As filed with the Securities and Exchange Commission on June 7, 1999.
Registration No. 333-
U.S. SECURITIES AND EXCHANGE COMMISSION
Washington D.C. 20549
__________
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
__________
PENTAIR, INC.
(Exact name of registrant as specified in its charter)
Minnesota 41-0907434
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
Pentair, Inc.
1500 County Road B2 West, Suite 400
St. Paul, Minnesota 55113-3105
(651) 636-7920
(Address, including zip code and telephone number,
including area code, of registrant's principal
executive offices)
__________
Louis L. Ainsworth, Esq.
Senior Vice President and General Counsel
Pentair, Inc.
1500 County Road B2 West, Suite 400
St. Paul, Minnesota 55113-3105
(651) 636-7920
(Name, address, including zip code and telephone
number,
including area code, of agent for service)
_______________
Copies to:
Stanley Efron, Esq.
Henson & Efron, P.A.
400 Second Avenue South, Suite 1200
Minneapolis, Minnesota 55401
(612) 340-8753
_______________
Approximate date of commencement of proposed sale to
the public:
From time to time after the effective date of this
Registration Statement.
_______________
If the only securities being registered on this
Form are being offered pursuant to dividend or interest
reinvestment plans, please check the following box. o
If any of the securities being registered on this
Form are to be offered on a delayed or continuous basis
pursuant to Rule 415 under the Securities Act of 1933,
other than securities offered only in connection with
dividend or interest reinvestment plans, check the
following box. x
If this Form is filed to register additional
securities for an offering pursuant to Rule 462(b)
under the Securities Act, please check the following
box and list the Securities Act registration statement
number of the earlier effective registration statement
for the same offering. o
If this Form is a post-effective amendment filed
pursuant to Rule 462(c) under the Securities Act, check
the following box and list the Securities Act
registration statement number of the earlier effective
registration statement for the same offering. o
If delivery of the prospectus is expected to be
made pursuant to Rule 434, please check the following
box.
CALCULATION OF REGISTRATION FEE
Title of each class Amount to Proposed Proposed Amount of
of be maximum maximum registrat
securities to be registered( offering price aggregate ion
registered 1) per unit(2) offering price fee(2)
(2)
Common Stock, $.16 2/3 par value(3)
Debt Securities
TOTAL $700,000,000 $194,600
(1) Such indeterminate number or amount of Common Stock or
Debt Securities as may from time to time be issued at
indeterminate prices, up to an aggregate initial
offering price of $700,000,000. If any Debt Securities
are issued at an original issue discount, such greater
amount as shall result in the initial offering price
for securities aggregating $700,000,000. The Debt
Securities and Common Stock may be sold separately,
together or as units.
(2) Estimated solely for the purpose of calculating the
amount of the registration fee pursuant to Rule 457(o)
under the Securities Act of 1933, as amended.
Accordingly, in accordance with General Instruction
II.D. to Form S-3, the table does not specify by class
information as to the amount to be registered, the
proposed maximum offering price per unit or the
registration fee attributable to each class of
securities registered.
(3) Each share of Common Stock registered hereunder
includes a Common Share Purchase Right. The value
attributable to such Rights will be reflected in the
market price of the Common Stock to which the Rights
are attached.
The registrant hereby amends this registration
statement on such date or dates as may be necessary to
delay its effective date until the registrant shall
file a further amendment which specifically states that
this registration statement shall thereafter become
effective in accordance with Section 8(a) of the
Securities Act of 1933 or until the Registration
Statement shall become effective on such date as the
Commission, acting pursuant to said Section 8(a), may
determine.
<PAGE>
The information in this prospectus is not complete
and may be changed. We may not sell these securities
until the registration statement that we filed with the
Securities and Exchange Commission becomes effective.
This prospectus is not an offer to sell these
securities and is not soliciting offers to buy these
securities in any state where the offer or sale isn't
permitted.
Subject to Completion, dated June 7, 1999
PROSPECTUS
$700,000,000
PENTAIR LOGO
The company name "Pentair" is displayed in a boldface
serif type positioned to the right of a diamond-shaped
symbol. The left half of the diamond-shaped symbol is
white; the right half is blue (Pantone R 072U).
Superimposed over these fields of color are eight
interlocking triangles - four green (Pantone R 354U) and
four white. The green triangles appear on the white
half of the diamond and point to the right; the white
triangles appear on the blue half of the diamond and
point to the left.
The strong geometric shape of the symbol connotes
precision while the multi-faceted triangles within it
represent the diversity of Pentair's business mix. The
pronounced arrow shape in the symbol implies movement
or direction, and lends a dynamic quality to the
corporate signature. The arrow also directs the
viewer's eye to the logotype. The typeface used in the
logotype itself is very solid, connoting stability and
strength. Finally, the dark blue and green color scheme
helps modernize the corporate signature. Displayed on a
field of white, this combination of colors is bold and
sophisticated, yet clean and uncluttered. As a whole,
the corporate signature is strong, unique, memorable,
and enduring.
Pentair, Inc.
1500 County Road B2 West, Suite 400
St. Paul, Minnesota 55113-3105
(651) 636-7920
Common Stock
Debt Securities
Pentair, Inc. may offer and sell from time to time,
together or separately, up to $700,000,000 of Debt
Securities and shares of Common Stock. These
securities may be offered in amounts, at prices and on
terms set forth in supplements to this prospectus.
This prospectus describes the general terms that will
apply to the shares of Common Stock and Debt Securities
we intend to offer at one or more times under this
registration statement. It must be accompanied by a
supplement at the time of sale. Supplements will be
available at the time of each later offering of
securities and will describe the specific terms of the
Debt Securities and Common Stock being offered. You
should read this prospectus and the supplements
carefully before you invest.
Consider carefully the "Risk Factors" beginning on
page 2 of this Prospectus before investing in the
Common Stock or Debt Securities.
The Common Stock is listed on the New York Stock
Exchange under the symbol "PNR."
Neither the Securities and Exchange Commission nor
any other regulatory body has approved or disapproved
of these securities or determined that this prospectus
is truthful or complete. Any representation to the
contrary is a criminal offense.
This Prospectus is dated _________, 1999.
TABLE OF CONTENTS
Page
Where You Can Find More Information 2
Risk Factors 2
Cautionary Statement About Forward Looking
Statements 6
The Company 7
Use of Proceeds 8
Ratio of Earnings to Fixed Charges 9
The Securities We May Offer 9
Description of Debt Securities 9
Description of Common Stock, Preferred Stock And
Rights Plan 17
Certain Provisions Relating to Changes in Control 18
Plan of Distribution 20
Incorporation of Certain Documents by Reference 22
Legal Matters 23
Experts 23
You should rely only on the information
incorporated by reference or set forth in this
prospectus and that is set forth in the applicable
prospectus supplement. We have not authorized anyone
else to provide you with different information. We are
only offering our Common Stock and Debt Securities in
states where the offer is permitted. You should not
assume that the information in this prospectus or the
applicable prospectus supplement is accurate as of any
date other than the dates on the front of those
documents.
WHERE YOU CAN FIND MORE INFORMATION
We are subject to the information requirements of
the Securities Exchange Act of 1934 and, accordingly,
file reports, proxy statements and other information
with the SEC. We have also filed a registration
statement that includes this prospectus with the SEC.
This prospectus does not contain all of the information
set forth in the registration statement. The
registration statement contains additional information
about us and the securities we are offering. For
example, in this prospectus we've summarized or
referred to contracts, agreements and other documents
that have been filed as exhibits to the registration
statement. All materials that we file with the SEC,
including the registration statement, may be read and
copied (at prescribed rates) at the SEC's Public
Reference Room located at 450 Fifth Street, N.W.,
Washington, D.C. 20549. Please call the SEC at 1-800-
SEC-0330 for further information about its Public
Reference Room. You can also obtain these documents on
the SEC's website (http://www.sec.gov).
Our Common Stock is listed on the New York Stock
Exchange and our reports, proxy materials and other
information can also be inspected at their offices at
20 Broad Street, New York, New York 10005 or on their
website (http://www.nyse.com).
RISK FACTORS
You should carefully consider the following risk
factors and warnings before making an investment
decision. The risks described below are not the only
ones facing us. Additional risks that we do not yet
know of or that we currently think are not material may
also have an adverse effect on our business operations.
If any of those risks or any of the risks described
below actually occur, our business, financial
condition, results of operations or prospects could be
materially adversely affected. In that case, the price
of our securities could decline and you could lose all
or part of your investment. You should also refer to
the other information set forth or incorporated by
reference in this prospectus, as well as our audited
consolidated financial statements and notes thereto and
our unaudited interim consolidated financial statements
and notes thereto, which have been incorporated in this
prospectus by reference.
We May Have Difficulties Executing Our Acquisition
Strategy.
We intend to expand our businesses through
acquisitions. Our ability to expand through
acquisitions is subject to various risks, including:
- increased competition for acquisitions;
- higher acquisition prices;
- lack of suitable acquisition candidates;
- inability to enter into definitive agreements for
or complete desired acquisitions; and
- inability to achieve anticipated benefits from
acquisitions.
We cannot promise that we will be successful in
growing through acquisitions or guarantee the effect of
any future acquisition on our business or operating
results. Also, in the event that we announce our
intention to acquire a business which is not viewed
positively by the investment community, it may have a
negative impact on the market price of our securities.
In addition, future acquisitions could be dilutive to
your investment or to our financial results or could
adversely affect the rating of the debt securities.
We May Have Difficulties Managing Our Growth.
We have expanded our operations rapidly in recent
years and intend to continue this expansion. This
rapid growth places a significant demand on our
management and our financial and operational resources.
Our growth strategy is subject to various risks,
including:
- inability to increase and maintain rates of
growth in our existing businesses;
- inability to obtain benefits of previously
announced restructuring and cost-savings
programs currently being undertaken;
- inability on our part to successfully integrate or
operate acquired businesses;
- inability to retain key customers of acquired
businesses; and
- inability to realize or delays in realizing
economies of scale and operating efficiencies from
acquired businesses.
The integration of businesses we have acquired or may
acquire in the future may also require us to invest
more capital than we expected or require more time and
effort by management than we expected.
We Are Dependent on the Introduction of New and
Enhanced Products.
While our three business segments are in
relatively mature industries, timely product
innovation, including new products and enhancements to
existing products, is becoming more important in order
to compete, especially in our Professional Tools and
Equipment Group. Products introduced in the last five
years contributed approximately 30% of our total sales
in 1998 and 50% of the sales in our Professional Tools
and Equipment Group. As a result, we expect to
continue to make significant investments in product
development, as well as continuing to consider the
strategic acquisition of businesses, product lines and
technologies complementary to our businesses. If we
are unable for any reason to introduce products in a
timely manner or if our new or enhanced products do not
achieve market acceptance or there is an unexpected
shift in consumer preferences, our business and
operating results could be materially and adversely
affected.
We Are Increasingly Dependent on Large Retail Chains
for Product Sales.
The largest single channel for distribution of our
products in the Professional Tools and Equipment Group
is large retail stores, particularly those serving the
"do-it-yourself" market, such as The Home Depot, Lowe's
and other large home centers and national retailers.
While none of these customers currently account for
more than 10% of our sales individually, maintaining
and expanding these relationships is very important to
the future success of our business. We could lose a
number of these relationships, through industry
developments, such as competitive products replacing
ours or limiting the volumes of our products purchased,
or through our own actions. If we were to lose one of
our significant retail customers or a number of our
other retailer customers, it could have a material
adverse effect on our financial results and future
prospects. In addition, the large size of these
companies and their dominant position in the
marketplace gives them substantial leverage in the
terms they offer to their suppliers.
We Have Risk Due to the International Nature of Our
Operations.
International sales accounted for 22% of our sales
in 1998, and this percentage is expected to increase in
the future. Over the past few years, the economies of
many of the countries in which we do business have had
slower growth than the U.S. economy. The European
Union accounts for the bulk of our foreign sales and
income, with our most significant European market being
Germany. The German capital goods market has been very
slow. We cannot predict how long these difficulties
will last.
We are also exposed to the risk of fluctuation of
foreign currency exchange rates. We have entered into
financial arrangements, including foreign currency
swaps and hedging transactions, to manage and reduce
the impact of some of these risks, but we cannot
guarantee that these arrangements will eliminate the
risk that currency fluctuations may affect our
financial results.
In addition, we currently benefit from foreign
outsourcing arrangements for the manufacture of certain
of our products, especially in the Professional Tools
and Equipment Group. The majority of these
arrangements are with manufacturers in Taiwan and
China. Disruption of these arrangements, which might
occur in the event of political unrest or an economic
downturn, could interrupt our product supply. A
significant disruption in the supply of our products
could have material and adverse consequences on our
level of sales and on our relationships with our
significant customers.
Intellectual Property Challenges May Hinder Product
Development and Marketing.
We rely on a combination of copyright, trademark,
trade secret, unfair competition and other intellectual
property laws, as well as nondisclosure agreements and
other protective measures, to protect our intellectual
property, particularly our brand names and product
lines. Such protection, however, may not preclude
competitors from developing products similar to ours or
from challenging our names or products. Over the past
few years, we have noticed an increasing tendency for
participants in our markets to use conflicts over and
challenges to intellectual property as means to
compete. Patent and trademark challenges increase our
costs to develop, engineer and market our products. In
late February 1999, a jury awarded $1 million in
damages against us in a lawsuit for patent
infringement. We may be subject to these types of
lawsuits in the future. Defending these challenges can
be costly to us.
The Price of Our Stock Has a History of
Volatility/Fluctuation.
Our Common Stock has experienced in the past, and
could experience in the future, substantial price
volatility as a result of a number of factors,
including the following:
- quarter to quarter variations in our actual
or anticipated financial results;
- other announcements by us, our competitors or
our customers;
- acquisitions or other significant corporate
developments;
- government regulations; and
- industry developments.
In addition, the stock market has experienced extreme
price and volume fluctuations which have affected the
market price of many companies and which at times have
been unrelated to the operating performance of the
specific companies whose stock is traded. Broad market
fluctuations, as well as economic conditions, both
generally and in our industries specifically, may
adversely affect the market price of our Common Stock.
We May Be Affected by Year 2000 Problems.
We have undertaken a project to review all of our
computer systems for Year 2000 compliance. This
includes the replacement of a number of business
enterprise software systems. We may not be able to
complete installation of these systems or complete
corrections of identified problems in our other
software and computers on a timely basis. In addition,
our customers or suppliers may experience business
interruptions which would also adversely affect our
operations. It is also possible that we have failed to
anticipate or discover all of the problems that may
arise, particularly in our recently acquired
businesses.
Certain Provisions of Our Restated Articles of
Incorporation, Bylaws and Minnesota Law Could Deter
Takeover Attempts.
Some provisions in our Restated Articles of
Incorporation and Bylaws, our Rights Agreement and
certain provisions of Minnesota law could delay,
prevent or make more difficult a merger, tender offer,
proxy contest or other change of control. Our
shareholders might view any such a transaction as being
in their best interests since the transaction could
result in a higher stock price than the current market
price for our Common Stock. These provisions and laws
are discussed in detail later in this prospectus in
"Certain Provisions Relating to Changes in Control."
CAUTIONARY STATEMENT ABOUT FORWARD LOOKING STATEMENTS
We provide information and make statements in this
prospectus that are "forward-looking" in nature.
Forward-looking information or statements include
statements about the future of the industries
represented by our operating groups, statements about
our future business plans and strategies, the
timeliness of product introductions and deliveries,
expectations about industry and market growth and
developments, expectations about our growth and
profitability and other statements that are not
historical in nature. Many of these statements contain
words such as "may," "will," "expect," "believe,"
"intend," "anticipate," "estimate" or "continue" or
other similar words.
Because forward-looking statements involve future
risks and uncertainties, there are many factors that
could cause actual results to differ materially from
those expressed or implied. For example, a few of the
uncertainties that could affect the accuracy of forward-
looking statements, besides the specific risk factors
identified in the section entitled "Risk Factors"
(which begins on page 2), include:
- changes in industry conditions, such as
- the strength of product demand;
- the intensity of competition;
- pricing pressures;
- market acceptance of new product
introductions;
- the introduction of new products by
competitors;
- our ability to source components from
third parties without interruption and
at reasonable prices; and
- the financial condition of our
customers;
- changes in our business strategies;
- general economic conditions, such as the rate of
economic growth in the Company's principal geographic
markets or fluctuations in exchange rates;
- changes in operating factors, such as continued
improvement in manufacturing activities and the
achievement of related efficiencies and inventory risks
due to shifts in market demand; and
- our ability to accurately evaluate the effects of
contingent liabilities such as taxes, product liability
and other liabilities.
We cannot predict the actual effect these factors
will have on our results and many of the factors and
their effects are beyond our control. In addition, we
are under no duty to update any of the forward-looking
statements after the date of this Prospectus to conform
these statements to actual performance or results.
Given these uncertainties, you should not rely too
heavily on these forward-looking statements.
THE COMPANY
We are a global, diversified manufacturer
operating in three principal industry segments:
professional tools and equipment; water and fluid
technologies; and electrical and electronic enclosures.
We have grown these three segments through a
combination of internal development and acquisitions.
Professional Tools and Equipment Group. Our
Professional Tools and Equipment Group accounted for
43.5% of our sales in 1998. In this group, we
manufacture products including:
- a full line of homeshop products, contractor
tools, general purpose stationary woodworking machinery
and accessories;
- portable electric tools including saws, routers,
sanders, grinders and drills; air-powered nailing
products; and cordless tools; and
- lubricating tools and equipment, battery charging
and testing equipment, lifting equipment, portable
power supplies, refrigerant and coolant recyclers,
automatic transmission fluid exchangers and welding
equipment and accessories.
Our tools and equipment products are sold in the
United States, Canada and overseas under the brand
names Delta R, Biesemeyer R, Porter-Cable R, FLEX,
Lincoln R, Blackhawk R, MarquetteR, Guardian, Pro-Arc,
T-Tech R, Century R, Solar R, Booster Pac, Cobra R and
Viper. We sell these products through various
channels, including networks of independent industrial
and warehouse distributors, home centers and national
retailers and hardware stores, as well as through mail
order and catalogues.
Water and Fluid Technology Group. Our Water and
Fluid Technology Group accounted for 27.6% of our sales
in 1998. In this group, we manufacture products
including:
- a wide variety of water and wastewater pumps for
residential, commercial and municipal uses;
- a complete line of control valves used in the
manufacture of water softeners and filtration,
deionization and desalination systems; and
- automated and manual lubrication systems and
equipment, pumps and pumping stations for fluid
transfer applications.
