<PAGE>
FORM 10-Q
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
___________________________________
(Mark One)
X QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
- - -----
SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended March 31, 1994
----------------------------------------
OR
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
- - -----
SECURITIES EXCHANGE ACT OF 1934
For the transition period from ----------------- to ------------------
Commission file number 1-168
AMETEK, INC.
-----------------------------------------------------------------------
(Exact name of registrant as specified in its charter)
DELAWARE 13-4923320
-----------------------------------------------------------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
Station Square, Paoli, Pennsylvania 19301
-----------------------------------------------------------------------
(Address of principal executive offices)
(Zip Code)
Registrant's telephone number, including area code 610-647-2121
----------------
Indicate by check mark whether the registrant (1) has filed all
reports required to be filed by Section 13 or 15 (d) of the
Securities Exchange Act of 1934 during the preceding 12 months
(or for such shorter period that the registrant was required
to file such reports), and (2) has been subject to such filing
requirements for the past 90 days.
Yes X No
----- -----
The number of shares of the issuer's common stock outstanding as
of the latest practicable date was:
Common Stock, $.01 Par Value, outstanding at April 30, 1994. . .
36,623,745 Shares
<PAGE>
PART I. FINANCIAL INFORMATION
-----------------------------
Item 1. Financial Statements
- - ------- --------------------
AMETEK, INC.
------------
CONSOLIDATED STATEMENT OF INCOME
--------------------------------
(Unaudited)
(Dollars in thousands except per-share amounts)
<TABLE>
<CAPTION>
Three months ended March 31,
----------------------------
1994 1993
------------ ------------
<S> <C> <C>
Net sales $199,273 $187,114
---------- ----------
Expenses:
Cost of sales (excluding depreciation) 154,719 144,628
Selling, general & administrative 20,263 19,811
Depreciation 6,817 7,256
Resizing charges - 2,905 (a)
---------- ----------
181,799 174,600
---------- ----------
Operating income 17,474 12,514
Other income (expenses):
Interest expense (5,032) (4,588)
Other, net 1,775 1,722
---------- ----------
Income before income taxes 14,217 9,648
Provision for income taxes 5,410 3,552
---------- ----------
Income before extraordinary item and
cumulative effect of accounting change 8,807 6,096
Extraordinary loss on early extinguishment
of debt, net of taxes (Note 5) (11,810) -
Cumulative effect of accounting change, net
of taxes (Note 4) 3,819 -
---------- ----------
Net income $816 $6,096
========== ==========
Earnings (loss) per share (Note 2):
Income before extraordinary item and
cumulative effect of accounting change $0.21 $0.14
Extraordinary loss on early extinguishment
of debt (Note 5) (0.28) -
Cumulative effect of accounting change (Note 4) 0.09 -
---------- ----------
Net income $0.02 $0.14
========== ==========
Cash dividends paid per share $0.06 $0.17
========== ==========
Average common shares outstanding 42,644,128 44,247,170
========== ==========
</TABLE>
(a) Reclassified to conform to 1993 year-end presentation.
See accompanying notes.
2
<PAGE>
AMETEK, INC.
------------
CONDENSED CONSOLIDATED BALANCE SHEET
------------------------------------
(Dollars in thousands)
<TABLE>
<CAPTION>
March 31, December 31,
1994 1993
------------ ------------
(Unaudited)
ASSETS
- - ------
<S> <C> <C>
Current assets:
Cash and cash equivalents $49,058 $40,468
Marketable securities (Note 4) 16,665 44,191
Receivables, net 123,230 108,068
Inventories (Note 3) 91,456 91,894
Deferred income taxes 13,248 13,346
Other current assets 5,785 4,100
--------- ---------
Total current assets 299,442 302,067
--------- ---------
Property, plant and equipment 395,277 384,435
Less accumulated depreciation (207,781) (199,626)
--------- ---------
187,496 184,809
--------- ---------
Intangibles, investments and other assets 83,842 75,787
--------- ---------
Total assets $570,780 $562,663
========= =========
LIABILITIES AND STOCKHOLDERS' EQUITY
- - -------------------------------------
Current liabilities:
Accounts payable $65,116 $54,374
Accruals 96,070 98,987
Short-term borrowings and current
portion of long-term debt (Note 5) 45,476 14,543
--------- ---------
Total current liabilities 206,662 167,904
Long-term debt (Note 5) 214,803 172,429
Deferred income taxes 30,020 27,948
Other long-term liabilities 28,514 29,056
Stockholders' equity (Note 6) 90,781 165,326
--------- ---------
Total liabilities and stockholders' equity $570,780 $562,663
========= =========
</TABLE>
See accompanying notes.
3
<PAGE>
AMETEK, INC.
------------
CONDENSED CONSOLIDATED STATEMENT OF CASH FLOWS
----------------------------------------------
(Unaudited)
(Dollars in thousands)
<TABLE>
<CAPTION>
Three months ended March 31,
-------------------------------
1994 1993
------------ ------------
<S> <C> <C>
Cash provided by (used for):
Operating activities:
Net income $816 $6,096
Adjustments to reconcile net income to
net cash provided by operating activities:
Extraordinary loss on early extinguishment of debt 11,810 -
Cumulative effect of accounting change (3,819) -
Depreciation and amortization 8,678 9,101
Deferred income taxes 3,085 (7)
Net change in operating working capital 27,923 (4,903)
Other (1,231) (224)
--------- ---------
Total operating activities 47,262 10,063
--------- ---------
Investing activities:
Additions to property, plant and equipment (7,370) (9,403)
Proceeds from sale of investments 1,181 1,790
Purchase of businesses and investments (347) (8,739)
Increase in marketable securities - (16,349)
--------- ---------
Total investing activities (6,536) (32,701)
--------- ---------
Financing activities:
Proceeds from issuance of long-term debt 256,000 -
Repayments of long-term debt (185,810) (385)
Debt prepayment premiums and debt issuance costs (29,368) -
Repurchases of common stock (74,147) -
Cash dividends paid (2,620) (7,525)
Other 3,809 659
--------- ---------
Total financing activities (32,136) (7,251)
--------- ---------
Increase (decrease) in cash and cash equivalents 8,590 (29,889)
Cash and cash equivalents:
As of January 1 40,468 59,138
--------- ---------
As of March 31 $49,058 $29,249
========= =========
</TABLE>
See accompanying notes.
4
<PAGE>
AMETEK, INC.
------------
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
------------------------------------------
March 31, 1994
--------------
(Unaudited)
Note 1 - Financial Statement Presentation
- - ------ --------------------------------
The accompanying consolidated financial statements are unaudited, but the
Company believes that all adjustments (which consist of normal recurring
accruals) necessary for fair presentation of the consolidated financial position
of the Company at March 31, 1994 and the consolidated results of its operations
and cash flows for the three-month periods ended March 31, 1994 and 1993 have
been included. Quarterly results of operations are not necessarily indicative
of results for the full year. Quarterly financial statements should be read in
conjunction with the financial statements and related notes in the Company's
1993 Annual Report.
Note 2 - Earnings Per Share
- - ------ ------------------
Earnings per share is based on the average number of common shares
outstanding each period. No material dilution of earnings per share would
result for the first quarter of 1994 or 1993 if it were assumed that all
outstanding stock options were exercised.
Note 3 - Inventories
- - ------ -----------
The estimated components of inventory stated at lower of LIFO cost or
market are:
<TABLE>
<CAPTION>
In thousands
-------------------------
March 31, December 31,
1994 1993
----------- ------------
(Unaudited)
<S> <C> <C>
Finished goods and parts $30,032 $32,410
Work in process 24,904 23,683
Raw materials and purchased parts 36,520 35,801
------- -------
$91,456 $91,894
======= =======
</TABLE>
Note 4 - Accounting Change
- - ------ -----------------
Effective January 1, 1994, the Company adopted Statement of Financial
Accounting Standards (SFAS) No. 115, "Accounting for Certain Investments in
Debt and Equity Securities". SFAS No. 115 requires, among other things, that
when an enterprise acquires debt and equity securities for the purpose of
selling them in the near term, those securities are deemed to be trading
securities and are to be reported at market value, with changes in the net
unrealized gains and losses included in net income. Securities that are
available for sale are required to be carried at market value, with changes in
the net unrealized gains and losses recorded directly to stockholders' equity.
Previously, unrealized gains and losses on held-for-sale securities of
5
<PAGE>
AMETEK, INC.
------------
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
------------------------------------------
March 31, 1994
--------------
(Unaudited)
Note 4 - Accounting Change (cont'd)
- - ------ -----------------
the Company's captive insurance subsidiary, which are now classified as trading
securities, were included in stockholders' equity. Fixed income securities
which are now classified as available for sale were previously carried at the
lower of amortized cost or market value. The cumulative effect on net income as
of January 1, 1994, of adopting this Statement for securities classified as
trading was to increase net income by $3.8 million, or $.09 per share, net of
taxes of $2.4 million. The change in unrealized gains and losses from adopting
this Statement for securities classified as available for sale had no
significant impact on stockholders' equity. In accordance with the Statement,
the prior period financial statements have not been restated for this accounting
change.
Note 5 - Long-Term Debt
- - ------ --------------
Long-term debt consists of the following:
<TABLE>
<CAPTION>
In thousands
-------------------------
March 31, December 31,
1994 1993
----------- ------------
(Unaudited)
<S> <C> <C>
8.95% notes payable $ - $ 93,500
9.35% notes payable - 75,000
9.75% senior notes due 2004 150,000 -
7.25% secured bank term notes due
1995 to 2001 64,286 -
Other 517 3,929
-------- --------
$214,803 $172,429
======== ========
</TABLE>
On March 21, 1994, the Company completed an offering of $150 million in
principal amount of 9 3/4% senior notes due March 15, 2004. Also in March 1994,
the Company borrowed $106 million under a new $250 million floating-rate
senior secured bank credit agreement, consisting of $75 million of term loans
payable from 1994 to 2001 based on an interest rate of 7 1/4%; and $31 million
under a revolving credit facility which had an average interest rate of 6 7/8%.
The proceeds from these issuances, together with available cash, were used to
finance the Company's early retirement of existing debt aggregating $185.4
million, fund prepayment premiums and other expenses related to the sale of
the senior notes and the bank credit agreement, along with the repurchase of
outstanding shares of the Company's common stock. (See Note 6.)
In connection with the early retirement of debt referred to above, in March
1994 the Company recorded an extraordinary loss of $11.8 million (net of tax
benefits of $7.6 million), or $.28 per share, for the prepayment premiums paid
and the write-off of related deferred debt issuance costs.
6
<PAGE>
AMETEK, INC.
------------
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
------------------------------------------
March 31, 1994
--------------
(Unaudited)
Note 6 - Stockholders' Equity
- - ------ --------------------
Stockholders' equity consists of the following:
<TABLE>
<CAPTION>
In thousands
--------------------------
March 31, December 31,
1994 1993
----------- -------------
(Unaudited)
<S> <C> <C>
Preferred stock, $1.00 par value,
authorized: 5,000,000 shares;
none issued $ - $ -
Common stock, $1.00 par value,
authorized: 100,000,000 shares;
issued: 1994 - 40,412,217 shares
and 1993 - 46,414,317 shares 40,412 46,414
Capital in excess of par value - 6,389
Retained earnings 98,229 161,297
-------- --------
138,641 214,100
Net unrealized losses (21,025) (21,632)
Less: Cost of shares held in treasury;
1994 - 2,745,672 shares and
1993 - 2,774,672 shares (26,835) (27,142)
-------- --------
$ 90,781 $165,326
======== ========
</TABLE>
During March 1994, the Company repurchased 6,002,100 shares of its common
stock upon the exercise of an option and in a combination of privately
negotiated and open market transactions for an aggregate price of $74.1 million,
using a portion of the proceeds from the debt issuances described in Note 5.
The stock repurchases are ongoing, and were made under a previously announced
plan intended to enhance shareholder value. The plan permits the Company to
purchase outstanding shares of its common stock for an aggregate purchase price
of up to $150 million. As of March 31, 1994, all of the repurchased shares have
been retired as required by the Company's recent loan agreements, and such
shares have been returned to the status of authorized but unissued shares.
At the Annual Meeting of Stockholders on April 26, 1994, the Company's
shareholders approved a reduction in the par value of the Company's common
stock from $1.00 per share to $.01 per share. This change will result in a
transfer of an equal amount from the common stock account to the capital in
excess of par value account.
7
<PAGE>
AMETEK, INC.
------------
Item 2. Management's Discussion and Analysis of Financial Condition
- - ------- -----------------------------------------------------------
and Results of Operations
-------------------------
Financial Condition
- - -------------------
Liquidity and Capital Resources
-------------------------------
Working capital at March 31, 1994 amounted to $92.8 million, a decrease
of $41.4 million from December 31, 1993, due primarily to an increase in
accounts payable and the current portion of borrowings. The ratio of
current assets to current liabilities at March 31, 1994 was 1.45 to 1,
compared to 1.80 to 1 at December 31, 1993.
Cash generated by the Company's operating activities for the first
quarter of 1994 totalled $47.3 million, compared to $10.1 million in the
first quarter of 1993, an increase of $37.2 million. Of the increase,
$27.9 million was provided by working capital, primarily due to net
cash inflows of $31.6 million from transactions in trading securities.
(See Note 4.) Previously, such cash flows were reported as changes in
marketable securities under investing activities. Cash used for
investing activities in the first quarter of 1994 totalled $6.5
million, compared to cash used of $32.7 million in the same period last
year. Cash expended for investing activities in the 1994 quarter
was primarily for additions to property, plant and equipment which
totalled $7.4 million. The first quarter of the prior year included
capital expenditures of $9.4 million and a $7 million cash purchase of
a business, as well as a $16.3 million net increase in marketable
securities. Cash used for financing activities since December 31, 1993
totalled $32.1 million. The proceeds received from the sale of $150
million of 9 3/4% senior public notes and borrowings of $106 million
under a new $250 million senior secured bank credit agreement, along with
available cash, were used (a) to retire $185.4 million of existing
debt, (b) to fund debt prepayment premiums and debt issuance costs
totalling $29.4 million, (c) to repurchase approximately 6 million
shares of the Company's common stock at a cost of $74.1 million, and
(d) to fund the new lower quarterly cash dividend. Under the Company's
ongoing share repurchase program, which permits the Company to purchase
up to $150 million of its outstanding common stock, a total of 7.5
million shares has been repurchased through a combination of privately
negotiated and open market transactions as of May 10, 1994,
representing 17.2% of the shares outstanding at December 31, 1993, at a
cost of $93.8 million. As a result of the above activities, cash and
cash equivalents and marketable securities totalled $65.7 million at
March 31, 1994, a decrease of $18.9 million since December 31, 1993.
8
<PAGE>
AMETEK, INC.
------------
Financial Condition (cont'd)
- - -------------------
The Company believes that the amount of cash available under the new bank
credit agreement, together with cash on hand and cash flows generated
from operations will provide sufficient funds to service debt
obligations, finance the share repurchase program, and meet its operating
needs in the foreseeable future.
Results of Operations
- - ---------------------
Operations for the first quarter of 1994
compared to the first quarter of 1993
Sales for the first quarter of 1994 were $199.3 million, compared to
sales of $187.1 million for the first quarter of 1993, an increase of
$12.2 million or 6.5%. The sales improvement came primarily from the
Company's Electro-mechanical Group, which increased $9.8 million or
13.4%. The Precision Instruments Group's sales of $70.4 million were
essentially unchanged from last year's first-quarter sales, while the
Industrial Materials Group's sales increased $2 million or 4.4%.
Operating income for the first quarter of 1994 increased $2.1 million or
13.3% to $17.5 million, compared to $15.4 million in the first quarter of
1993 before including a $2.9 million charge primarily for resizing the
Company's aerospace operations. This increase reflects overall improved
operating performance and the initially modest benefits from the
restructuring programs launched in the fourth quarter of 1993. Interest
expense of $5 million in this year's first quarter increased 9.7% from
the prior year because of the higher level of total debt outstanding
during the period.
The effective income tax rate was 38.1% for the first quarter of 1994
compared with 36.8% for the first quarter of 1993. The higher 1994 rate
reflects the increase in the U.S federal statutory income tax rate from
34% to 35% which became effective in the third quarter of 1993.
First quarter 1994 income before an extraordinary item and the cumulative
effect of an accounting change was $8.8 million, or $.21 per share,
compared with first quarter 1993 earnings before resizing charges of $7.9
million or $.18 per share, an improvement of 11.9%. After recognizing an
$11.8 million ($.28 per share) after-tax loss from the early
extinguishment of debt, and a $3.8 million ($.09 per share) after-tax
gain due to a required change in accounting for certain marketable
securities, net income for the first quarter of 1994 was $.8
9
<PAGE>
AMETEK, INC.
------------
Results of Operations (cont'd)
- - ---------------------
million or $.02 per share. This compares to net income of $6.1 million
or $.14 per share for the first quarter of 1993, which included a $.04
per share charge for business resizing.
Electro-mechanical Group sales totalled $82.7 million in the current
------------------------
quarter, an increase of $9.8 million or 13.4% from the first quarter
of last year, due to improved demand for electric motor products
manufactured by the Company's domestic and Italian operations.
Before currency effects, the Italian operations reported a 27%
increase in sales from the same quarter a year ago.
Operating profit of this group declined $.5 million or 4.4% to $10.2
million in this year's first quarter. Group operating margins were
suppressed by higher costs at the new plant in Rock Creek, N.C.
stemming from inefficiencies related to increasing production
levels, and the unfavorable impact of reconfiguring the plant in
Graham, N.C., along with the negative effects of changes in product
mix.
In the Precision Instruments Group, sales of $70.4 million in this
---------------------------
year's first quarter were substantially the same as the $69.9
million of sales in the same quarter last year. Higher sales of
truck instruments were largely offset by lower sales of aerospace
instruments.
Group operating profit for the current quarter increased to $6.4
million, from $4.4 million, before reflecting a $2.9 million
resizing charge in the first quarter of 1993, an increase of $2
million or 45.7%. After the 1993 resizing charge, group operating
profit was $1.5 million. Although the group reported a profit
improvement, reflecting the initially modest benefits of business
restructuring actions initiated in the fourth quarter of 1993 and
improved operating efficiencies, 1994 operating profit reflects
continued soft business conditions in aerospace and process control
markets.
The Industrial Materials Group's first-quarter 1994 sales increased
----------------------------
$2 million or 4.4% to $46.2 million. Group operating profit for the
current quarter increased $.6 million, or 10.7%, to $6.4 million.
Both the increases, in sales and operating profit, were due to
improved general business conditions which benefitted this group.
All but one business in this group reported increased sales and
operating profit, led by the specialty metals and liquid filtration
businesses.
10
<PAGE>
AMETEK, INC.
------------
PART II. OTHER INFORMATION
---------------------------
Item 2. Changes in Securities
- - ------- ---------------------
On March 11, 1994, the Company entered into a $250 million senior secured bank
credit agreement. On March 21, 1994, the Company completed the sale of $150
million of 9 3/4% senior public notes and repaid its existing indebtedness to
institutional lenders. Both the bank credit agreement and the indenture related
to the sale of the senior public notes contain certain restrictions on the
Company, including but not limited to restrictions regarding the payment of
dividends, the incurrence of additional indebtedness, capital expenditures,
liens, mergers, consolidations and certain sales of assets. The Company is also
required by the agreements to maintain certain financial ratios.
Item 4. Submission of Matters to a Vote of Security Holders
- - ------- ---------------------------------------------------
The Annual Meeting of Stockholders of the Company was held on April 26, 1994.
