8738
Woodcliff Lake, NJ 07675-8738
Facsimile No.: _________________
Attention: _____________________
with a copy to:
--------------------
--------------------
--------------------
Facsimile No.: ___________________
Attention: Corporate Trust Administration
(c) if given to any Holder, at the address set forth on the books and
records of the Issuer.
All notices hereunder shall be deemed to have been given when received
in person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid, except that if a notice or other document is refused
delivery or cannot be delivered because of a changed address of which no
notice was given, such notice or other document shall be deemed to have been
delivered on the date of such refusal or inability to deliver.
Section 8.4. Consolidation, Merger, Conveyance, Transfer or Lease.
The Guarantor shall not consolidate with or merge into any other Person
or convey, transfer or lease its properties and assets substantially as an
entirety to any Person, and no Person shall consolidate with or merge into
the Guarantor or convey, transfer or lease its properties and assets
substantially as an entirety to the Guarantor, unless it has complied with
the terms of Section 8.1 of the Indenture.
<PAGE>
Section 8.5. Benefit.
This Guarantee Agreement is solely for the benefit of the Holders and is
not separately transferable from the Securities.
Section 8.6. Interpretation.
In this Guarantee Agreement, unless the context otherwise requires:
(a) capitalized terms used in this Guarantee Agreement but not defined
in the preamble hereto have the respective meanings assigned to them in
Section 1.1;
(b) a term defined anywhere in this Guarantee Agreement has the same
meaning throughout;
(c) all references to "the Guarantee Agreement" or "this Guarantee
Agreement" are to this Guarantee Agreement as modified, supplemented or
amended from time to time;
(d) all references in this Guarantee Agreement to Articles and Sections
are to Articles and Sections of this Guarantee Agreement unless otherwise
specified;
(e) a term defined in the Trust Indenture Act has the same meaning when
used in this Guarantee Agreement unless otherwise defined in this Guarantee
Agreement or unless the context otherwise requires;
(f) a reference to the singular includes the plural and vice versa; and
(g) the masculine, feminine or neuter genders used herein shall include
the masculine, feminine and neuter genders.
Section 8.7. Governing Law.
THIS GUARANTEE AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO THE CONFLICT OF LAW PRINCIPLES THEREOF.
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
THIS GUARANTEE AGREEMENT is executed as of the day and year first above
written.
INGERSOLL-RAND COMPANY
By:
Name:
Title:
as Guarantee Trustee
<PAGE>
By:
Name:
Title:
<PAGE>
Exhibit 4.15
FORM OF
GUARANTEE AGREEMENT
Between
INGERSOLL-RAND COMPANY
(as Guarantor)
and
--------------------
(as Trustee)
dated as of
___________ __, 1997
<PAGE>
CROSS-REFERENCE TABLE*
Section of
Trust Indenture Act Section of
of 1939, as amended Guarantee Agreement
310(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.1(a)
310(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.1(c), 2.8
310(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
311(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2(b)
311(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2(b)
311(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
312(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2(a)
312(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2(b)
313. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.3
314(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.4
314(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
314(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.5
314(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
314(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.1, 2.5, 3.2
314(f). . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.1, 3.2
315(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.1(d)
315(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.7
315(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.1
315(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.1(d)
316(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.1, 2.6, 5.4
316(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.3
316(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.2
317(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
317(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
318(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.1(b)
318(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.1
318(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.1(a)
* This Cross-Reference Table does not constitute part of the Guarantee
Agreement and shall not affect the interpretation of any of its terms or
provisions.