Our water and fluid technology products are sold
in the United States, Canada and overseas under the
brand names Myers R, Aplex R, Fairbanks Morse R, Aurora R,
Water Ace R, Shur Dri, Hydromatic R, Fleck R, SIATA,
Lincoln R and ORSCO. We sell these products through
various wholesale and retail channels, including home
centers and hardware stores for the retail "do-it-
yourself" market, qualified systems distributors who
have design, installation and service capabilities,
industrial supply and specialty distributors and direct
sales by internal sales organizations, as well as
through catalogs.
As announced on April 30, 1999 and described in
our Form 10-Q for the quarterly period ended March 27,
1999, we have entered into a merger agreement to
acquire Essef Corporation, which will expand our Water
and Fluid Technologies Group. Essef Corporation is a
manufacturer of composite water tanks, pumps, filters
and other water equipment and accessories. The merger
is subject to a number of conditions, and we cannot
guarantee that the deal will actually be closed.
Electrical and Electronic Enclosures Group. Our
Electrical and Electronic Enclosures Group accounted
for 28.9% of our sales in 1998. In this group, we
manufacture standard and custom-designed products
including:
- metallic and composite enclosures and cabinets,
which house electrical and electronic controls,
instruments and components;
- cases, subracks and microcomputer packaging
systems; and
- a full line of accessories including backplanes,
power supplies and technical workstations.
Our electrical and electronic enclosure products
are sold in the United States, Canada and overseas
under the brand names Hoffman R, Schroff R, Transrack R,
Optima, Eraba and Pentair Enclosures. We sell
electrical enclosures through industrial electrical
distributors; electronic enclosures through electronic
equipment distributors and to original equipment
manufacturers; and information and communication
technology products primarily to original equipment
manufacturers.
Growth Strategy. We are growing our business
through internal development strategies in each of our
three business groups and creating the infrastructure
to support our growth. Acquisitions also remain an
important part of our ongoing growth strategy.
Acquisitions can help us achieve a critical mass in our
three segments more quickly than relying solely on
internal development. As part of our acquisition
strategy, we regularly review acquisition opportunities
and have discussions with potential acquisition
candidates. Acquisition transactions could arise at
any time and from time to time.
Our principal executive offices are located at
1500 County Road B2 West, St. Paul, Minnesota, 55113-
3105, and our telephone number is (651) 636-7920.
USE OF PROCEEDS
Unless otherwise indicated in the applicable
prospectus supplement, we anticipate that any net
proceeds from the sale of the offered securities will
be used to fund expansion of our business, including
for:
- repayment of debt, including amounts we may have
borrowed under our senior credit facility;
- acquisitions;
- working capital;
- capital expenditures; and
- other general corporate purposes.
When we offer a particular series of the offered
securities, the prospectus supplement relating to that
series will set forth the intended use of the net
proceeds received for those securities. Pending the
application of the net proceeds, we expect to invest
the proceeds from the sale of offered securities in
short-term, interest-bearing instruments or other
investment-grade debt securities.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth our historical
ratio of earnings to fixed charges for the periods
indicated:
Years Three Months
ended ended
December 31, March 27,
1994 1995 1996 1997 1998 1999
Ratio of Earnings to
Fixed Charges 4.19x 4.88x 6.31x 6.73x 6.41x 1.52x
For the three months ended March 27, 1999, the
ratio of earnings to fixed charges would have been 7.1x
if it had been calculated on the basis of income before
the special restructuring charge of $38.0 million taken
during the quarter.
The ratio of earnings to fixed charges is computed
by dividing income from continuing operations before
income taxes and fixed charges, as adjusted for certain
equity method investments, by fixed charges. Fixed
charges consist of interest on debt (including
capitalized interest), amortization of debt discount
and expense and a portion of rentals determined to be
representative of interest.
THE SECURITIES WE MAY OFFER
This prospectus, together with the applicable
prospectus supplement, summarize the material terms of
the securities we may sell in this offering. If
specified in the applicable prospectus supplement, the
terms of the Debt Securities and Common Stock as
described in this prospectus may be changed. Under
this prospectus and with a prospectus supplement, we
may sell at one time or at various times and in various
combinations shares of Common Stock and Debt
Securities. The Debt Securities may be in different
series and forms and may have different terms. The
total dollar amount of securities that we may issue in
this offering will not exceed $700,000,000. However,
if we issue debt securities at a discount from their
stated principal amount, the amount will be calculated
using the discounted amount and the aggregate amount of
the offering would be increase by the difference
between the face amount and the discounted price.
DESCRIPTION OF DEBT SECURITIES
We will provide information to you about the Debt
Securities in up to three separate documents that
progressively provide more detail:
- This prospectus provides general information that
may not apply to each series of Debt Securities.
- The prospectus supplement is more specific than
this prospectus. If the information provided in the
prospectus supplement differs from this prospectus, you
should rely on the prospectus supplement.
- The pricing supplement, if used, provides final
details about a specific series of Debt Securities. If
the pricing supplement differs from this prospectus or
the prospectus supplement, you should rely on the
pricing supplement.
The Debt Securities will be issued under an
indenture between Pentair and U.S. Bank Trust National
Association, as Trustee. For each issuance of
securities, we may enter into a supplemental indenture
with more specific terms of the Debt Securities issued.
General
The indenture does not limit the aggregate
principal amount of Debt Securities that we may issue
under it. The Debt Securities may be issued in one or
more series as we may authorize at various times. All
Debt Securities will be unsecured and will have the
same rank as all of our other unsecured and
unsubordinated debt. The Debt Securities may be issued
as original issue discount Debt Securities and sold at
a substantial discount below their principal amount.
The prospectus supplement relating to the particular
series of Debt Securities being offered will specify
the amounts, prices and terms of those Debt Securities.
These terms may include:
- the title and the limit on the aggregate
principal amount of the Debt Securities;
- the date or dates on which the Debt
Securities will mature;
- the person to whom interest is payable, if
other than the person in whose name the debt
security is registered as of the record date
for payment of interest;
- any rate or rates, which may be fixed or
variable, or the method of determining any
rate or rates, at which the Debt Securities
will bear interest;
- the date or dates from which interest shall
accrue and the date or dates on which
interest will be payable;
- the place or places where the principal of
and any premium and interest on the Debt
Securities will be payable;
- the currency, currencies or currency units in
which the Debt Securities are denominated and
principal and interest may be payable, and
for which the Debt Securities may be
purchased, if other than United States
dollars;
- any redemption or sinking fund terms;
- any event of default or covenant with respect
to the Debt Securities of a particular
series, if not set forth in this prospectus;
- any index used to determine the amount of
principal, premium or interest payable with
respect to the Debt Securities;
- whether the Debt Securities are to be issued
in whole or in part in the form of one or
more global securities and the depositary for
the global security or securities;
- if other than denominations of $1,000 or
multiples of $1,000, the denominations in
which Debt Securities will be issued;
- the part of the principal amount of Debt
Securities which will be payable upon
acceleration if less than the entire amount;
- if the principal amount of the Debt
Securities or interest paid on the Debt
Securities are set forth or payable in a
currency other than U.S. dollars, whether and
under what terms and conditions we may
discharge the Debt Securities; and
- any other terms of the series, which will not
conflict with the terms of the indenture.
Principal, any premium and any interest will be
payable and the Debt Securities will be transferable at
the corporate trust office of the trustee, unless we
specify otherwise in the accompanying prospectus
supplement. At our option, however, payment of
interest may be made by check mailed to the registered
holders of the Debt Securities at their registered
addresses.
We will issue the Debt Securities in fully
registered form without coupons. Unless we specify
otherwise in the applicable prospectus supplement, we
will issue Debt Securities denominated in U.S. dollars
in denominations of $1,000 or multiples of $1,000. No
service charge will be made for any transfer or
exchange of Debt Securities, but we may require payment
beforehand of any related taxes or other governmental
charges. Debt Securities may also be issued pursuant
to the indenture in transactions exempt from the
registration requirements of the Securities Act of
1933. Those Debt Securities will not be considered in
determining the aggregate amount of securities issued
under the registration statement of which this
Prospectus is a part.
We will describe special federal income tax and
other considerations relating to Debt Securities
denominated in foreign currencies in the applicable
prospectus supplement.
Unless we specify otherwise in the applicable
prospectus supplement, the covenants contained in the
indenture and the Debt Securities will not provide
special protection to holders of Debt Securities if we
enter into a highly leveraged transaction,
recapitalization or restructuring.
Exchange, Registration and Transfer
Debt Securities of any series that are not global
securities will be exchangeable for other registered
securities of the same series and of like aggregate
principal amount and tenor in different authorized
denominations. This may be done without service charge
and upon payment of any taxes and other governmental
charges as described in the applicable indenture. The
security registrar or the transfer agent will effect
the transfer or exchange upon being satisfied with the
documents of title and identity of the person making
the request. We have appointed the trustee as security
registrar for the indenture. If a prospectus
supplement refers to any transfer agents, in addition
to the security registrar, initially designated by us
with respect to any series of Debt Securities, we may
at any time rescind the designation of any such
transfer agent or approve a change in the location
through which such transfer agent acts. We may at any
time designate additional transfer agents with respect
to any series of Debt Securities.
Payment and Paying Agents
Unless we specify otherwise in the applicable
prospectus supplement, payment of principal, any
premium and any interest on Debt Securities will be
made at the office of the paying agent or paying agents
that we designate at various times. However, at our
option, we may make interest payments by check mailed
to the address, as it appears in the security register,
of the person entitled to the payments. Unless we
specify otherwise in the applicable prospectus
supplement, we will make payment of any installment of
interest on Debt Securities to the person in whose name
that registered security is registered at the close of
business on the regular record date for such interest.
Global Securities
The Debt Securities of a series may be issued in
whole or in part in the form of one or more global
certificates that we will deposit with a depositary
identified in the applicable prospectus supplement.
Global securities may be issued in either temporary or
permanent form. Unless and until it is exchanged in
whole or in part for the individual Debt Securities it
represents, a global security may not be transferred
except as a whole:
- by the applicable depositary to a nominee of
the depositary,
- by any nominee to the depositary itself or
another nominee, or
- by the depositary or any nominee to a
successor depositary or any nominee of the
successor.
We will describe the specific terms of the
depositary arrangement with respect to a series of Debt
Securities in the applicable prospectus supplement. We
anticipate that the following provisions will generally
apply to depositary arrangements.
When we issue a global security, the depositary
for the global security or its nominee will credit, on
its book-entry registration and transfer system, the
respective principal amounts of the individual Debt
Securities represented by that global security to the
accounts of persons that have accounts with the
depositary, know as "participants." Those accounts
will be designated by the dealers, underwriters or
agents with respect to the underlying Debt Securities
or by us if those Debt Securities are offered and sold
directly by us. Ownership of beneficial interests in a
global security will be limited to participants or
persons that may hold interests through participants.
For interests of participants, ownership of beneficial
interests in the global security will be shown on
records maintained by the applicable depositary or its
nominee. For interests of persons other than
participants, that ownership information will be shown
on the records of participants. Transfer of that
ownership will be effected only through those records.
The laws of some states require that certain purchasers
of securities take physical delivery of securities in
definitive form. These limits and laws may impair our
ability to transfer beneficial interests in a global
security.
As long as the depositary for a global security,
or its nominee, is the registered owner of that global
security, the depositary or nominee will be considered
the sole owner or holder of the Debt Securities
represented by the global security for all purposes
under the applicable indenture. Except as provided
below, owners of beneficial interests in a global
security:
- will not be entitled to have any of the
underlying Debt Securities registered in
their names;
- will not receive or be entitled to receive
physical delivery of any of the underlying
Debt Securities in definitive form; and
- will not be considered the owners or holders
under the indenture relating to those Debt
Securities.
Payments of principal of, any premium and any
interest on individual Debt Securities represented by a
global security registered in the name of a depositary
or its nominee will be made to the depositary or its
nominee as the registered owner of the global security
representing such Debt Securities. Neither we, the
trustee for the Debt Securities, any paying agent nor
the registrar for the Debt Securities will be
responsible for any aspect of the records relating to
or payments made by the depositary or any participants
on account of beneficial interests of the global
security.
We expect that the depositary or its nominee, upon
receipt of any payment of principal, any premium or
interest relating to a permanent global security
representing any series of Debt Securities, immediately
will credit participants' accounts with the payments.
Those payments will be credited in amounts proportional
to the respective beneficial interests of the
participants in the principal amount of the global
security as shown on the records of the depositary or
its nominee. We also expect that payments by
participants to owners of beneficial interests in the
global security held through those participants will be
governed by standing instructions and customary
practices. This is now the case with securities held
for the accounts of customers in bearer form or
registered in "street name." Those payments will be
the sole responsibility of those participants.
If the depositary for a series of Debt Securities
is at any time unwilling, unable or ineligible to
continue as depositary and we do not appoint a
successor depositary within 90 days, we will issue
individual Debt Securities of that series in exchange
for the global security or securities representing that
series. In addition, we may at any time in our sole
discretion determine not to have any Debt Securities of
a series represented by one or more global securities.
In that event, we will issue individual Debt Securities
of that series in exchange for the global security or
securities. Further, if we specify, an owner of a
beneficial interest in a global security may, on terms
acceptable to us, the trustee and the applicable
depositary, receive individual Debt Securities of that
series in exchange for those beneficial interests. The
foregoing is subject to any limitations described in
the applicable prospectus supplement. In any such
instance, the owner of the beneficial interest will be
entitled to physical delivery of individual Debt
Securities equal in principal amount to the beneficial
interest and to have the Debt Securities registered in
its name. Those individual Debt Securities will be
issued in denominations, unless we specify otherwise,
of $1,000 or integral multiples of $1,000.
Certain Restrictive Covenants
Limitation on Consolidations and Mergers. We may
not consolidate or merge with any other person or
convey or transfer all or substantially all of our
properties and assets to another person or permit
another corporation to merge into us, unless:
- the successor is a person organized under the
laws of the United States or any state;
- the successor person, if not us, assumes our
obligations on the Debt Securities and under
the indenture;
- after giving effect to the transaction and
treating any debt which becomes our
obligation as a result of the transaction as
incurred by us at that time, no event of
default occurs under the indenture; and
- other conditions are met.
Modification of the Indenture
Under the indenture our rights and obligations and
the rights of the holders may be modified with the
consent of the holders of at least a majority in
principal amount of the then outstanding Debt
Securities of each series affected by the modification.
None of the following modifications, however, is
effective against any holder without the consent of the
holders of all of the affected outstanding Debt
Securities:
- changing the maturity, installment or
interest rate of any of the Debt Securities;
- reducing the principal amount, any premium or
the rate of interest of any of the Debt
Securities;
- reducing the principal amount of an original
issue discount debt security due and payable
upon acceleration of its maturity;
- changing the place for payment of or the
currency, currencies or currency unit or
units in which any principal, premium or
interest of any of the Debt Securities is
payable;
- impairing any right to take legal action for
an overdue payment;
- reducing the percentage required for
modifications or waivers of compliance with
the indenture; or
- with certain exceptions, modifying the
provisions for the waiver of certain
covenants and defaults and any of the
foregoing provisions.
Any actions we or the trustee may take toward
adding to our covenants, adding events of default or
establishing the structure or terms of the Debt
Securities as permitted by the indentures will not
require the approval of any holder of Debt Securities.
In addition, we or the Trustee may cure ambiguities or
inconsistencies in the indenture or make other
provisions without the approval of any holder as long
as no holder's interests are materially and adversely
affected.
Waiver of Certain Covenants
The indenture provides that we will not be
required to comply with certain restrictive covenants,
including those described above under "Certain
Restrictive Covenants", if the holders of at least a
majority in principal amount of each series of
outstanding Debt Securities affected waive compliance
with the restrictive covenants.
Events of Default, Notice and Waiver
"Event of default" when used in the indenture,
will mean any of the following in relation to a series
of Debt Securities:
- failure to pay interest on any debt security
for 30 days after the interest becomes due;
- failure to pay the principal or any premium
on any debt security when due;
- failure to deposit any sinking fund payment
when due;
- an event of default under the terms of any
indenture or instrument for borrowed money
under which we or any subsidiary of ours that
owns or leases a principal property has
outstanding an aggregate principal amount of
$50,000,000, which default results in an
acceleration of the payment of all or a
portion of such indebtedness for money
borrowed (which acceleration is not rescinded
or annulled within 10 days after notice of
such acceleration);
- failure to perform or breach of any other
covenant or warranty in the indenture that
continues for 60 days after our being given
notice from the trustee or the holders of at
least 25% in principal amount of the
outstanding Debt Securities of the series;
- certain events of bankruptcy, insolvency or
reorganization of ours; or
- any other event of default provided for Debt
Securities of that series.
If any event of default relating to outstanding
Debt Securities of any series occurs and is continuing,
either the trustee or the holders of at least 25% in
principal amount of the outstanding Debt Securities of
that series may declare the principal of all of the
outstanding Debt Securities of such series to be due
and immediately payable. At any time after an
acceleration of any Debt Securities of a series is
made, but before a judgment for payment of money is
obtained, the holders of at least a majority in
principal amount of the outstanding Debt Securities of
that series may, under certain circumstances, rescind
such acceleration.
The indenture provides that the holders of at
least a majority in principal amount of the outstanding
Debt Securities of any series may direct the time,
method and place of conducting any proceeding for any
remedy available to the Trustee, or of exercising any
trust or power conferred on the trustee, with respect
to the Debt Securities of that series. The Trustee may
act in any way that is consistent with those directions
and may decline to act if any of the directions is
contrary to law or to the indenture or would involve
the trustee in personal liability.
The indenture provides that the holders of at
least a majority in principal amount of the outstanding
Debt Securities of any series may on behalf of the
holders of all of the outstanding Debt Securities of
the series waive any past default (and its
consequences) under the indenture relating to the
series, except a default (a) in the payment of the
principal of or any premium or interest on any of the
Debt Securities of the series or (b) with respect to a
covenant or provision of such indentures which, under
the terms of such indenture cannot be modified or
amended without the consent of the holders of all of
the outstanding Debt Securities of the series affected.
The indenture contains provisions entitling the
Trustee, subject to the duty of the Trustee during an
event of default to act with the required standard of
care, to be indemnified by the holders of the Debt
Securities of the relevant series before proceeding to
exercise any right or power under the indenture at the
request of those holders.