The following matters were voted on at the Annual Meeting:
1) Election of Directors. The following persons were elected as directors:
---------------------
<TABLE>
<CAPTION>
Shares
Shares Voted Against
Name Voted for or Withheld
---------------------- ------------- -----------
<S> <C> <C>
Walter E. Blankley 34,170,091 1,041,578
Lewis G. Cole 34,170,335 1,041,334
Helmut N. Friedlaender 34,153,181 1,058,488
Sheldon S. Gordon 34,175,042 1,036,627
Charles D. Klein 34,150,865 1,060,804
David P. Steinmann 34,171,058 1,040,611
Elizabeth R. Varet 34,179,063 1,032,606
</TABLE>
2) Amendment to Certificate of Incorporation. The stockholders approved a
-----------------------------------------
proposal to amend the Company's Certificate of Incorporation to reduce the par
value of its common stock from $1.00 per share to $.01 per share. There were
33,360,708 shares voted in favor of the proposal; 1,027,993 shares voted
against the proposal; and 822,968 abstentions.
3) Appointment of Independent Auditors. The stockholders approved the
-----------------------------------
appointment of Ernst & Young as independent auditors for the Company for the
year 1994. There were 34,622,314 shares voted for approval; 308,237 shares
voted against; and 281,118 abstentions.
4) Shareholder Proposal. The shareholders rejected a shareholder proposal to
--------------------
reconstitute and/or expand the Company's Board of Directors. There were
8,792,552 shares voted for approval; 20,985,979 shares voted against;
1,280,030 abstentions and 4,153,108 shares not voting.
11
<PAGE>
AMETEK, INC.
------------
Item 6. Exhibits and Reports on Form 8-K
- - ------- --------------------------------
a) Exhibits:
Exhibit
Number Description
------- -----------
4 Indenture dated as of March 15, 1994 between the Company and
Corestates Bank N.A., as Trustee, relating to the Company's 9 3/4%
Senior Notes due 2004.
10 First Amendment to Credit Agreement among the Company, Various
Lending Institutions, Bank of Montreal, Corestates Bank, N.A.,
and PNC Bank, National Association, as Co-Agents, and the Chase
Manhattan Bank, N.A., as Administrative Agent.
b) Reports on Form 8-K: During the quarter ended March 31, 1994, the Company
filed a report on Form 8-K dated February 10, 1994 under Item 5 regarding
the Company's announcement of its 1993 results of operations.
12
<PAGE>
AMETEK, INC.
------------
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
AMETEK, INC.
-----------------------------------
(Registrant)
By /s/ John J. Molinelli
--------------------------------
John J. Molinelli
Senior Vice President -
Chief Financial Officer
(Principal Financial Officer)
By /s/ Otto W. Richards
--------------------------------
Otto W. Richards
Vice President and Comptroller
(Principal Accounting Officer)
May 13, 1994
13
<PAGE>
EXHIBIT 4
____________________________________________________________
AMETEK, INC.
TO
CORESTATES BANK, N.A.
Trustee
________________
Indenture
Dated as of March 15, 1994
________________
$150,000,000
9 3/4% Senior Notes Due 2004
____________________________________________________________
<PAGE>
AMETEK, INC.
Reconciliation and tie between Trust Indenture Act
of 1939 and Indenture, dated as of March 15, 1994
<TABLE>
<CAPTION>
Trust Indenture Indenture
Act Section Section
- - --------------- ---------
<S> <C>
(S) 310(a)(1) ................................. 609
(a)(2) ................................. 609
(a)(3) ................................. Not Applicable
(a)(4) ................................. Not Applicable
(a)(5) ................................. Not Applicable
(b) ................................. 608
610
(c) ................................. Not Applicable
(S) 311(a) ................................. 613(a)
(b) ................................. 613(b)
(b)(2) ................................. 703(a)(2)
703(b)
(c) ................................. Not Applicable
(S) 312(a) ................................. 701
702(a)
(b) ................................. 702(b)
(c) ................................. 702(c)
(S) 313(a) ................................. 703(a)
(b) ................................. 703(b)
(c) ................................. 703(a)
703(b)
(d) ................................. 703(c)
(S) 314(a) ................................. 704
(b) ................................. Not Applicable
(c)(1) ................................. 102
(c)(2) ................................. 102
(c)(3) ................................. Not Applicable
(d) ................................. Not Applicable
(e) ................................. 102
(f) ................................. Not Applicable
(S) 315(a) ................................. 601(a)
(b) ................................. 602
703(a)(6)
</TABLE>
-i-
<PAGE>
<TABLE>
<S> <C>
(c) ................................. 601(b)
(d) ................................. 601(c)
(d)(1) ................................. 601(a)(1)
(d)(2) ................................. 601(c)(2)
(d)(3) ................................. 601(c)(3)
(e) ................................. 514
(S) 316(a) ................................. 101
(a)(1)(A) ................................. 502
512
(a)(1)(B) ................................. 513
(a)(2) ................................. Not Applicable
(b) ................................. 508
(c) ................................. 104(c)
(S) 317(a)(1) ................................. 503
(a)(2) ................................. 504
(b) ................................. 1003
(S) 318(a) ................................. 107
</TABLE>
______________
Note: This reconciliation and tie shall not, for any purpose, be deemed to
be a part of the Indenture.
-ii-
<PAGE>
<TABLE>
<CAPTION>
TABLE OF CONTENTS
Page
----
<S> <C>
Parties.............................................. 1
Recitals of the Company.............................. 1
<CAPTION>
ARTICLE ONE
Definitions and Other Provisions of
General Application
<S> <C>
SECTION 101. Definitions:
Act.................................. 2
Affiliate............................ 2
Asset Disposition.................... 3
Attributable Value................... 3
Board of Directors................... 3
Board Resolution..................... 3
Business Day......................... 4
Capital Lease Obligation............. 4
Capital Stock........................ 4
Change of Control.................... 4
Commission........................... 4
Common Stock......................... 4
Company.............................. 4
Company Request; Company Order....... 4
Consolidated Cash Flow
Available for Fixed Charges........ 5
Consolidated Cash Flow Ratio......... 5
Consolidated Income Tax Expense...... 6
Consolidated Interest Expense........ 6
Consolidated Net Income.............. 6
Consolidated Subsidiaries............ 7
Consolidated Tangible Assets......... 7
Corporate Owned Life Insurance
Policies........................... 7
Corporate Trust Office............... 7
corporation.......................... 7
Credit Agreement..................... 7
Debt................................. 8
- - -----------
Note: This table of contents shall not, for any purpose, be
deemed to be a part of the Indenture.
</TABLE>
-iii-
<PAGE>
<TABLE>
<CAPTION>
Page
----
<S> <C>
Defaulted Interest................... 8
Disqualified Stock................... 8
Event of Default..................... 8
Exchange Act......................... 8
Expiration Date...................... 9
Foreign Subsidiary................... 9
Guarantee............................ 9
Holder............................... 9
Incur................................ 9
Indenture............................ 9
Interest Rate, Currency or Commodity
Protection Agreement............... 10
Interest Payment Date................ 10
Investment........................... 10
Lien................................. 10
Maturity............................. 10
Offer................................ 10
Offer to Purchase.................... 10
Officers' Certificate................ 13
Opinion of Counsel................... 13
Outstanding.......................... 13
pari passu........................... 14
---- -----
Paying Agent......................... 14
Permitted Investments................ 14
Person............................... 15
Predecessor Security................. 15
Preferred Stock...................... 15
Purchase Amount...................... 15
Purchase Date........................ 15
Purchase Price....................... 16
Redemption Date...................... 16
Redemption Price..................... 16
Regular Record Date.................. 16
Related Person....................... 16
Restricted Payments.................. 16
Sale and Leaseback Transaction....... 16
Securities........................... 16
Security Register; Security Registrar 16
Significant Subsidiary............... 16
Special Record Date.................. 17
Stated Maturity...................... 17
Subordinated Debt.................... 17
Subsidiary........................... 17
Tangible Assets...................... 18
Trustee.............................. 18
Trust Indenture Act.................. 18
Unrestricted Subsidiary.............. 19
Vice President....................... 19
Voting Stock......................... 20
</TABLE>
-iv-
<PAGE>
<TABLE>
<CAPTION>
Page
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<S> <C> <C>
Wholly Owned Subsidiary................. 20
SECTION 102. Compliance Certificates and Opinions... 20
SECTION 103. Form of Documents Delivered
to Trustee............................ 21
SECTION 104. Acts of Holders; Record Date........... 22
SECTION 105. Notices, Etc., to Trustee
and Company........................... 23
SECTION 106. Notice to Holders; Waiver.............. 23
SECTION 107. Conflict with Trust Indenture Act...... 24
SECTION 108. Effect of Headings and
Table of Contents..................... 24
SECTION 109. Successors and Assigns................. 24
SECTION 110. Separability Clause.................... 25
SECTION 111. Benefits of Indenture.................. 25
SECTION 112. Governing Law.......................... 25
SECTION 113. Legal Holidays......................... 25
<CAPTION>
ARTICLE TWO
Security Forms
<S> <C> <C>
SECTION 201. Forms Generally........................ 25
SECTION 202. Form of Face of Security............... 26
SECTION 203. Form of Reverse of Security............ 28
SECTION 204. Form of Trustee's
Certificate of Authentication......... 31
</TABLE>
-v-
<PAGE>
<TABLE>
<CAPTION>
ARTICLE THREE
The Securities
Page
----
<C> <S> <C>
SECTION 301. Title and Terms........................ 31
SECTION 302. Denominations.......................... 32
SECTION 303. Execution, Authentication,
Delivery and Dating.................. 32
SECTION 304. Temporary Securities................... 33
SECTION 305. Registration, Registration of
Transfer and Exchange................ 33
SECTION 306. Mutilated, Destroyed,
Lost and Stolen Securities........... 35
SECTION 307. Payment of Interest;
Interest Rights Preserved............ 36
SECTION 308. Persons Deemed Owners.................. 38
SECTION 309. Cancellation........................... 38
SECTION 310. Computation of Interest................ 38
<CAPTION>
ARTICLE FOUR
Satisfaction and Discharge
<C> <S> <C>
SECTION 401. Satisfaction and
Discharge of Indenture............... 38
SECTION 402. Application of Trust Money............. 40
<CAPTION>
ARTICLE FIVE
Remedies
<C> <S> <C>
SECTION 501. Events of Default...................... 40
SECTION 502. Acceleration of Maturity;
Rescission and Annulment............. 43
</TABLE>
-vi-
<PAGE>
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
SECTION 503. Collection of Indebtedness and
Suits for Enforcement by
Trustee............................... 45
SECTION 504. Trustee May File Proofs of Claim....... 46
SECTION 505. Trustee May Enforce Claims
Without Possession of
Securities............................ 46
SECTION 506. Application of Money Collected......... 46
SECTION 507. Limitation on Suits.................... 47
SECTION 508. Unconditional Right of Holders to
Receive Principal, Premium
and Interest.......................... 48
SECTION 509. Restoration of Rights and Remedies..... 48
SECTION 510. Rights and Remedies Cumulative......... 48
SECTION 511. Delay or Omission Not Waiver........... 49
SECTION 512. Control by Holders..................... 49
SECTION 513. Waiver of Past Defaults................ 50
SECTION 514. Undertaking for Costs.................. 50
SECTION 515. Waiver of Stay or Extension Laws....... 50
<CAPTION>
ARTICLE SIX
The Trustee
<S> <C> <C>
SECTION 601. Certain Duties and
Responsibilities...................... 51
SECTION 602. Notice of Defaults..................... 51
SECTION 603. Certain Rights of Trustee.............. 51
SECTION 604. Not Responsible for Recitals
or Issuance of Securities............. 53
SECTION 605. May Hold Securities.................... 53
</TABLE>
-vii-
<PAGE>
<TABLE>
<CAPTION>
Page
----
<C> <S> <C>
SECTION 606. Money Held in Trust.................... 53
SECTION 607. Compensation and Reimbursement......... 54
SECTION 608. Disqualification; Conflicting
Interests............................. 55
SECTION 609. Corporate Trustee Required;
Eligibility........................... 55
SECTION 610. Resignation and Removal;
Appointment of Successor.............. 55
SECTION 611. Acceptance of Appointment by
Successor............................. 57
SECTION 612. Merger, Conversion, Consolidation
or Succession to Business............. 57
SECTION 613. Preferential Collection of
Claims Against Company................ 58
<CAPTION>
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
<C> <S> <C>
SECTION 701. Company to Furnish Trustee Names
and Addresses of Holders............... 58
SECTION 702. Preservation of Information;
Communications to Holders.............. 58
SECTION 703. Reports by Trustee..................... 59
SECTION 704. Reports by Company..................... 59
<CAPTION>
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
<C> <S> <C>
SECTION 801. Company May Consolidate, Etc.,
Only on Certain Terms.................. 60
SECTION 802. Successor Substituted................... 61
</TABLE>
-viii-
<PAGE>
<TABLE>
<CAPTION>
ARTICLE NINE
Supplemental Indentures
Page
----
<S> <C> <C>
SECTION 901. Supplemental Indentures Without
Consent of Holders..................... 62
SECTION 902. Supplemental Indentures with
Consent of Holders..................... 63
SECTION 903. Execution of Supplemental
Indentures............................. 64
SECTION 904. Effect of Supplemental Indentures....... 64
SECTION 905. Conformity with Trust Indenture Act..... 64
SECTION 906. Reference in Securities to
Supplemental Indentures................ 64
<CAPTION>
ARTICLE TEN
Covenants
<S> <C> <C>
SECTION 1001. Payment of Principal, Premium
and Interest........................... 65
SECTION 1002. Maintenance of Office or Agency......... 65
SECTION 1003. Money for Security Payments to
be Held in Trust....................... 66
SECTION 1004. Existence............................... 67
SECTION 1005. Maintenance of Properties............... 68
SECTION 1006. Payment of Taxes and Other Claims....... 68
SECTION 1007. Maintenance of Insurance................ 68
SECTION 1008. Limitation on Consolidated Debt......... 69
SECTION 1009. Limitation on Subsidiary Debt
and Preferred Stock.................... 71
SECTION 1010. Limitation on Restricted Payments....... 74
</TABLE>
-ix-
<PAGE>
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
SECTION 1011. Limitation on Liens..................... 77
SECTION 1012. Limitation on Sale and
Leaseback Transactions................. 79
SECTION 1013. Limitations Concerning Distributions
By Subsidiaries, etc................... 80
SECTION 1014. Limitation on Transactions
with Affiliates........................ 81
SECTION 1015. Change of Control....................... 82
SECTION 1016. Provision of Financial Information...... 83
SECTION 1017. Statement by Officers as to
Default; Compliance
Certificates........................... 84
SECTION 1018. Waiver of Certain Covenants............. 85
<CAPTION>
ARTICLE ELEVEN
Redemption of Securities
<S> <C> <C>
SECTION 1101. Right of Redemption..................... 85
SECTION 1102. Applicability of Article................ 85
SECTION 1103. Election to Redeem; Notice
to Trustee............................. 86
SECTION 1104. Selection by Trustee of
Securities to Be Redeemed.............. 86
SECTION 1105. Notice of Redemption.................... 86
SECTION 1106. Deposit of Redemption Price............. 87
SECTION 1107. Securities Payable on
Redemption Date........................ 87
SECTION 1108. Securities Redeemed in Part............. 88
</TABLE>
-x-
<PAGE>
<TABLE>
<CAPTION>
Page
----
ARTICLE TWELVE
Defeasance and Covenant Defeasance
<S> <C> <C>
SECTION 1201. Company's Option to Effect Defeasance
or Covenant Defeasance................. 88
SECTION 1202. Defeasance and Discharge................ 89
SECTION 1203. Covenant Defeasance..................... 89
SECTION 1204. Conditions to Defeasance or Covenant
Defeasance............................. 90
SECTION 1205. Deposited Money and U.S. Government
Obligations to be Held in Trust;
Other Miscellaneous Provisions......... 93
SECTION 1206. Reinstatement........................... 93
TESTIMONIUM............................................ 95
SIGNATURES AND SEALS................................... 95
ACKNOWLEDGMENTS........................................ 96
</TABLE>
-xi-
<PAGE>
INDENTURE, dated as of March 15, 1994 between AMETEK, INC., a
corporation duly organized and existing under the laws of the State of Delaware
(herein called the "Company"), having its principal office at Station Square,
Paoli, Pennsylvania 19301, and CORESTATES BANK, N.A., a national banking
association duly organized and existing under the laws of the United States of
America, as Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the creation of an issue of its 9 3/4%
Senior Notes due 2004 of substantially the tenor and amount hereinafter set
forth, and to provide therefor the Company has duly authorized the execution and
delivery of this Indenture.
All things necessary to make the Securities, when executed by the
Company and authenticated and delivered hereunder and duly issued by the
Company, the valid obligations of the Company, and to make this Indenture a
valid agreement of the Company, in accordance with their and 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, as follows:
ARTICLE ONE
Definitions and Other Provisions
of General Application
SECTION 101. 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;
<PAGE>
(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 (whether or not such is indicated herein), 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 as consistently applied by the Company at the date of such
computation but shall not include the accounts of Unrestricted
Subsidiaries, except to the extent of dividends and distributions actually
paid to the Company or one of its Wholly Owned Subsidiaries;
(4) unless otherwise specifically set forth herein, all calculations
or determinations of a Person shall be performed or made on a consolidated
basis in accordance with generally accepted accounting principles; and
(5) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
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 104.
"Affiliate" of any Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such Person. For the purposes of this definition, "control" when
used with respect to any 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.
-2-
<PAGE>
"Asset Disposition" by any Person means any transfer, conveyance,
sale, lease or other disposition by such Person or any of its Subsidiaries
(including a consolidation or merger or other sale of any such Subsidiary with,
into or to another Person in a transaction in which such Subsidiary ceases to be
a Subsidiary, but excluding a disposition by a Subsidiary of such Person to such
Person or a Wholly Owned Subsidiary of such Person or by such Person to a Wholly
Owned Subsidiary of such Person) of (i) shares of Capital Stock (other than
directors' qualifying shares) or other ownership interests of a Subsidiary of
such Person, (ii) substantially all of the assets of such Person or any of its
Subsidiaries representing a division or line of business or (iii) other assets
or rights of such Person or any of its Subsidiaries outside of the ordinary
course of business.
"Attributable Value" means, as to any particular lease under which any
Person is at the time liable other than a Capital Lease Obligation, and at any
date as of which the amount thereof is to be determined, the total net amount of
rent required to be paid by such Person under such lease during the initial term
thereof as determined in accordance with generally accepted accounting
principles, discounted from the last date of such initial term to the date of
determination at a rate per annum equal to the discount rate which would be
applicable to a Capital Lease Obligation with like term in accordance with
generally accepted accounting principles. The net amount of rent required to be
paid under any such lease for any such period shall be the aggregate amount of
rent payable by the lessee with respect to such period after excluding amounts
required to be paid on account of insurance, taxes, assessments, utility,
operating and labor costs and similar charges. In the case of any lease which
is terminable by the lessee upon the payment of a penalty, such net amount shall
also include the amount of such penalty, but no rent shall be considered as
required to be paid under such lease subsequent to the first date upon which it
may be so terminated. "Attributable Value" means, as to a Capital Lease
Obligation under which any Person is at the time liable and at any date as of
which the amount thereof is to be determined, the capitalized amount thereof
that would appear on the face of a balance sheet of such Person in accordance
with generally accepted accounting principles.
"Board of Directors" means either the board of directors of the
Company or any duly authorized committee of that board.
-3-
<PAGE>
"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" means each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in The City of New York,
New York are authorized or obligated by law or executive order to close.
"Capital Lease Obligation" of any Person means the obligation to pay
rent or other payment amounts under a lease of (or other Debt arrangements
conveying the right to use) real or personal property of such Person which is
required to be classified and accounted for as a capital lease or a liability on
the face of a balance sheet of such Person in accordance with generally accepted
accounting principles. The stated maturity of such obligation shall be the date
of the last payment of rent or any other amount due under such lease prior to
the first date upon which such lease may be terminated by the lessee without
payment of a penalty.
"Capital Stock" of any Person means any and all shares, interests,
participations or other equivalents (however designated) of corporate stock of
such Person.
"Change of Control" has the meaning specified in Section 1015.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act, 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.