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.1. Definitions . . . . . . . . . . . . . . . . . . . 1
ARTICLE II. TRUST INDENTURE ACT . . . . . . . . . . . . . . . . . . . 3
Section 2.1. Trust Indenture Act; Application . . . . . . . . 3
Section 2.2. List of Holders . . . . . . . . . . . . . . . . . 4
Section 2.3. Reports by the Guarantee Trustee . . . . . . . . 4
Section 2.4. Periodic Reports to the Guarantee Trustee . . . . 4
Section 2.5. Evidence of Compliance with Conditions
Precedent . . . . . . . . . . . . . . . . . . . 4
Section 2.6. Events of Default; Waiver. . . . . . . . . . . . 5
Section 2.7. Event of Default; Notice . . . . . . . . . . . . 5
Section 2.8. Conflicting Interests . . . . . . . . . . . . . . 5
ARTICLE III. POWERS, DUTIES AND RIGHTS OF THE GUARANTEE TRUSTEE . . . . 5
Section 3.1. Powers and Duties of the Guarantee Trustee . . . 5
Section 3.2. Certain Rights of Guarantee Trustee . . . . . . . 7
Section 3.3. Indemnity . . . . . . . . . . . . . . . . . . . . 8
ARTICLE IV. GUARANTEE TRUSTEE . . . . . . . . . . . . . . . . . . . . . 8
Section 4.1. Guarantee Trustee: Eligibility . . . . . . . . . 8
Section 4.2. Appointment, Removal and Resignation of the
Guarantee Trustee . . . . . . . . . . . . . . . 9
ARTICLE V. GUARANTEE . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 5.1. Guarantee . . . . . . . . . . . . . . . . . . . . 9
Section 5.2. Waiver of Notice and Demand . . . . . . . . . . . 10
Section 5.3. Obligations Not Affected . . . . . . . . . . . . 10
Section 5.4. Rights of Holders . . . . . . . . . . . . . . . . 11
Section 5.5. Guarantee of Payment . . . . . . . . . . . . . . 11
Section 5.6. Subrogation . . . . . . . . . . . . . . . . . . . 11
Section 5.7. Independent Obligations . . . . . . . . . . . . . 11
ARTICLE VI. COVENANTS AND SUBORDINATION . . . . . . . . . . . . . . . . 12
Section 6.1. Subordination . . . . . . . . . . . . . . . . . . 12
Section 6.2. Pari Passu Guarantees . . . . . . . . . . . . . . 12
Section 6.3. Limitation of Transactions. . . . . . . . . . . . 12
Section 6.4. Corporate Existence. . . . . . . . . . . . . . 12
ARTICLE VII. TERMINATION . . . . . . . . . . . . . . . . . . . . . . . 13
Section 7.1. Termination . . . . . . . . . . . . . . . . . . . 13
<PAGE>
ARTICLE VIII. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . 13
Section 8.1. Successors and Assigns . . . . . . . . . . . . . 13
Section 8.2. Amendments . . . . . . . . . . . . . . . . . . . 13
Section 8.3. Notices . . . . . . . . . . . . . . . . . . . . . 13
Section 8.4. Consolidation, Merger, Conveyance, Transfer
or Lease . . . . . . . . . . . . . . . . . . . 14
Section 8.5. Benefit . . . . . . . . . . . . . . . . . . . . . 15
Section 8.6. Interpretation . . . . . . . . . . . . . . . . . 15
Section 8.7. Governing Law . . . . . . . . . . . . . . . . . . 15
Exhibit 5.1
August 20, 1997
Ingersoll-Rand Company
200 Chestnut Ridge Road
Woodcliff Lake, NJ 07675
Ladies and Gentlemen:
I am Vice President and General Counsel of Ingersoll-Rand Company, a New
Jersey Corporation (the "Company"), and have acted as counsel for the Company
and for Ingersoll-Rand Financing I and Ingersoll-Rand Financing II, each a
Delaware business trust (the "Trusts"; and each a "Trust"), in connection
with their filing with the Securities and Exchange Commission (the
"Commission") of a Registration Statement on Form S-3 (the "Registration
Statement") with respect to the Company's (i) common stock, $2 par value per
share (the "Common Stock"), (ii) preference stock, without par value, in one
or more series (the "Preference Stock"), (iii) debt securities in one or more
series, which may be either senior, senior subordinated or junior
subordinated (the "Debt Securities"), (iv) Stock Purchase Contracts (the
"Stock Purchase Contracts") to purchase Common Stock and (v) Stock Purchase
Units (the "Stock Purchase Units"), each representing ownership of a Stock
Purchase Contract and Debt Securities or Trust Preferred Securities (as
defined below) or debt obligations of third parties, including U.S. Treasury
Securities, securing the holder's obligation to purchase the Common Stock
under the Stock Purchase Contract. The Registration Statement also relates
to the registration under the Securities Act of 1933, as amended (the "Act"),
of trust preferred securities of the Trusts (the "Trust Preferred
Securities") and guarantees of the Trust Preferred Securities by the Company
(the "Guarantees", and, together with the Common Stock, the Preference Stock,
<PAGE>
the Debt Securities, the Stock Purchase Contracts, the Stock Purchase Units
and the Trust Preferred Securities, the "Offered Securities"). The Offered
Securities will be issued from time to time pursuant to the provisions of
Rule 415 under the Act.