The indenture requires the Trustee to, within 90
days after the occurrence of a default known to it with
respect to any series of outstanding Debt Securities,
give the holders of that series notice of the default
if uncured and unwaived. However, the Trustee may
withhold this notice if it in good faith determines
that the withholding of this notice is in the interest
of those holders. However, the Trustee may not
withhold this notice in the case of a default in
payment of principal, premium, interest or sinking fund
installment with respect to any Debt Securities of the
series. The above notice shall not be given until at
least 30 days after the occurrence of a default in the
performance of or a breach of a covenant or warranty in
the applicable indenture other than a covenant to make
payment. The term "default" for the purpose of this
provision means any event that is, or after notice or
lapse of time, or both, would become, an event of
default with respect to the Debt Securities of that
series.
The indenture requires us to file annually with
the Trustee a certificate, executed by one of our
officers, indicating whether the officer has knowledge
of any default under the indenture.
Notices
Notices to holders of Debt Securities will be sent
by mail to the addresses of those holders as they
appear in the security register.
Replacement of Securities
We will replace any mutilated debt security at the
expense of the holder upon surrender of the mutilated
debt security to the Trustee. We will replace Debt
Securities that are destroyed, stolen or lost at the
expense of the holder upon delivery to the trustee of
evidence of the destruction, loss or theft of the Debt
Securities satisfactory to us and to the Trustee. In
the case of a destroyed, lost or stolen debt security,
an indemnity satisfactory to the trustee and us may be
required at the expense of the holder of the debt
security before a replacement debt security will be
issued.
Defeasance
The indenture contains a provision that, if made
applicable to any series of Debt Securities, permits us
to elect (a) to defease and be discharged from all of
our obligations (subject to limited exceptions) with
respect to any series of Debt Securities then
outstanding, which we refer to below as "legal
defeasance," or (b) to be released from our obligations
under certain restrictive covenants, including those
described above under "Certain Restrictive Covenants,"
which we refer to below as "covenant defeasance." To
make either of the above elections, we must
- deposit in trust with the trustee, money,
U.S. government obligations which through the
payment of principal and interest in
accordance with their terms will provide
sufficient money without reinvestment or a
combination of money and U.S. government
obligations to repay in full those Debt
Securities and mandatory sinking fund
payments;
- deliver to the Trustee an opinion of counsel
that holders of the Debt Securities will not
recognize income, gain or loss for federal
income tax purposes as a result of the
deposit and related defeasance and will be
subject to federal income tax in the same
amount, in the same manner and at the same
times as would have been the case if such
deposit and related defeasance had not
occurred in the case of legal defeasance
only, such opinion of counsel to be based on
a ruling of the Internal Revenue Service or
other change in applicable Federal income tax
law; and
- comply with certain other provisions.
Governing Law
The indenture, the Debt Securities and the coupons
will be governed by, and construed in accordance with,
the laws of the State of New York.
The Trustee
U.S. Bank Trust National Association is Trustee
under the indenture. The Trustee participates in our
credit agreement and has other customary banking
relationships with us and our affiliates.
DESCRIPTION OF COMMON STOCK, PREFERRED STOCK AND RIGHTS PLAN
Our restated articles of incorporation provide
that we may issue up to 250,000,000 shares of Common
Stock. Our board of directors may designate up to
15,000,000 of those shares as Preferred Stock.
As of March 1, 1999, we had 42,700,179 shares of
Common Stock outstanding and an equal number of shares
of Common Stock reserved for issuance under Pentair's
Rights Agreement. We also had 4,149,612 shares of
Common Stock reserved for issuance upon exercise of
options under various stock option plans and an equal
number of shares of Common Stock reserved for issuance
under the rights associated with those options.
Options to purchase 979,132 shares of Common Stock were
exercisable as of March 1, 1999. We do not have any
shares of Preferred Stock outstanding.
Common Stock
Each outstanding share of Common Stock is entitled
to one vote on all matters to be submitted to a vote of
the shareholders. Because holders of Common Stock do
not have cumulative voting rights, the holders of a
simple majority of the shares voted at a meeting at
which a quorum is present can elect all of the
directors to be elected at that meeting. The shares of
Common Stock are neither redeemable nor convertible and
the holders thereof have no preemptive rights to
subscribe for or purchase any additional shares of
capital stock issued by Pentair.
The right of holders of our Common Stock to
receive dividends may be restricted by the terms of any
shares of our Preferred Stock issued in the future or
by the terms of our senior credit facility. If we were
to liquidate, dissolve or wind up our affairs, holders
of Common Stock would share proportionally in our
assets that remain after payment of all of our debts
and liabilities and after any liquidation payments with
respect to Preferred Stock.
Preferred Stock
We can issue shares of Preferred Stock in series
with such preferences and designations as our board of
directors may determine. Our board can, without
shareholder approval, issue Preferred Stock with
voting, dividend, liquidation, redemption and
conversion rights it deems appropriate. However,
shares of Preferred Stock cannot be given more than one
vote per share. Issuance of stock by the Board could
dilute the voting strength of the holders of Common
Stock, give the holders of Preferred Stock priority
over the holders of Common Stock with respect to the
payment of dividends or grant the holders of Preferred
Stock preference with respect to liquidation rights.
It also may help our management impede a takeover or
attempted change in control.
Rights Plan
We have entered into a Rights Agreement, dated as
of July 31, 1995, with Norwest Bank Minnesota, N.A.
Under this Agreement, each outstanding share of our
Common Stock has one Common Share Purchase Right
attached to it. Each share of Common Stock we issue
before the Rights Agreement expires (including the
shares of Common Stock we are selling in this offering)
also will have one Right attached to it. A complete
description of the Rights and all the specific terms of
the Rights are set forth in the Rights Agreement. In
this prospectus, unless the context otherwise requires,
all references to the Common Stock include the
accompanying Rights.
When the Rights become exercisable, each Right
will initially entitle the holder to purchase one share
of our Common Stock, at the current purchase price of
$80 per share. The purchase price is subject to
adjustment by the Board to prevent dilution. However,
the Rights are not exercisable if they are held by a
person or group that beneficially owns more than 15% of
our outstanding Common Stock. Currently, the Rights
are not exercisable and trade automatically with the
shares of Common Stock to which they are attached. The
Rights will only become exercisable if a person or
group has acquired, or announced an intention to
acquire, 15% or more of our outstanding Common Stock.
Under certain circumstances, including the existence of
a 15% acquiring party, each holder of a Right, other
than the acquiring party, will then be entitled to
purchase at the applicable purchase price, Common Stock
having a market value of two times the purchase price.
In the event we are acquired by another company after
the Rights have become exercisable, each holder of a
Right will be entitled to receive shares of the
acquiring company having a market value of two times
the purchase price.
The Rights do not have voting or dividend rights
and, until they become exercisable, have no dilutive
effect on our earnings. Unless we redeem or exchange
the Rights, they will expire on July 31, 2005. We may
redeem all, but not part of, the Rights at any time
before they become exercisable, at a price of $0.01 per
Right. The Board has the discretion to determine the
effective date of the redemption and the terms and
conditions of the redemption. Once the Rights become
exercisable, but before a person or group acquires 50%
or more of our outstanding Common Stock, we may decide
to exchange all or part of the Rights at a rate of one
share of Common Stock per Right.
The Board may amend the Rights without the consent
of the holders, except that we cannot change the
redemption price, the purchase price or the final
expiration date. We can lower the threshold for
exercisability of the Rights from 15% to 10%, except
that the new threshold will not apply to a person who
meets the new threshold at the time we lower it, and if
the Rights are already exercisable, we cannot lower the
threshold if it will adversely affect the interests of
the Rights holders.
Transfer Agent and Registrar
Norwest Bank Minnesota, N.A. is the transfer agent
and registrar for our Common Stock.
CERTAIN PROVISIONS RELATING TO CHANGES IN CONTROL
This section describes certain provisions and laws
that can delay, deter or prevent a third party from
acquiring control of Pentair through a tender offer,
open market purchases, a proxy contest or other
mechanism. Our shareholders might view any such
transaction as being in their best interests since the
transaction could result in a higher stock price than
the current market price for our Common Stock.
Restated Articles of Incorporation and Bylaws
Provisions. The provisions in our Restated Articles of
Incorporation and Bylaws that could have an anti-
takeover effect include the following:
- We have a staggered Board with three classes.
One class is elected each year for three-year
terms. We believe that a classified Board of
Directors helps assure the continuity and
stability of our Board and business
strategies and policies. The classified
Board, however, also increases the likelihood
that, in the event of a takeover, some
incumbent directors will retain their
positions; that is, a potential acquirer
probably will not be able to take control of
the Board in one proxy contest. In addition,
the classified Board provision helps ensure
that our Board, if confronted with an
unsolicited proposal from a third party that
has acquired a block of our voting stock,
will have sufficient time to review the
proposal and appropriate alternatives and to
seek the best available result for all
shareholders.
- Directors can fill any vacant directorships.
However, directors appointed by the Board to
fill a vacancy come up for election at the
next annual meeting, even if the term would
not normally expire.
- Directors may only be removed for good cause.
- There are advance notice requirements for
nominating candidates for the Board of
Directors.
- Holders of 25% of the outstanding voting
shares are required to call a special meeting
to consider any action to facilitate or
effect a business combination.
- There are notice and shareholder approval
requirements for persons acquiring 20% or
more of the outstanding voting power. If
they are not complied with, the acquired
shares, for a period of one year after
acquisition, are denied voting rights, are
not transferable and are subject to our
option to redeem the shares at the price at
which they were acquired.
- A super-majority representing two-thirds of
our outstanding Common Stock is required to
approve a consolidation or merger.
- If a 20% shareholder acquires more shares or
any shareholder acquires more than 50% of the
outstanding shares, shareholders have the
right to request that we repurchase their
shares at the higher of the tender offer
price, the acquisition price or the highest
market price over a specified period of time.
The obligation to repurchase does not apply
in the event that:
- the Board recommends that a pending
tender offer be accepted or
- if no tender offer is pending, the
board announces that it does not
oppose the accumulation of shares.
This provision is intended to prevent
potential acquirers from paying some
shareholders less than other shareholders.
- The Board could use the unissued and
unreserved shares to discourage a takeover
attempt.
Rights Plan. The Common Share Purchase Rights,
described above, can have anti-takeover effects. They
could cause substantial dilution to a person or group
that attempts to acquire us. Accordingly, the
existence of the Rights may deter some acquirers from
making takeover proposals or tender offers. The Rights
are not intended to prevent a takeover, but rather are
designated to enhance the ability of our Board to
negotiate with an acquirer on behalf of all of our
shareholders.
Certain Provisions of the Minnesota Law. The
Minnesota Business Corporation Act has two provisions
that could delay or prevent a change in control.
Generally, if any person acquires 20% or more of our
outstanding voting stock, such acquisition must be
approved by a majority vote of our shareholders, as
required by Section 302A.671 of the Minnesota Business
Corporation Act. If the acquisition is not approved,
the number of shares exceeding the 20% level will be
denied voting rights and we would have the right to
redeem the shares at their fair market value within 30
days if the owner of the shares fails to comply with
the procedural requirements of Section 302A.671 or our
shareholders do not vote to grant voting rights to the
shares. This provision does not apply to mergers and
exchanges if we are a party to the transaction. This
provision also does not apply to shares acquired
directly from us. Section 302A.673 of the Minnesota
Business Corporation Act does not allow us to enter
into any business combination, such as a merger, with
any shareholder who owns 10% or more of our voting
shares for four years following the date the shares
were acquired, unless the business combination is
approved by a committee of all of our disinterested
directors before the shares are acquired.
In addition, Minnesota Statutes, Chapter 80B
requires a person proposing to acquire 10% or more of
the outstanding shares to file materials with and
obtain approval from the Minnesota Department of
Commerce under certain circumstances.
PLAN OF DISTRIBUTION
Distribution
We may sell the offered securities through agents,
underwriters or dealers, or directly to one or more
purchasers. The applicable prospectus supplement will
set forth the terms of the offering of any securities,
including:
- the names of any underwriters or agents;
- the purchase price of the securities;
- the proceeds to us from the sale;
- any underwriting discounts;
- any other items of underwriters'
compensation;
- any initial public offering price; and
- any discounts or concessions allowed or
reallowed or paid to dealers.
Agents
We may designate agents to sell securities from
time to time, who will agree to use their reasonable
efforts to solicit purchases for the period of their
appointment or to sell securities on a continuing
basis. We may sell securities through agents
designated by us from time to time.
Dealers
If we use dealers for the sale of any securities,
we will sell such securities to the dealers as
principal. Any dealer may then resell such securities
to the public at varying prices to be determined by
such dealer at the time of resale. The name of any
dealer and the terms of the transaction will be set
forth in the prospectus supplement with respect to such
securities being offered thereby.
Underwriters
If we use underwriters for a sale of securities,
the underwriters will acquire the securities for their
own account. The underwriters may resell the
securities in one or more transactions, including
negotiated transactions, at a fixed public offering
price or at varying prices determined at the time of
sale. The obligations of the underwriters to purchase
the securities will be subject to the conditions set
forth in the applicable underwriting agreement. The
underwriters will be obligated to purchase all the
securities of the series offered if any of the
securities of that series are purchased. Any initial
public offering price and any discounts or concessions
allowed or re-allowed or paid to dealers may be changed
from time to time. The securities may be offered to the
public either through underwriting syndicates
represented by managing underwriters or by underwriters
without a syndicate. Only underwriters named in a
supplement will be underwriters for that offering.
Direct Sales
We may also sell securities directly to one or
more purchasers without using underwriters, dealers or
agents.
Compensation and Indemnification of Underwriters,
Dealers and Agents
Underwriters, dealers and agents that participate
in the distribution of the securities may be
underwriters as defined in the Securities Act of 1933
and any discounts or commissions they receive from us
and any profit on their resale of the securities may be
treated as underwriting discounts and commissions under
the Securities Act of 1933. The applicable prospectus
supplement will identify any underwriters, dealers or
agents and will describe their compensation. We may
have agreements with the underwriters, dealers and
agents to indemnify them against certain civil
liabilities, including liabilities under the Securities
Act of 1933. Underwriters, dealers and agents may
engage in transactions with or perform services for us
or our subsidiaries in the ordinary course of their
businesses.
Trading Markets And Listing of Securities
Unless otherwise specified in the applicable
prospectus supplement, each class or series of
securities will be a new issue with no established
trading market, other than the Common Stock, which is
listed on the New York Stock Exchange. We may elect to
list any other class or series of securities on any
exchange, but we are not obligated to do so. It is
possible that one or more underwriters may make a
market in a class or series of securities, but the
underwriters will not be obligated to do so and may
discontinue any market making at any time without
notice. We cannot give any assurance as to the
liquidity of the trading market for any of the
securities.
Delayed Delivery Contracts
If so indicated in a prospectus supplement, we
will authorize agents, underwriters or dealers to
solicit offers by certain institutions to purchase such
securities from us at the public offering price set
forth in the prospectus supplement pursuant to delayed
delivery contracts providing for payment and delivery
on the date or dates stated in the prospectus
supplement. Each contract will be for an amount not
less than, and the aggregate principal amount of the
securities sold pursuant to the contracts shall be not
less nor more than, the respective amounts stated in
the prospectus supplement. Institutions with whom the
contracts, when authorized, may be made include
commercial and savings banks, insurance companies,
pension funds, investment companies, educational and
charitable institutions and other institutions, but
will in all cases be subject to our approval. The
contracts will not be subject to any conditions except:
- the purchase by an institution of the
securities covered by its contract shall not
at the time of delivery be prohibited under
the laws of any jurisdiction in the United
States to which such institution is subject;
and
- if the securities are being sold to
underwriters, we shall have sold to such
underwriters the total principal amount of
the Debt Securities less the principal amount
thereof covered by the contracts.
The underwriters will not have any responsibility
in respect of the validity or performance of the
contracts.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
We "incorporate by reference" into this prospectus
the information we file with the SEC. That means that,
rather than reprinting here all of the information
contained in other documents filed with the SEC, we can
disclose important information to you by referring you
to those documents. The information incorporated by
reference is an important part of this prospectus. Any
information that we file with the SEC in the future
will automatically update and supersede what is printed
in this prospectus. We incorporate by reference the
following documents that we have filed or will file
with the SEC under Sections 13(a), 13(c), 14 or 15(d)
of the Securities Exchange Act of 1934:
- Annual Report on Form 10-K for the year ended
December 31, 1998.
- Quarterly Report on Form 10-Q for the quarter
ended March 27, 1999.
- Current Report on Form 8-K as filed on April
8, 1999.
- All future filings with the SEC under
Sections 13(a), 13(c), 14 or 15(d) of the
Securities Exchange Act of 1934 until we have
sold all of the securities offered by this
prospectus.
- The descriptions of our Common Stock and
Common Share Purchase Rights contained in our
Registration Statements on Form 8-A and any
amendments or reports filed to update these
descriptions.
We will provide you with a copy of these filings,
at no cost, if you write us at Pentair, Inc., 1500
County Road B2 West, St. Paul, Minnesota 55113-3105,
Attention: Corporate Secretary or call (651) 636-7920.
LEGAL MATTERS
The validity of the Common Stock and Debt
Securities covered by this prospectus will be passed
upon for us by Henson & Efron, P.A., Minneapolis,
Minnesota. Certain shareholders of Henson & Efron,
P.A. own shares of Common Stock.
EXPERTS
The consolidated financial statements and the
related financial statement schedule incorporated in
this prospectus by reference from the Pentair, Inc.
Annual Report on Form 10-K for the year ended December
31, 1998 have been audited by Deloitte & Touche,
independent auditors, as stated in their report, which
is incorporated herein by reference, and have been so
incorporated in reliance on the report of such firm
given upon their authority as experts in accounting and
auditing.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The table below sets forth the estimated expenses
(except the SEC registration fee, which is an actual
expense) in connection with the offer and sale of the
shares of Common Stock of the registrant covered by
this Registration Statement.
SEC registration fee $194,600
NYSE additional listing fees 75,000
Trustee's fees 5,000
Attorney's fees and expenses 150,000
Accounting Fees and expenses 180,000
Rating agency fees 50,000
Printing and engraving 75,000
Miscellaneous 50,400
Total $700,000
Item 15. Indemnification of Directors and Officers.