"Common Stock" of any Person means Capital Stock of such Person that
does not rank prior, as to the payment of dividends or as to the distribution of
assets upon any voluntary or involuntary liquidation, dissolution or winding up
of such Person, to shares of Capital Stock of any other class of such Person.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture and thereafter "Company"
shall mean such successor Person.
-4-
<PAGE>
"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.
"Consolidated Cash Flow Available for Fixed Charges" of any Person
means for any period the Consolidated Net Income for such period increased by
the sum of (i) Consolidated Interest Expense of such Person for such period,
plus (ii) Consolidated Income Tax Expense of such Person for such period, plus
(iii) the consolidated depreciation and amortization expense included in the
income statement of such Person for such period, plus (iv) other non-cash
charges of such Person for such period deducted from consolidated revenues in
determining Consolidated Net Income for such period, minus (v) non-cash items of
such Person for such period increasing consolidated revenues in determining
Consolidated Net Income for such period.
"Consolidated Cash Flow Ratio" of any Person means for any period the
ratio of (i) Consolidated Cash Flow Available for Fixed Charges of such Person
for such period to (ii) the sum of (A) Consolidated Interest Expense of such
Person for such period, plus (B) the interest expense for such period (including
the amortization of debt discount) with respect to any Debt proposed to be
Incurred by such Person or its Subsidiaries, minus (C) Consolidated Interest
Expense of such Person to the extent included in Clause (ii)(A) with respect to
any Debt that will no longer be outstanding as a result of the Incurrence of the
Debt proposed to be Incurred, plus (D) the interest expense for such period
(including the amortization of debt discount) with respect to any other Debt
Incurred by such Person or its Subsidiaries since the end of such period to the
extent not included in Clause (ii)(A) minus (E) Consolidated Interest Expense of
such Person to the extent included in Clause (ii)(A) with respect to any Debt
that no longer is outstanding as a result of the Incurrence of the Debt referred
to in clause (ii)(D); provided, however, that in making such computation, the
-------- -------
Consolidated Interest Expense of such Person attributable to interest on any
Debt bearing a floating interest rate shall be computed on a pro forma basis as
if the rate in effect on the date of computation had been the applicable rate
for the entire period; provided further that, in the event such Person or any of
-------- -------
its Subsidiaries has made Asset Dispositions or acquisitions of assets not in
the ordinary course of business (including acquisitions of other Persons by
merger, consolidation or purchase of Capital Stock) during or after such period,
such
-5-
<PAGE>
computation shall be made on a pro forma basis as if the Asset Dispositions or
acquisitions had taken place on the first day of such period.
"Consolidated Income Tax Expense" of any Person means for any period
the consolidated provision for income taxes of such Person for such period
calculated on a consolidated basis in accordance with generally accepted
accounting principles; provided that there shall be excluded therefrom the tax
effect of any of the items described in Clauses (a) through (f) of the
definition of Consolidated Net Income.
"Consolidated Interest Expense" for any Person means for any period
the consolidated interest expense included in a consolidated income statement
(without deduction of interest income) of such Person for such period
calculated on a consolidated basis in accordance with generally accepted
accounting principles, including without limitation or duplication (or, to the
extent not so included, with the addition of), (i) the amortization of Debt
discounts; (ii) any payments or fees with respect to letters of credit, bankers'
acceptances or similar facilities; (iii) fees with respect to interest rate
swap or similar agreements or foreign currency hedge, exchange or similar
agreements; (iv) Preferred Stock dividends of such Person (other than with
respect to Disqualified Stock) declared and paid or payable; (v) accrued
Disqualified Stock dividends of such Person and all accrued Preferred Stock
dividends of Subsidiaries of such Person, in each case whether or not declared
or paid; (vi) interest on Debt guaranteed by such Person; and (vii) the portion
of any rental obligation treated as interest expense in accordance with
generally accepted accounting principles.
"Consolidated Net Income" of any Person means for any period the
consolidated net income (or loss) of such Person for such period determined on a
consolidated basis in accordance with generally accepted accounting principles;
provided that there shall be excluded therefrom (a) the net income (or loss) of
- - --------
any Person acquired by such Person or a Subsidiary of such Person in a pooling-
of-interests transaction for any period prior to the date of such transaction,
(b) the net income (but not net loss) of any Subsidiary of such Person which is
subject to restrictions which prevent the payment of dividends or the making of
distributions to such Person to the extent of such restrictions, provided that
--------
there shall not be excluded the net income of a Foreign Subsidiary which is
subject to an encumbrance or restriction on the payment of dividends and other
cash distributions permitted by Clause (d) of Section 1013 in all cases except
-6-
<PAGE>
for purposes of Section 1010, in which case the net income of such a Subsidiary
shall be excluded in accordance with this Clause (b), (c) the net income (or
loss) of any Person that is not a Subsidiary of such Person except to the extent
of the amount of dividends or other distributions actually paid to such Person
by such other Person during such period, (d) gains or losses on Asset
Dispositions by such Person or its Subsidiaries, (e) all extraordinary or
nonrecurring gains and extraordinary or nonrecurring losses, (f) the cumulative
effect of changes in accounting principles in the year of adoption of such
changes, and (g) the tax effect of any of the items described in Clauses (a)
through (f) above.
"Consolidated Subsidiaries" of any Person means all corporations in
which such Person has an interest that would be accounted for on a consolidated
basis in such Person's financial statements in accordance with generally
accepted accounting principles.
"Consolidated Tangible Assets" of any Person means the sum of the
Tangible Assets of such Person after eliminating inter-company items,
determined on a consolidated basis in accordance with generally accepted
accounting principles, including appropriate deductions for any minority
interest in Tangible Assets of such Person's Subsidiaries; provided, however,
-------- -------
that, with respect to the Company, adjustments following the date of this
Indenture to the accounting books and records of the Company in accordance with
Accounting Principles Board Opinions Nos. 16 and 17 (or successor opinions
thereto) or otherwise resulting from the acquisition of control of the Company
by another Person shall not be given effect to.
"Corporate Owned Life Insurance Policies" means corporate owned life
insurance policies held by the Company with respect to certain of its employees.
"Corporate Trust Office" means the principal office of the Trustee in
Philadelphia, Pennsylvania at which at any particular time its corporate trust
business shall be administered.
"corporation" means a corporation, association, company, joint-stock
company, partnership or business trust.
"Credit Agreement" means that certain credit agreement dated as of
March 11, 1994 by and among the Company, various financial institutions from
time to time party thereto, Bank of Montreal, Corestates Bank, N.A. and PNC
Bank, National Association, as Co-Agents thereunder and The Chase Manhattan
Bank, N.A. as Administrative Agent
-7-
<PAGE>
thereunder, and the other Credit Documents (as defined therein) (or other
analogous documents entered into in connection with any refinancing thereof), as
any of the foregoing has been or may from time to time be amended, supplemented,
restated, restructured or otherwise modified at the option of the parties
thereof.
"Debt" means (without duplication), with respect to any Person,
whether recourse is to all or a portion of the assets of such Person and whether
or not contingent, (i) every obligation of such Person for money borrowed, (ii)
every obligation of such Person evidenced by bonds, debentures, notes or other
similar instruments, including obligations Incurred in connection with the
acquisition of property, assets or businesses, (iii) every reimbursement
obligation of such Person with respect to letters of credit, bankers'
acceptances or similar facilities issued for the account of such Person, (iv)
every obligation of such Person issued or assumed as the deferred purchase price
of property or services (but excluding trade accounts payable or accrued
liabilities arising in the ordinary course of business), (v) every Capital Lease
Obligation of such Person, (vi) the maximum fixed redemption or repurchase price
of Disqualified Stock of such Person at the time of determination, (vii) every
obligation under Interest Rate, Currency or Commodity Protection Agreements of
such Person and (viii) every obligation of the type referred to in Clauses (i)
through (vii) of another Person and all dividends of another Person the payment
of which, in either case, such Person has Guaranteed or is responsible or
liable, directly or indirectly, as obligor, Guarantor or otherwise.
"Defaulted Interest" has the meaning specified in Section 307.
"Disqualified Stock" of any Person means any Capital Stock of such
Person which, by its terms (or by the terms of any security into which it is
convertible or for which it is exchangeable), or upon the happening of any
event, matures or is mandatorily redeemable, pursuant to a sinking fund
obligation or otherwise, or is redeemable at the option of the Company, any
subsidiary of the Company or the holder thereof, in whole or in part, on or
prior to the final Stated Maturity of the Securities.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" refers to the Securities Exchange Act of 1934 as it may
be amended and any successor act thereto.
-8-
<PAGE>
"Expiration Date" has the meaning specified in the definition of Offer
to Purchase.
"Foreign Subsidiary" means with respect to any Person, any Subsidiary
of such Person that is incorporated in a country other than the United States.
"Guarantee" by any Person means any obligation, contingent or
otherwise, of such Person guaranteeing, or having the economic effect of
guaranteeing, any Debt of any other Person (the "primary obligor") in any
manner, whether directly or indirectly, and including, without limitation, any
obligation of such Person, (i) to purchase or pay (or advance or supply funds
for the purchase or payment of) such Debt or to purchase (or to advance or
supply funds for the purchase of) any security for the payment of such Debt,
(ii) to purchase property, securities or services for the purpose of assuring
the holder of such Debt of the payment of such Debt, or (iii) to maintain
working capital, equity capital or other financial statement condition or
liquidity of the primary obligor so as to enable the primary obligor to pay such
Debt (and "Guaranteed", "Guaranteeing" and "Guarantor" shall have meanings
correlative to the foregoing); provided, however, that the Guaranty by any
-------- -------
Person shall not include endorsements by such Person for collection or deposit,
in either case, in the ordinary course of business.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Incur" means, with respect to any Debt or other obligation of any
Person, to create, issue, incur (by conversion, exchange or otherwise), assume,
Guarantee or otherwise become liable in respect of such Debt or other obligation
or the recording, as required pursuant to generally accepted accounting
principles or otherwise, of any such Debt or other obligation on the balance
sheet of such Person (and "Incurrence", "Incurred", "Incurrable" and "Incurring"
shall have meanings correlative to the foregoing); provided, however, that a
-------- -------
change in generally accepted accounting principles that results in an obligation
of such Person that exists at such time becoming Debt shall not be deemed an
Incurrence of such Debt.
"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.
-9-
<PAGE>
"Interest Rate, Currency or Commodity Protection Agreement" means any
interest rate swap agreement, interest rate cap agreement, currency swap
agreement, commodity swap or cap agreement or other financial agreement or
arrangement designed to protect the Company against fluctuations in interest
rates or currency exchange rates or commodity prices and which shall have a
notional amount no greater than the amount of the underlying obligation being
hedged thereby.
"Interest Payment Date" means the Stated Maturity of an instalment of
interest on the Securities.
"Investment" by any Person means any direct or indirect loan, advance
or other extension of credit or capital contribution (by means of transfers of
cash or other property to others or payments for property or services for the
account or use of others, or otherwise) to, or purchase or acquisition of
Capital Stock, bonds, notes, debentures or other securities or evidence of Debt
issued by any other Person.
"Lien" means, with respect to any property or assets, any mortgage or
deed of trust, pledge, hypothecation, assignment, deposit arrangement, security
interest, lien, charge, easement (other than any easement not materially
impairing usefulness or marketability), encumbrance, preference, priority or
other security agreement or preferential arrangement of any kind or nature
whatsoever on or with respect to such property or assets (including, without
limitation, any conditional sale or other title retention agreement having
substantially the same economic effect as any of the foregoing).
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security becomes due and payable as therein or
herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption or otherwise.
"Offer" has the meaning specified in the definition of Offer to
Purchase.
"Offer to Purchase" means a written offer (the "Offer") sent by the
Company by first class mail, postage prepaid, to each Holder at his address
appearing in the Security Register on the date of the Offer offering to purchase
up to the principal amount of Securities specified in such Offer at the purchase
price specified in such Offer (as determined pursuant to this Indenture).
Unless otherwise required by applicable law, the Offer shall specify an
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expiration date (the "Expiration Date") of the Offer to Purchase which shall be,
subject to any contrary requirements of applicable law, not less than 30 days
or more than 60 days after the date of such Offer and a settlement date (the
"Purchase Date") for purchase of Securities within five Business Days after the
Expiration Date. The Company shall notify the Trustee at least 15 Business Days
(or such shorter period as is acceptable to the Trustee) prior to the mailing of
the Offer of the Company's obligation to make an Offer to Purchase, and the
Offer shall be mailed by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company. The Offer shall contain
information concerning the business of the Company and its Subsidiaries which
the Company in good faith believes will enable such Holders to make an informed
decision with respect to the Offer to Purchase (which at a minimum will include
(i) the most recent annual and quarterly financial statements and "Management's
Discussion and Analysis of Financial Condition and Results of Operations"
contained in the documents required to be filed with the Trustee pursuant to
Section 1016 (which requirements may be satisfied by delivery of such documents
together with the Offer), (ii) a description of material developments in the
Company's business subsequent to the date of the latest of such financial
statements referred to in Clause (i) (including a description of the events
requiring the Company to make the Offer to Purchase), (iii) if applicable,
appropriate pro forma financial information concerning the Offer to Purchase
and the events requiring the Company to make the Offer to Purchase and (iv) any
other information required by applicable law to be included therein). The Offer
shall contain all instructions and materials necessary to enable such Holders to
tender Securities pursuant to the Offer to Purchase. The Offer shall also
state:
(1) the Section of this Indenture pursuant to which the Offer to
Purchase is being made;
(2) the Expiration Date and the Purchase Date;
(3) the aggregate principal amount of the Outstanding Securities
offered to be purchased by the Company pursuant to the Offer to Purchase
(including, if less than 100%, the manner by which such has been determined
pursuant to the Section hereof requiring the Offer to Purchase) (the
"Purchase Amount");
(4) the purchase price to be paid by the Company for each $1,000
aggregate principal amount of Securities accepted for payment (as
specified pursuant to this Indenture) (the "Purchase Price");
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(5) that the Holder may tender all or any portion of the Securities
registered in the name of such Holder and that any portion of a Security
tendered must be tendered in an integral multiple of $1,000 principal
amount;
(6) the place or places where Securities are to be surrendered for
tender pursuant to the Offer to Purchase;
(7) that interest on any Security not tendered or tendered but not
purchased by the Company pursuant to the Offer to Purchase will continue to
accrue;
(8) that on the Purchase Date the Purchase Price will become due and
payable upon each Security accepted for payment pursuant to the Offer to
Purchase and that interest thereon shall cease to accrue on and after the
Purchase Date;
(9) that each Holder electing to tender a Security pursuant to the
Offer to Purchase will be required to surrender such Security at the place
or places specified in the Offer prior to the close of business on the
Expiration Date (such Security being, if the Company or the Trustee so
requires, duly endorsed by, or accompanied by 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);
(10) that Holders will be entitled to withdraw all or any portion of
Securities tendered if the Company (or its Paying Agent) receives, not
later than the close of business on the Expiration Date, a telegram,
telex, facsimile transmission or letter setting forth the name of the
Holder, the principal amount of the Security the Holder tendered, the
certificate number of the Security the Holder tendered and a statement that
such Holder is withdrawing all or a portion of his tender;
(11) that if Securities in an aggregate principal amount less than or
equal to the Purchase Amount are duly tendered and not withdrawn pursuant
to the Offer to Purchase, the Company shall purchase all such Securities;
and
(12) that in the case of any Holder whose Security is purchased only
in part, the Company shall execute, and the Trustee shall authenticate and
deliver
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to the Holder of such Security without service charge, a new Security or
Securities, of any authorized denomination as requested by such Holder, in
an aggregate principal amount equal to and in exchange for the unpurchased
portion of the Security so tendered.
Any Offer to Purchase shall be governed by and effected in accordance with the
Offer for such Offer to Purchase.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, 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.
"Opinion of Counsel" means a written opinion of counsel, who may be an
employee of or counsel for the Company, or other counsel who shall be acceptable
to the Trustee.
"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 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 306 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
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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, Securities owned
by the Company or any other obligor upon the Securi-ties 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 which have been pledged in good faith
may be regarded as Outstanding if the pledgee establishes to the satisfaction of
the Trustee the pledgee's right 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.
"pari passu", when used with respect to the ranking of any Debt of
---- -----
any Person in relation to other Debt of such Person, means that each such Debt
(a) either (i) is not subordinated in right of payment to the same Debt of such
Person or (ii) is subordinate in right of payment to the same Debt of such
Person as is the other and is so subordinate to the same extent and (b) is not
subordinate in right of payment to the other or to any Debt of such Person as to
which the other is not so subordinate.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest on any Securities on behalf of
the Company.
"Permitted Investments" means (a) certificates of deposit with final
maturities of one year or less issued by a U.S. commercial bank or a U.S. branch
of a foreign bank or, in the case of a Foreign Subsidiary, a reputable bank in
the country in which such Foreign Subsidiary operates, having capital and
surplus in excess of $100 million and, in the case of a U.S. commercial bank or
a U.S. branch of a foreign bank, having a peer group rating of C or better (or
the equivalent thereof) by Thompson BankWatch Inc. or outstanding long-term
debt rated BBB or better (or the equiva-lent thereof) by Standard & Poor's or
Baa or better (or the equivalent thereof) by Moody's Investors Service, Inc.;
(b) commercial paper rated A-1 (or the equivalent thereof) by Standard & Poor's
or P-1 (or the equivalent thereof) by Moody's Investors Service, Inc.; (c)
direct obligations of
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the United States government or a U.S. government agency; (d) repurchase
agreements in respect of direct U.S. government obligations; (e) in the case of
a Foreign Subsidiary, direct obligations of the sovereign and the government
agencies of the country in which such foreign subsidiary operates; (f) shares of
money market or equity mutual or similar funds having assets in excess of $100
million; and (g) equity or debt securities rated A or better (or the equivalent
thereof) by Standard & Poor's or Moody's Investors Service, Inc. of public
companies which (x) are freely tradeable without restriction on a stock exchange
or through a nationally recognized automated quotation system and (y) are
purchased and held as current assets and not for investment; (h) any Investments
made by AMETEK (Bermuda) Ltd., provided that such Investments are made as part
of such Subsidiary's normal self-insurance activities and only so long as the
sole business of such Subsidiary is the insuring of risks of only the Company
and its other Subsidiaries
"Person" means any individual, corporation, partnership, joint
venture, trust, unincorporated organization or government or any agency or
political subdivision thereof.
"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 306 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 Stock" of any Person means Capital Stock of such Person of
any class or classes (however designated) that ranks prior, as to the payment
of dividends or as to the distribution of assets upon any voluntary or
involuntary liquidation, dissolution or winding up of such Person, to shares of
Capital Stock of any other class of such Person.
"Purchase Amount" has the meaning specified in the definition of Offer
to Purchase.
"Purchase Date" has the meaning specified in the definition of Offer
to Purchase.
"Purchase Price" has the meaning specified in the definition of Offer
to Purchase.
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"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.
"Regular Record Date" for the interest payable on any Interest Payment
Date means the March 1 or September 1 (whether or not a Business Day), as the
case may be, next preceding such Interest Payment Date.
"Related Person" of any Person means any other Person directly or
indirectly owning (a) 5% or more of the outstanding Common Stock of such Person
(or, in the case of a Person that is not a corporation, 5% or more of the equity
interest in such Person) or (b) 5% or more of the combined voting power of the
Voting Stock of such Person.
"Restricted Payments" has the meaning specified in Section 1010.
"Sale and Leaseback Transaction" of any Person means an arrangement
with any lender or investor or to which such lender or investor is a party
providing for the leasing by such Person of any property or asset of such Person
which has been or is being sold or transferred by such Person more than 270 days
after the acquisition thereof or the completion of construction or commencement
of operation thereof to such lender or investor or to any person to whom funds
have been or are to be advanced by such lender or investor on the security of
such property or asset. The stated maturity of such arrangement shall be the
date of the last payment of rent or any other amount due under such arrangement
prior to the first date on which such arrangement may be terminated by the
lessee without payment of a penalty.