In preparation for rendering my opinion hereafter expressed, I have
examined the originals or copies certified to my satisfaction of corporate
records and other documents and certificates as I have deemed necessary.
Based on the above, I am of the opinion that:
1. The Company is a corporation duly organized and validly existing
pursuant to the laws of the State of New Jersey.
2. The Common Stock, the Preference Stock, the Debt Securities, the
Stock Purchase Contracts and the Stock Purchase Units, which are
covered by the Registration Statement, when sold will be legally
issued by the Company, duly authorized, fully paid and non-
assessable and, in the case of the Debt Securities, will constitute
valid and legally binding obligations of the Company, enforceable
against the Company in accordance with their terms, except as such
enforcement is subject to any applicable bankruptcy, insolvency,
reorganization or other law relating to or affectin creditors'
rights generally and general principles of equity.
3. Upon issuance, the Guarantees will constitute valid and legally
binding obligations of the Company, enforceable against the Company
in accordance with their terms, except as such enforcement is
subject to any applicable bankruptcy, insolvency, reorganization or
other law relating to or affectin creditors' rights generally and
general principles of equity.
I hereby consent to the use of this opinion letter as Exhibit 5.1
to the Registration Statement and to the use of my name under the caption
"Legal Matters" in the Prospectus included therein.
Very truly yours,
/s/ Patricia Nachtigal, Esq.
Exhibit 5.2
[Letterhead of Richards, Layton & Finger]
August 20, 1997
Ingersoll-Rand Financing I
200 Chestnut Ridge Road
Woodcliff Lake, New Jersey 07675
Re: Ingersoll-Rand Financing I
Ladies and Gentlemen:
We have acted as special Delaware counsel for Ingersoll-Rand Company, a
New Jersey corporation (the "Company"), and Ingersoll-Rand Financing I, a
Delaware business trust (the "Trust"), in connection with the matters set
forth herein. At your request, this opinion is being furnished to you.
For purposes of giving the opinions hereinafter set forth, our
examination of documents has been limited to the examination of originals or
copies of the following:
(a) The Certificate of Trust of the Trust, dated August 18, 1997
(the "Certificate"), as filed in the office of the Secretary of State of the
State of Delaware (the "Secretary of State") on August 18, 1997;
(b) The Trust Agreement of the Trust, dated as of August 18, 1997,
among the Company, as Depositor, and the trustees of the Trust named therein;
(c) The Registration Statement (the "Registration Statement") on Form
S-3, including a preliminary prospectus (the "Prospectus"), relating to the
Trust Preferred Securities of the Trust representing preferred undivided
beneficial interests in the assets of the Trust (each, a "Preferred Security"
and collectively, the "Preferred Securities"), as proposed to be filed by the
Company, the Trust and others as set forth therein with the Securities and
Exchange Commission on or about August 20, 1997;
(d) A form of Amended and Restated Trust Agreement of the Trust, to be
entered into among the Company, as Depositor, the trustees of the Trust named
therein, and the holders, from time to time, of undivided beneficial
interests in the assets of the Trust (without exhibits) (the "Trust
Agreement"), attached as an exhibit to the Registration Statement; and
(e) A Certificate of Good Standing for the Trust, dated August 20,
1997, obtained from the Secretary of State.
Initially capitalized terms used herein and not otherwise defined are
used as defined in the Trust Agreement.
<PAGE>
For purposes of this opinion, we have not reviewed any documents other
than the documents listed in paragraphs (a) through (e) above. In
particular, we have not reviewed any document (other than the documents
listed in paragraphs (a) through (e) above) that is referred to in or
incorporated by reference into the documents reviewed by us. We have assumed
that there exists no provision in any document that we have not reviewed that
is inconsistent with the opinions stated herein. We have conducted no
independent factual investigation of our own but rather have relied solely
upon the foregoing documents, the statements and information set forth
therein and the additional matters recited or assumed herein, all of which we
have assumed to be true, complete and accurate in all material respects.