Minnesota Statutes Section 302A.521 provides that
a Minnesota business corporation must indemnify any
director, officer, employee or agent of the corporation
made or threatened to be made a party to a proceeding,
by reason of the former or present official capacity
(as defined in the statute) of the person, against
judgments, penalties, fines, settlements and reasonable
expenses incurred by the person in connection with the
proceeding if certain statutory standards are met.
"Proceeding" means a threatened, pending or completed
civil, criminal, administrative, arbitration or
investigative proceeding, including one by or in the
right of the corporation. Section 302A.521 contains
detailed terms regarding such right of indemnification
and reference is made thereto for a complete statement
of such indemnification rights. The Company's Restated
Articles of Incorporation also require the Company to
provide indemnification to the fullest extent of the
Minnesota indemnification statute.
The Company maintains directors' and officers'
liability insurance, including a reimbursement policy
in favor of the Company.
Item 16. Exhibits.
The following exhibits are either included in this
report or incorporated by reference as indicated below:
Exhibit
Number Description
3.1 Restated Articles of Incorporation as amended
through May 11, 1999. (Incorporated by reference
to Exhibit 3.1 to the Company's Form 10-Q for the
quarter ended March 27, 1999).
3.2 Second Amended and Superseding By-Laws as amended
through July 21, 1995. (Incorporated by reference to
Exhibit 4.2 to the Company's Registration Statement
on Form S-8 filed August 28, 1998 (File No. 333-
62475).
4.1 Rights Agreement as of July 21, 1995 between Norwest
Bank N.A. and Pentair, Inc. (Incorporated by
reference to Exhibit 4.1 to the Company's Form 10-Q
for the quarter ended June 30, 1995).
4.2* Form of Indenture (including form of Debt
Securities)
5.1* Opinion and Consent of Henson & Efron, P.A.
12.1* Statement regarding Computation of Ratio of Earnings
to Fixed Charges.
23.1* Consent of Deloitte & Touche.
23.2* Consent of Henson & Efron, P.A. (See Exhibit 5.1.)
24.1* Power of Attorney.
25.1* Statement of Eligibility on Form T-1 of U.S. Bank
Trust National Association.
* Filed herewith.
Item 17. Undertakings.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or
sales are being made, a post-effective amendment to
this registration statement (i) to include any
prospectus required by Section 10(a)(3) of the
Securities Act of 1933; (ii) to reflect in the
prospectus any facts or events arising after the
effective date of the registration statement (or the
most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a
fundamental change in the information set forth in the
registration statement; notwithstanding the foregoing,
any increase or decrease in volume of securities
offered (if the total dollar value of securities
offered would not exceed that which was registered) and
any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume and
price represent no more than 20% change in the maximum
aggregate offering price set forth in the "Calculation
of Registration Fee" table in the effective
registration statement; and (iii) to include any
material information with respect to the plan of
distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement; provided,
however, that paragraphs (a)(1)(i) and (a)(1)(ii) do
not apply if the information required to be included in
a post-effective amendment by those paragraphs is
contained in periodic reports filed by registrant
pursuant to Section 13 or Section 15(d) of the Securi
ties Exchange Act of 1934 that are incorporated by
reference in the registration statement.
2) That, for the purpose of determining any
liability under the Securities Act of 1933, each such
post-effective amendment shall be deemed to be a new
registration statement relating to the securities
offered therein and the offering of such securities at
that time shall be deemed to be the initial bona fide
offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being
registered which remain unsold at the termination of
the offering.
(4) That, for the purposes of determining any
liability under the Securities Act of 1933, (i) the
information omitted from the form of prospectus filed
as part of this registration statement in reliance upon
Rule 430(A) and contained in a form of prospectus filed
by the registrant pursuant to Rule 424(b)(1) or (4) or
497(h) under the Securities Act shall be deemed to be
part of this registration statement as of the time it
was declared effective; (ii) each filing of the
registrant's annual report pursuant to Section 13(a) or
Section 15(d) of the Securities Exchange Act of 1934
(and, where applicable, each filing of an employee
benefit plan's annual report pursuant to Section 15(d)
of the Securities Exchange Act of 1934) that is
incorporated by reference in the registration statement
shall be deemed to be a new registration statement
relating to the securities offered therein and the
offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof;
and (iii) each post-effective amendment that contains a
form of prospectus shall be deemed to be anew
registration statement relating to the securities
offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide
offering thereof.
Insofar as indemnification for liabilities arising
under the Securities Act of 1933 may be permitted to
directors, officers and controlling persons of the
registrant pursuant to the provisions described under
Item 15 above, or otherwise, the registrant has been
advised that in the opinion of the Securities and
Exchange Commission such indemnification is against
public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim
for indemnification against such liabilities (other
than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of
the registrant in the successful defense of any action,
suit or proceeding) is asserted by such director,
officer or controlling person in connection with the
securities being registered, the registrant will,
unless in the opinion of its counsel the matter has
been settled by controlling precedent, submit to a
court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as
expressed in the Act and will be governed by the final
adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act
of 1933, the registrant certifies that it has
reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused
this registration statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in the
City of St. Paul, State of Minnesota on June 7, 1999.
PENTAIR, INC.
By /s/ Winslow H. Buxton
Winslow H. Buxton
Chairman, President
and Chief Executive
Officer
Pursuant to the requirements of the Securities Act
of 1933, this Registration Statement has been signed by
the following persons on June 7, 1999 in the capacities
indicated.
Signature Title
/s/ Winslow H. Buxton Chairman, President, Chief
Winslow H. Buxton Executive Officer and Director
(principal executive officer)
/s/ Richard W. Ingman Executive Vice President and
Richard W. Ingman Chief Financial Officer
(principal financial and
accounting officer)
* Director
William J. Cadogan
* Vice Chairman and Director
Joseph R. Collins
* Director
Barbara B. Grogan
* Director
Charles A. Haggerty
* Director
Harold V. Haverty
* Director
Quentin J. Hietpas
* Director
Stuart Maitland
* Director
Augusto Meozzi
* Director
Richard M. Schulze
* Director
Karen E. Welke
*This Registration Statement has been signed by the
undersigned as attorneys-in-fact on behalf of each
person so indicated pursuant to a power of attorney
duly executed by each such person.
By: /s/ Louis L. Ainsworth
Louis L. Ainsworth
Attorney-in-Fact
And By: /s/ Richard W. Ingman
Richard W. Ingman
Attorney-in-Fact
PENTAIR, INC.
EXHIBIT INDEX TO
FORM S-3 REGISTRATION STATEMENT
Exhibit Description
Number
4.2 Form of Indenture (including form of Debt
Securities)
5.1 Opinion and Consent of Henson & Efron, P.A.
12.1 Statement regarding Computation of Ratio of Earnings
to Fixed Charges.
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of Henson & Efron, P.A.. (See Exhibit 5.1.)
24.1 Power of Attorney.
25.1 Statement of Eligibility on Form T-1 of U.S. Bank
Trust National Association.
PENTAIR, INC.
TO
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
_____________________
INDENTURE
Dated as of June 1, 1999
_____________________
PENTAIR, INC.
Reconciliation and tie between Trust Indenture Act of
1939 and
Indenture, dated as of June 1, 1999
Trust Indenture
Act Section Indenture Section
310(a)(1) 609
(a)(2) 609
(a)(3) Not Applicable
(a)(4) Not Applicable
(a)(5) 609
(b) . 608, 610
311 613
312(a) 701, 702(a)
(b) 702(b)
(c) 702(c)
313 703
314(a) 704
(b) Not Applicable
(c)(1) 102
(c)(2) 102
(c)(3) Not Applicable
(d) Not Applicable
(e) 102
315(a) 601
(b) 602
(c) 601
(d) 601
(e) 514
316(a) 101
(a)(1)(A) 502, 512
(a)(1)(B) 513
(a)(2) Not Applicable
(b) 508
317(a)(1) 503
(a)(2) 504
(b) . 1003
318(a) 107
Note: This reconciliation and tie shall not, for any
purpose, be deemed to be part of the Indenture.
TABLE OF CONTENTS
RECITALS OF THE COMPANY 1
ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION 1
SECTION 101. Definitions 1
SECTION 102. Compliance Certificates and Opinions 8
SECTION 103. Form of Documents Delivered to Trustee 9
SECTION 104. Acts of Holders 9
SECTION 105. Notices, Etc., to Trustee and Company 10
SECTION 106. Notice to Holders; Waiver 11
SECTION 107. Compliance with Trust Indenture Act 11
SECTION 108. Effect of Headings and Table of Contents 11
SECTION 109. Successors and Assigns 11
SECTION 110. Separability Clause 12
SECTION 111. Benefits of Indenture 12
SECTION 112. Governing Law 12
SECTION 113. Legal Holidays 12
ARTICLE TWO SECURITY FORMS 12
SECTION 201. Forms Generally 12
SECTION 202. Form of Face of Security 13
SECTION 203. Form of Reverse of Security 15
SECTION 204. Form of Trustee's Certificate of Authentication 19
SECTION 205. Form of Legend for Global Securities 19
ARTICLE THREE THE SECURITIES 20
SECTION 301. Amount Unlimited; Issuable in Series 20
SECTION 302. Denominations 22
SECTION 303. Execution, Authentication, Delivery
and Dating 22
SECTION 304. Temporary Securities 25
SECTION 305. Registration, Registration of
Transfer and Exchange 25
SECTION 306. Mutilated, Destroyed, Lost and
Stolen Securities 27
SECTION 307. Payment of Interest; Interest Rights Preserved 27
SECTION 308. Persons Deemed Owners 29
SECTION 309. Cancellation. 29
SECTION 310. Computation of Interest 29
SECTION 311. Payment to be in Proper Currency 30
ARTICLE FOUR SATISFACTION AND DISCHARGE 30
SECTION 401. Satisfaction and Discharge of Indenture 30
SECTION 402. Application of Trust Money 31
SECTION 403. Defeasance and Discharge of Indenture 31
ARTICLE FIVE REMEDIES 33
SECTION 501. Events of Default 33
SECTION 502. Acceleration of Maturity; Rescission
and Annulment 35
SECTION 503. Collection of Indebtedness and Suits
for Enforcement by Trustee 36
SECTION 504. Trustee May File Proofs of Claim 36
SECTION 505. Trustee May Enforce Claims Without
Possession of Securities 37
SECTION 506. Application of Money Collected 37
SECTION 507. Limitation on Suits 38
SECTION 508. Unconditional Right of Holders to Receive
Principal, Premium and Interest 38
SECTION 509. Restoration of Rights and Remedies 39
SECTION 510. Rights and Remedies Cumulative 39
SECTION 511. Delay or Omission Not Waiver 39
SECTION 512. Control by Holders 39
SECTION 513. Waiver of Past Defaults 40
SECTION 514. Undertaking for Costs 40
SECTION 515. Waiver of Stay or Extension Laws 41
ARTICLE SIX THE TRUSTEE 41
SECTION 601. Certain Duties and Responsibilities 41
SECTION 602. Notice of Defaults 41
SECTION 603. Certain Rights of Trustee 41
SECTION 604. Not Responsible for Recitals or
Issuance of Securities 43
SECTION 605. May Hold Securities 43
SECTION 606. Money Held in Trust 43
SECTION 607. Compensation and Reimbursement 44
SECTION 608. Disqualification; Conflicting Interests 44
SECTION 609. Corporate Trustee Required; Eligibility 44
SECTION 610. Resignation and Removal; Appointment
of Successor 45
SECTION 611. Acceptance of Appointment by Successor 46
SECTION 612. Merger, Conversion, Consolidation or
Succession to Business 47
SECTION 613. Preferential Collection of Claims
Against Company 48
SECTION 614. Appointment of Authenticating Agent 48
ARTICLE SEVEN HOLDERS' LISTS AND REPORTS BY TRUSTEE AND
COMPANY 49
SECTION 701. Company to Furnish Trustee Names and
Addresses of Holders 49
SECTION 702. Preservation of Information;
Communications to Holders 50
SECTION 703. Reports by Trustee 50
SECTION 704. Reports by Company 50
ARTICLE EIGHT CONSOLIDATION, MERGER, CONVEYANCE,
TRANSFER OR LEASE 51
SECTION 801. Company May Consolidate, Etc., Only
on Certain Terms 51
SECTION 802. Successor Substituted 52
ARTICLE NINE SUPPLEMENTAL INDENTURES 52
SECTION 901. Supplemental Indentures Without
Consent of Holders 52
SECTION 902. Supplemental Indentures with Consent
of Holders 53
SECTION 903. Execution of Supplemental Indentures 55
SECTION 904. Effect of Supplemental Indentures 55
SECTION 905. Conformity with Trust Indenture Act 55
SECTION 906. Reference in Securities to Supplemental
Indentures 55
SECTION 907. Notice of Supplemental Indentures 55
ARTICLE TEN COVENANTS 56
SECTION 1001. Payment of Principal, Premium and Interest 56
SECTION 1002. Maintenance of Office or Agency 56
SECTION 1003. Money for Securities Payments to Be
Held in Trust 56
SECTION 1004. Existence 58
SECTION 1005. Maintenance of Properties 58
SECTION 1006. Payment of Taxes and Other Claims 58
SECTION 1007. Intentionally Deleted 58
SECTION 1008. Intentionally Deleted 58
SECTION 1009. Defeasance of Certain Obligations 62
SECTION 1010. Waiver of Certain Covenants 63
ARTICLE ELEVEN REDEMPTION OF SECURITIES 63
SECTION 1101. Applicability of Article 63
SECTION 1102. Election to Redeem; Notice to Trustee 64
SECTION 1103. Selection by Trustee of Securities to Be Redeemed 64
SECTION 1104. Notice of Redemption 64
SECTION 1105. Deposit of Redemption Price 65
SECTION 1106. Securities Payable on Redemption Date 65
SECTION 1107. Securities Redeemed in Part 66
ARTICLE TWELVE SINKING FUNDS 66
SECTION 1201. Applicability of Article 66
SECTION 1202. Satisfaction of Sinking Fund Payments
with Securities 66
SECTION 1203. Redemption of Securities for Sinking Fund 67
INDENTURE, dated as of June 1, 1999 between Pentair, Inc., a
corporation duly organized and existing under the laws of
the State of Minnesota (herein called the "Company"), having
its principal office at 1500, County Road B2 West, Suite
400, St. Paul, Minnesota 55113-3105, and U.S. Bank Trust
National Association, a national banking association, as
Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery
of this Indenture to provide for the issuance from time to
time of its unsecured debentures, notes or other evidences
of indebtedness (herein called the "Securities"), to be
issued in one or more series as in this Indenture provided.
All things necessary to make this Indenture a valid
agreement of the Company, in accordance with its terms, have
been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Securities by the Holders thereof, it is mutually
covenanted and agreed, for the equal and proportionate
benefit of all Holders of the Securities or of series
thereof, as follows:
ARTICLE 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;
(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) any gender used in this Indenture shall be deemed
and construed to include correlative words of the masculine,
feminine or neuter gender;
(4) all accounting terms not otherwise defined herein
have the meanings assigned to them in accordance with
generally accepted accounting principles, and, except as
otherwise herein expressly provided, the term "generally
accepted accounting principles" with respect to any
computation required or permitted hereunder shall mean such
accounting principles as are generally accepted at the date
of such computation; and
(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 specified Person means any other Person
directly or indirectly controlling or controlled by or under
direct or indirect common control with such specified
Person. For the purposes of this definition, "control", when
used with respect to any specified Person, means the power
to direct the management and policies of such Person,
directly or indirectly, whether through the ownership of
voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to
the foregoing.
"Attributable Debt" in respect of any Sale and Leaseback
Transaction means, at the date of determination, the present
value (discounted at the rate of interest implicit in the
terms of the lease) of the obligation of the lessee for net
rental payments during the remaining term of the lease
(including any period for which such lease has been extended
or may, at the option of the lessor, be extended). "Net
rental payments" under any lease for any period means the
sum of the rental and other payments required to be paid in
such period by the lessee thereunder, excluding any amounts
required to be paid by such lessee (whether or not
designated as rental or additional rental) on account of
maintenance and repairs, insurance, taxes, assessments,
water rates or similar charges required to be paid by such
lessee thereunder or any amounts required to be paid by such
lessee thereunder contingent upon the amount of sales,
maintenance and repairs, insurance, taxes, assessments,
water rates or similar charges.
"Authenticating Agent" means any Person authorized by the
Trustee pursuant to Section 614 to act on behalf of the
Trustee to authenticate Securities of one or more series.
"Board of Directors" means either the board of directors of
the Company or any duly authorized committee appointed by
that board.
"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.
Where any provision of this Indenture refers to action to be
taken pursuant to a Board Resolution (including
establishment of any series of the Securities and the forms
and terms thereof), such action may be taken by any
committee, officer or employee of the Company authorized to
take such action by a Board Resolution.
"Business Day", when used with respect to any Place of
Payment, means each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions
generally in that Place of Payment are obligated by law or
executive order to close, unless otherwise specified in a
form of Security.
"Commission" means the Securities and Exchange
Commission, as from time to time constituted, created
under the Securities Exchange Act of 1934, as amended,
or, if at any time after the execution of this
instrument such Commission is not existing and
performing the duties now assigned to it under the
Trust Indenture Act, then the body performing such
duties at such time.
"Company" means the Person named as the "Company"
in the first paragraph of this instrument until a
successor corporation shall have become such pursuant
to the applicable provisions of this Indenture, and
thereafter "Company" shall mean such successor
corporation.
"Company Request" or "Company Order" means a
written request or order signed in the name of the
Company by its Chairman of the Board, its President or
a Vice President, and by its Treasurer, an Assistant
Treasurer, its Secretary or an Assistant Secretary and
delivered to the Trustee.
"Corporate Trust Office" means the office of the
Trustee at which at any particular time its corporate
trust business shall be principally administered.
"Corporation" includes corporations, associations,
companies, joint stock companies and business trusts.
"Debt" has the meaning specified in Section 1007.
"Defaulted Interest" has the meaning specified in
Section 307.
"Depositary" means, with respect to the Securities
of any series issuable or issued in whole or in part in
the form of one or more Global Securities, the clearing
agency registered under the Exchange Act, specified for
that purpose as contemplated by Section 301 or any
successor clearing agency registered under the Exchange
Act as contemplated by Section 305, and if at any time
there is more than one such Person, "Depositary" as
used with respect to the Securities of any series shall
mean the Depositary with respect to the Securities of
such series.
"Event of Default" has the meaning specified in
Section 501.
"Exchange Act" means the Securities Exchange Act
of 1934, as amended.