"Securities" means securities designated in the first paragraph of the
RECITALS OF THE COMPANY.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Significant Subsidiary" of any Person means any Subsidiary which,
together with all of its Subsidiaries, would be a Significant Subsidiary within
the meaning of Regulation S-X under the U.S. securities laws.
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"Special Record Date" for the payment of any Defaulted Interest means
a date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or any
installment of interest thereon, means the date specified in such Security as
the fixed date on which the principal or interest of such Security is due and
payable.
"Subordinated Debt" means Debt of the Company as to which the payment
of principal of (and premium, if any) and interest and other payment obligations
in respect of such Debt shall be subordinate to the prior payment in full of the
Securities to at least the following extent: (i) no payments of principal of
(or premium, if any) or interest on or otherwise due in respect of such Debt may
be permitted for so long as any default in the payment of principal (or premium,
if any) or interest on the Securities exists; (ii) in the event that any other
default that with the passing of time or the giving of notice, or both, would
constitute an event of default exists with respect to the Securities, upon
notice by 25% or more in principal amount of the Securities to the Trustee, the
Trustee shall have the right to give notice to the Company and the holders of
such Debt (or trustees or agents therefor) of a payment blockage, and thereafter
no payments of principal of (or premium, if any) or interest on or otherwise due
in respect of such Debt may be made for a period of 179 days from the date of
such notice; and (iii) such Debt may not (x) provide for payments of principal
of such Debt at the stated maturity thereof or by way of a sinking fund
applicable thereto or by way of any mandatory redemption, defeasance, retirement
or repurchase thereof by the Company (including any redemption, retirement or
repurchase which is contingent upon events or circumstances, but excluding any
retirement required by virtue of acceleration of such Debt upon an event of
default thereunder), in each case prior to the final Stated Maturity of the
Securities or (y) permit redemption or other retirement (including pursuant to
an offer to purchase made by the Company) of such other Debt at the option of
the holder thereof prior to the final Stated Maturity of the Securities, other
than a redemption or other retirement at the option of the holder of such Debt
(including pursuant to an offer to purchase made by the Company) which is
conditioned upon the change of control of the Company pursuant to provisions
substantially similar to those contained in Section 1015 hereof.
"Subsidiary" of any Person means (i) a corporation more than 50% of
the combined voting power of the
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outstanding Voting Stock of which is owned, directly or indirectly, by such
Person or by one or more other Subsidiaries of such Person or by such Person and
one or more Subsidiaries thereof or (ii) any other Person (other than a
corporation) in which such Person, or one or more other Subsidiaries of such
Person or such Person and one or more other Subsidiaries thereof, directly or
indirectly, has at least a majority ownership and power to direct the policies,
management and affairs thereof. "Subsidiary" shall not include an Unrestricted
Subsidiary created in accordance with the definition of "Unrestricted
Subsidiary". For purposes of Clause (iii) of Section 1010, a joint venture of
which the Company, directly or indirectly, owns 50% of the equity and voting
interests and another Person (or group of Person acts together in relation to
such joint venture) owns the other 50% of the equity and voting interests shall
be deemed a Subsidiary of the Company.
"Tangible Assets" of any Person means, at any date, the gross book
value as shown by the accounting books and records of such Person of all its
property both real and personal, less (i) the net book value of all its
licenses, patents, patent applications, copyrights, trademarks, trade names,
goodwill, non-compete agreements or organizational expenses and other like
intangibles, (ii) unamortized Debt discount and expense, (iii) all reserves for
depreciation, obsolescence, depletion and amortization of its properties and
(iv) all other proper reserves which in accordance with generally accepted
accounting principles should be provided in connection with the business
conducted by such Person; provided, however, that, with respect to the Company
-------- -------
and its Consolidated Subsidiaries, adjustments following the date of this
Indenture to the accounting books and records of the Company and its
Consolidated Subsidiaries in accordance with Accounting Principles Board
Opinions Nos. 16 and 17 (or successor opinions thereto) or otherwise resulting
from the acquisition of control of the Company by another Person shall not be
given effect to.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean such successor Trustee.
"Trust Indenture Act" 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 905; provided, however, that in the event the Trust Indenture Act of
--------- -------
1939 is amended after such date, "Trust Indenture Act"
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means, to the extent required by any such amendment, the Trust Indenture Act of
1939 as so amended.
"Unrestricted Subsidiary" means (1) any Subsidiary designated as such
by the Board of Directors as set forth below where (a) neither the Company nor
any of its other Subsidiaries (other than another Unrestricted Subsidiary) (i)
provides credit support for, or Guarantee of, any Debt of such Subsidiary
(including any undertaking, agreement or instrument evidencing such Debt) or
(ii) is directly or indirectly liable for any Debt of such Subsidiary, and (b)
no default with respect to any Debt of such Subsidiary (including any right
which the holders thereof may have to take enforcement action against such
Subsidiary) would permit (upon notice, lapse of time or both) any holder of any
other Debt of the Company and its other Subsidiaries (other than another
Unrestricted Subsidiary) to declare a default on such other Debt or cause the
payment thereof to be accelerated or payable prior to its final scheduled
maturity, and (2) any Subsidiary of an Unrestricted Subsidiary. The Board of
Directors may designate any newly acquired or newly formed Subsidiary to be an
Unrestricted Subsidiary unless such Subsidiary owns any Capital Stock of, or
owns or holds any Lien on any property of, any other Subsidiary of the Company
which is not a Subsidiary of the Subsidiary to be so designated or otherwise an
Unrestricted Subsidiary, provided, that (x) the Subsidiary to be so designated
--------
has total assets of $1 million or less or (y) immediately after giving effect to
such designation, the Company could Incur at least $1.00 of additional Debt
pursu-ant to the first paragraph under Section 1008 and provided, further, that
-------- -------
the Company could make a Restricted Payment in an amount equal to the fair
market value of such Subsidiary pursuant to Clause (3) of Section 1010 and such
amount is thereafter treated as a Restricted Payment for the purpose of
calculating the aggregate amount available for Restricted Payments pursuant to
Section 1010. The Board of Directors may designate any Unrestricted Subsidiary
to be a Subsidiary, provided that, immediately after giving effect to such
designation, the Company could Incur at least $1.00 of additional Debt pursuant
to the first paragraph under Section 1008. Any such designation by the Board of
Directors shall be evidenced to the Trustee by filing with the Trustee a
certified copy of the resolution of the Board of Directors giving effect to such
designation and an Officers' Certificate certifying that such designation
complied with the foregoing conditions.
"Vice President", when used with respect to the Company or the
Trustee, means any vice president, whether or
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not designated by a number or a word or words added before or after the title
"vice president".
"Voting Stock" of any Person means Capital Stock of such Person which
ordinarily has voting power for the election of directors (or persons performing
similar functions) of such Person, whether at all times or only so long as no
senior class of securities has such voting power by reason of any contingency.
"Wholly Owned Subsidiary" of any Person means a Subsidiary of such
Person all of the outstanding Capital Stock or other ownership interests of
which (other than directors' qualifying shares) shall at the time be owned by
such Person or by one or more Wholly Owned Subsidiaries of such Person or by
such Person and one or more Wholly Owned Subsidiaries of such Person. For
purposes of this definition, AMETEK Hong Kong shall be deemed to be a Wholly
Owned Subsidiary of the Company so long as the Company owns, directly or
indirectly, at least 98% of the outstanding capital stock and voting interests
thereof.
SECTION 102. 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 such certificates and opinions as may be required under the Trust
Indenture Act. Each such certificate or opinion shall be given in the form of
an Officers' Certificate, if to be given by an officer of the Company, or an
Opinion of Counsel, if to be given by counsel, and shall comply with the
requirements of the Trust Indenture Act and any other requirement set forth in
this Indenture.
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 examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
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(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 103. 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.
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SECTION 104. Acts of Holders; Record Date.
----------------------------
(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 601) 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 Company may, in the circumstances permitted by the Trust
Indenture Act, fix any day as the record date for the purpose of determining the
Holders entitled to give or take any request, demand, authorization, direction,
notice, consent, waiver or other action, or to vote on any action, authorized or
permitted to be given or taken by Holders. If not set by the Company prior to
the first solicitation of a Holder made by any Person in respect of any such
action, or, in the case of any such vote, prior to such vote, the record date
for any such action or vote shall be the 30th day (or, if later, the date of the
most recent list of Holders required to be provided pursuant to Section 701)
prior to such first solicitation or vote, as the case may be. With regard to
any record date, only the Holders on such date (or their duly designated
proxies)
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shall be entitled to give or take, or vote on, the relevant action.
(d) The ownership of Securities shall be proved by the Security
Register.
(e) 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 105. 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, Attention: Adminis-
tration, or
(2) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if
in writing and mailed, firstclass postage prepaid, to the Company
addressed to it at the address of its principal office specified in the
first paragraph of this instrument or at any other address previously
furnished in writing to the Trustee by the Company.
SECTION 106. 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, firstclass 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 (if
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any), and not earlier than the earliest date (if any), 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 107. Conflict with Trust Indenture Act.
---------------------------------
If any provision hereof limits, qualifies or conflicts with a
provision of the Trust Indenture Act that is required under such Act to be part
of and govern this Indenture, the latter provision shall control. If any
provision of this Indenture modifies or excludes any provision of the Trust
Indenture Act that may be so modified or excluded, the latter provision shall be
deemed to apply to this Indenture as so modified or to be excluded, as the case
may be.
SECTION 108. 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 109. Successors and Assigns.
----------------------
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
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<PAGE>
SECTION 110. 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 111. 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 and the Holders of Securities, any benefit or any legal or equitable
right, remedy or claim under this Indenture.
SECTION 112. 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 113. Legal Holidays.
--------------
In any case where any Interest Payment Date, Redemption Date, Purchase
Date or Stated Maturity of any Security shall not be a Business Day, then
(notwithstanding any other provision of this Indenture or of the Securities)
payment of interest or principal (and premium, if any) need not be made on such
date, but may be made on the next succeeding Business Day with the same force
and effect as if made on the Interest Payment Date, Redemption Date or Purchase
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 Purchase
Date or Stated Maturity, as the case may be.
ARTICLE TWO
Security Forms
SECTION 201. Forms Generally.
---------------
The Securities and the Trustee's certificates of authentication shall
be in substantially the forms set forth in this Article, with such appropriate
insertions, omissions, substitutions and other variations as are required or
-25-
<PAGE>
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, consis-
tently herewith, be determined by the officers executing such Securities, as
evidenced by their execution of the Securities.
The definitive Securities shall be printed, lithographed or engraved
or produced by any combination of these methods on steel engraved borders or may
be produced in any other manner permitted by the rules of any securities
exchange on which the Securities may be listed, all as determined by the
officers executing such Securities, as evidenced by their execution of such
Securities.
SECTION 202. Form of Face of Security.
------------------------
9 3/4% SENIOR NOTES DUE 2004
No. __________ $ ________
AMETEK, Inc., a corporation duly organized and existing under the laws
of Delaware (herein called the "Company", which term includes any successor
Person under the Indenture hereinafter referred to), for value received, hereby
promises to pay to __________________, or registered assigns, the principal sum
of _____________________ Dollars on March 15, 2004, and to pay interest thereon
from March 21, 1994 or from the most recent Interest Payment Date to which
interest has been paid or duly provided for, semiannually on March 15 and
September 15 in each year, commencing September 15, 1994, at the rate of 9 3/4%
per annum, until the principal hereof is paid or made available for payment, and
(to the extent that the payment of such interest shall be legally enforceable)
at the rate of 11 3/4% per annum on any overdue principal and premium and on any
overdue installment of interest until paid. 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 March 1 or
September 1 (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
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<PAGE>
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 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 may be listed, and upon such
notice as may be required by such exchange, all as more fully provided in said
Indenture.
Payment of the principal of (and premium, if any) and interest 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, New York in such coin
or currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts; 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.
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:
AMETEK, Inc.
[Seal]
By__________________
Title:
Attest:
______________________________
Title:
-27-
<PAGE>
SECTION 203. Form of Reverse of Security.
---------------------------
This Security is one of a duly authorized issue of Securities of the
Company designated as its 9 3/4% Senior Notes due 2004 (herein called the
"Securities"), limited in aggregate principal amount to $150,000,000, issued and
to be issued under an Indenture, dated as of March 15, 1994 (herein called the
"Indenture"), between the Company and CoreStates Bank, N.A., 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.
The Securities are subject to redemption upon not less than 30 nor
more than 60 days' notice by mail, at any time on or after March 15, 1999, 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 during
the 12 month period beginning March 15 of the years indicated,
<TABLE>
<CAPTION>
Year Redemption
---- Price
----------
<S> <C>
1999 104.8750%
2000 102.4375%
2001 and thereafter 100.0000%
</TABLE>
together in the case of any such redemption with accrued 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.
The Securities do not have the benefit of any sinking fund
obligations.
In the event of redemption or purchase pursuant to an Offer to
Purchase of this Security in part only, a new Security or Securities for the
unredeemed or unpurchased portion hereof will be issued in the name of the
Holder, or the Person designated by such Holder, hereof upon the cancellation
hereof.
-28-
<PAGE>
If an Event of Default shall occur and be continuing, the principal
of all the Securities may be declared due and payable in the manner and with the
effect provided in the Indenture.
The Indenture provides that if a Change of Control occurs the Company
shall be required to make an Offer to Purchase all of the Securities.
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 under the Indenture at
any time by the Company and the Trustee with the consent of the Holders of a
majority in aggregate principal amount of the Securities at the time
Outstanding. The Indenture also contains provisions permitting the Holders of
specified percentages in aggregate principal amount of the Securities at the
time Outstanding, on behalf of the Holders of all the Securities, 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 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 the Borough of Manhattan, The City of New
York, New York 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 authorized denominations and for the
same aggregate principal amount, will be issued to the designated transferee or
transferees.
-29-
<PAGE>
The Securities are issuable only in registered form without coupons in
denominations of $1,000 and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth, Securities are
exchangeable for a like aggregate principal amount of Securities 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.
Interest on this Security shall be computed on the basis of a 360
day year of twelve 30 day months.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
The Indenture and this Security shall be governed by and construed
in accordance with the laws of the State of New York.
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased in its entirety
by the Company pursuant to Section 1015, of the Indenture, check the box:
[ ]
If you want to elect to have only a part of this Security purchased by
the Company pursuant to Section 1015, of the Indenture, state the amount: $
Dated: Your Signature:____________________
(Sign exactly as name appears
on the other side of this Security)
Signature Guarantee:___________________________________
-30-
<PAGE>
(Signature must be guaranteed by
a member firm of the New York Stock
Exchange or a commercial bank or
trust company)
SECTION 204. Form of Trustee's Certificate of
--------------------------------
Authentication.
--------------
This is one of the Securities referred to in the within mentioned
Indenture.
Corestates Bank, N.A.
------------------------
as Trustee
By ___________________
Authorized Signor
ARTICLE THREE
The Securities
SECTION 301. Title and Terms.
---------------
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is limited to $150,000,000,
except for Securities authenticated and delivered upon registration of transfer
of, or in exchange for, or in lieu of, other Securities pursuant to Section 304,
305, 306, 906 or 1108 or in connection with an Offer to Purchase pursuant to
Section 1015.
The Securities shall be known and designated as the "9 3/4% Senior
Notes due 2004" of the Company. Their Stated Maturity shall be March 15, 2004
and they shall bear interest at the rate of 9 3/4% per annum, from March 21,
1994 or from the most recent Interest Payment Date to which interest has been
paid or duly provided for, as the case may be, payable semiannually on March 15
and September 15, commencing September 15, 1994, until the principal thereof is
paid or made available for payment.
The principal of (and premium, if any) and interest on the Securities
shall be payable at the office or agency of the Company in the Borough of
Manhattan, The City of New York, New York maintained for such purpose and at any
other office or agency maintained by the Company for such purpose; provided,
--------
however, that at the option of the
- - -------
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<PAGE>
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 Company shall make all payments of principal (and premium, if any)
and interest on the Securities in immediately available funds.
The Securities shall be subject to repurchase by the Company pursuant
to an Offer to Purchase as provided in Section 1015.
The Securities shall be redeemable as provided in Article Eleven.
SECTION 302. Denominations.
-------------
The Securities shall be issuable only in registered form without
coupons and only in denominations of $1,000 and any integral multiple thereof.
SECTION 303. Execution, Authentication, Delivery
-----------------------------------
and Dating.
----------
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, its President or one of its Vice Presidents, under its
corporate seal reproduced thereon attested by its Secretary or one of its
Assistant Secretaries. The signature of any of these officers on the Securities
may be manual or facsimile.
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 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 such Company Order shall authenticate and deliver such Securities as in
this Indenture provided and not otherwise.
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<PAGE>
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.
SECTION 304. Temporary Securities.
--------------------
Pending the preparation of definitive Securities, 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 are issued, the Company will cause definitive
Securities to be prepared without unreasonable delay. After the preparation of
definitive Securities, the temporary Securities shall be exchangeable for
definitive Securities upon surrender of the temporary Securities at any office
or agency of the Company designated pursuant to Section 1002, without charge to
the Holder. Upon surrender for cancellation of any one or more temporary
Securities the Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a like principal amount of definitive Securities
of authorized denominations. Until so exchanged the temporary Securities shall
in all respects be entitled to the same benefits under this Indenture as
definitive Securities.
SECTION 305. 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 designated pursuant to Section 1002 being herein sometimes
collectively referred to as the "Security Register") in which, subject to such
reasonable regulations as it may
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<PAGE>
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 at an
office or agency of the Company designated pursuant to Section 1002 for such
purpose, 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 any authorized denominations and of a like aggregate principal
amount.
At the option of the Holder, Securities may be exchanged for other
Securities 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 Section 304, 906 or 1108 or in accordance with any Offer
to Purchase pursuant to Section 1015 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer
of or exchange any Security during a period beginning at the opening of business
15 days before the day of the mailing of a notice of redemption of Securi-
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<PAGE>
ties selected for redemption under Section 1104 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 306. 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 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 like tenor and principal amount and bearing a number
not contemporaneously outstanding.
If after the delivery of such new Security, a bona fide purchaser of
the original Security in lieu of which such new Security was issued presents for
payment such original Security, the Company and the Trustee shall be entitled to
recover such new Security from the person to whom it was delivered or any
transferee thereof, except a bona fide purchaser, and shall be entitled to
recover upon the security or indemnity provided therefor to the extent of any
loss, damage, cost or expense incurred by the Company or the Trustee in
connection therewith.
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.
-35-
<PAGE>
Every new Security 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 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 307. 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 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 (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 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
-36-
<PAGE>
proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this
Clause provided. Thereupon the Trustee shall fix a Special Record Date for
the payment of such Defaulted Interest which shall be not more than 15 days
and not less than 10 days prior to the date of the proposed payment and
not less than 10 days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Company of such
Special Record Date and, in the name and at the expense of the Company,
shall cause notice of the proposed payment of such Defaulted Interest and
the Special Record Date therefor to be mailed, first class postage prepaid,
to each Holder 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 (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 in any
other lawful manner not inconsistent with the requirements of any
securities exchange on which the 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.
-37-
<PAGE>
SECTION 308. 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 307) interest 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 309. Cancellation.
------------
All Securities surrendered for payment, redemption, registration of
transfer or exchange or any Offer to Purchase pursuant to Section 1015 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 whatso-
ever, 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 in accordance with the Trustee's customary practices unless
otherwise directed by a Company Order.
SECTION 310. Computation of Interest.
-----------------------
Interest on the Securities shall be computed on the basis of a 360-day
year of twelve 30-day months.
ARTICLE FOUR
Satisfaction and Discharge
SECTION 401. Satisfaction and Discharge of Indenture.
---------------------------------------
This Indenture shall 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, on demand of and at the expense of
-38-
<PAGE>
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 306 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 1003) 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,
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 that purpose an amount 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 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;
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<PAGE>
(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 pursuant to
this Article Four, the obligations of the Company to the Trustee under Section
607 and, if money shall have been deposited with the Trustee pursuant to sub-
clause (B) of Clause (1) of this Section, the obligations of the Trustee under
Section 402 and the last paragraph of Section 1003 shall survive.