With respect to all documents examined by us, we have assumed (i) the
authenticity of all documents submitted to us as authentic originals, (ii)
the conformity with the originals of all documents submitted to us as copies
or forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that the Trust
Agreement and the Certificate are in full force and effect and have not been
amended, (ii) except to the extent provided in paragraph 1 below, the due
creation or due organization or due formation, as the case may be, and valid
existence in good standing of each party to the documents examined by us
under the laws of the jurisdiction governing its creation, organization or
formation, (iii) the legal capacity of natural persons who are parties to the
documents examined by us, (iv) that each of the parties to the documents
examined by us has the power and authority to execute and deliver, and to
perform its obligations under, such documents, (v) the due authorization,
execution and delivery by all parties thereto of all documents examined by
us, (vi) the receipt by each Person to whom a Preferred Security is to be
issued by the Trust (collectively, the "Preferred Security Holders") of a
Preferred Securities Certificate for such Preferred Security and the payment
for the Preferred Security acquired by it, in accordance with the Trust
Agreement and the Registration Statement, and (vii) that the Preferred
Securities are issued and sold to the Preferred Security Holders in
accordance with the Trust Agreement and the Registration Statement. We have
not participated in the preparation of the Registration Statement and assume
no responsibility for its contents.
This opinion is limited to the laws of the State of Delaware (excluding
the securities laws of the State of Delaware), and we have not considered and
express no opinion on the laws of any other jurisdiction, including federal
laws and rules and regulations relating thereto. Our opinions are rendered
only with respect to Delaware laws and rules, regulations and orders
thereunder that are currently in effect.
Based upon the foregoing, and upon our examination of such questions of
law and statutes of the State of Delaware as we have considered necessary or
appropriate, and subject to the assumptions, qualifications, limitations and
exceptions set forth herein, we are of the opinion that:
1. The Trust has been duly created and is validly existing in good
standing as a business trust under the Delaware Business Trust Act.
2. The Preferred Securities will represent valid and, subject to the
qualifications set forth in paragraph 3 below, fully paid and nonassessable
undivided beneficial interests in the assets of the Trust.
<PAGE>
3. The Preferred Security Holders, as beneficial owners of the Trust,
will be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware. We note that the Preferred
Security Holders may be obligated to make payments as set forth in the Trust
Agreement.
We consent to the filing of this opinion with the Securities and
Exchange Commission as an exhibit to the Registration Statement. In
addition, we hereby consent to the use of our name under the heading "Legal
Matters" in the Prospectus. In giving the foregoing consents, we do not
thereby admit that we come within the category of Persons whose consent is
required under Section 7 of the Securities Act of 1933, as amended, or the
rules and regulations of the Securities and Exchange Commission thereunder.
Except as stated above, without our prior written consent, this opinion may
not be furnished or quoted to, or relied upon by, any other Person for any
purpose.
Very truly yours,
BJK/dgw
Exhibit 5.3
[Letterhead of Richards, Layton & Finger]
August 20, 1997
Ingersoll-Rand Financing II
200 Chestnut Ridge Road
Woodcliff Lake, New Jersey 07675
Re: Ingersoll-Rand Financing II
Ladies and Gentlemen:
We have acted as special Delaware counsel for Ingersoll-Rand Company, a
New Jersey corporation (the "Company"), and Ingersoll-Rand Financing II, a
Delaware business trust (the "Trust"), in connection with the matters set
forth herein. At your request, this opinion is being furnished to you.
For purposes of giving the opinions hereinafter set forth, our
examination of documents has been limited to the examination of originals or
copies of the following:
(a) The Certificate of Trust of the Trust, dated August 18, 1997
(the "Certificate"), as filed in the office of the Secretary of State of the
State of Delaware (the "Secretary of State") on August 18, 1997;
(b) The Trust Agreement of the Trust, dated as of August 18, 1997,
among the Company, as Depositor, and the trustees of the Trust named therein;
(c) The Registration Statement (the "Registration Statement") on Form
S-3, including a preliminary prospectus (the "Prospectus"), relating to the
Trust Preferred Securities of the Trust representing preferred undivided
beneficial interests in the assets of the Trust (each, a "Preferred Security"
and collectively, the "Preferred Securities"), as proposed to be filed by the
Company, the Trust and others as set forth therein with the Securities and
Exchange Commission on or about August 20, 1997;
(d) A form of Amended and Restated Trust Agreement of the Trust, to be
entered into among the Company, as Depositor, the trustees of the Trust named
therein, and the holders, from time to time, of undivided beneficial
interests in the assets of the Trust (without exhibits) (the "Trust
Agreement"), attached as an exhibit to the Registration Statement; and
(e) A Certificate of Good Standing for the Trust, dated August 20,
1997, obtained from the Secretary of State.