"Funded Debt" means Debt which by its terms
matures at or is extendible or renewable at the option
of the obligor to a date more than 12 months after the
date of the creation of such Debt.
"Global Security" means a Security bearing the
legend specified in Section 205 evidencing all or part
of a series of Securities, issued to the Depositary for
such series or its nominee, and registered in the name
of such Depositary or nominee.
"Holder" means a Person in whose name a Security
is registered in the Security Register.
"Indenture" means this instrument as originally
executed or as it may from time to time be supplemented
or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable
provisions hereof and shall include the terms of
particular series of Securities established as
contemplated by Section 301; provided, however, that,
if at any time more than one Person is acting as
Trustee under this instrument due to the appointment of
one or more separate Trustees for any one or more
separate series of Securities pursuant to Section
610(e), "Indenture" shall mean, with respect to such
series of Securities for which any such Person is
Trustee, this instrument as originally executed or as
it may from time to time be supplemented or amended by
one or more indentures supplemental hereto entered into
pursuant to the applicable provisions hereof and shall
include the terms of particular series of Securities
for which such Person is Trustee established as
contemplated by Section 301, exclusive, however, of any
provisions or terms which relate solely to other series
of Securities for which such Person is not Trustee,
regardless of when such terms or provisions were
adopted, and exclusive of any provisions or terms
adopted by means of one or more indentures supplemental
hereto executed and delivered after such Person had
become such Trustee but to which such Person, as such
Trustee, was not a party.
"Interest", when used with respect to an Original
Issue Discount Security which by its terms bears
interest only after Maturity, means interest payable
after Maturity.
"Interest Payment Date", when used with respect to
any Security, means the Stated Maturity of an
installment of interest on such Security.
"Lien" or "Liens" has the meaning specified in
Section 1007.
"Maturity", when used with respect to any
Security, means the date on which the principal of such
Security or an installment of principal becomes due and
payable as therein or herein provided, whether at the
Stated Maturity or by declaration of acceleration, call
for redemption or otherwise.
"Officers' Certificate" means a certificate signed
by the Chairman of the Board, the President, a Vice
President or an Assistant Vice President of the
Company, and by the Treasurer or an Assistant Treasurer
of the Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of
counsel, who may be counsel for the Company and, in the
case of counsel for the Company, may be either inside
or outside counsel, which opinion may be subject to
standard qualifications and exceptions.
"Original Issue Discount Security" means any
Security which provides for an amount less than the
principal amount thereof to be due and payable at
maturity or upon a declaration of acceleration of the
Maturity thereof pursuant to Section 502.
"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 canceled 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 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 or whether a quorum is present at a meeting
of Holders of Securities, (i) the principal amount of
an Original Issue Discount Security that shall be
deemed to be Outstanding shall be the amount of the
principal thereof that would be due and payable as of
the date of such determination upon acceleration of the
Maturity thereof pursuant to Section 502, (ii) the
principal amount of a Security denominated in one or
more foreign currencies or currency units that shall be
deemed to be Outstanding shall be the U.S. dollar
equivalent, determined in the manner provided as
contemplated by Section 301 as of the date of original
issuance of such Security, of the principal amount (or,
in the case of an Original Issue Discount Security, the
U.S. dollar equivalent, determined as of the date of
original issuance of such Security, of the amount
determined as provided in (i) above) of such Security
as determined by the Company pursuant to Section 301,
and (iii) Securities owned by the Company or any other
obligor upon the Securities or any Affiliate of the
Company or of such other obligor shall be disregarded
and deemed not to be Outstanding, except that, in
determining whether the Trustee shall be protected in
relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Securities
which the Trustee knows to be so owned shall be so
disregarded. Securities so owned 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.
"Paying Agent" means any Person authorized by the
Company to pay the principal of (and premium, if any)
and/or interest on any Securities on behalf of the
Company.
"Periodic Offering" means an offering of
Securities of a series from time to time the specific
terms of which Securities, including without limitation
the rate or rates of interest (or formula for
determining the rate or rates of interest), if any,
thereon, the Stated Maturity or Maturities thereof and
the redemption provisions, if any, with respect
thereto, are to be determined by the Company or its
agents upon the issuance of such Securities.
"Person" means any individual, Corporation,
partnership, joint venture, association, joint stock
company, trust, unincorporated organization or
government or any agency or political subdivision
thereof.
"Place of Payment", when used with respect to the
Securities of any series, means the place or places
where the principal of (and premium, if any) and/or
interest on the Securities of that series are payable,
where Securities of that series may be surrendered for
registration of transfer or exchange and where notices
and demands to or upon the Company in respect of the
Securities of that series and this Indenture may be
served.
"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.
"Principal Property" means any manufacturing
plant, office facility, warehouse or distribution
center (consisting of real estate, buildings and
fixtures) located within the United States of America
(other than its territories or possessions) and owned
by the Company or any Subsidiary, the gross book value
(without deduction of any depreciation reserves) of
which on the date as of which the determination is
being made exceeds _______________________ of the
Company (as shown on the Company's most recent
consolidated balance sheet and computed in accordance
with generally accepted accounting principles), except
any such plant (i) to the extent financed by
obligations issued by a State or local governmental
unit pursuant to Section 142(a)(5), 142(a)(6),
142(a)(8) or 144(a) of the Internal Revenue Code of
1986, or any successor provision thereof, or (ii) which
is not of material importance to the business conducted
by the Company and its Subsidiaries, taken as a whole
(as determined by any two of the following: the
Chairman or a Vice Chairman of the Board of the
Company, its President, its Chief Financial Officer,
its Vice President of Finance, its Treasurer or its
Controller).
"Redemption Date", when used with respect to any
Security to be redeemed, means the date fixed for such
redemption 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 on the Securities of any
series means the date specified for that purpose as
contemplated by Section 301.
"Required Currency" has the meaning specified in
Section 311.
"Responsible Officer", when used with respect to
the Trustee, means any officer of the Trustee assigned
by it to administer its corporate trust matters.
"Restricted Subsidiary" means any Subsidiary which
owns or leases a Principal Property.
"Sale and Leaseback Transaction" has the meaning
specified in Section 1008.
"Securities" has the meaning stated in the first
recital of this Indenture and more particularly means
any Securities authenticated and delivered under this
Indenture; provided, however, that if at any time there
is more than one Person acting as Trustee under this
Indenture, "Securities" with respect to the Indenture
as to which such Person is Trustee shall have the
meaning stated in the first recital of this Indenture
and shall more particularly mean Securities
authenticated and delivered under this Indenture,
exclusive, however, of Securities of any series as to
which such Person is not Trustee.
"Security Register" and "Security Registrar" have
the respective meanings specified in Section 305.
"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 principal thereof or
interest thereon, means the date specified in such
Security as the fixed date on which the principal of
such Security or such installment of principal or
interest is due and payable.
"Subsidiary" means any Corporation of which
securities (excluding securities entitled to vote for
directors only by reason of the happening of a
contingency) entitled to elect at least a majority of
the corporation's directors shall at the time be owned,
directly or indirectly, by the Company, or one or more
Subsidiaries, or by the Company and one or more
Subsidiaries.
"Trustee" means the Person named as the "Trustee"
in the first paragraph of this instrument until a
successor Trustee shall have become such pursuant to
the applicable provisions of this Indenture, and
thereafter "Trustee" shall mean or include each Person
who is then a Trustee hereunder, and if at any time
there is more than one such Person, "Trustee" as used
with respect to the Securities of any series shall mean
the Trustee with respect to Securities of that series.
"Trust Indenture Act" or "TIA" 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.
"U.S. Government Obligations" means direct
obligations of the United States of America, backed by
its full faith and credit.
"Vice President", when used with respect to the
Company, means any vice president, whether or not
designated by a number or a word or words added before
or after the title "vice president".
"Voting Stock", when used with respect to a
Corporation, means stock of the class or classes having
general voting power under ordinary circumstances to
elect at least a majority of the board of directors,
managers or trustees of such Corporation (irrespective
of whether at the time stock or securities of any other
class or classes shall have or might have voting power
by reason of the happening of any contingency).
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 an Officers' Certificate stating that all
conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in
the opinion of such counsel all such conditions
precedent, if any, have been complied with, except that
in the case of any such application or request as to
which the furnishing of such documents is specifically
required by any provision of this Indenture relating to
such particular application or request, no additional
certificate or opinion need be furnished.
Every certificate or opinion with respect to
compliance with a condition or covenant provided for in
this Indenture shall include:
(1) a statement that each individual signing
such certificate or opinion has read such covenant
or condition and the definitions herein relating
thereto;
(2) a brief statement as to the nature and
scope of the examination or investigation upon
which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each
such individual, he has made such examination or
investigation as is necessary to enable him to
express an informed opinion whether such covenant
or condition has been complied with; and
(4) a statement whether, in the opinion of
each such individual, such condition or covenant
has been complied with.
Every such certificate or opinion provided under this
Indenture shall be without personal recourse to the
individual executing the same and may include an
express statement to such effect.
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 any 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 such officer's
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. All
applications, requests, consents, certificates,
statements, opinions or other instruments given under
this Indenture shall be without personal recourse to
any individual giving the same and may include an
express statement to such effect.
SECTION 104. Acts of Holders
(a) Any request, demand, authorization, direction,
notice, consent, waiver or other action provided by
this Indenture to be given or taken by Holders may be
embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in
person or by an 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 such signer's individual capacity,
such certificate or affidavit shall also constitute
sufficient proof of such signer's authority. The fact
and date of the execution of any such instrument or
writing, or the authority of the Person executing the
same, may also be proved in any other manner which the
Trustee deems sufficient.
(c) The ownership of Securities shall be proved
by the Security Register. The Company may fix any day
as the record date for the purpose of determining the
Holders of Securities of any series 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 of Securities of such series. If not
set by the Company prior to the first solicitation of a
Holder of Securities of such series 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 for action to be taken
by the Holders of one or more series of Securities,
only the Holders of Securities of such series on such
date (or their duly designated proxies) shall be
entitled to give or take, or vote on, the relevant
action.
(d) Any request, demand, authorization,
direction, notice, consent, waiver or other Act of the
Holder of any Security shall bind every future Holder
of the same Security and the Holder of every Security
issued upon the registration of transfer thereof or in
exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the
Trustee or the Company in reliance thereon, whether or
not notation of such action is made upon such Security.
SECTION 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 a Responsible Officer of the
Trustee at its Corporate Trust Office, Attention:
Corporate Trust Department, 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, first-class
postage prepaid, to the Company addressed to it at
the address of its principal office specified in
the first paragraph of this instrument (Attention:
Treasurer) 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, first-class postage prepaid, to
each Holder affected by such event, at such Holder's
address as it appears in the Security Register, not
later than the latest date, and not earlier than the
earliest date, prescribed for the giving of such
notice. In any case where notice to Holders is given by
mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular
Holder shall affect the sufficiency of such notice with
respect to other Holders. Where this Indenture provides
for notice in any manner, such notice may be waived in
writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall
be the equivalent of such notice. Waivers of notice by
Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the
validity of any action taken in reliance upon such
waiver.
In case by reason of the suspension of regular
mail service or by reason of any other cause it shall
be impracticable to give such notice by mail, then such
notice shall be given by such other method as the
Company shall reasonably determine and the same shall
constitute a sufficient notification for every purpose
hereunder.
SECTION 107. Compliance with Trust Indenture Act
This Indenture is subject to, and shall be
governed by, the provisions of the Trust Indenture Act
that are required to be part of this Indenture. If any
provision hereof limits, qualifies or conflicts with a
provision of the Trust Indenture Act that is required
under such Act to be a 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 or the Trustee shall bind its successors
and assigns, whether so expressed or not.
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, any Authenticating Agent, any
Paying Agent, any Securities Registrar, and their
successors hereunder and the Holders, 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, without regard for principles
of conflicts of law thereof.
SECTION 113. Legal Holidays.
Except as may be otherwise specified with respect
to any particular Securities, in any case where any
Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day at
any Place of Payment, then (notwithstanding any other
provision of this Indenture or of the Securities)
payment of interest or principal (and premium, if any)
need not be made at such Place of Payment on such date,
but may be made on the next succeeding Business Day at
such Place of Payment with the same force and effect as
if made on the Interest Payment Date or Redemption
Date, or at the Stated Maturity, provided that no
interest shall accrue on such unpaid interest or
principal (and premium, if any) for the period from and
after such Interest Payment Date, Redemption Date or
Stated Maturity, as the case may be.
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally.
The Securities of each series shall be in
substantially the form set forth in this Article, or in
such other form as shall be established by or pursuant
to a Board Resolution and set forth in an Officers'
Certificate or established by one or more indentures
supplemental hereto, in each case with such appropriate
insertions, omissions, substitutions and other
variations as are required or permitted by this
Indenture, and may have such letters, numbers or other
marks of identification and such legends or
endorsements placed thereon as may be required to
comply with the rules of any securities exchange or as
may, consistently herewith, be determined by the
officers executing such Securities, as evidenced by
their execution of the Securities. When the form of
Securities of any series is established by action taken
pursuant to a Board Resolution, a copy of an
appropriate record of such action shall be certified by
the Secretary or an Assistant Secretary of the Company
and delivered to the Trustee at or prior to the
delivery of the Company Order contemplated by Section
303 for the authentication and delivery of such
Securities.
The Trustee's certificates of authentication shall
be in substantially the form set forth in this Article
with such appropriate insertions, omissions,
substitutions and other variations as are required or
permitted by this Indenture.
The definitive Securities may be printed,
lithographed or engraved on steel engraved borders or
may be produced in any other manner, all as determined
by the officers executing such Securities, as evidenced
by their execution of such Securities.
SECTION 202. Form of Face of Security.
[Insert any legend required by the Internal Revenue
Code and the regulations thereunder.]
PENTAIR, INC.
__________________________
No.
[$]
Pentair, Inc., a corporation duly organized and
existing under the laws of Minnesota (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
[If the Security is to
bear interest prior to Maturity, insert -, and to pay
interest thereon from or from the most
recent Interest Payment Date to which interest has been
paid or duly provided for, [semiannually in arrears on
and in
each year] [annually in arrears
on ], commencing
, at the rate of % per
annum, until the principal hereof is paid or made
available for payment [If applicable insert -, and (to
the extent that the payment of such interest shall be
legally enforceable) at the rate of % per annum
on any overdue principal and premium and on any overdue
installment of interest]. The interest so payable, and
punctually paid or duly provided for, on any Interest
Payment Date will, as provided in such Indenture, be
paid to the Person in whose name this Security (or one
or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such
interest, which shall be the
[or
] (whether or not a
Business Day), as the case may be, next preceding such
Interest Payment Date. Any such interest not so
punctually paid or duly provided for will forthwith
cease to be payable to the Holder on such Regular
Record Date and may either be paid to the Person in
whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on a
Special Record Date for the payment of such Defaulted
Interest to be fixed by the Trustee, notice whereof
shall be given to holders of Securities of this series
not less than 10 days prior to such Special Record
Date, or be paid at any time in any other lawful manner
not inconsistent with the requirements of any
securities exchange on which the Securities of this
series may be listed, and upon such notice as may be
required by such exchange, all as more fully provided
in said Indenture]. [If the Security is not to bear
interest prior to Maturity, insert -. The principal of
this Security shall not bear interest except in the
case of a default in payment of principal upon
acceleration, upon redemption or at Stated Maturity and
in such case the overdue principal of this Security
shall bear interest at the rate of % per annum
(to the extent that the payment of such interest shall
be legally enforceable), which shall accrue from the
date of such default in payment to the date payment of
such principal has been made or duly provided for.
Interest on any overdue principal shall be payable on
demand. Any such interest on any overdue principal
that is not so paid on demand shall bear interest at
the rate of % per annum (to the extent that
the payment of such interest shall be legally
enforceable), which shall accrue from the date of such
demand for payment to the date payment of such interest
has been made or duly provided for, and such interest
shall also be payable on demand.]
Payment of the principal of (and premium, if any)
and [If applicable, insert - any such] interest on this
Security will be made at the office or agency of the
Company maintained for that purpose in
, 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
[If applicable, insert -; 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].
[If applicable, insert - [The Securities of this
series are/This Security is] subject to redemption
prior to the Stated Maturity as described on the
reverse hereof.]
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 or on behalf of 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.
Dated:
PENTAIR, INC.
By_______________________
Attest:
___________________________
SECTION 203. Form of Reverse of Security.
This Security is one of a duly authorized issue of
securities of the Company (herein called the
"Securities"), issued and to be issued in one or more
series under an Indenture, dated as of June 1, 1999
(herein called the "Indenture"), between the Company
and U.S. Bank Trust National Association, as Trustee
(herein called the "Trustee", which term includes any
successor trustee under the Indenture), to which
Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the
respective rights, limitations of rights, duties and
immunities thereunder of the Company, the Trustee and
the Holders of the Securities and of the terms upon
which the Securities are, and are to be authenticated
and delivered. This Security is one of the series
designated on the face hereof [, limited in aggregate
principal amount to [$] ]. By
the terms of the Indenture, additional Securities [If
applicable, insert - of this series and] of other
separate series, which may vary as to date, amount,
Stated Maturity, interest rate or method of calculating
the interest rate and in other respects as therein
provided, may be issued in an unlimited principal
amount.
[If applicable, insert - [The Securities of this
series are/This Security is] subject to redemption
prior to the Stated Maturity hereof upon not less than
30 days' notice by mail to the Person[s] in whose
name[s] [the Securities to be redeemed are/this
Security is] registered at the address specified in the
Security Register, [If applicable, insert - (1) on
in any year commencing with the
year and ending with the year
through operation of the sinking fund for
this series at a Redemption Price equal to 100% of the
principal amount, and (2)] at any time [on or after
], as a whole or in part, at the election
of the Company, at the following Redemption Prices
(expressed as percentages of the principal amount): if
redeemed [on or before , %, and
if redeemed] during the 12-month period beginning
of the years indicated,
Redemption Redemption
Year Price Year Price
and thereafter at a Redemption Price equal to %
of the principal amount, [If applicable, insert -
together in the case of any such redemption [If
applicable, insert - (whether through operation of the
sinking fund or otherwise)] with accrued interest to
the Redemption Date, provided, however, that
installments of interest whose Stated Maturity is on or
prior to (but not after) such Redemption Date will be
payable to the [Holders of such Securities/Holder of
this Security] (or one or more Predecessor Securities)
of record at the close of business on the relevant
Record Dates referred to on the face hereof, all as
provided in the Indenture]. [If there is no sinking
fund, insert - [The Securities of this series are/This
Security is] not subject to any sinking fund.]