SECTION 402. Application of Trust Money.
--------------------------
Subject to the provisions of the last paragraph of Section 1003, all
money deposited with the Trustee pursuant to Section 401 shall be held in trust
(without liability for the payment of interest thereon or the investment
thereof) 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 deter-
mine, to the Persons entitled thereto, of the principal (and premium, if any)
and interest for whose payment such money has been deposited with the Trustee.
ARTICLE FIVE
Remedies
SECTION 501. Events of Default.
-----------------
"Event of Default", wherever used herein, 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):
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<PAGE>
(1) default in the payment of the principal of (or premium, if any,
on) any Security at its Maturity; or
(2) default in the payment of any interest upon any Security when it
becomes due and payable, and continuance of such default for a period of 30
days; or
(3) default, on the applicable Purchase Date, in the purchase of
Securities required to be purchased by the Company pursuant to an Offer to
Purchase as to which an Offer has been mailed to Holders; or
(4) default in the performance, or breach, of Section 801; or
(5) 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), and continuance of such default or
breach for a period of 30 days after there has been given, by registered or
certified mail, to the Company by the Trustee or to the Company and the
Trustee by the Holders of at least 25% in principal amount of the
Outstanding 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
(6) a default or defaults under any bond(s), debenture(s), note(s) or
other evidence(s) of Debt for money borrowed by the Company or any
Significant Subsidiary of the Company or under any mortgage(s),
indenture(s) or instrument(s) under which there may be issued or by which
there may be secured or evidenced any Debt of such type by the Company or
any such Significant Subsidiary with a principal amount then outstanding,
individually or in the aggregate, in excess of $10 million, whether such
Debt now exists or shall hereafter be created, which default or defaults
shall constitute a failure to pay any portion of the principal of such
Debt when due at the final maturity of such Debt
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or shall have resulted in such Debt becoming or being declared due and
payable prior to the date on which it would otherwise have become due and
payable, which acceleration remains uncured for 10 days; or
(7) a final judgment or final judgments for the payment of money are
entered against the Company or any Significant Subsidiary of the Company in
an aggregate amount in excess of $10 million by a court or courts of compe-
tent jurisdiction, which judgments remain undischarged or unbonded for a
period (during which execution shall not be effectively stayed) of 60 days
after the right to appeal all such judgments has expired; or
(8) the entry by a court having jurisdiction in the premises of (A)
a decree or order for relief in respect of the Company or any Significant
Subsidiary 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 or any such
Significant Subsidiary a bankrupt or insolvent, or approving as properly
filed a petition seeking reorganization, arrangement, adjustment or
composition of or in respect of the Company or any such Significant
Subsidiary under any applicable Federal or State law, or appointing a
custodian, receiver, liquidator, assignee, trustee, sequestrator or other
similar official of the Company or any such Significant Subsidiary or of
any substantial part of the property of the Company or any such Signifi-
cant Subsidiary, or ordering the winding up or liquidation of the affairs
of the Company or any such Significant Subsidiary, 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 60 consecutive days; or
(9) the commencement by the Company or any Significant Subsidiary of
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
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adjudicated a bankrupt or insolvent, or the consent by the Company or any
such Significant Subsidiary to the entry of a decree or order for relief
in respect of the Company or any Significant Subsidiary 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 the
Company or any Significant Subsidiary of the Company, or the filing by the
Company or any such Significant Subsidiary of a petition or answer or
consent seeking reorganization or relief under any applicable Federal or
State law, or the consent by the Company or any such Significant Subsidiary
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 any Significant
Subsidiary of the Company or of any substantial part of the property of the
Company or any Significant Subsidiary of the Company, or the making by the
Company or any Significant Subsidiary of the Company of an assignment for
the benefit of creditors, or the admission by the Company or any such
Significant Subsidiary in writing of its inability to pay its debts
generally as they become due, or the taking of corporate action by the
Company or any such Significant Subsidiary in furtherance of any such
action.
SECTION 502. Acceleration of Maturity; Rescission
------------------------------------
and Annulment.
-------------
If an Event of Default (other than an Event of Default specified
in Section 501(8) or (9)) occurs and is continuing, then and in every
such case the Trustee or the Holders of not less than 25% in principal
amount of the Outstanding Securities may declare the principal of all the
Securities 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 and any accrued interest shall become immediately due and
payable. If an Event of Default specified in Section 501(8) or (9) occurs,
the principal of and any accrued interest on the Securities then Outstanding
shall ipso facto become immedi-
---- -----
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ately due and payable without any declaration or other Act on the part of the
Trustee or any Holder.
At any time after such a declaration of acceleration 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, 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 on all Securities,
(B) the principal of (and premium, if any, on) any Securities
which have become due otherwise than by such declaration of
acceleration (including any Securities required to have been pur
chased on the Purchase Date pursuant to an Offer to Purchase made by
the Company) and, to the extent that payment of such interest is
lawful, interest thereon at the rate provided by the Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate provided by the Securities,
and
(D) all sums paid or advanced by the Trustee hereunder and all
amounts owing under Section 607;
and
(2) all Events of Default, other than the nonpayment of the
principal of Securities which have become due solely by such declaration
of acceleration, have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
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SECTION 503. 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 or, with respect to any
Security required to have been purchased pursuant to an Offer to Purchase
made by the Company, at the Purchase Date 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, 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
provided by the Securities, and, in addition thereto, such further amount as
shall be sufficient to cover the costs and expenses of collection and all
amounts owing the Trustee under Section 607.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon the 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 the Securities, wherever
situated.
If an Event of Default occurs and is continuing, the Trustee may in
its discretion proceed to protect and enforce its rights and the rights of the
Holders 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.
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SECTION 504. Trustee May File Proofs of Claim.
--------------------------------
In case of any judicial proceeding relative to the Company (or any
other obligor upon the Securities), its property or its creditors, the Trustee
shall be entitled and empowered, by intervention in such proceeding or
otherwise, to take any and all actions authorized under the Trust Indenture Act
in order to have claims of the Holders and the Trustee allowed in any such
proceeding. In particular, the Trustee shall be authorized 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 all amounts due it under
Section 607.
No provision of this Indenture 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 505. 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 all amounts owing the Trustee under Section
607, be for the ratable benefit of the Holders of the Securities in respect of
which such judgment has been recovered.
SECTION 506. 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
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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
607; and
SECOND: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest on the Securities in
respect of which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind, according to the
amounts due and payable on such Securities for principal (and premium, if
any) and interest, respectively.
SECTION 507. Limitation on Suits.
-------------------
No Holder of any Security shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities 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;
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it being understood and intended that no one or more 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 Holders,
or to obtain or to seek to obtain priority or preference over any other Holders
or to enforce any right under this Indenture, except in the manner herein
provided and for the equal and ratable benefit of all the Holders.
SECTION 508. 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 Sec-
tion 307) interest on such Security on the respective Stated Maturities
expressed in such Security (or, in the case of redemption, on the Redemption
Date or, in the case of an Offer to Purchase made by the Company and required to
be accepted as to such Security, on the Purchase 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 509. 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 510. 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 306, 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
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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 511. Delay or Omission Not Waiver.
----------------------------
No delay or omission of the Trustee or of any Holder of any 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 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 512. Control by Holders.
------------------
The Holders of a majority in principal amount of the Outstanding
Securities 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, provided that
--------
(1) such direction shall not be in conflict with any rule of law or
with this Indenture,
(2) the Trustee may, but shall not be obligated, to take any other
action deemed proper by the Trustee which is not inconsistent with such
direction, and
(3) such direction shall not involve the Trustee in personal
liability or be unjustly prejudicial to Holders not joining therein (it
being understood that the Trustee shall have no responsibility to determine
such prejudice).
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SECTION 513. Waiver of Past Defaults.
-----------------------
The Holders of not less than a majority in principal amount of the
Outstanding Securities may on behalf of the Holders of all the Securities waive
any past default hereunder and its consequences, except a default
(1) in the payment of the principal of (or premium, if any) or
interest on any Security (including any Security which is required to have
been purchased pursuant to an Offer to Purchase which has been made by the
Company), 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 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 514. Undertaking for Costs.
---------------------
In any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken, suffered or
omitted by it as Trustee, a court may require any party litigant in such suit to
file an undertaking to pay the costs of such suit, and may assess costs against
any such party litigant, in the manner and to the extent provided in the Trust
Indenture Act; provided, that neither this Section nor the Trust Indenture Act
--------
shall be deemed to authorize any court to require such an undertaking or to make
such an assessment in any suit instituted by the Trustee or the Holders of at
least 10% in aggregate principal amount of Outstanding Securities.
SECTION 515. Waiver of Stay or Extension Laws.
--------------------------------
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the
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covenants or the performance of this Indenture; and the Company (to the extent
that it may lawfully do so) hereby expressly waives all benefit or advantage of
any such law and covenants that it will not hinder, delay or impede the
execution of any power herein granted to the Trustee, but will suffer and permit
the execution of every such power as though no such law had been enacted.
ARTICLE SIX
The Trustee
SECTION 601. Certain Duties and Responsibilities.
-----------------------------------
The duties and responsibilities of the Trustee shall be as provided by
the Trust Indenture Act. Notwithstanding the foregoing, 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. 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 602. Notice of Defaults.
------------------
The Trustee shall give the Holders notice of any default hereunder as
and to the extent provided by the Trust Indenture Act; provided, however, that
-------- -------
in the case of any default of the character specified in Section 501(5), 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.
SECTION 603. Certain Rights of Trustee.
-------------------------
Subject to the provisions of Section 601:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
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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 advice of such
counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(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
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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 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 604. 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 the Trustee assumes no responsibility for their correctness.
The Trustee makes no representations as to the validity, enforceability against
the Company or sufficiency of this Indenture or of the Securities. The Trustee
shall not be accountable for the use or application by the Company of Securities
or the proceeds thereof.
SECTION 605. May Hold Securities.
-------------------
The Trustee, 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 608 and 613, may other-
wise deal with the Company with the same rights it would have if it were not
Trustee, Paying Agent, Security Registrar or such other agent.
SECTION 606. 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 or investment of any money received by it
hereunder except as otherwise agreed with the Company and any such interest or
investment shall be for the exclusive benefit of the Company.
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SECTION 607. Compensation and Reimbursement.
------------------------------
The Company agrees
(1) to pay to the Trustee from time to time reasonable compensation
for all services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee
of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision
of this Indenture (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except to the extent any such
expense, disbursement or advance may be attributable to its negligence or
bad faith; and
(3) to indemnify the Trustee for, and to defend and hold it harmless
against, any loss, liability or expense, arising out of or in connection
with the acceptance or administration of this trust or the performance of
its duties 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, except to the extent
any such loss, liability or expense is attributable to its negligence or
bad faith.
To secure the Company's payment of obligations in this Section 607,
the Trustee shall have a lien prior to the Securities on all money or property
held or collected by the Trustee other than money or property held in trust to
pay principal of, premium, if any, and interest on the Securities.
The Company's payment obligations pursuant to this Section 607 shall
survive the discharge of this Indenture.
"Trustee" for purposes of this Section 607 includes the Trustee, every
predecessor Trustee, any Paying Agent, Security Registrar or other agent of the
Company appointed hereunder, but the negligence or bad faith of any
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such person shall not affect the rights of any other such person under this
Section 607.
SECTION 608. Disqualification; Conflicting Interests.
---------------------------------------
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the 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 Indenture.
SECTION 609. Corporate Trustee Required; Eligibility.
---------------------------------------
There shall at all times be a Trustee hereunder which 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 such Person
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 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 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 610. 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 under Section 611.
(b) The Trustee may resign at any time by giving written notice
thereof to the Company. If an instrument of acceptance by a successor Trustee
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.
(c) The Trustee may be removed at any time by Act of the Holders of a
majority in principal amount of the Outstanding Securities, delivered to the
Trustee and to the Company.
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(d) If at any time:
(1) the Trustee shall fail to comply with Section 608 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 609 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, or (ii) subject to Section 514, 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 and the appointment of a successor Trustee.
(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, the
Company, by a Board Resolution, shall promptly appoint a successor Trustee. If,
within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding Securities
delivered to the Company and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment, become the
successor Trustee and supersede the successor Trustee appointed by the Company.
If no successor Trustee shall have been so appointed by the Company or the
Holders and accepted appointment in the manner hereinafter provided, 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 appointment of a successor Trustee.
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(f) The Company shall give notice of each resignation and each
removal of the Trustee and each appointment of a successor Trustee to all
Holders in the manner provided in Section 106. Each notice shall include the
name of the successor Trustee and the address of its Corporate Trust Office.
SECTION 611. Acceptance of Appointment by Successor.
--------------------------------------
Every successor Trustee appointed hereunder 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 request of the Company or the suc-
cessor 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. 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.
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 612. 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
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authenticated with the same effect as if such successor Trustee had itself
authenticated such Securities.
SECTION 613. Preferential Collection
-----------------------
of Claims Against Company.
-------------------------
If and when the Trustee shall be or become a creditor of the Company
(or any other obligor upon the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Company (or any such other obligor).
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
SECTION 701. Company to Furnish Trustee
--------------------------
Names and Addresses of Holders.
------------------------------
The Company will furnish or cause to be furnished to the Trustee
(a) semi-annually, not more than 15 days after each Regular Record
Date, 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, 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;
excluding from any such list names and addresses received by the Trustee in its
- - ---------
capacity as Security Registrar.
SECTION 702. 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 701 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list
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furnished to it as provided in Section 701 upon receipt of a new list so
furnished.
(b) The rights of Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Securities and the
corresponding rights and duties of the Trustee, shall be provided by the Trust
Indenture Act.
(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 any
disclosure of information as to the names and addresses of Holders made pursuant
to the Trust Indenture Act.
SECTION 703. Reports by Trustee.
------------------
(a) The Trustee shall transmit to Holders such reports, if any,
concerning the Trustee and its actions under this Indenture as may be required
pursuant to the Trust Indenture Act at the times and in the manner provided
pursuant thereto; provided, that reports pursuant to Section 313(a) of the
--------
Trust Indenture Act, if any, shall be transmitted on or before each July 15 and
dated as of the preceding May 15.
(b) 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 the Securities are listed, with the Commission and with the Company. The
Company will notify the Trustee when the Securities are listed on any stock
exchange.
SECTION 704. Reports by Company.
------------------
The Company shall file with the Trustee and the Commission, and
transmit to Holders, such information, documents and other reports, and such
summaries thereof, as may be required pursuant to the Trust Indenture Act at the
times and in the manner provided pursuant to such Act; provided that any such
--------
information, documents or reports required to be filed with Commission pursuant
to Section 13 or 15(d) of the Exchange Act shall be filed with the Trustee
within 15 days after the same is so required to be filed with the Commission.
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ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
SECTION 801. Company May Consolidate,
------------------------
Etc., Only on Certain Terms.
---------------------------
The Company (a) shall not consolidate with or merge into any other
Person (other than a Wholly Owned Subsidiary); (b) shall not permit any other
Person (other than a Wholly Owned Subsidiary) to consolidate with or merge into
the Company; and (c) shall not, directly or indirectly, transfer, convey, sell,
lease or otherwise dispose of all or substantially all of its properties and
assets as an entirety unless, in any such transaction:
------
(1) immediately before and after giving effect to such transaction
and treating any Debt Incurred by the Company or a Subsidiary of the
Company as a result of such transaction as having been Incurred by the
Company or such Subsidiary at the time of such transaction, no Event of
Default, and no event which, after notice or lapse of time, or both, would
become an Event of Default, shall have happened and be continuing;
(2) in the case the Company shall consolidate with or merge into
another Person or shall directly or indirectly transfer, convey, sell,
lease or otherwise dispose of all or substantially all of its properties
and assets as an entirety, the Person formed by such consolidation or into
which the Company is merged or the Person which acquires by transfer,
conveyance, sale, lease or other disposition all or substantially all of
the properties and assets of the Company as an entirety (for purposes of
this Article Eight, a "Successor Company") shall be a corporation,
partnership or trust, shall be organized and validly existing under the
laws of the United States of America, any State thereof or the District of
Columbia and shall expressly assume by an indenture supplemental hereto
executed and delivered to the Trustee, in form satisfactory to the Trustee,
the due and punctual payment of the principal of (and premium, if any) and
interest on all the Securities and the performance of every
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covenant of this Indenture on the part of the Company to be performed or
observed;
(3) immediately after giving effect to such transaction, and treating
any Debt Incurred by the Company as a result of such transaction as having
been Incurred at the time of such transaction, the Company or the Successor
Company could Incur at least $1.00 of additional Debt in compliance with
the first paragraph of Section 1008;
(4) if, as a result of any such transaction, property and assets of
the Company would become subject to a Lien which would not be permitted by
Section 1011, the Company or, if applicable, the Successor Company, as the
case may be, shall take such steps as shall be necessary effectively to
secure the Securities equally and ratably with (or prior to) Debt secured
by such Lien; or
(5) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that such consolidation, merger,
conveyance, transfer, lease or acquisition and, if a supplemental indenture
is required in connection with such transaction, such supplemental
indenture, complies with this Article and that all conditions precedent
herein provided for relating to such transaction have been complied with,
and, with respect to such Officers' Certificate, setting forth the manner
of determination of the ability to Incur Debt in accordance with Clause (3)
of Section 801, the Company or, if applicable, of the Successor Company as
required pursuant to the foregoing.
SECTION 802. Successor Substituted.
---------------------
Upon any consolidation of the Company with, or merger of the Company
into, any other Person or any transfer, conveyance, sale, lease or other
disposition of all or substantially all of the properties and assets of the
Company as an entirety in accordance with Section 801, the Successor Company
shall succeed to, and be substituted for, and may exercise every right and power
of, the Company under this Indenture with the same effect as if such successor
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Person had been named as the Company herein, and thereafter, except in the case
of a lease, the predecessor Person shall be relieved of all obligations and
covenants under this Indenture and the Securities.
ARTICLE NINE
Supplemental Indentures
SECTION 901. Supplemental Indentures
-----------------------
Without Consent of Holders.
--------------------------
Without the consent of any Holders, the Company, when authorized by a
Board Resolution, and the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto, in form satisfactory to the
Trustee, for any of the following purposes:
(1) to evidence the succession of another Person 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, or to surrender any right or power herein conferred upon the
Company; or
(3) to secure the Securities pursuant to the requirements of Section
1012 or otherwise; or
(4) to comply with any requirements of the Commission in order to
effect and maintain the qualification of this Indenture under the Trust
Indenture Act; or
(5) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein, or to
make any other provisions with respect to matters or questions arising
under this Indenture which shall not be inconsistent with the provisions
of this Indenture, provided such action pursuant to this Clause (5) shall
--------
not adversely affect the interests of the Holders in any material respect.
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SECTION 902. Supplemental Indentures
-----------------------
with Consent of Holders.
-----------------------
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities, by Act of said Holders
delivered to the Company and the Trustee, the Company, when authorized by a
Board Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders 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 interest on, any Security, or reduce the principal amount thereof or the
rate of interest thereon, or any premium payable thereon, or change the
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, in the case of an Offer to Purchase which has been
made, on or after the applicable Purchase Date), or
(2) reduce the percentage in principal amount of the Outstanding
Securities, 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 513 or
Section 1018, 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, or
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(4) following the mailing of an Offer with respect to an Offer to
Purchase pursuant to Section 1015, modify the provisions of this Indenture
with respect to such Offer to Purchase in a manner adverse to such Holder.
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 903. 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 601) 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 904. 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 905. Conformity with Trust Indenture Act.
-----------------------------------
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act.
SECTION 906. Reference in Securities
-----------------------
to Supplemental Indentures.
--------------------------
Securities 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
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provided for in such supplemental indenture. If the Company shall so determine,
new Securities 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.
ARTICLE TEN
Covenants
SECTION 1001. Payment of Principal, Premium and
---------------------------------
Interest.