<PAGE>
Initially capitalized terms used herein and not otherwise defined are
used as defined in the Trust Agreement.
For purposes of this opinion, we have not reviewed any documents other
than the documents listed in paragraphs (a) through (e) above. In
particular, we have not reviewed any document (other than the documents
listed in paragraphs (a) through (e) above) that is referred to in or
incorporated by reference into the documents reviewed by us. We have assumed
that there exists no provision in any document that we have not reviewed that
is inconsistent with the opinions stated herein. We have conducted no
independent factual investigation of our own but rather have relied solely
upon the foregoing documents, the statements and information set forth
therein and the additional matters recited or assumed herein, all of which we
have assumed to be true, complete and accurate in all material respects.
With respect to all documents examined by us, we have assumed (i) the
authenticity of all documents submitted to us as authentic originals, (ii)
the conformity with the originals of all documents submitted to us as copies
or forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that the Trust
Agreement and the Certificate are in full force and effect and have not been
amended, (ii) except to the extent provided in paragraph 1 below, the due
creation or due organization or due formation, as the case may be, and valid
existence in good standing of each party to the documents examined by us
under the laws of the jurisdiction governing its creation, organization or
formation, (iii) the legal capacity of natural persons who are parties to the
documents examined by us, (iv) that each of the parties to the documents
examined by us has the power and authority to execute and deliver, and to
perform its obligations under, such documents, (v) the due authorization,
execution and delivery by all parties thereto of all documents examined by
us, (vi) the receipt by each Person to whom a Preferred Security is to be
issued by the Trust (collectively, the "Preferred Security Holders") of a
Preferred Securities Certificate for such Preferred Security and the payment
for the Preferred Security acquired by it, in accordance with the Trust
Agreement and the Registration Statement, and (vii) that the Preferred
Securities are issued and sold to the Preferred Security Holders in
accordance with the Trust Agreement and the Registration Statement. We have
not participated in the preparation of the Registration Statement and assume
no responsibility for its contents.
This opinion is limited to the laws of the State of Delaware (excluding
the securities laws of the State of Delaware), and we have not considered and
express no opinion on the laws of any other jurisdiction, including federal
laws and rules and regulations relating thereto. Our opinions are rendered
only with respect to Delaware laws and rules, regulations and orders
thereunder that are currently in effect.
Based upon the foregoing, and upon our examination of such questions of
law and statutes of the State of Delaware as we have considered necessary or
appropriate, and subject to the assumptions, qualifications, limitations and
exceptions set forth herein, we are of the opinion that:
1. The Trust has been duly created and is validly existing in good
standing as a business trust under the Delaware Business Trust Act.
<PAGE>
2. The Preferred Securities will represent valid and, subject to the
qualifications set forth in paragraph 3 below, fully paid and nonassessable
undivided beneficial interests in the assets of the Trust.
3. The Preferred Security Holders, as beneficial owners of the Trust,
will be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware. We note that the Preferred
Security Holders may be obligated to make payments as set forth in the Trust
Agreement.
We consent to the filing of this opinion with the Securities and
Exchange Commission as an exhibit to the Registration Statement. In
addition, we hereby consent to the use of our name under the heading "Legal
Matters" in the Prospectus. In giving the foregoing consents, we do not
thereby admit that we come within the category of Persons whose consent is
required under Section 7 of the Securities Act of 1933, as amended, or the
rules and regulations of the Securities and Exchange Commission thereunder.
Except as stated above, without our prior written consent, this opinion may
not be furnished or quoted to, or relied upon by, any other Person for any
purpose.
Very truly yours,
/s/ RICHARDS, LAYTON & FINGER
BJK/dgw
Exhibit 23.3
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-3 of our report
dated February 4, 1997, which appears on page 47 of the 1996 Annual Report to
Shareholders of Ingersoll-Rand Company, which is incorporated by reference in
Ingersoll-Rand Company's Annual Report on Form 10-K for the year ended
December 31, 1996. We also consent to the incorporation by reference of our
report on the Financial Statements Schedule, which appears on page 22 of such
Annual Report on Form 10-K. We also consent to the reference to us under the
heading "Experts" in such Prospectus.