[If applicable, insert - [The Securities of this
series are/This Security is] subject to redemption
prior to the Stated Maturity hereof upon not less than
30 days' notice by mail to the Person[s] in whose
name[s] [the Securities to be redeemed are/this
Security is] registered at the address specified in the
Security Register, (1) on in any year
commencing with the year and ending with the
year through operation of the sinking
fund for this series at the Redemption Prices
(expressed as percentages of the principal amount) set
forth in the table below, and (2) at any time [on or
after ], as a whole or in part,
at the election of the Company, at the Redemption
Prices for redemption otherwise than through operation
of the sinking fund (expressed as percentages of the
principal amount) set forth in the table below:
Redemption Price
for Redemption Redemption Price for
Through Operation Redemption Otherwise
of the Than Through Operation
Year Sinking Fund of the Sinking Fund
If redeemed during the 12-month period beginning
of the years indicated, and
thereafter at a Redemption Price equal to % of the
principal amount [If applicable, insert -, together in
the case of any such redemption (whether through
operation of the sinking fund or otherwise) with
accrued interest to the Redemption Date, provided,
however, that installments of interest whose Stated
Maturity is on or prior to (but not after) such
Redemption Date will be payable to the [Holders of such
Securities/Holder of this Security] (or one or more
Predecessor Securities) of record at the close of
business on the relevant Record Dates referred to on
the face hereof, all as provided in the Indenture].]
[Notwithstanding the foregoing, the Company may
not, prior to , redeem any Securities of this
series as contemplated by [Clause (2) of] the preceding
paragraph as a part of, or in anticipation of, any
refunding operation by the application, directly or
indirectly, of moneys borrowed having an interest cost
to the Company (calculated in accordance with generally
accepted financial practice) of less than % per
annum.]
[The sinking fund for this series provides for the
redemption on in each year
beginning with the year and ending with the year
of [not less than] [$]
[("mandatory sinking fund") and not more than [$]
] aggregate principal amount of Securities of this
series. [Securities of this series acquired or
redeemed by the Company otherwise than through
[mandatory] sinking fund payments may be credited
against subsequent [mandatory] sinking fund payments
otherwise required to be made - in the inverse order in
which they become due.]]
[In the event of redemption of this Security in
part only, a new Security or Securities of this series
and of like tenor or an authorized denomination for the
unredeemed portion hereof will be issued in the name of
the Holder hereof upon the cancellation hereof, and, in
the event of transfer or exchange, a new Security or
Securities of this series and of like tenor and for a
like aggregate principal amount will be issued to the
Holder, in the case of exchange, or the designated
transferee or transferees, in the case of transfer.]
[If the Security is not an Original Issue Discount
Security, - If an Event of Default with respect to
Securities of this series shall occur and be
continuing, the principal of the Securities of this
series may (subject to the conditions set forth in the
Indenture) be declared due and payable in the manner
and with the effect provided in the Indenture.]
[If the Security is an Original Issue Discount
Security, - If an Event of Default with respect to
Securities of this series shall occur and be
continuing, a lesser amount than the principal amount
due at the Stated Maturity of the Securities of this
series may (subject to the conditions set forth in the
Indenture) be declared due and payable in the manner
and with the effect provided in the Indenture. The
amount due and payable on this Security in the event
that this Security is declared due and payable prior to
the Stated Maturity hereof shall be - insert formula
for determining the amount. Upon payment (i) of the
amount of principal so declared due and payable and
(ii) of interest on any overdue principal and overdue
interest (in each case to the extent that the payment
of such interest shall be legally enforceable), all of
the Company's obligations in respect of the payment of
the principal of and interest, if any, on the
Securities of this series shall terminate.]
The Indenture contains provisions for defeasance
at any time of the Company's obligations in respect of
(i) the entire indebtedness of this Note or (ii)
certain restrictive covenants with respect to this
Note, in each case upon compliance with certain
conditions set forth therein.
The Indenture permits, with certain exceptions as
therein provided, the amendment thereof and the
modification of the rights and obligations of the
Company and the rights of the Holders of the Securities
of each series to be affected under the Indenture at
any time by the Company and the Trustee with the
consent of the Holders of not less than a majority in
aggregate principal amount of the Securities at the
time Outstanding of each series to be affected and, for
certain purposes, without the consent of the Holders of
any Securities at the time Outstanding. The Indenture
also contains provisions permitting the Holders of
specified percentages in aggregate principal amount of
the Securities of each series at the time Outstanding,
on behalf of the Holders of all Securities of such
series, to waive compliance by the Company with certain
provisions of the Indenture and certain past defaults
under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Security shall
be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security
issued upon the registration of transfer hereof or in
exchange hereof or in lieu hereof, whether or not
notation of such consent or waiver is made upon this
Security.
[If the Security is an Original Issue Discount
Security, - 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
under the Indenture or whether a quorum is present at a
meeting of Holders of Securities, the principal amount
of any Original Issue Discount Security that shall be
deemed to be Outstanding shall be the amount of the
principal thereof that would be due and payable as of
the date of such determination upon the acceleration of
the Maturity thereof.]
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 any
place where the principal of (and premium, if any) and
interest on this Security are payable, duly endorsed
by, or accompanied by a written instrument of transfer
in form satisfactory to the Company and the Security
Registrar duly executed by, the Holder hereof or such
Holder's attorney duly authorized in writing, and
thereupon one or more new Securities of this series, of
like tenor and of authorized denominations and for the
same aggregate principal amount, will be issued to the
designated transferee or transferees.
The Securities of this series are issuable only in
registered form without coupons in denominations of
[$1,000] and any amount in excess thereof which is an
integral multiple of [$1,000]. As provided in the
Indenture and subject to certain limitations therein
set forth, Securities of this series are exchangeable
for a like aggregate principal amount of Securities of
this series and of like tenor 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 in the
Security Register 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.
The Securities shall be governed by and construed
in accordance with the laws of the State of New York.
All terms used in this Security which are defined
in the Indenture shall have the meanings assigned to
them in the Indenture.
SECTION 204. Form of Trustee's Certificate of
Authentication
This is one of the Securities of the series
designated therein and issued pursuant to the
within-mentioned Indenture.
_________________________
U.S. Bank Trust National Association,
as Trustee
By_______________________
Authorized Officer
SECTION 205. Form of Legend for Global Securities
Any Global Security authenticated and delivered
hereunder shall, in addition to the provisions
contained in Sections 202 and 203, bear a legend in
substantially the following form or such other form as
may be required by the Depositary:
"Unless this certificate is presented by an
authorized representative of The Depository Trust
Company (55 Water Street, New York, New York) to the
issuer or to its agent for registration of transfer,
exchange or payment, and any certificate issued is
registered in the name of Cede & Co. or such other name
as requested by an authorized representative of The
Depository Trust Company and any payment is made to
Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
since the registered owner hereof, Cede & Co., has an
interest herein."
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series
The aggregate principal amount of Securities which
may be authenticated and delivered under this Indenture
is unlimited.
The Securities may be issued in one or more
series. There shall be established by or pursuant to a
Board Resolution and, subject to Section 303, set forth
or determined in the manner provided in an Officers'
Certificate or established in one or more indentures
supplemental hereto, prior to the initial issuance of
Securities of any series,
(1) the title of the Securities of the
series (which shall distinguish the Securities of
the series from Securities of any other series);
(2) any limit upon the aggregate principal
amount of the Securities of the series which may
be authenticated and delivered under this
Indenture (except for Securities authenticated and
delivered upon registration of transfer of, or in
lieu of, other Securities of the series pursuant
to Section 304, 305, 306, 906, 1107 and except for
any Securities which, pursuant to Section 303, are
deemed never to have been authenticated and
delivered hereunder);
(3) the Person to whom any interest on a
Security of the series shall be payable, if other
than 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;
(4) the date or dates on which the principal
or installments of principal of the Securities of
the series is or are payable and any rights to
extend such date or dates;
(5) the rate or rates at which the
Securities of the series shall bear interest, if
any, or the formula pursuant to which such rate or
rates shall be determined, the date or dates from
which such interest shall accrue, the Interest
Payment Dates on which such interest shall be
payable and the Regular Record Date for the
interest payable on any Interest Payment Date;
(6) the place or places where the principal
of (and premium, if any) and interest on
Securities of the series shall be payable, any
Securities of the series may be surrendered for
registration of transfer or exchange and notices
and demands to or upon the Company with respect to
the Securities of the series and this Indenture
may be served;
(7) the period or periods within which, the
price or prices at which and the terms and
conditions upon which Securities of the series may
be redeemed, in whole or in part, at the option of
the Company;
(8) the obligation, if any, of the Company
to redeem or purchase Securities of the series
pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof
and the period or periods within which, the price
or prices at which and the terms and conditions
upon which Securities of the series shall be
redeemed or purchased, in whole or in part,
pursuant to such obligation;
(9) if other than denominations of $1,000 or
any amount in excess thereof which is an integral
multiple of $1,000, the denominations in which
Securities of the series shall be issuable;
(10) the currency, currencies or currency
units in which payment of the principal of and any
premium and interest on any Securities of the
series shall be payable if other than the currency
of the United States of America, the manner of
determining the U.S. dollar equivalent of the
principal amount thereof for purposes of the
definition of "Outstanding" in Section 101, and,
if the principal of or any premium or interest on
any Securities of the series is to be payable, at
the election of the Company or a Holder thereof,
in one or more currencies or currency units other
than that or those in which the Securities are
stated to be payable, the currency, currencies or
currency units in which payment of the principal
of and any premium and interest on Securities of
such series as to which such election is made
shall be payable, and the periods within which and
the terms and conditions upon which such election
is to be made;
(11) any other event or events of default
applicable with respect to Securities of the
series in addition to or in lieu of those provided
in Section 501(1) through (7);
(12) any other restrictive covenants
applicable with respect to the Debt Securities of
the series in addition to or in lieu of those
provided in Sections 1007 and 1008;
(13) if less than the principal amount
thereof, the portion of the principal amount of
Securities of the series which shall be payable
upon declaration of acceleration of the Maturity
thereof pursuant to Section 502;
(14) any index used to determine the amount
of payment of principal of and any premium and
interest on the Securities of the series;
(15) whether the Securities of the series
shall be issued in whole or in part in the form of
one or more Global Securities and, if so, (a) the
Depositary with respect to such Global Security or
Securities and (b) the circumstances under which
any such Global Security may be exchanged for
Securities registered in the name of, and any
transfer of such Global Security may be registered
to, a Person other than such Depositary or its
nominee, if other than as set forth in Section
305;
(16) if principal of or any premium or
interest on the Securities of a series is
denominated or payable in a currency or currencies
other than the currency of the United States of
America, whether and under what terms and
conditions the Company may be discharged from
obligations pursuant to Sections 403 and 1107 with
respect to Securities of such series; and
(17) any other terms of the series (which
terms shall not be inconsistent with the
provisions of this Indenture, except as permitted
by Section 901(5)).
All Securities of any one series (other than
Securities offered in a Periodic Offering) shall be
substantially identical except as to denomination and
except as may otherwise be provided by or pursuant to
the Board Resolution referred to above and, subject to
Section 303, set forth, or determined in the manner
provided, in the Officers' Certificate referred to
above or in any such indenture supplemental hereto.
If any of the terms of the series are established
by action taken pursuant to a Board Resolution, a copy
of an appropriate record of such action shall be
certified by the Secretary or an Assistant Secretary of
the Company and delivered to the Trustee at or prior to
the delivery of the Officers' Certificate setting forth
the terms of the series.
With respect to Securities of a series offered in
a Periodic Offering, such Board Resolution and
Officers' Certificate or supplemental indenture may
provide general terms or parameters for Securities of
such series and provide either that the specific terms
of particular Securities of such series shall be
specified in a Company Order or that such terms shall
be determined by the Company or its agents in
accordance with other procedures specified in a Company
Order as contemplated by the third paragraph of Section
303.
SECTION 302. Denominations.
Unless otherwise provided in the applicable
Officers' Certificate or supplemental indenture, the
Securities of each series shall be issued in registered
form without coupons in such denominations as shall be
specified as contemplated by Section 301. In the
absence of any such provisions with respect to the
Securities of any series, the Securities of such series
shall be issuable in denominations of $1,000 or any
amount in excess thereof which is an integral multiple
of $1,000.
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. 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 of any series executed by the
Company to the Trustee for authentication, together
with a Company Order for the authentication and
delivery of such Securities, or, in the case of
Securities offered in a Periodic Offering, from time to
time in accordance with such other procedures
(including, without limitation, the receipt by the
Trustee of electronic instructions from the Company or
its duly authorized agents, promptly confirmed in
writing by the Company) acceptable to the Trustee as
may be specified from time to time by a Company Order
for establishing the specific terms of particular
Securities being so offered, and the Trustee in
accordance with the Company Order shall authenticate
and deliver such Securities. If the form or forms or
terms of the Securities of the series have been
established by or pursuant to one or more Board
Resolutions as permitted by Sections 201 and 301, in
authenticating such Securities and accepting the
additional responsibilities under this Indenture in
relation to such Securities, the Trustee shall be
entitled to receive, and (subject to Section 601) shall
be fully protected in relying upon, an Opinion of
Counsel stating,
(a) that the form or forms of such
Securities have been established in conformity
with the provisions of this Indenture;
(b) that the terms of such Securities have
been established in conformity with the provisions
of this Indenture;
(c) that such Securities, when authenticated
and delivered by the Trustee, issued by the
Company and paid for by the purchasers thereof in
the manner and subject to any conditions specified
in such Opinion of Counsel, will constitute valid
and legally binding obligations of the Company,
enforceable in accordance with their terms,
subject to bankruptcy, insolvency, reorganization
and other laws of general applicability relating
to or affecting the enforcement of creditors'
rights and to general equity principles;
(d) that authentication and delivery of such
Securities and the execution and delivery of the
supplemental indenture, if any, by the Trustee
will not violate the terms of the Indenture;
(e) that the Company has the corporate power
to issue such Securities, and has duly taken all
necessary corporate action with respect to such
issuance; and
(f) that the issuance of such Securities
will not contravene the articles of incorporation
or bylaws of the Company or result in any
violation of any of the terms or provisions of any
law or regulation or of any indenture, mortgage or
other agreement known to such Counsel by which the
Company is bound, which contravention or violation
would reasonably be expected to materially
adversely affect the Company's performance of its
obligations with respect to the Securities;
provided, however, that, with respect to Securities of
a series offered in a Periodic Offering, the Trustee
shall be entitled to receive such Opinion of Counsel in
connection only with the first authentication of each
form of Securities of such series and that the opinions
described in Clauses (b) and (c) above may state,
respectively, that
(b) if the terms of such Securities are to
be established pursuant to a Company Order or
pursuant to such procedures as may be specified
from time to time by a Company Order, all as
contemplated by a Board Resolution or action taken
pursuant thereto, such terms will have been duly
authorized by the Company and established in
conformity with the provisions of this Indenture;
and
(c) that such Securities, when executed by
the Company, completed, authenticated and
delivered by the Trustee in accordance with this
Indenture, and issued and delivered by the Company
and paid for, all in accordance with any agreement
of the Company relating to the offering, issuance
and sale of such Securities, will be duly issued
under this Indenture and will constitute valid and
legally binding obligations of the Company,
enforceable in accordance with their terms,
subject to bankruptcy, insolvency, reorganization,
moratorium and other laws relating to or affecting
generally the enforcement of creditors' rights and
to general principles of equity.
With respect to Securities of a series offered in
a Periodic Offering, the Trustee may rely, as to the
authorization by the Company of any of such Securities,
the form or forms and terms thereof and the legality,
validity, binding effect and enforceability thereof,
upon the Opinion of Counsel, Company Order and other
documents delivered pursuant to Sections 201 and 301
and this Section, as applicable, in connection with the
first authentication of a form of Securities of such
series and it shall not be necessary for the Company to
deliver such Opinion of Counsel and other documents
(except as may be required by the specified other
procedures, if any, referred to above) at or prior to
the time of authentication of each Security of such
series unless and until the Trustee receives notice
that such Opinion of Counsel or other documents have
been superseded or revoked, and may assume compliance
with any conditions specified in such Opinion of
Counsel (other than any conditions to be performed by
the Trustee). If such form or forms or terms have been
so established, the Trustee shall not be required to
authenticate such Securities if the issue of such
Securities pursuant to this Indenture will affect the
Trustee's own rights, duties or immunities under the
Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Each Security shall be dated the date of its
authentication.
No Security shall be entitled to any benefit under
this Indenture or be valid or obligatory for any
purpose unless there appears on such Security a
certificate of authentication substantially in the form
provided for herein executed by the Trustee by manual
signature, and such certificate upon any Security shall
be conclusive evidence, and the only evidence, that
such Security has been duly authenticated and delivered
hereunder and is entitled to the benefits of this
Indenture. Notwithstanding the foregoing, if any
Security shall have been authenticated and delivered
hereunder but never issued and sold by the Company, and
the Company shall deliver such Security to the Trustee
for cancellation as provided in Section 309 together
with a written statement (which need not comply with
Section 102 and need not be accompanied by an Opinion
of Counsel) stating that such Security has never been
issued and sold by the Company, for all purposes of
this Indenture such Security shall be deemed never to
have been authenticated and delivered hereunder and
shall never be entitled to the benefits of this
Indenture.
SECTION 304. Temporary Securities
Pending the preparation of definitive Securities
of any Series, the Company may execute, and upon
Company Order the Trustee shall authenticate and
deliver, temporary Securities which are printed,
lithographed, typewritten or otherwise produced, in any
authorized denomination, substantially of the tenor of
the definitive Securities in lieu of which they are
issued and with such appropriate insertions, omissions,
substitutions and other variations as the officers
executing such Securities may determine, as evidenced
by their execution of such Securities.
If temporary Securities of any series are issued,
the Company will cause definitive Securities of that
series to be prepared without unreasonable delay. After
the preparation of definitive Securities of such
series, the temporary Securities of such series shall
be exchangeable for definitive Securities of like tenor
of such series upon surrender of the temporary
Securities of such series at the office or agency of
the Company in a Place of Payment for that series,
without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Securities of
any series the Company shall execute and the Trustee
shall authenticate and deliver in exchange therefor a
like principal amount of definitive Securities of the
same series and of like tenor and of any authorized
denominations. Until so exchanged the temporary
Securities of any series shall in all respects be
entitled to the same benefits under this Indenture as
definitive Securities of such series and tenor.