--------
The Company will duly and punctually pay the principal of (and
premium, if any) and interest on the Securities in accordance with the terms of
the Securities and this Indenture.
SECTION 1002. Maintenance of Office or Agency.
-------------------------------
The Company will maintain in the Borough of Manhattan, The City of New
York, New York an office or agency where Securities may be presented or
surrendered for payment, where Securities may be surrendered for registration
of transfer or exchange and where notices and demands to or upon the Company in
respect of the Securities 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 (in or outside the Borough of Manhattan, The City of New
York, New York) where the Securities 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 the Borough of
Manhattan, The City of New York, New York, for such purposes. The Company will
give prompt written notice to the
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Trustee of any such designation or rescission and of any change in the location
of any such other office or agency.
The Company initially designates (i) the office of the Trustee at
Marine Midland Bank, 140 Broadway, 12th Floor, Corporate Trust Operations, New
York, New York, and (ii) the Corporate Trust Office of the Trustee, as offices
or agencies for all the purposes referred to in this Section 1002 in accordance
with this Section 1002.
SECTION 1003. Money for Security
------------------
Payments to be Held in Trust.
----------------------------
If the Company shall at any time act as its own Paying Agent, it will,
on or before each due date of the principal of (and premium, if any) or interest
on any of the Securities, 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 so becoming due until such sums shall be paid to such Persons
or otherwise disposed of as herein provided and will promptly notify the Trustee
of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents, it will,
prior to each due date of the principal of (and premium, if any) or interest on
any Securities, 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 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 on Securities 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) in the making of any
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payment of principal (and premium, if any) or interest; and
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of (and premium, if
any) or interest on any Security and remaining unclaimed for two 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.
SECTION 1004. Existence.
---------
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its existence,
rights (charter and statutory) and franchises; provided, however, that the
-------- -------
Company shall not be required to preserve any such right or franchise if the
Board of Directors in good faith shall determine that the preservation thereof
is no longer desirable in the conduct of the business of the Company and that
the loss thereof is not disadvantageous in any material respect to the Holders.
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SECTION 1005. Maintenance of Properties.
-------------------------
The Company will cause all properties used or useful in the conduct of
its business or the business of any Subsidiary of the Company to be maintained
and kept in reasonably good condition, repair and working order and supplied
with all necessary equipment and will cause to be made all reasonably necessary
repairs, renewals, replacements, betterments and improvements thereof, all as
in the judgment of the Company may be necessary so that the business carried on
in connection therewith may be conducted at all times; provided, however, that
-------- -------
nothing in this Section shall prevent the Company from discontinuing the
operation or maintenance of any of such properties if such discontinuance is,
as determined by the Board of Directors in good faith, desirable in the conduct
of its business or the business of any Subsidiary and not disadvantageous in any
material respect to the Holders.
SECTION 1006. Payment of Taxes and Other Claims.
---------------------------------
The Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (1) all taxes, assessments and
governmental charges levied or imposed upon the Company or any of its
Subsidiaries or upon the income, profits or property of the Company or any of
its Subsidiaries, and (2) all lawful claims for labor, materials and supplies
which, if unpaid, might by law become a lien upon the property of the Company or
any of its Subsidiaries; provided, however, that the Company shall not be
-------- -------
required to pay or discharge or cause to be paid or discharged any such tax,
assessment, charge or claim whose amount, applicability or validity is being
contested in good faith by appropriate proceedings.
SECTION 1007. Maintenance of Insurance.
------------------------
The Company shall, and shall cause its Subsidiaries to, keep at all
times all of their properties which are of an insurable nature insured against
loss or damage with insurers believed by the Company to be responsible to the
extent that property of similar character is usually so insured by corporations
similarly situated and owning like properties in accordance with good business
practice. The Company shall, and shall cause its Subsidiaries to, use 100% of
the proceeds from any such insurance policy to repair, replace or otherwise
restore the property to which such proceeds relate or, to the extent that any
such proceeds are not used to repair, replace or otherwise restore such
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property (all such proceeds, "remaining proceeds"), to use at least 75% of
remaining proceeds to prepay outstanding Debt.
SECTION 1008. Limitation on Consolidated Debt.
-------------------------------
The Company shall not Incur any Debt unless, immediately after giving
------
effect to the Incurrence of such Debt and the receipt and application of the
proceeds thereof, the Consolidated Cash Flow Ratio for the last four full fiscal
quarters for which quarterly or annual financial statements are available next
preceding the Incurrence of such Debt, calculated on a pro forma basis as if
such Debt had been Incurred at the beginning of such four full fiscal quarters,
would be greater than 2.5 to 1 in the case of Incurrences during the period
ending March 15, 1996 and 3.0 to 1 in the case of Incurrences thereafter.
Notwithstanding the foregoing paragraph, the Company may Incur the
following Debt:
(i) Debt under the Credit Agreement in an aggregate principal amount
at any one time not to exceed $250 million, less principal payments
actually made by the Company on any term Debt facility under the Credit
Agreement (other than principal payments made in connection with or
pursuant to a refinancing or refunding of the Credit Agreement), and any
renewal, refinancing, refunding or extension thereof (or successive
renewals, refinancings, refundings or extensions thereof) in an amount
which, together with any amount remaining outstanding or available under
the Credit Agreement (or any renewal, refinancing, refunding or extension
thereof) immediately after such renewal, refinancing, refunding or
extension does not exceed the sum of (x) the amount of term loans
outstanding under the Credit Agreement (or any renewal, refinancing,
refunding or extension thereof) and (y) the amount outstanding or available
under any revolving credit facilities contained in the Credit Agreement (or
any renewal, refinancing, refunding or extension thereof) immediately prior
to such renewal, refinancing, refunding or extension, plus the amount of
any premium required to be paid in connection with such renewal,
refinancing, refunding or extension pursuant to the terms of the Debt
renewed, refinanced, refunded or extended and the expenses of the Company
Incurred in connection with such renewal, refinancing, refunding or
extension;
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(ii) Debt owed by the Company to any Wholly Owned Subsidiary of the
Company; provided, however, that for purposes of this Section 1008, upon
-------- -------
either (x) the transfer or other disposition by such Wholly Owned
Subsidiary of any Debt so permitted to a Person other than the Company or
another Wholly Owned Subsidiary of the Company or (y) the issuance (other
than directors' qualifying shares), sale, lease, transfer or other
disposition of shares of Capital Stock (including by consolidation or
merger) of such Wholly Owned Subsidiary to a Person other than the Company
or another such Wholly Owned Subsidiary, the provisions of this Clause (ii)
shall no longer be applicable to such Debt and such Debt shall be deemed to
have been Incurred at the time of such transfer or other disposition;
(iii) Debt in respect of letters of credit issued in the ordinary
course of the Company's business not to exceed $15 million at any one time
outstanding;
(iv) Debt under any Interest Rate, Currency or Commodity Protection
Agreements;
(v) Debt consisting of borrowings against the cash value of Corporate
Owned Life Insurance Policies;
(vi) renewals, refinancings, refundings or extensions of any
outstanding Debt Incurred in compliance with the first paragraph of this
Section 1008 or of the Securities; provided, however, that such Debt does
-------- -------
not exceed the principal amount of Debt so renewed, refinanced, refunded
or extended plus the amount of any premium required to be paid in
connection with such renewal, refinancing, refunding or extension pursuant
to the terms of the Debt renewed, refinanced, refunded or extended and the
expenses of the Company Incurred in connection with such renewal,
refinancing, refunding or extension; and provided further, that Debt the
-------- -------
proceeds of which are used to renew, refinance, refund or extend Debt which
is pari passu to the Securities or Debt which is subordinate in right of
---- -----
payment to the Securities shall only be permitted if (A) in the case of
any renewal, refinancing, refunding or extension of Debt which is pari
----
passu to the Securities, the renewal, refinancing, refunding or extension
-----
Debt is made pari passu to the Securities or subordinated to the Securi-
---- -----
ties, and, in the case of any renewal, refinancing, refunding or extension
of Debt which is subordinated to the Securities, the renewal, refinancing,
refunding or extension Debt constitutes Subordinated Debt and (B) in
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either case, the renewal, refinancing, refunding or extension Debt by its
terms, or by the terms of any agreement or instrument pursuant to which
such Debt is issued, (x) does not provide for payments of principal of such
Debt at the stated maturity thereof or by way of a sinking fund applicable
thereto or by way of any mandatory redemption, defeasance, retirement or
repurchase thereof by the Company (including any redemption, retirement or
repurchase which is contingent upon events or circumstances, but excluding
any retirement required by virtue of acceleration of such Debt upon any
event of default thereunder), in each case prior to the stated maturity of
the Debt being refinanced or refunded and (y) does not permit redemption or
other retirement (including pursuant to an offer to purchase made by the
Company) of such debt at the option of the holder thereof prior to the
final stated maturity of the Debt being refinanced or refunded, other than
a redemption or other retirement at the option of the holder of such Debt
(including pursuant to an offer to purchase made by the Company) which is
conditioned upon the change of control of the Company pursuant to provi-
sions substantially similar to those contained in Section 1015; and
(vii) Debt not otherwise permitted to be Incurred pursuant to clauses
(i) through (vi) above (which Debt may be Incurred under the Credit
Agreement or any renewal, refinancing, refunding or extension thereof),
which, together with any other outstanding Debt Incurred pursuant to this
clause (vii), has an aggregate principal amount not in excess of $35
million at any time outstanding.
SECTION 1009. Limitation on Subsidiary Debt and
---------------------------------
Preferred Stock.
---------------
The Company shall not permit any Subsidiary of the Company to Incur or
suffer to exist any Debt or issue any Preferred Stock except:
(i) Debt or Preferred Stock outstanding on the date of this
Indenture;
(ii) Guarantees of Debt of the Company under the Credit Agreement and
any renewal, refinancing, refunding or extension thereof permitted by
Clause (i) of Section 1008;
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(iii) Debt of a Foreign Subsidiary Incurred solely to fund such
Foreign Subsidiary's working capital requirements which, together with any
other outstanding Debt of such Foreign Subsidiary Incurred pursuant to this
Clause (iii), has an aggregate principal amount not in excess of the
greater of $20 million or 65% of the aggregate book value of receivables
and inventories of such Foreign Subsidiary at the time of Incurrence of
such Debt;
(iv) Debt Incurred or Preferred Stock issued to and held by the
Company or a Wholly Owned Subsidiary of the Company; provided, however,
-------- -------
that for purposes of this Sec-tion 1009, upon either (x) the transfer or
other disposition by the Company or such Wholly Owned Subsidiary of any
Debt so permitted to a Person other than the Company or another Wholly
Owned Subsidiary of the Company or (y) the issuance (other than directors'
qualifying shares), sale, lease, transfer or other disposition of shares of
Capital Stock (including by consolidation or merger) of such Wholly Owned
Subsidiary to a Person other than the Company or another such Wholly Owned
Subsidiary, the provisions of this Clause (iv) shall no longer be appli-
cable to such Debt and such Debt shall be deemed to have been Incurred at
the time of such transfer or other disposition;
(v) Debt Incurred or Preferred Stock issued by a Person prior to the
time (A) such Person became a Subsidiary of the Company, (B) such Person
merges into or consolidates with a Subsidiary of the Company or (C) another
Subsidiary of the Company merges into or consolidates with such Person (in
a transaction in which such Person becomes a Subsidiary of the Company),
which Debt or Preferred Stock was not Incurred or issued in anticipation of
such transaction and was outstanding prior to such transaction; provided,
---------
however, that the Company would be permitted to Incur such Debt in
-------
compliance with the first paragraph of Section 1008;
(vi) Debt secured by a Lien on real or personal property or
improvements thereon
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which Debt (a) constitutes all or a part of the purchase price of such
property or the cost of construction or improvement of such property or (b)
is Incurred prior to, at the time of or within 270 days after the acquisi-
tion of such property for the purpose of financing all or any part of the
purchase price or the cost of construction or improvement thereof and which
property was not owned by the Company and/or any Subsidiary of the Company
prior to such acquisition; provided, however, the Debt so secured does not
-------- -------
exceed the purchase price or the cost of construction or improvement of
such property and provided, further, that the Company would be permitted to
-------- -------
Incur such debt in compliance with the first paragraph of Section 1008;
(vii) Guarantees of Debt Incurred pursuant to Clause (vii) of Section
1008 above;
(viii) Debt under any Interest Rate, Currency or Commodity Protection
Agreement;
(ix) Guarantees of Debt under an Interest Rate Protection Agreement
Incurred pursuant to Clause (iv) of Section 1008, provided, however that
--------- -------
the Debt which is being hedged by such Interest Rate Protection Agreement
is Guaranteed by a Subsidiary of the Company;
(x) Debt or Preferred Stock which is exchanged for, or the proceeds of
which are used to refinance or refund, any Debt or Preferred Stock
permitted to be outstanding pursuant to Clauses (v) and (vi) hereof (or any
extension or renewal thereof), in an aggregate principal amount, in the
case of Debt, or liquidation preference, in the case of Preferred Stock,
not to exceed the principal amount or liquidation preference of the Debt
or Preferred Stock, respectively, so exchanged, refinanced or refunded plus
the amount of any premium required to be paid in connection with such
refinancing pursuant to the terms of the Debt refinanced and the expenses
of the Company or such Subsidiary Incurred in connection with such
refinancing
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and provided such refinancing or refunding Debt or Preferred Stock by its
terms, or by the terms of any agreement or instrument pursuant to which
such Debt or Preferred Stock is issued, (x) does not provide for payments
of principal or liquidation value at the stated maturity of such Debt or
Preferred Stock or by way of a sinking fund applicable to such Debt or
Preferred Stock or by way of any mandatory redemption, defeasance, retire-
ment or repurchase of such Debt or Preferred Stock by the Company
(including any redemption, retirement or repurchase which is contingent
upon events or circumstances, but excluding any retirement required by
virtue of acceleration of such Debt upon an event of default thereunder),
in each case prior to the stated maturity of the Debt or Preferred Stock
being refinanced or refunded and (y) does not permit redemption or other
retirement (including pursuant to an offer to purchase made by the Company)
of such Debt or Preferred Stock at the option of the holder thereof prior
to the stated maturity of the Debt or Preferred Stock being refinanced or
refunded, other than a redemption or other retirement at the option of the
holder of such Debt or Preferred Stock (including pursuant to an offer to
purchase made by the Company) which is conditioned upon the change of
control of the Company pursuant to provisions substantially similar to
those contained in Section 1015.
SECTION 1010. Limitation on Restricted Payments.
---------------------------------
The Company (i) shall not, directly or indirectly, declare or pay any
dividend, or make any distribution, of any kind or character (whether in cash,
property or securities) in respect of any class of its Capital Stock or to the
holders of any class of its Capital Stock, excluding any dividends or
distributions payable solely in shares of its Capital Stock (other than
Disqualified Stock) or in options, warrants or other rights to acquire its
Capital Stock (other than Disqualified Stock), (ii) shall not, and shall not
permit any Subsidiary of the Company, directly or indirectly, to purchase,
redeem or otherwise acquire or retire for value (a) any Capital Stock of the
Company or any Related Person of the Company or (b) any options, warrants or
rights to purchase or acquire shares of Capital Stock of the Company
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or any Related Person of the Company or any securities convertible or
exchangeable into shares of Capital Stock of the Company or any Related Person
of the Company, (iii) shall not make, or permit any Subsidiary of the Company to
make, any Investment (other than a Permitted Investment) in, or payment on a
Guarantee of any obligation of, any Unrestricted Subsidiary or any other Person
(other than (x) the Company, (y) a Subsidiary of the Company (or a Person that
becomes a Subsidiary as a result of such Investment) or (z) any other Affiliate
of the Company which is not a Related Person of the Company (or a Person that
becomes an Affiliate as a result of such Investment)), and (iv) shall not, and
shall not permit any Subsidiary of the Company to, redeem, defease (including,
but not limited to, legal or covenant defeasance), repurchase, retire or other-
wise acquire or retire for value prior to any scheduled maturity, repayment or
sinking fund payment, Debt of the Company which is subordinate in right of
payment to the Securities (the transactions described in Clauses (i) through
(iv) being referred to herein as "Restricted Payments"), if at the time
thereof:
(1) an Event of Default, or an event that with the lapse of time or
the giving of notice, or both, would constitute an Event of Default, shall
have occurred and is continuing, or
(2) upon giving effect to such Restricted Payment, the Company could
not Incur at least $1.00 of additional Debt in compliance with the first
paragraph of Section 1008, or
(3) upon giving effect to such Restricted Payment, the aggregate of
all Restricted Payments from the date of this Indenture exceeds the sum of:
(a) 50% of cumulative Consolidated Net Income of the Company (or, in
the case Consolidated Net Income of the Company shall be
negative, less 100% of such deficit) since January 1, 1994
through the last day of the last full fiscal quarter immediately
preceding such Restricted Payment for which quarterly or annual
financial statements of the Company are available; plus
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(b) 100% of the aggregate net proceeds after the date of this
Indenture, including the fair value of property other than cash
(determined in good faith by the Board of Directors and
evidenced by a Board Resolution), from the issuance (other than
to a Subsidiary of the Company) of Capital Stock (other than
Disqualified Stock) of the Company and options, warrants or
other rights on Capital Stock (other than Disqualified Stock)
of the Company and the principal amount (or accreted value of
Debt issued at a discount) of Debt of the Company that has been
converted into Capital Stock (other than Disqualified Stock) of
the Company after the date of the Indenture; plus
(c) 100% of the aggregate amount of all Restricted Payments that are
returned, without restriction, in cash to the Company or any
Subsidiary if and to the extent that such payments are not
included in Consolidated Net Income; plus
(d) $40 million; provided, however, that in the case of any
-------- -------
Restricted Payment described in Clauses (i) and (ii) above, the
amount referred to in this Clause 3(d) shall be $20 million;
(e) in the event that the Company does not pay an aggregate of $150
million or more to repurchase Common Stock of the Company
pursuant to the second succeeding paragraph, the amount which,
together with the amount paid to repurchase Common Stock pursuant
to the second succeeding paragraph, equals $150 million.
The foregoing provision shall not be violated by reason of the payment
of any dividend on Capital Stock of any class within 60 days after declaration
thereof if at the
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declaration date such payment would have complied with the foregoing provision.
Notwithstanding the foregoing, the Company may from time to time pay
up to $150 million in the aggregate from the date of this Indenture to
repurchase Common Stock of the Company pursuant to open market or privately
negotiated transactions, tender offers or otherwise, and such purchases shall
not be deemed Restricted Payments for purposes of calculating the aggregate
amount of all Restricted Payments pursuant to Clause (3) above.
SECTION 1011. Limitation on Liens.
-------------------
(a) The Company shall not, and shall not permit any Subsidiary of the
Company to, Incur any Lien upon any of its property or assets, now owned or
hereinafter acquired, to secure any Debt without making, or causing such
Subsidiary to make, effective provision for securing the Securities (and, if
the Company shall so determine, any other Debt of the Company which is not
subordinate to the Securities or of such Subsidiary) (x) equally and ratably
with such Debt as to such property for so long as such Debt shall be so secured
or (y) in the event such Debt is subordinate in right of payment to the
Securities, prior to such Debt as to such property or assets for so long as such
Debt shall be so secured.