/s/ Price Waterhouse LLP
PRICE WATERHOUSE LLP
Morristown, New Jersey
August 20, 1997
Exhibit 24.1
POWER OF ATTORNEY
Each person whose signature appears below authorizes James E. Perrella,
J. Frank Travis and Patricia Nachtigal, or any of them, to execute in the
name of each such person who is then an officer or director of Ingersoll-Rand
Company (the "Company") and to file a Registration Statement on Form S-3
relating to (i) common stock, preference stock, stock purchase contracts,
stock purchase units, guarantees of trust preferred securities and debt
securities of the Company, (ii) trust preferred securities of Ingersoll-Rand
Financing I and (iii) trust preferred securities of Ingersoll-Rand Financing
II, and any amendments thereto (and any additional Registration Statement
related thereto permitted by Rule 462(b) promulgated under the Securities Act
of 1933 (and all further amendments including post-effective amendments
thereto)) in each case necessary or advisable to enable the Company to comply
with the Securities Act of 1933, as amended, and any rules, regulations and
requirements of the Securities and Exchange Commission, in respect thereof,
in connection with the registration of the securities which are the subject
of such Registration Statements, which amendments may make such changes in
such Registration Statements as such attorney may deem appropriate.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Power of Attorney has been signed by the following persons in the
capacities indicated on August 20, 1997.
Signature Title
/s/ JAMES E. PERRELLA Chairman of the Board, President, Chief
(James E. Perrella) Executive Officer and Director (Principal
Executive Officer)
/s/ GERARD V. GERAGHTY Vice President and Comptroller (Principal
(Gerard V. Geraghty) Financial and Accounting Officer)
/s/ JOSEPH P. FLANNERY Director
(Joseph P. Flannery)
/s/ CONSTANCE J. HORNER Director
(Constance J. Horner)
/s/ H. WILLIAM LICHTENBERGER Director
(H. William Lichtenberger)
/s/ THEODORE E. MARTIN Director
(Theodore E. Martin)
/s/ CEDRIC E. RITCHIE Director
(Cedric E. Ritchie)
<PAGE>
/s/ ORIN R. SMITH Director
(Orin R. Smith)
/s/ RICHARD W. SWIFT Director
(Richard W. Swift)
/s/ J. FRANK TRAVIS Director
(J. Frank Travis)
/s/ TONY L. WHITE Director
(Tony L. White)
Exhibit 24.2
POWER OF ATTORNEY
Each person whose signature appears below authorizes James E. Perrella,
J. Frank Travis and Patricia Nachtigal, or any of them, to execute in the
name of each such person who is then a trustee of Ingersoll-Rand Financing I
or Ingersoll-Rand Financing II (collectively, the "Trusts", and each a
"Trust") and to file a Registration Statement on Form S-3 relating to (i)
common stock, preference stock, stock purchase contracts, stock purchase
units, guarantees of trust preferred securities and debt securities of
Ingersoll-Rand Company and (ii) trust preferred securities of each Trust, and
any amendments thereto (and any additional Registration Statement related
thereto permitted by Rule 462(b) promulgated under the Securities Act of 1933
(and all further amendments including post-effective amendments thereto)) in
each case necessary or advisable to enable the Company to comply with the
Securities Act of 1933, as amended, and any rules, regulations and
requirements of the Securities and Exchange Commission, in respect thereof,
in connection with the registration of the securities which are the subject
of such Registration Statements, which amendments may make such changes in
such Registration Statements as such attorney may deem appropriate.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Power of Attorney has been signed by the following persons in the
capacities indicated on August 20, 1997.
INGERSOLL-RAND FINANCING I
By: /s/ PATRICIA NACHTIGAL
-------------------------
Trustee
By: /s/ RONALD G. HELLER
-------------------------
Trustee
By: /s/ NANCY CASABLANCA
-------------------------
Trustee
INGERSOLL-RAND FINANCING II
By: /s/ PATRICIA NACHTIGAL
-------------------------
Trustee
By: /s/ RONALD G. HELLER
-------------------------
Trustee
By: /s/ NANCY CASABLANCA
-------------------------
Trustee
Exhibit 25.1
===============================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) - _-
- --------------------------------------------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
48 Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
- --------------------------------------------------
INGERSOLL-RAND COMPANY
(Exact name of obligor as specified in its charter)
New Jersey 13-5156640
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
200 Chestnut Ridge Road
Woodcliff Lake, New Jersey 07675
(Address of principal executive offices) (Zip code)
______________________
Senior Debt Securities
(Title of the indenture securities)
===============================================================
<PAGE>
1. General information. Furnish the following information as
to the Trustee:
(a) Name and address of each examining or supervising
authority to which it is subject.