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
"Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company
shall provide for the registration of Securities and of
transfers of Securities. The Trustee is hereby
appointed "Security Registrar" for the purpose of
registering Securities and transfers of Securities as
herein provided.
Upon surrender for registration of transfer of any
Security of any series at the office or agency of the
Company in any Place of Payment for such series, the
Company shall execute and the Trustee shall
authenticate and deliver (in the name of the designated
transferee or transferees) one or more new Securities
of the same series, of any authorized denominations and
of a like aggregate principal amount and tenor.
At the option of the Holder, Securities of any
series may be exchanged for other Securities of the
same series, of any authorized denominations and of a
like aggregate principal amount and tenor, upon
surrender of the Securities to be exchanged at the
office or agency of the Company in any Place of Payment
for such series. 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 such Holder's 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 1107 not involving any
transfer.
The Company may but shall not be required (i) to
issue, register the transfer of or exchange Securities
of any series during a period beginning at the opening
of business 15 days before the day of the mailing of a
notice of redemption of Securities of that series
selected for redemption under Section 1103 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.
Notwithstanding the foregoing, except as otherwise
specified as contemplated by Section 301, any Global
Security shall be exchangeable pursuant to this Section
305 for Securities registered in the name of Persons
other than the Depositary for such Security or its
nominee only if (i) such Depositary notifies the
Company that it is unwilling or unable to continue as
Depositary for such Global Security or if at any time
such Depositary ceases to be a clearing agency
registered under the Exchange Act, (ii) the Company
executes and delivers to the Trustee a Company Order
that such Global Security shall be so exchangeable or
(iii) there shall have occurred and be continuing an
Event of Default with respect to the Securities of such
series. Upon the occurrence in respect of any Global
Security of any series of any one or more of the
conditions specified in Clauses (i), (ii) or (iii) of
the preceding sentence or such other conditions as may
be specified as contemplated by Section 301 for such
series, such Global Security may be exchanged for
Securities not bearing the legend specified in Section
205 and registered in the names of such Persons as may
be specified by the Depositary (including Persons other
than the Depositary).
Notwithstanding any other provision of this
Indenture (except the provisions of the preceding
paragraph), a Global Security may not be transferred
except as a whole by the Depositary for such Global
Security to a nominee of the Depositary or by a nominee
of the Depositary to the Depositary or another nominee
of the Depositary.
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 the same series and of like tenor and
principal amount and bearing a number not
contemporaneously outstanding.
If there shall be delivered to the Company and the
Trustee (i) evidence to their satisfaction of the
destruction, loss or theft of any Security and (ii)
such security or indemnity as may be required by them
to save each of them and any agent of either of them
harmless, then, in the absence of notice to the Company
or the Trustee that such Security has been acquired by
a bona fide purchaser, the Company shall execute and
upon its written request the Trustee shall authenticate
and deliver, in lieu of any such destroyed, lost or
stolen Security, a new Security of the same series and
of like tenor and principal amount and bearing a number
not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or
stolen Security has become or is about to become due
and payable, the Company in its discretion may, instead
of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this
Section, the Company may require the payment of a sum
sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any
other expenses (including the fees and expenses of the
Trustee) connected therewith.
Every new Security of any series issued pursuant
to this Section in lieu of any destroyed, lost or
stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not
the destroyed, lost or stolen Security shall be at any
time enforceable by anyone, and shall be entitled to
all the benefits of this Indenture equally and
proportionately with any and all other Securities of
that series duly issued hereunder.
The provisions of this Section are exclusive and
shall preclude (to the extent lawful) all other rights
and remedies with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Securities.
SECTION 307. Payment of Interest; Interest Rights
Preserved
Unless otherwise provided as contemplated by
Section 301 with respect to any series of Securities,
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 in the Security Register at the close of
business on the Regular Record Date for such Interest
Payment Date.
Any interest on any Security of any series which
is payable but is not punctually paid or duly provided
for on any Interest Payment Date (herein called
"Defaulted Interest") shall forthwith cease to be
payable to the Holder on the relevant Regular Record
Date by virtue of having been such Holder, and such
Defaulted Interest may be paid by the Company, at its
election in each case, as provided in Clause (1) or (2)
below:
(1) The Company may elect to make payment of
any Defaulted Interest to the Persons in whose
names the Securities of such series (or their
respective Predecessor Securities) are registered
at the close of business on a Special Record Date
for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The
Company shall notify the Trustee in writing of the
amount of Defaulted Interest proposed to be paid
on each Security of such series and the date of
the proposed payment, and at the same time the
Company shall deposit with the Trustee an amount
of money equal to the aggregate amount proposed to
be paid in respect of such Defaulted Interest or
shall make arrangements satisfactory to the
Trustee for such deposit prior to the date of the
proposed payment, such money when deposited to be
held in trust for the benefit of the Persons
entitled to such Defaulted Interest as in this
Clause provided. Thereupon the Trustee shall fix a
Special Record Date for the payment of such
Defaulted Interest which shall be not more than 15
days and not less than 10 days prior to the date
of the proposed payment and not less than 10 days
after the receipt by the Trustee of the notice of
the proposed payment. The Trustee shall promptly
notify the Company of such Special Record Date
and, in the name and at the expense of the
Company, shall cause notice of the proposed
payment of such Defaulted Interest and the Special
Record Date therefor to be mailed, first-class
postage prepaid, to each Holder of Securities of
such series at such Holder's address as it appears
in the Security Register, not less than 10 days
prior to such Special Record Date. Notice of the
proposed payment of such Defaulted Interest and
the Special Record Date therefor having been so
mailed, such Defaulted Interest shall be paid to
the Persons in whose names the Securities of such
series (or their respective Predecessor
Securities) are registered at the close of
business on such Special Record Date and shall no
longer be payable pursuant to the following Clause
(2).
(2) The Company may make payment of any
Defaulted Interest on the Securities of any series
in any other lawful manner not inconsistent with
the requirements of any securities exchange on
which such Securities may be listed, and upon such
notice as may be required by such exchange, if,
after notice given by the Company to the Trustee
of the proposed payment pursuant to this Clause,
such manner of payment shall be deemed practicable
by the Trustee.
Subject to the foregoing provisions of this
Section, each Security delivered under this Indenture
upon registration of transfer of, or in exchange for,
or in lieu of, any other Security shall carry the
rights to interest accrued and unpaid, and to accrue,
which were carried by such other Security.
SECTION 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 in the
Security Register 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.
No holder of any beneficial interest in any Global
Security held on its behalf by a Depositary (or its
nominee) shall have any rights under this Indenture
with respect to such Global Security or any Security
represented thereby, and such Depositary may be treated
by the Company, the Trustee, and any agent of the
Company or the Trustee as the owner of such Global
Security or any Security represented thereby for all
purposes whatsoever. Notwithstanding the foregoing,
with respect to any Global Security, nothing herein
shall prevent the Company, the Trustee, or any agent of
the Company or the Trustee, from giving effect to any
written certification, proxy or other authorization
furnished by a Depositary or impair, as between a
Depositary and such holders of beneficial interest, the
operation of customary practices governing the exercise
of the rights of the Depositary (or its nominees) as
Holder of any Security.
SECTION 309. Cancellation
All Securities surrendered for payment,
redemption, registration of transfer or exchange or for
credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be
delivered to the Trustee and shall be promptly canceled
by it. The Company may at any time deliver to the
Trustee for cancellation any Securities previously
authenticated and delivered hereunder which the Company
may have acquired in any manner whatsoever, and may
deliver to the Trustee (or to any other Person for
delivery to the Trustee) for cancellation any
Securities previously authenticated hereunder which the
Company has not issued and sold, and all Securities so
delivered shall be promptly canceled by the Trustee. No
Securities shall be authenticated in lieu of or in
exchange for any Securities canceled as provided in
this Section, except as expressly permitted by this
Indenture. All canceled Securities held by the Trustee
shall be destroyed unless otherwise directed by a
Company Order.
SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated by
Section 301 for Securities of any series, interest on
the Securities of each series shall be computed on the
basis of a 360-day year of twelve 30-day months.
SECTION 311. Payment to be in Proper Currency
In the case of any Securities denominated in any
currency (the "Required Currency") other than United
States of America dollars, except as otherwise provided
therein, the obligation of the Company to make any
payment of principal, premium or interest thereon shall
not be discharged or satisfied by any tender by the
Company, or recovery by the Trustee, in any currency
other than the Required Currency, except to the extent
that such tender or recovery shall result in the
Trustee timely holding the full amount of the Required
Currency then due and payable. If any such tender or
recovery is in a currency other than the Required
Currency, the Trustee may take such actions as it
considers appropriate to exchange such currency for the
Required Currency. The costs and risks of any such
exchange, including without limitation the risks of
delay and exchange rate fluctuation, shall be borne by
the Company, the Company shall remain fully liable for
any shortfall or delinquency in the full amount of
Required Currency then due and payable, and in no
circumstances shall the Trustee be liable therefor
except in the case of its negligence or willful
misconduct.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture
This Indenture shall upon Company Request cease to
be of further effect (except as to any surviving rights
of registration of transfer or exchange of Securities
herein expressly provided for), and the Trustee, at the
expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of
this Indenture, when
(1) either
(A) all Securities theretofore
authenticated and delivered (other than (i)
Securities which have been destroyed, lost or
stolen and which have been replaced or paid
as provided in Section 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 the purpose an amount, in the
currency in which such Securities are
payable, 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 respective Stated
Maturity or Redemption Date, as the case may
be;
(2) the Company has paid or caused to be
paid all other sums payable hereunder by the
Company, and
(3) the Company has delivered to the Trustee
an Officers' Certificate and an Opinion of
Counsel, each stating that all conditions
precedent herein provided for relating to the
satisfaction and discharge of this Indenture have
been complied with.
Notwithstanding the satisfaction and discharge of
this Indenture, the obligations of the Company to the
Trustee under Section 607, the obligations of the
Trustee to any Authenticating Agent under Section 614,
and, if money shall have been deposited with the
Trustee pursuant to Subclause (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 provisions of the last paragraph of
Section 1003, all money deposited with the Trustee
pursuant to Section 401 shall be held in trust and
applied by it, in accordance with the provisions of the
Securities and this Indenture, to the payment, either
directly or through any Paying Agent (including the
Company acting as its own Paying Agent) as the Trustee
may determine, to the Persons entitled thereto, of the
principal (and premium, if any) and interest for whose
payment such money has been deposited with the Trustee
but such money need not be segregated from other funds
except to the extent required by law.
SECTION 403. Defeasance and Discharge of Indenture
If principal of and any premium and interest on
Securities of any series are denominated and payable in
United States of America dollars, the Company shall be
deemed to have paid and discharged the entire
indebtedness on all the Outstanding Securities of such
series on the 123rd day after the date of the deposit
referred to in subparagraph (d) hereof, and the
provisions of this Indenture, as it relates to such
Outstanding Securities, shall no longer be in effect
(and the Trustee, at the expense of the Company, shall
at Company Request, execute proper instruments
acknowledging the same), except as to:
(a) the rights of Holders of Securities to
receive, from the trust funds described in
subparagraph (d) hereof, (i) payment of the
principal of (and premium, if any) or interest on
the Outstanding Securities on the Stated Maturity
of such principal or installment of principal or
interest and (ii) the benefit of any mandatory
sinking fund payments applicable to the Securities
on the day on which such payments are due and
payable in accordance with the terms of this
Indenture and the Securities;
(b) the Company's obligations with respect
to such Securities under Sections 305, 306, 1002
and 1003; and
(c) the rights, powers, trusts, duties and
immunities of the Trustee hereunder;
provided that, the following conditions shall have been
satisfied:
(d) The Company has deposited or caused to
be irrevocably deposited with the Trustee (or
another trustee satisfying the requirements of
Section 609) as trust funds in the trust,
specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of
the Securities, (i) money in an amount, or (ii)
U.S. Government Obligations which through the
payment of interest and principal in respect
thereof in accordance with their terms will
provide not later than one day before the due date
of any payment referred to in clause (A) or (B) of
this subparagraph (d) money in an amount or (iii)
a combination thereof, sufficient, in the opinion
of a nationally recognized firm of independent
certified public accountants expressed in a
written certification thereof delivered to the
Trustee, to pay and discharge (A) the principal of
(and premium, if any) and each installment of
principal of (and premium, if any) and interest on
the Outstanding Securities on the Stated Maturity
of such principal or installment of principal and
interest and (B) any mandatory sinking fund
payments applicable to the Securities on the day
on which such payments are due and payable in
accordance with the terms of this Indenture and of
the Securities;
(e) such deposit shall not cause the Trustee
with respect to the Securities to have a
conflicting interest as defined in Section 608 and
for purposes of the Trust Indenture Act with
respect to the Securities;
(f) such deposit will not result in a breach
or violation of, or constitute a default under,
this Indenture or any other agreement or
instrument to which the Company is a party or by
which it is bound;
(g) such provision would not cause any
Outstanding Securities then listed on the New York
Stock Exchange or other securities exchange to be
de-listed as a result thereof;
(h) no Event of Default or event which with
notice or lapse of time would become an Event of
Default with respect to the Securities shall have
occurred and be continuing on the date of such
deposit or during the period ending on the 123rd
day after such date;
(i) the Company has delivered to the Trustee
an Officers' Certificate and an Opinion of Counsel
to the effect that there has been a change in
applicable Federal law such that, or the Company
has received from, or there has been published by,
the Internal Revenue Service a ruling to the
effect that, Holders of the Securities will not
recognize income, gain or loss for Federal income
tax purposes as a result of such deposits,
defeasance and discharge and will be subject to
Federal income tax on the same amount and in the
same manner and at the same times, as would have
been the case if such deposit, defeasance and
discharge had not occurred; and
(j) the Company has delivered to the Trustee
an Officers' Certificate and an Opinion of
Counsel, each stating that all conditions
precedent relating to the defeasance contemplated
by this Section have been complied with.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
"Event of Default", wherever used herein with
respect to Securities of any series, and unless
otherwise provided with respect to Securities of any
series pursuant to Section 301(11), means any one of
the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court
or any order, rule or regulation of any administrative
or governmental body):
(1) default in the payment of any interest
upon any Security of that series when it becomes
due and payable, and continuance of such default
for a period of 30 days; or
(2) default in the payment of the principal
of (or premium, if any, on) any Security of that
series at its Maturity; or
(3) default in the deposit of any sinking
fund payment, when and as due by the terms of a
Security of that series; or
(4) default in the performance, or breach,
of any covenant or warranty of the Company in this
Indenture (other than a covenant or warranty a
default in whose performance or whose breach is
elsewhere in this Section specifically dealt with
or which has expressly been included in this
Indenture solely for the benefit of a series of
one or more Securities other than that series),
and continuance of such default or breach for a
period of 60 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 aggregate principal
amount of the Outstanding Securities of that
series a written notice specifying such default or
breach and requiring it to be remedied and stating
that such notice is a "Notice of Default"
hereunder; or
(5) an event of default, as defined in any
indenture or instrument under which the Company or
any Restricted Subsidiary shall have outstanding
at least $50,000,000 aggregate principal amount of
indebtedness for money borrowed, shall happen and
be continuing and such indebtedness shall, as a
result thereof, have been accelerated so that the
same shall be or become due and payable prior to
the date on which the same would otherwise have
become due and payable, and such acceleration
shall not be rescinded or annulled within 10 days
after notice thereof shall have 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 aggregate principal
amount of the Securities at the time Outstanding;
provided, however, that if such event of default
under such indenture or instrument shall be
remedied or cured by the Company or waived by the
Holders of such indebtedness, then, unless the
Securities of any series shall have been
accelerated as provided herein, the Event of
Default hereunder by reason thereof shall be
deemed likewise to have been thereupon remedied,
cured or waived without further action upon the
part of either the Trustee or any Holders of the
Securities of any series; or
(6) the entry by a court having jurisdiction
in the premises of (A) a decree or order for
relief in respect of the Company in an involuntary
case or proceeding under any applicable Federal or
State bankruptcy, insolvency, reorganization or
other similar law or (B) a decree or order
adjudging the Company a bankrupt or insolvent, or
approving as properly filed by any party other
than the Company a petition seeking
reorganization, arrangement, adjustment or
composition of or in respect of the Company under
any applicable Federal or State law, or appointing
a custodian, receiver, liquidator, assignee,
trustee, sequestrator or other similar official of
the Company or of all or substantially all of its
property, or ordering the winding up or
liquidation of its affairs, and the continuance of
any such decree or order for relief specified in
clause (A) or (B) or any such other decree or
order unstayed and in effect for a period of 60
consecutive days; or
(7) the commencement by the Company of a
voluntary case or proceeding under any applicable
Federal or state bankruptcy, insolvency,
reorganization or other similar law or of any
other case or proceeding to be adjudicated a
bankrupt or insolvent, or the consent by it to the
entry of a decree or order for relief in respect
of the Company in an involuntary case or
proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other
similar law or to the commencement of any
bankruptcy or insolvency case or proceeding
against it, or the filing by it of a petition or
answer or consent seeking reorganization or relief
under any applicable Federal or State bankruptcy
or insolvency law, or the consent by it to the
filing of such petition or to the appointment of
or taking possession by a custodian, receiver,
liquidator, assignee, trustee, sequestrator or
other similar official of the Company or of all or
substantially all of its property, or the making
by it of an assignment for the benefit of
creditors, or the admission by it in writing of
its inability to pay its debts generally as they
become due, or the taking of corporate action by
the Company in furtherance of any such action; or
(8) any other Event of Default provided with
respect to Securities of that series as provided
in Section 301(11).
SECTION 502. Acceleration of Maturity; Rescission and
Annulment
If an Event of Default with respect to Outstanding
Securities of any series occurs and is continuing, then
and in every such case the Trustee or the Holders of
not less than 25% in aggregate principal amount of the
Outstanding Securities of that series may declare the
principal amount (or, if any of the Securities of that
series are Original Issue Discount Securities, such
lesser portion of the principal amount of such
Securities as may be specified in the terms thereof) of
all of the Securities of that series to be due and
payable immediately, by a notice in writing to the
Company (and to the Trustee if given by Holders), and
upon any such declaration such principal amount (or
specified portion thereof) shall become immediately due
and payable.