The foregoing restrictions will not apply to Liens in respect of Debt
existing at the date of this Indenture or to:
(i) Liens in favor of the Company or a Wholly Owned Subsidiary of the
Company provided that upon the issuance (other than directors' qualifying
--------
shares), sale, lease, transfer or other disposition of shares of Capital
Stock (including by consolidation or merger) of such Wholly Owned
Subsidiary to a Person other than the Company or another Wholly Owned
Subsidiary, the provisions of this clause (i) shall no longer be applicable
to such Lien, and such Lien shall be deemed to have been Incurred at the
time of such transfer or other distribution;
(ii) Liens to secure Debt and other obligations under the Credit
Agreement and any renewal, refinancing, refunding or extension thereof,
provided, however, that
-------- -------
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the Incurrence of such Debt is permitted by Section 1008;
(iii) Liens securing only the Securities;
(iv) Liens on property of a Person existing at the time such Person
is merged into or consolidated with the Company or any Subsidiary of the
Company;
(v) Liens on property existing immediately at the time of
acquisition thereof (and not in anticipation of the financing of such
acquisition);
(vi) Liens to secure Debt Incurred for the purpose of financing all
or any part of the purchase price or the cost of construction or
improvement of the property subject to such Liens; provided, however, that
-------- -------
(a) the principal amount of any Debt secured by such a Lien does not exceed
100% of such purchase price or cost, (b) such Lien does not extend to or
cover any other property other than such item of property and any
improvements on such item and (c) the Incurrence of such Debt is permitted
by Section 1008 or 1009;
(vii) Liens to secure Debt and other obligations Incurred pursuant to
Clause (vii) of Section 1008;
(viii) Liens to secure Debt under an Interest Rate Protection
Agreement Incurred pursuant to Clause (iv) of Section 1008, provided,
---------
however that the Debt which is being hedged by such Interest Rate
-------
Protection Agreement is secured by a Lien;
(ix) Liens to secure Debt Incurred to renew, refinance, refund,
extend (or successive renewals, refinancings, refundings or extensions),
in whole or in part, Debt secured by any Lien referred to in the foregoing
Clauses (iii) to (vi) so long as such Lien does not extend to any other
property and the Debt so secured is not increased; and
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(x) Liens to secure Debt owing by the Company to a Wholly Owned
Subsidiary of the Company (provided that such Debt is at all times held by
a Person which is a Wholly Owned Subsidiary of the Company); provided,
however, that for purposes of this Section 1011 and Section 1012, upon
either (x) the transfer or other disposition of a Debt secured by a Lien so
permitted to a Person other than the Company or another Wholly Owned
Subsidiary of the Company or (y) the issuance (other than directors'
qualifying shares), sale, lease, transfer or other disposition of shares of
Capital Stock of any such Wholly Owned Subsidiary to a Person other than
the Company or another Wholly Owned Subsidiary of the Company, the
provisions of this Clause (x) shall no longer be applicable to such Lien
and such Lien shall be subject (if otherwise subject) to the requirements
of this Section 1011 without regard to this Clause (x).
(b) In addition to the foregoing, the Company and its Subsidiaries
may Incur a Lien to secure any Debt or enter into a Sale and Leaseback
Transaction, without securing the Securities equally and ratably with or prior
to such Debt, as the case may be, if the sum of (i) the amount of Debt secured
by a Lien entered into after the date of this Indenture and otherwise prohibited
by this Indenture and (ii) the Attributable Value of all Sale and Leaseback
Transactions entered into after the date of this Indenture and otherwise
prohibited by this Indenture does not exceed 5% of Consolidated Tangible Assets
of the Company at the time of Incurrence of such Lien or the entering into such
Sale and Leaseback Transaction.
SECTION 1012. Limitation on Sale and Leaseback Transactions.
---------------------------------------------
The Company shall not, and shall not permit any Subsidiary of the
Company to, enter into any Sale and Leaseback Transaction (except for a period
not exceeding 30 months) unless:
------
(1) the Company or such Subsidiary would be entitled to enter into
such Sale and Leaseback Transaction pursuant to the provisions of Section
1011(b) hereof without
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equally and ratably securing the Securities; or
(2) the Company or such Subsidiary applies or commits to apply within
60 days after the sale or transfer, an amount equal to the net proceeds of
the sale pursuant to the Sale and Leaseback Transaction to the permanent
repayment or reduction of outstanding Debt to the extent required or, to
the extent not so required, to the redemption of the Securities pursuant to
Article Eleven or, if the Securities are not redeemable, to the repayment
of other Company Debt which is pari passu to the Securities or Subsidiary
Debt or, if no such Debt is then outstanding, other Company Debt.
SECTION 1013. Limitations Concerning Distributions By Subsidiaries, etc.
----------------------------------------------------------
The Company shall not, and shall not permit any Subsidiary of the
Company to, suffer to exist any consensual encumbrance or restriction on the
ability of any Subsidiary of the Company (i) to pay, directly or indirectly,
dividends or make any other distributions in respect of its Capital Stock or pay
any Debt or other obligation owed to the Company or any other Subsidiary of the
Company; (ii) to make loans or advances to the Company or any Subsidiary of the
Company; or (iii) to transfer any of its property or assets to the Company,
except, in any such case, any encumbrance or restrictions:
(a) pursuant to any agreement in effect on the date of this Indenture
(including the Credit Agreement), or
(b) pursuant to an agreement relating to any Debt Incurred by such
Subsidiary prior to the date on which such Subsidiary was acquired by the
Company and outstanding on such date and not Incurred in anticipation of
becoming a Subsidiary, or
(c) pursuant to an agreement relating to any Debt Incurred pursuant to
Clause (vii) of Section 1008, or
(d) pursuant to an agreement effecting a renewal, refinancing,
refunding or exten-
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sion of Debt Incurred pursuant to an agreement referred to in Clause (a)
or (b) above; provided, however, that the provisions contained in such
-------- -------
renewal, refinancing, refunding or extension agreement relating to such
encumbrance or restriction are no more restrictive in any material respect
than the provisions contained in the agreement the subject thereof, as
determined in good faith by the Board of Directors and evidenced by a Board
Resolution, or
(e) in the case of a Foreign Subsidiary, pursuant to an agreement
governing the terms of any Debt to fund such Foreign Subsidiary's working
capital requirements permitted by clause (iii) of Section 1009, provided
--------
that such encumbrance or restriction relates only to the payment of
dividends or other cash distributions and, provided, further, that such
-------- -------
encumbrance or restriction does not, in the reasonable judgment of the
Board of Directors of the Company, impact the Company's ability to make all
payments when due on the Notes, as determined in good faith by the Board of
Directors of the Company and evidenced by a Board Resolution.
SECTION 1014. Limitation on Transactions with Affiliates.
------------------------------------------
The Company shall not, and shall not permit any Subsidiary of the
Company to, directly or indirectly, enter into any transaction or series of
related transactions (including, without limitation, the purchase, sale, lease
or exchange of property, the rendering of any service or the making of any loan
or advance) not in the ordinary course of business of the Company or such
Subsidiary with an Affiliate of the Company (other than the Company or a Wholly
Owned Subsidiary of the Company) involving aggregate consideration in excess of
$5 million unless
------
(i) the Board of Directors shall determine in its good faith judgment
and evidenced by a Board Resolution that:
(A) such transaction (or series of related transactions) is on terms
no less favorable to the Company or such Subsidiary than those that could
be obtained in a com-
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parable arm's length transaction with an entity that is not an Affiliate;
and
(B) such transaction (or series of related transactions) is in the
best interests of the Company or such Subsidiary; and
(ii) such transaction is approved by the independent members of the
Board of Directors of the Company in their good faith judgment as evidenced by
a Board Resolution.
SECTION 1015. Change of Control.
-----------------
(a) Upon the occurrence of a Change in Control, each Holder of a
Security shall have the right to have such Security repurchased by the Company
on the terms and conditions precedent set forth in this Section 1015 and this
Indenture. The Company shall, within 10 days following the date of the
consummation of a transaction resulting in a Change of Control, mail an Offer
with respect to an Offer to Purchase all Outstanding Securities at a purchase
price equal to 101% of their aggregate principal amount plus accrued interest to
the Purchase Date (provided, however, that installments of interest whose Stated
-------- -------
Maturity is on or prior to the Purchase 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 307). Each Holder shall be entitled to tender all or
any portion of the Securities owned by such Holder pursuant to the Offer to
Purchase, subject to the requirement that any portion of a Security tendered
must be tendered in an integral multiple of $1,000 principal amount.
(b) The Company and the Trustee shall perform their respective
obligations specified in the Offer for the Offer to Purchase. Prior to the
Purchase Date, the Company shall (i) accept for payment Securities or portions
thereof tendered pursuant to the Offer, (ii) deposit with the Paying Agent (or,
if the Company is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 1003) money sufficient to pay the purchase price of all
Securities or portions thereof so accepted and (iii) deliver or cause to be
delivered to the Trustee all Securities so accepted together with an Officers'
Certificate stating the Securities or portions thereof accepted for payment by
the Company. The Paying Agent shall promptly mail or deliver to Holders of
Securities so accepted payment in an amount equal to the purchase price, and the
Trustee shall promptly
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authenticate and mail or deliver to such Holders a new Security or Securities
equal in principal amount to any unpurchased portion of the Security surrendered
as requested by the Holder. Any Security not accepted for payment shall be
promptly mailed or delivered by the Company to the Holder thereof. The Company
shall publicly announce the results of the Offer on or as soon as practicable
after the Purchase Date.
(c) A "Change of Control" shall be deemed to have occurred in the
event that, after the date of this Indenture, either (A) any Person or any
Persons acting together which would constitute a "group" (a "Group") for
purposes of Section 13(d) of the Exchange Act, or any successor provision
thereto, together with any Affiliates or Related Persons thereof (other than an
employee benefit plan of the Company or any Subsidiary) that files a Schedule
13D or 14D1 under the Exchange Act disclosing that such Person or Group
beneficially owns (as defined in Rule 13d3 of the Exchange Act or any successor
provision thereto) at least 50% of the aggregate voting power of all classes of
Capital Stock of the Company entitled to vote generally in the election of
directors of the Company; or (B) any Person or Group, together with any
Affiliates or Related Persons thereof, shall succeed in having a sufficient
number of its or their nominees elected to the Board of Directors of the Company
such that such nominees, when added to any existing director remaining on the
Board of Directors of the Company after such election who is an Affiliate or
Related Person of such Group, shall constitute a majority of the Board of
Directors of the Company, provided that in no event shall any Continuing
Director be included in such majority, whether or not such Continuing Director
was nominated by such Person or Group or is an Affiliate or Related Person of
such Group. "Continuing Director" shall mean (i) any Person who is member of
the Board of Directors of the Company as of the date of this Indenture, at any
time that such Person is a member of the Board, or (ii) any Person who
subsequently becomes a member of the Board, at any time that such Person is a
member of the Board, provided that such Person's nomination for election or
election to the Board is recommended or approved by a majority of the Continuing
Directors.
SECTION 1016. Provision of Financial Information.
----------------------------------
Whether or not the Company is required to be subject to Section 13(a)
or 15(d) of the Exchange Act, or any successor provision thereto, the Company
shall file with the Commission, to the extent permitted, the annual reports,
quarterly reports and other documents which the Company
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would have been required to file with the Commission pursuant to such Section
13(a) or 15(d) or any successor provision thereto if the Company were so
required, such documents to be filed with the Commission on or prior to the
respective dates (the "Required Filing Dates") by which the Company would have
been required so to file such documents if the Company were so required. The
Company shall also in any event (a) within 15 days of each Required Filing Date
(i) transmit by mail to all Holders, as their names and addresses appear in the
Security Register, without cost to such Holders, and (ii) file with the Trustee
copies of the annual reports, quarterly reports and other documents which the
Company would have been required to file with the Commission pursuant to Section
13(a) or 15(d) of the Exchange Act or any successor provisions thereto if the
Company were required to be subject to such Sections and (b) if filing such
documents by the Company with the Commission is not permitted under the Exchange
Act, promptly upon written request supply copies of such documents to any
prospective Holder.
SECTION 1017. Statement by Officers as to Default; Compliance Certificates.
------------------------------------------------------------
(a) The Company will deliver to the Trustee, within 90 days after the
end of each fiscal year, and within 60 days after the end of each fiscal quarter
(other than the fourth fiscal quarter), of the Company ending after the date
hereof an Officers' Certificate, stating whether or not to the best knowledge of
the signers thereof the Company is in default in the performance and observance
of any of the terms, provisions and conditions of Section 801 or Sections 1004
to 1016, inclusive, and if the Company shall be in default, specifying all such
defaults and the nature and status thereof of which they may have knowledge.
(b) The Company shall deliver to the Trustee, as soon as possible and
in any event within 10 days after the Company becomes aware or should reasonably
become aware of the occurrence of an Event of Default or an event which, with
notice or the lapse of time or both, would constitute an Event of Default, an
Officers' Certificate setting forth the details of such Event of Default or
default, and the action which the Company proposes to take with respect thereto.
(c) The Company shall deliver to the Trustee within 90 days after the
end of each fiscal year a written statement by the Company's independent public
accountants stating (A) that their audit examination has included a
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review of the terms of this Indenture and the Securities as they relate to
accounting matters, and (B) whether, in connection with their audit
examination, any event which, with notice or the lapse of time or both, would
constitute an Event of Default has come to their attention and, if such a
default has come to their attention, specifying the nature and period of the
existence thereof.
SECTION 1018. Waiver of Certain Covenants.
---------------------------
The Company may omit in any particular instance to comply with any
covenant or condition set forth in Section 801 and Sections 1004 to 1015, if
before the time for such compliance the Holders of at least a majority in
principal amount of the Outstanding Securities shall, by Act of such Holders,
either waive such compliance in such instance or generally waive compliance with
such covenant or condition, but no such waiver shall extend to or affect such
covenant or condition except to the extent so expressly waived, and, until such
waiver shall become effective, the obligations of the Company and the duties of
the Trustee in respect of any such covenant or condition shall remain in full
force and effect; provided, however, with respect to an Offer to Purchase as to
-------- -------
which an Offer has been mailed, no such waiver may be made or shall be effective
against any Holder tendering Securities pursuant to such Offer, and the Company
may not omit to comply with the terms of such Offer as to such Holder.
ARTICLE ELEVEN
Redemption of Securities
SECTION 1101. Right of Redemption.
-------------------
The Securities may be redeemed at the election of the Company, as a
whole or from time to time in part, at any time on or after March 15, 1999 and
prior to maturity, at the Redemption Prices specified in the form of Security
hereinbefore set forth together with accrued interest to the Redemption Date.
SECTION 1102. Applicability of Article.
------------------------
Redemption of Securities at the election of the Company, as permitted
by any provision of this Indenture, shall be made in accordance with such
provision and this Article.
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<PAGE>
SECTION 1103. Election to Redeem; Notice to Trustee.
-------------------------------------
The election of the Company to redeem any Securities pursuant to
Section 1101 shall be evidenced by a Board Resolution. In case of any
redemption at the election of the Company of less than all the Securities, 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 to
be redeemed.
SECTION 1104. Selection by Trustee of Securities to Be Redeemed.
-------------------------------------------------
If less than all the Securities 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 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 $1,000 or any integral multiple thereof) of the principal amount of
Securities of a denomination larger than $1,000.
The Trustee shall promptly notify the Company and each Security
Registrar 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 1105. 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.
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All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price and any accrued interest,
(3) if less than all the Outstanding Securities 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 and any accrued
interest will become due and payable upon each such Security to be redeemed
and that interest thereon will cease to accrue on and after said date, and
(5) the place or places where such Securities are to be surrendered
for payment of the Redemption Price and any accrued interest.
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 1106. Deposit of Redemption Price.
---------------------------
Prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1003) 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.
SECTION 1107. Securities Payable on Redemption Date.
-------------------------------------
Notice of redemption having been given as afore-said, 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
interest) such Securities shall cease to bear
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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 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
307.
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 provided by the
Security.
SECTION 1108. Securities Redeemed in Part.
---------------------------
Any Security which is to be redeemed only in part shall be surrendered
at an office or agency of the Company designated for that purpose pursuant to
Section 1002 (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 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 TWELVE
Defeasance and Covenant Defeasance
SECTION 1201. Company's Option to Effect Defeasance or Covenant Defeasance.
------------------------------------------------------------
The Company may at its option by Board Resolution, at any time, elect
to have either Section 1202 or Section 1203 applied to the Outstanding
Securities upon compliance with the conditions set forth below in this Article
Twelve.
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<PAGE>
SECTION 1202. Defeasance and Discharge.
------------------------
Upon the Company's exercise of the option provided in Section 1201
applicable to this Section, the Company shall be deemed to have been discharged
from its obligations with respect to the Outstanding Securities on the date the
conditions set forth below are satisfied (hereinafter, "defeasance"). For this
purpose, such defeasance means that the Company shall be deemed to have paid and
discharged the entire indebtedness represented by the Outstanding Securities
and to have satisfied all its other obligations under such Securities and this
Indenture insofar as such Securities are concerned (and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging the
same), except for the following which shall survive until otherwise terminated
or discharged hereunder: (A) the rights of Holders of such Securities to
receive, solely from the trust fund described in Section 1204 and as more fully
set forth in such Section, payments in respect of the principal of (and premium,
if any) and interest on such Securities when such payments are due, (B) the
Company's obligations with respect to such Securities under Sections 304, 305,
306, 1002 and 1003, (C) the rights, powers, trusts, duties and immunities of the
Trustee hereunder and (D) this Article Twelve. Subject to compliance with this
Article Twelve, the Company may exercise its option under this Section 1202
notwithstanding the prior exercise of its option under Section 1203.
SECTION 1203. Covenant Defeasance.
-------------------
Upon the Company's exercise of the option provided in Section 1201
applicable to this Section, (i) the Company shall be released from its
obligations under Sections 1005 through 1015, inclusive, and Clauses (3) and (4)
of Section 801 and (ii) the occurrence of an event specified in Sections
501(3), 501(4) (with respect to Clauses (3) and (4) of Section 801), 501(5)
(with respect to any of Sections 1005 through 1015, inclusive), 501(6) and
501(7) shall not be deemed to be an Event of Default on and after the date the
conditions set forth below are satisfied (herein after, "covenant defeasance").
For this purpose, such covenant defeasance means that the Company may omit to
comply with and shall have no liability in respect of any term, condition or
limitation set forth in any such Section or Clause, whether directly or
indirectly by reason of any reference elsewhere herein to any such Section or
Clause or by reason of any reference in any such Section or Clause to any other
provision herein or in any other document, but the
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<PAGE>
remainder of this Indenture and such Securities shall be unaffected thereby.
SECTION 1204. Conditions to Defeasance or Covenant Defeasance.
-----------------------------------------------
The following shall be the conditions to application of either
Section 1202 or Section 1203 to the then Outstanding Securities:
(1) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements
of Section 609 who shall agree to comply with the provisions of this Arti-
cle Twelve applicable to it) as trust funds in trust for the purpose of
making the following payments, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of such Securities, (A)
money in an amount, or (B) U.S. Government Obligations which through the
scheduled payment of principal and interest in respect thereof in
accordance with their terms will provide, not later than one day before the
due date of any payment, money in an amount, or (C) a combination thereof,
sufficient, in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof delivered
to the Trustee, to pay and discharge, and which shall be applied by the
Trustee (or other qualifying trustee) to pay and discharge, the principal
of, premium, if any, and each instalment of interest on the Securities on
the Stated Maturity of such principal or instalment of interest in accor-
dance with the terms of this Indenture and of such Securities. For this
purpose, "U.S. Government Obligations" means securities that are (x) direct
obligations of the United States of America for the payment of which its
full faith and credit is pledged or (y) obligations of a Person controlled
or supervised by and acting as an agency or instrumentality of the United
States of America the payment of which is unconditionally guaranteed as a
full faith and credit obligation by the United States of America, which, in
either case, are not callable or
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<PAGE>
redeemable at the option of the issuer thereof, and shall also include a
depository receipt issued by a bank (as defined in Section 3(a)(2) of the
Securities Act of 1933, as amended) as custodian with respect to any such
U.S. Government Obligation or a specific payment of principal of or
interest on any such U.S. Government Obligation held by such custodian for
the account of the holder of such depository receipt, provided that (except
--------
as required by law) such custodian is not authorized to make any deduction
from the amount payable to the holder of such depository receipt from any
amount received by the custodian in respect of the U.S. Government
Obligation or the specific payment of principal of or interest on the U.S.
Government Obligation evidenced by such depository receipt.