- ----------------------------------------------------------------------------
Name Address
- ----------------------------------------------------------------------------
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006,
and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
16. List of Exhibits.
Exhibits identified in parentheses below, on file with the Commission,
are incorporated herein by reference as an exhibit hereto, pursuant to
Rule 7a-29 under the Trust Indenture Act of 1939 (the "Act") and 17
C.F.R. 229.10(d).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains
the authority to commence business and a grant of powers to
exercise corporate trust powers. (Exhibit 1 to Amendment No. 1 to
Form T-1 filed with Registration Statement No. 33-6215, Exhibits 1a
and 1b to Form T-1 filed with Registration Statement No. 33-21672
and Exhibit 1 to Form T-1 filed with Registration Statement No.
33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form
T-1 filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No.
33-44051.)
<PAGE>
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or
examining authority.
<PAGE>
CONFORMED COPY
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of New
York, has duly caused this statement of eligibility to be signed on its
behalf by the undersigned, thereunto duly authorized, all in The City of New
York, and State of New York, on the 15th day of August, 1997.
THE BANK OF NEW YORK
By: /s/WALTER N. GITLIN
Name: WALTER N. GITLIN
Title: VICE PRESIDENT
<PAGE>
- -------------------------------------------------------------------------
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business March 31,
1997, published in accordance with a call made by the Federal Reserve Bank of
this District pursuant to the provisions of the Federal Reserve Act.
Dollar Amounts
ASSETS in Thousands
Cash and balances due from depos-
itory institutions:
Noninterest-bearing balances and
currency and coin .................. $ 8,249,820
Interest-bearing balances .......... 1,031,026
Securities:
Held-to-maturity securities ........ 1,118,463
Available-for-sale securities ...... 3,005,838
Federal funds sold and Securities pur-
chased under agreements to resell...... 3,100,281
Loans and lease financing
receivables:
Loans and leases, net of unearned
income ................. 32,895,077
LESS: Allowance for loan and
lease losses .............. 633,877
LESS: Allocated transfer risk
reserve........................ 429
Loans and leases, net of unearned
income, allowance, and reserve 32,260,771
Assets held in trading accounts ...... 1,715,214
Premises and fixed assets (including
capitalized leases) ................ 684,704
Other real estate owned .............. 21,738
Investments in unconsolidated
subsidiaries and associated
companies .......................... 195,761
Customers' liability to this bank on
acceptances outstanding ............ 1,152,899
Intangible assets .................... 683,503
Other assets ......................... 1,526,113
Total assets ......................... $54,746,131
LIABILITIES
Deposits:
In domestic offices ................ $25,614,961
Noninterest-bearing ...... 10,564,652
Interest-bearing ......... 15,050,309
In foreign offices, Edge and
Agreement subsidiaries, and IBFs ... 15,103,615
Noninterest-bearing ......... 560,944
Interest-bearing ......... 14,542,671
Federal funds purchased and Securities
<PAGE>
sold under agreements to repurchase. 2,093,286
Demand notes issued to the U.S.
Treasury ........................... 239,354
Trading liabilities .................. 1,399,064
Other borrowed money:
With remaining maturity of one year
or less .......................... 2,075,092
With remaining maturity of more than
one year ......................... 20,679
Bank's liability on acceptances exe-
cuted and outstanding .............. 1,160,012
Subordinated notes and debentures .... 1,014,400
Other liabilities .................... 1,840,245
Total liabilities .................... 50,560,708
EQUITY CAPITAL
Common stock ........................ 942,284
Surplus ............................. 731,319
Undivided profits and capital
reserves .......................... 2,544,303
Net unrealized holding gains
(losses) on available-for-sale
securities ........................ ( 19,449)
Cumulative foreign currency transla-
tion adjustments .................. ( 13,034)
Total equity capital ................ 4,185,423
Total liabilities and equity
capital ........................... $54,746,131
I, Robert E. Keilman, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of
Governors of the Federal Reserve System and is true to the best of my
knowledge and belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this
Report of Condition and declare that it has been examined by us and to the
best of our knowledge and belief has been prepared in conformance with the
instructions issued by the Board of Governors of the Federal Reserve System
and is true and correct.
Alan R. Griffith
J. Carter Bacot
Thomas A. Renyi Directors
- -------------------------------------------------------------------------