At any time after such a declaration of
acceleration with respect to Outstanding Securities of
any series has been made and before a judgment or
decree for payment of the money due has been obtained
by the Trustee as hereinafter in this Article provided,
the Holders of a majority in aggregate principal amount
of the Outstanding Securities of that series, by
written notice to the Company and the Trustee, may
rescind and annul such declaration and its consequences
if
(1) the Company has paid or deposited with
the Trustee a sum sufficient to pay
(A) all overdue interest on all
Securities of that series,
(B) the principal of (and premium, if
any, on) any Securities of that series which
have become due otherwise than by such
declaration of acceleration and interest
thereon at the rate or rates prescribed
therefor in such Securities,
(C) to the extent that payment of such
interest is lawful, interest upon overdue
interest at the rate or rates prescribed
therefor in such Securities, and
(D) all sums paid or advanced by the
Trustee hereunder and the reasonable
compensation, expenses, disbursements and
advances of the Trustee, its agents and
counsel, and any other amounts due the
Trustee under Section 607; and
(2) all Events of Default with respect to
Securities of that series, other than the non-
payment of the principal of Securities of that
series which have become due solely by such
declaration of acceleration, have been cured or
waived as provided in Section 513.
No such rescission shall affect any subsequent default
or impair any right consequent thereon.
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,
the Company will, upon demand of the Trustee, pay to
it, for the benefit of the Holders of such Security,
the whole amount then due and payable on such Security
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 or rates prescribed therefor in such Security,
and, in addition thereto, such further amount as shall
be sufficient to cover the costs and expenses of
collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee,
its agents and counsel.
If the Company fails to pay such amounts forthwith
upon such demand, the Trustee, in its own name and as
trustee of an express trust, may institute a judicial
proceeding for the collection of the sums so due and
unpaid, may prosecute such proceeding to judgment or
final decree and may enforce the same against the
Company or any other obligor upon such Security and
collect the moneys adjudged or decreed to be payable in
the manner provided by law out of the property of the
Company or any other obligor upon such Security,
wherever situated.
If an Event of Default with respect to Securities
of any series occurs and is continuing, the Trustee may
in its discretion proceed to protect and enforce its
rights and the rights of the Holders of Securities of
such series by such appropriate judicial proceedings as
the Trustee shall deem most effectual to protect and
enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power
granted herein, or to enforce any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim
In case of the pendency of any receivership,
insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other judicial
proceeding relative to the Company or any other obligor
upon the Securities or all or substantially all of the
property of the Company or of such other obligor, the
Trustee (irrespective of whether the principal of the
Securities shall then be due and payable as therein
expressed or by declaration or otherwise and
irrespective of whether the Trustee shall have made any
demand on the Company for the payment of overdue
principal or interest) shall be entitled and empowered,
by intervention in such proceeding or otherwise,
(i) to file and prove a claim for the whole
amount of principal (and premium, if any) or such
portion of the principal amount of any series of
Original Issue Discount Securities as may be
specified in the terms of such series and interest
owing and unpaid in respect of the Securities and
to file such other papers or documents as may be
necessary or advisable in order to have the claims
of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and
counsel, and any other amounts due the Trustee
under Section 607) and of the Holders allowed in
such judicial proceeding, and
(ii) to collect and receive any moneys or
other property payable or deliverable on any such
claims and to distribute the same;
and any custodian, receiver, assignee, trustee,
liquidator, sequestrator or other similar official in
any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and,
in the event that the Trustee shall consent to the
making of such payments directly to the Holders, to pay
to the Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 607.
Nothing herein contained shall be deemed to
authorize the Trustee to authorize or consent to or
accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition
affecting the Securities or the rights of any Holder
thereof or to authorize the Trustee to vote in respect
of the claim of any Holder in any such proceeding.
SECTION 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
the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel,
and for any other amounts due 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 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; and
THIRD: The balance, if any, to the Person or
Persons entitled thereto.
SECTION 507. Limitation on Suits.
No Holder of any Security of any series shall have
any right to institute any proceeding, judicial or
otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other
remedy hereunder, unless
(1) such Holder has previously given written
notice to the Trustee of a continuing Event of
Default with respect to the Securities of that
series;
(2) the Holders of not less than 25% in
principal amount of the Outstanding Securities of
that series shall have made written request to the
Trustee to institute proceedings in respect of
such Event of Default in its own name as Trustee
hereunder;
(3) such Holder or Holders have offered to
the Trustee reasonable indemnity against the
costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee, for 60 days after its
receipt of such notice, request and offer of
indemnity, has failed to institute any such
proceeding; and
(5) no direction inconsistent with such
written request has been given to the Trustee
during such 60-day period by the Holders of a
majority in principal amount of the Outstanding
Securities of that series;
it being understood and intended that no one or more of
such Holders shall have any right in any manner
whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the
rights of any other of such Holders, or to obtain or to
seek to obtain priority or preference over any other of
such Holders or to enforce any right under this
Indenture, except in the manner herein provided and for
the equal and ratable benefit of all of such 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 Section 307) interest on such Security on
the Stated Maturity or Maturities expressed in such
Security (or, in the case of redemption, on the
Redemption Date) and to institute suit for the
enforcement of any such payment, and such rights shall
not be impaired without the consent of such Holder.
SECTION 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 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 Securities to exercise any right or
remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any
such Event of Default or an acquiescence therein. Every
right and remedy given by this Article or by law to the
Trustee or to the Holders may be exercised from time to
time, and as often as may be deemed expedient, by the
Trustee or by the Holders, as the case may be.
SECTION 512. Control by Holders.
The Holders of a majority in aggregate principal
amount of the Outstanding Securities of any series
shall have the right to direct the time, method and
place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or
power conferred on the Trustee, with respect to the
Securities of such series, provided that
(1) such direction shall not be in conflict
with any rule of law or with this Indenture, and
(2) the Trustee may take any other action
deemed proper by the Trustee which is not
inconsistent with such direction.
SECTION 513. Waiver of Past Defaults
The Holders of not less than a majority in
aggregate principal amount of the Outstanding
Securities of any series may, on behalf of the Holders
of all the Securities of such series, waive any past
default hereunder with respect to such series and its
consequences, except a default
(1) in the payment of the principal of (or
premium, if any) or interest on any Security of
such series, or
(2) in respect of a covenant or provision
hereof which under Article Nine cannot be modified
or amended without the consent of the Holder of
each Outstanding Security of such series affected;
provided that, a majority in aggregate principal amount
of Outstanding Securities may rescind and annul a
declaration of payment due as provided in Section 502.
The Company may, but shall not be obligated to,
fix a record date for the purpose of determining the
Persons entitled to waive any past default hereunder.
If a record date is fixed, the Holders on such record
date, or their duly designated proxies, and only such
Persons, shall be entitled to waive any default
hereunder, whether or not such Holders remain Holders
after such record date; provided, that unless such
majority in principal amount shall have waived such
default prior to the date which is 90 days after such
record date, any such waiver of such default previously
given shall automatically and without further action by
any Holder be canceled and of no further effect.
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.
All parties to this Indenture agree, and each
Holder of any Security by such Holder's acceptance
thereof shall be deemed to have agreed, that any court
may in its discretion require, in any suit for the
enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any
action taken, suffered or omitted by it as Trustee, the
filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that
such court may in its discretion assess reasonable
costs, including reasonable attorneys' fees, against
any party litigant in such suit, having due regard to
the merits and good faith of the claims or defenses
made by such party litigant; provided, however, that
the provisions of this Section shall not apply to any
suit instituted by the Company, to any suit instituted
by the Trustee, to any suit instituted by any Holder,
or group of Holders, holding in the aggregate more than
10% in principal amount of the Outstanding Securities
of any series, or to any suit instituted by any Holder
for the enforcement of the payment of the principal of
(or premium, if any) or interest on any Security on or
after the Stated Maturity or Maturities expressed in
such Security (or, in the case of redemption, on or
after the Redemption Date).
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 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 provisions of TIA Section 315 shall apply to
the Trustee.
SECTION 602. Notice of Defaults.
Within 90 days after the occurrence of any default
hereunder with respect to the Securities of any series,
the Trustee shall transmit by mail to all Holders of
Securities of such series, as their names and addresses
appear in the Security Register, notice of such default
hereunder known to the Trustee, unless such default
shall have been cured or waived; provided however,
that, except in the case of a default in the payment of
the principal of (or premium, if any) or interest on
any Security of such series or in the payment of any
sinking fund installment with respect to Securities of
such series, the Trustee shall be protected in
withholding such notice if and so long as the board of
directors, the executive committee or a trust committee
of directors and/or Responsible Officers of the Trustee
in good faith determine that the withholding of such
notice is in the interest of the Holders of Securities
of such series; and provided, further, that in the case
of any default of the character specified in Section
501(4) with respect to Securities of such series, no
such notice to Holders shall be given until at least 30
days after the occurrence thereof. For the purpose of
this Section, the term "default" means any event which
is, or after notice or lapse of time or both would
become, an Event of Default with respect to Securities
of such series.
SECTION 603. Certain Rights of Trustee
Subject to the provisions of TIA Section 315(a)
through 315(d):
(a) the Trustee may rely and shall be
protected in acting or refraining from acting upon
any resolution, certificate, statement,
instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or
document believed by it to be genuine and to have
been signed or presented by the proper party or
parties;
(b) any request or direction of the Company
mentioned herein shall be sufficiently evidenced
by a Company Request or Company Order or as
otherwise expressly provided herein and any
resolution of the Board of Directors may be
sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this
Indenture the Trustee shall deem it desirable that
a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of
bad faith on its part, rely upon an Officers'
Certificate;
(d) the Trustee may consult with counsel and
the written advice of such counsel or any Opinion
of Counsel shall be full and complete
authorization and protection in respect of any
action taken, 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 fact 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;
(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;
(h) the Trustee shall not be liable for any
action taken, suffered or omitted by it in good
faith and believed by it to be authorized or
within the discretion, rights or powers conferred
upon it by this Indenture; and
(i) the Trustee shall not be required 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.
(j) except with respect to Section
1001, the Trustee shall have no duty to inquire as
to the performance of the Company with respect to
the covenants contained in Article 10. In
addition, the Trustee shall not be deemed to have
knowledge of an Event of Default except (i) any
Default or Event of Default occurring pursuant to
Sections 501(1), 501(2), 501(3) or 1001 or (ii)
any Default or Event of Default of which the
Trustee shall have received written notification
or obtained actual knowledge.
(k) delivery of reports, information and
documents to the Trustee under Section 704(1) is
for informational purposes only and the Trustee's
receipt of the foregoing shall not constitute
constructive notice of any information contained
therein or determinable from the information
contained therein, including the Company's
compliance with any of their covenants hereunder
(as to which the Trustee is entitled to rely
exclusively on Officers' Certificates).
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 neither the Trustee nor any Authenticating
Agent assumes any responsibility for their correctness.
The Trustee makes no representations as to the validity
or sufficiency of this Indenture or of the Securities.
The Trustee or any Authenticating Agent 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 Authenticating Agent, any Paying
Agent, any Security Registrar or any other agent of the
Company, in its individual or any other capacity, may
become the owner or pledgee of Securities and, subject
to TIA Sections 310(b) and 311, may otherwise deal with
the Company with the same rights it would have if it
were not Trustee, Authenticating Agent, Paying Agent,
Security Registrar or such other agent.
SECTION 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 any money received by it
hereunder except as otherwise agreed with the Company.
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 any such expense, disbursement or
advance as may be attributable to its negligence
or bad faith; and
(3) to indemnify the Trustee and its agents
for, and to hold it harmless against, any loss,
liability or expense incurred without negligence
or bad faith on its part, arising out of or in
connection with the acceptance or administration
of the trust or trusts hereunder, including the
costs and expenses of defending itself against any
claim or liability in connection with the exercise
or performance of any of its powers or duties
hereunder.
The obligations of the Company under this Section
607 to compensate and indemnify the Trustee and to pay
or reimburse the Trustee for expenses, disbursements
and advances shall constitute additional indebtedness
hereunder and shall survive the satisfaction and
discharge of this Indenture. Such additional
indebtedness shall be a senior claim to that of the
Securities upon all property and funds held or
collected by the Trustee as such, except funds held in
trust for the payment of principal of (and premium, if
any) or interest on particular Securities, and the
Securities are hereby subordinated to such senior
claim.
SECTION 608. Disqualification; Conflicting Interests
The provisions of TIA Section 310(b) shall apply
to the Trustee.
SECTION 609. Corporate Trustee Required; Eligibility
There shall at all times be a Trustee hereunder
which shall be eligible to act under TIA Section
310(a)(1) and shall have a combined capital and surplus
of at least $25,000,000 and subject to supervision or
examination by Federal, State or District of Columbia
authority. If such Corporation publishes reports of
condition at least annually, pursuant to law or to the
requirements of said supervising or examining
authority, then for the purposes of this Section, the
combined capital and surplus of such Corporation shall
be deemed to be its combined capital and surplus as set
forth in its most recent report of condition so
published. If at any time the Trustee shall cease to be
eligible in accordance with the provisions of this
Section, it shall resign immediately in the manner and
with the effect hereinafter specified in this Article.
Neither the Company, nor any Person directly or
indirectly controlling, controlled by or under common
control with the Company, shall act as Trustee
hereunder.
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 in accordance with
the applicable requirements of Section 611.
(b) The Trustee may resign at any time with
respect to the Securities of one or more series by
giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee
required by Section 611 shall not have been delivered
to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may
petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the
Securities of such series.
(c) The Trustee may be removed at any time with
respect to the Securities of any series by Act of the
Holders of a majority in principal amount of the
Outstanding Securities of such series, delivered to the
Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with
TIA Section 310(b) 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 with respect to all
Securities, 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
with respect to all Securities and the appointment of a
successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or
become incapable of acting, or if a vacancy shall occur
in the office of Trustee for any cause, with respect to
the Securities of one or more series, the Company, by a
Board Resolution, shall promptly appoint a successor
Trustee or Trustees with respect to the Securities of
that or those series (it being understood that any such
successor Trustee may be appointed with respect to the
Securities of one or more or all of such series and
that at any time there shall be only one Trustee with
respect to the Securities of any particular series) and
shall comply with the applicable requirements of
Section 611. If, within one year after such
resignation, removal or incapability, or the occurrence
of such vacancy, a successor Trustee with respect to
the Securities of any series shall be appointed by Act
of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the
Company and the retiring Trustee, the successor Trustee
so appointed shall, forthwith upon its acceptance of
such appointment in accordance with the applicable
requirements of Section 611, become the successor
Trustee with respect to the Securities of such series
and to that extent supersede the successor Trustee
appointed by the Company. If no successor Trustee with
respect to the Securities of any series shall have been
so appointed by the Company or the Holders and accepted
appointment in the manner required by Section 611, any
Holder who has been a bona fide Holder of a Security of
such series for at least six months may, on behalf of
himself and all others similarly situated, petition any
court of competent jurisdiction for the appointment of
a successor Trustee with respect to the Securities of
such series.
(f) The Company shall give notice of each
resignation and each removal of the Trustee with
respect to the Securities of any series and each
appointment of a successor Trustee with respect to the
Securities of any series by mailing written notice of
such event by first-class mail, postage prepaid, to all
Holders of Securities of such series as their names and
addresses appear in the Security Register. Each notice
shall include the name of the successor Trustee with
respect to the Securities of such series and the
address of its Corporate Trust Office.
SECTION 611. Acceptance of Appointment by Successor
(a) In case of the appointment hereunder of a
successor Trustee with respect to all Securities, every
such successor Trustee so appointed shall execute,
acknowledge and deliver to the Company and to the
retiring Trustee an instrument accepting such
appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such
successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee; but,
on the request of the Company or the successor Trustee,
such retiring Trustee shall, upon payment of its
charges, execute and deliver an instrument transferring
to such successor Trustee all the rights, powers and
trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor Trustee all
property and money held by such retiring Trustee
hereunder.
(b) In case of the appointment hereunder of a
successor Trustee with respect to the Securities of one
or more (but not all) series, the Company, the retiring
Trustee and each successor Trustee with respect to the
Securities of one or more series shall execute and
deliver an indenture supplemental hereto wherein each
successor Trustee shall accept such appointment and
which (1) shall contain such provisions as shall be
necessary or desirable to transfer and confirm to, and
to vest in, each successor Trustee all the rights,
powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series to
which the appointment of such successor Trustee
relates, (2) if the retiring Trustee is not retiring
with respect to all Securities, shall contain such
provisions as shall be deemed necessary or desirable to
confirm that all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities
of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in
the retiring Trustee, and (3) shall add to or change
any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the
administration of the trusts hereunder by more than one
Trustee, it being understood that nothing herein or in
such supplemental indenture shall constitute such
Trustees co-trustees of the same trust and that each
such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts
hereunder administered by any other such Trustee; and
upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring
Trustee shall become effective to the extent provided
therein and each such successor Trustee, without any
further act, deed or conveyance, shall become vested
with all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that
or those series to which the appointment of such
successor Trustee relates; but, on request of the
Company or any successor Trustee, such retiring Trustee
shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such
retiring Trustee hereunder with respect to the
Securities of that or those series to which the
appointment of such successor Trustee relates. Whenever
there is a successor Trustee with respect to one or
more (but less than all) series of securities issued
pursuant to this Indenture, the terms "Indenture" and
"Securities" shall have the meanings specified in the
provisos to the respective definitions of those terms
in Section 101 which contemplate such situation.
(c) Upon request of any such successor Trustee,
the Company shall execute any and all instruments for
more fully and certainly vesting in and confirming to
such successor Trustee all such rights, powers and
trusts referred to in paragraph (a) and (b) of this
Section, as the case may be.
(d) No successor Trustee shall accept its
appointment unless at the time of such acceptance such
successor Trustee shall be qualified and eligible under
this Article.
SECTION 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
authenticated with the same effect as if such successor
Trustee had itself authenticated such Securities; in
case any of the Securities shall not have been
authenticated by the Trustee then in office, any
successor by merger, conversion or consolidation to
such Trustee may authenticate such Securities either in
the name of such predecessor hereunder or in the name
of the successor Trustee; and in all such cases such
certificates shall have the full force which it is
anywhere in the Securities or in this Indenture
provided that the certificate of the Trustee shall
have; provided, however, that the right to adopt the
certificate of authentication of any predecessor
Trustee or to authenticate Securities in the name of
any predecessor Trustee shall apply only to its
successor or successors by merger, conversion or
consolidation.
SECTION 613. Preferential Collection of