(2) In the case of an election under Section 1202, the Company shall
have delivered to the Trustee an Opinion of Counsel stating that (x) the
Company has received from, or there has been published by, the Internal
Revenue Service a ruling, or (y) since the date of this Indenture there has
been a change in the applicable Federal income tax law, in either case to
the effect that, and based thereon such opinion shall confirm that, the
Holders of the Outstanding Securities will not recognize gain or loss for
Federal income tax purposes as a result of such deposit, defeasance and
discharge and will be subject to Federal income tax on the same amount, in
the same manner and at the same times as would have been the case if such
deposit, defeasance and discharge had not occurred.
(3) In the case of an election under Section 1203, the Company shall
have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of the Outstanding Securities will not recognize gain or loss for
Federal income tax purposes as a result of such deposit and covenant
defeasance and will be subject to Federal income tax on the same amount, in
the same manner and at the same times as would have
-91-
<PAGE>
been the case if such deposit and covenant defeasance had not occurred.
(4) The Company shall have delivered to the Trustee an Officer's
Certificate to the effect that the Securities, if then listed on any
securities exchange, will not be delisted as a result of such deposit.
(5) Such defeasance or covenant defeasance shall not cause the
Trustee to have a conflicting interest as defined in Section 608 and for
purposes of the Trust Indenture Act with respect to any securities of the
Company.
(6) No Event of Default or event which with notice or lapse of time
or both would become an Event of Default shall have occurred and be
continuing on the date of such deposit or, insofar as subsections 501(8)
and (9) are concerned, at any time during the period ending on the 121st
day after the date of such deposit (it being understood that this condition
shall not be deemed satisfied until the expiration of such period).
(7) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under, any other agreement
or instrument to which the Company is a party or by which it is bound.
(8) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to either the defeasance under Section 1202
or the covenant defeasance under Section 1203 (as the case may be) have
been complied with.
(9) Such defeasance or covenant defeasance shall not result in the
trust arising from such deposit constituting an investment company as
defined in the Investment Company Act of 1940, as amended, or such trust
shall be qualified under such act or exempt from regulation thereunder.
-92-
<PAGE>
SECTION 1205. Deposited Money and U.S. Government
-----------------------------------
Obligations to be Held in Trust;
-------------------------------
Other Miscellaneous Provisions.
------------------------------
Subject to the provisions of the last paragraph of Section 1003, all
money and U.S. Government Obligations (including the proceeds thereof)
deposited with the Trustee (or other qualifying trustee--collectively, for
purposes of this Section 1205, the "Trustee") pursuant to Section 1204 in
respect of the Securities shall be held in trust and applied by the Trustee, in
accordance with the provisions of such 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 Holders of
such Securities, of all sums due and to become due thereon in respect of
principal (and premium, if any) and any interest, but such money need not be
segregated from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 1204 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is for
the account of the Holders of the Outstanding Securities.
Anything in this Article Twelve to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or U.S. Government Obligations held by it as provided in Sec-
tion 1204 which, in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof delivered to the
Trustee, are in excess of the amount thereof which would then be required to be
deposited to effect an equivalent defeasance or covenant defeasance.
SECTION 1206. Reinstatement.
-------------
If the Trustee or the Paying Agent is unable to apply any money in
accordance with Section 1202 or 1203 by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise prohibiting
such application, then the Company's obligations under this Indenture and the
Securities shall be revived and reinstated as though no deposit had occurred
pursuant to this Article Twelve until such time as the Trustee or Paying Agent
is permitted to apply all such money in accordance with Section 1202 or 1203;
provided, however, that if the Company
- - -------- -------
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<PAGE>
makes any payment of principal of (and premium, if any) or interest on any
Security following the reinstatement of its obligations, the Company shall be
subrogated to the rights of the Holders of such Securities to receive such
payment from the money held by the Trustee or the Paying Agent.
____________________
-94-
<PAGE>
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, and their respective corporate seals to be hereunto affixed
and attested, all as of the day and year first above written.
AMETEK, INC.
By /s/ Deirdre D. Saunders
---------------------------
Attest:
/s/ M. Sam McDonald
--------------------------
CORESTATES BANK, N.A.
By /s/ Cathy Wiedecke
----------------------------
Attest:
/s/ Con Hromych
---------------------------
-95-
<PAGE>
STATE OF NEW YORK ) ss.:
COUNTY OF NEW YORK )
On the 15th day of March, 1994, before me personally came Deirdre
D. Saunders, to me known, who, being by me duly sworn, did depose and say
that he -- she is Treasurer of AMETEK, Inc.; one of the corporations described
in and which executed the foregoing instrument; that he -- she knows the seal
of said 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 said corporation, and that he-- she signed his -- her name thereto by like
authority.
/s/ M. Sam McDonald
------------------------------
(Seal)
COMMONWEALTH OF PENNSYLVANIA ) ss.:
COUNTY OF PHILADELPHIA )
On the 18th day of March, 1994, before me personally came Cathy
Wiedecke, to me known, who, being by me duly sworn, did depose and say that
he -- she is Corporate Trust Officer of CORESTATES BANK, N.A., one of the
corporations described in and which executed the foregoing instrument; that
he -- she knows the seal of said 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 said corporation, and that he -- she signed his -- her
name thereto by like authority.
/s/ Lynne N. Collins
------------------------------
(Seal)
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<PAGE>
EXHIBIT 10
FIRST AMENDMENT TO CREDIT AGREEMENT
-----------------------------------
FIRST AMENDMENT (the "Amendment"), dated as of April 21, 1994, among
AMETEK, Inc., a Delaware corporation (the "Borrower"), the Banks party to the
Credit Agreement referred to below (the "Existing Banks"), BANK OF MONTREAL,
CORESTATES BANK, N.A. and PNC BANK, NATIONAL ASSOCIATION, as Co-Agents, THE
CHASE MANHATTAN BANK, N.A., as Administrative Agent and each of the lenders
listed on Schedule A hereto (the "New Banks"). All capitalized terms used
herein and not otherwise defined shall have the respective meanings provided
such terms in the Credit Agreement.
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, the Borrower, the Existing Banks, the Co-Agents and the
Administrative Agent are parties to a Credit Agreement dated as of March 11,
1994 (the "Credit Agreement");
WHEREAS, the parties hereto wish to amend the Credit Agreement as herein
provided;
NOW, THEREFORE, it is agreed:
1. Each of the Existing Banks severally and not jointly hereby sells and
assigns to each of the New Banks without recourse and without representation or
warranty (other than as expressly provided herein), and each New Bank hereby
purchases and assumes from each of the Existing Banks, that interest in and to
each of the Existing Bank's rights and obligations under the Credit Agreement as
of the date hereof which in the aggregate represents such New Bank's Pro Rata
Share as set forth on Schedule B hereto (calculated after giving effect to this
Amendment), and such Pro Rata Share represents all of the outstanding rights and
obligations under the Credit Agreement that are being sold and assigned to each
New Bank, including, without limitation, (x) in the case of any assignment of
all or any portion of the Term Loan Commitment (if not theretofore terminated)
and outstanding Term Loans, all rights and obligations with respect to the Pro
Rata Share of such Term Loan Commitment and outstanding Term Loans and (y) in
the case of any assignment of all or any portion of the Revolving Commitment,
all rights and obligations with respect to the Pro Rata Share of such Revolving
Commitment and of the Revolving Loans and
<PAGE>
Letters of Credit. After giving effect to this Amendment, each of the Bank's
Revolving Commitment, Term Loan Commitment and the amount of outstanding Term
Loans owing to each of the Banks will be as set forth in Schedule C hereto.
2. On the Amendment Effective Date (as hereinafter defined), the
definition of "Minimum Assignment Amount" appearing in Section 10 of the Credit
Agreement is hereby amended by deleting the amount "$5,000,000" appearing
therein and inserting in lieu thereof the amount "$10,000,000".
3. On the Amendment Effective Date, (i) the Credit Agreement shall be
amended by deleting Schedule I thereto in its entirety and by inserting in lieu
thereof a new Schedule I in the form of Schedule C attached hereto and (ii) the
Borrower agrees that, promptly after the Amendment Effective Date, it will issue
appropriate Term Notes and Revolving Notes to each Bank in conformity with the
requirements of Section 1.05 of the Credit Agreement to reflect the revised
Loans and Commitments of the Banks after giving effect to this Amendment. For
purposes of Section 12.03 of the Credit Agreement, the address of each New Bank
shall be as set forth on Schedule C, or at such other address as the New Bank
may hereafter notify the other parties to the Credit Agreement in writing.
4. Each of the Existing Banks (i) represents and warrants that it is the
legal and beneficial owner of the interest being sold and assigned by it under
this Amendment and that such interest is free and clear of any adverse claim;
(ii) makes no representation or warranty and assumes no responsibility with
respect to any statements, warranties or representations made in or in
connection with the Credit Agreement or the other Credit Documents or the
execution, legality, validity, enforceability, genuineness, sufficiency or value
of the Credit Agreement or the other Credit Documents or any other instrument or
document furnished pursuant thereto; and (iii) makes no representation or
warranty and assumes no responsibility with respect to the financial condition
of the Borrower or any of its Subsidiaries or the performance or observance by
the Credit Parties of any of their obligations under the Credit Agreement or the
other Credit Documents to which they are a party or any other instrument or
document furnished pursuant thereto.
5. Each of the New Banks (i) confirms that it has received a copy of the
Credit Agreement and the other Credit Documents, together with copies of the
financial statements
-2-
<PAGE>
referred to therein and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into this
Amendment; (ii) agrees that it will, independently and without reliance upon the
Administrative Agent, the Co-Agents, the Existing Banks or any other Bank and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking action
under the Credit Agreement; (iii) confirms that it is an Eligible Assignee under
Section 12.04(b) of the Credit Agreement; (iv) appoints and authorizes the
Administrative Agent and the Collateral Agent to take such action as
administrative agent and collateral agent on its behalf and to exercise such
powers under the Credit Agreement and the other Credit Documents as are
delegated to the Administrative Agent and the Collateral Agent by the terms
thereof, together with such powers as are reasonably incidental thereto; (v)
agrees that it will perform in accordance with their terms all of the
obligations which by the terms of the Credit Agreement are required to be
performed by it as a Bank; and (vi) to the extent legally entitled to do so,
delivers to the Administrative Agent and the Borrower herewith the forms
described in Section 4.04(b)(ii).
6. Each of the Existing Banks, the New Banks, the Letter of Credit Issuer
and the Administrative Agent hereby agrees (i) that all amounts (including,
without limitation, interest and fees) accrued with respect to the Commitments,
the Loans and the Letters of Credit prior to the delivery by such New Bank of
the amount referred to in clause (ii) of Section 11 of this Amendment shall be
for the account of the Existing Banks, the Letter of Credit Issuer and the
Administrative Agent, respectively, and (ii) that each New Bank shall be
entitled to receive a portion of such amounts accrued on and after the date of
delivery of the amounts referred to in clause (ii) of such Section 11, based
upon its Pro Rata Share.
7. In accordance with Section 12.04(b) of the Credit Agreement, on and as
of the date upon which each of the New Banks delivers the amounts referred to in
clause (ii) of Section 11 of this Amendment, each New Bank shall become a "Bank"
under, and for all purposes of, the Credit Agreement and the other Credit
Documents.
8. This Amendment is limited as specified and shall not constitute a
modification, acceptance or waiver of any other provision of the Credit
Agreement or any other Credit Document.
-3-
<PAGE>
9. This Amendment may be executed in any number of counterparts and by the
different parties hereto on separate counterparts, each of which counterparts
when executed and delivered shall be an original, but all of which shall
together constitute one and the same instrument. A complete set of counterparts
shall be lodged with the Borrower and the Administrative Agent.
10. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF
NEW YORK.
11. Subject to Section 12 of this Amendment, this Amendment shall become
effective on the date (the "Amendment Effective Date") when (i) each of the
Borrower, each Existing Bank and each New Bank shall have signed a copy hereof
(whether the same or different copies) and shall have delivered (including by
way of telecopier) the same to the Administrative Agent at its Notice Office,
and (ii) each New Bank shall have delivered to the Administrative Agent, for the
accounts of the Existing Banks, respectively, an amount equal to such New Bank's
Pro Rata Share of the aggregate outstanding principal amount of the Loans.
12. Notwithstanding Section 11 of this Amendment, if for any reason any
New Bank shall not have (i) signed a copy hereof and delivered the same to the
Administrative Agent at its Notice Office and (ii) delivered to the
Administrative Agent an amount equal to such New Bank's Pro Rata Share of the
aggregate outstanding principal amount of the Loans, in each case on or prior to
May 3, 1994, then, if each Existing Bank agrees, this Amendment shall become
effective notwithstanding such failure, provided that (x) Schedule C shall be
modified to delete any such New Bank and such New Bank's Pro Rata Share shall be
reallocated among the Existing Banks in such manner as the Existing Banks shall
agree and (y) the signature pages of this Amendment shall be deemed revised to
delete such New Bank's name therefrom.
13. From and after the Amendment Effective Date, all references in the
Credit Agreement and each of the Credit Documents to the Credit Agreement shall
be deemed to be references to such Credit Agreement as amended hereby.
-4-
<PAGE>
IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart of
this Amendment to be duly executed and delivered as of the date first above
written.
AMETEK, INC.
By /s/ Deirdre D. Saunders
------------------------------
Name: Deirdre D. Saunders
Title: Treasurer
THE CHASE MANHATTAN BANK,
N.A.,
Individually and as
Administrative Agent
By /s/ Dana Klein
------------------------------
Name: Dana Klein
Title: Vice President
BANK OF MONTREAL,
Individually and as
Co-Agent
By /s/ Kanu Modi
------------------------------
Name: Kanu Modi
Title: Director
CORESTATES BANK, N.A.,
Individually and as
Co-Agent
By /s/ Robert Cordell
------------------------------
Name: Robert Cordell
Title: Vice President
PNC BANK, NATIONAL ASSOCIATION,
Individually, as Co-Agent and
as Letter of Credit Issuer
By /s/ Vickey Randolph Ziff
------------------------------
Name: Vickey Randolph Ziff
Title: Vice President
-5-
<PAGE>
CONTINENTAL BANK N.A.
By /s/ Thomas H. Pearson
------------------------------
Name: Thomas H. Pearson
Title: Vice President
FLEET BANK OF MASSACHUSETTS, N.A.
By /s/ F. Andrew Beise
------------------------------
Name: F. Andrew Beise
Title: Vice President
MELLON BANK, N.A.
By /s/ John R. Fell, III
------------------------------
Name: John R. Fell, III
Title: Vice President
NBD BANK, N.A.
By /s/ Nancy L. Russell
------------------------------
Name: Nancy L. Russell
Title: Vice President
THE LONG-TERM CREDIT BANK OF JAPAN
LIMITED, NY BRANCH
By /s/ Shunko Uchida
------------------------------
Name: Shunko Uchida
Title: Vice President
THE YASUDA TRUST AND BANKING CO., LTD.
NY BRANCH
By /s/ Neil T. Chau
------------------------------
Name: Neil T. Chau
Title: Vice President
-6-
<PAGE>
SCHEDULE A
to
First Amendment
---------------
NEW BANKS
---------
Continental Bank N.A.
Fleet Bank of Massachusetts, N.A.
Mellon Bank, N.A.
NBD Bank, N.A.
The Long-Term Credit Bank of Japan Limited, NY Branch
The Yasuda Trust and Banking Co., Ltd. NY Branch
<PAGE>
SCHEDULE B
to
First Amendment
---------------
PRO RATA SHARE
--------------
<TABLE>
<CAPTION>
Term Loan Revolving
Bank Term Loans Commitment Commitment
- - ---- ---------- ----------- ----------
<S> <C> <C> <C>
The Chase Manhattan 15.20% 15.20% 15.20%
Bank, N.A.
Bank of Montreal 13.60% 13.60% 13.60%
Corestates Bank, N.A. 13.60% 13.60% 13.60%
PNC Bank, National 13.60% 13.60% 13.60%
Association
Continental Bank N.A. 8.40% 8.40% 8.40%
Fleet Bank of 8.40% 8.40% 8.40%
Massachusetts, N.A.
Mellon Bank, N.A. 8.40% 8.40% 8.40%
NBD Bank, N.A. 8.40% 8.40% 8.40%
The Long-Term Credit 5.20% 5.20% 5.20%
Bank of Japan Limited,
NY Branch
The Yasuda Trust and 5.20% 5.20% 5.20%
Banking Co., Ltd. NY ===== ===== =====
Branch
100% 100% 100%
</TABLE>
<PAGE>
SCHEDULE C
to
First Amendment
---------------
SCHEDULE I
----------
COMMITMENTS/LOANS
-----------------
<TABLE>
<CAPTION>
Term Loan Revolving
Bank Term Loans Commitment Commitment
---- ---------- ---------- ----------
<S> <C> <C> <C>
The Chase Manhattan $11,400,000 $ 7,600,000 $ 19,000,000
Bank, N.A.
Bank of Montreal 10,200,000 6,800,000 17,000,000
Corestates Bank, N.A. 10,200,000 6,800,000 17,000,000
PNC Bank, National 10,200,000 6,800,000 17,000,000
Association
Continental Bank N.A. 6,300,000 4,200,000 10,500,000
Fleet Bank of 6,300,000 4,200,000 10,500,000
Massachusetts, N.A.
Mellon Bank, N.A. 6,300,000 4,200,000 10,500,000
NBD Bank, N.A. 6,300,000 4,200,000 10,500,000
The Long-Term Credit 3,900,000 2,600,000 6,500,000
Bank of Japan Limited,
NY Branch
The Yasuda Trust and 3,900,000 2,600,000 6,500,000
Banking Co., Ltd. NY =========== =========== ===========
Branch
$75,000,000 $50,000,000 $125,000,000
</TABLE>
<PAGE>
SCHEDULE C
Page 2
BANK ADDRESSES
--------------
The Chase Manhattan
Bank, N.A.
One Chase Manhattan Plaza
New York, New York 10081
Attention: Frank-Paul King
Telephone No.: (212) 552-7063
Telecopier No.: (212) 552-1457
Bank of Montreal
430 Park Avenue
14th Floor
New York, New York 10022
Attention: Kanu Modi
Telephone No.: (212) 605-1663
Telecopier No.: (212) 605-1454
Corestates Bank, N.A.
Philadelphia National Bank
FC1-1-82-25
1345 Chestnut Street
Philadelphia, PA 19101
Attention: Robert Cordell
Telephone No.: (215) 973-3648
Telecopier No.: (215) 973-6745
PNC Bank, National Association
100 South Broad Street
7th Floor
Philadelphia, PA 19101
Attention: Vicki Randolph-Ziff
Telephone No.: (215) 585-6795
Telecopier No.: (215) 585-5972
Continental Bank N.A.
231 South LaSalle Street
Chicago, IL 60697
Attention: Russ Covode
Telephone No.: (312) 828-6676
Telecopier No.: (312) 987-0303
<PAGE>
SCHEDULE C
Page 3
Fleet Bank of Massachusetts, N.A.
75 State Street
4th Floor
Boston, Massachusetts 02109
Attention: Andrew Biese
Telephone No.: (617) 346-1577
Telecopier No.: (617) 346-1679
Mellon Bank, N.A.
Mellon Bank Center
1735 Market Street
Room 865
Philadelphia, PA 19103
Attention: Don Cassidy
John Fell
Telephone No.: (215) 553-2065
Telecopier No.: (215) 553-4899
NBD Bank, N.A.
611 Woodward Avenue
Detroit, MI 48226
Attention: Nancy Russell, V.P.
Telephone No.: (313) 225-2614
Telecopier No.: (313) 225-1586
The Long-Term Credit Bank of Japan
Limited New York Branch
165 Broadway
New York, NY 10006
Attention: Shunko Uchida, V.P.
Hiroshi Kltada
Telephone No.: (212) 335-4748
Telecopier No.: (212) 608-2371
The Yasuda Trust and Banking Co., Ltd.
666 Fifth Avenue
Suite 801
New York, NY 10103
Attention: Stuart Gruskin
Richard Skiers
Telephone No.: (212) 373-5711
Telecopier No.: (212) 373-5796
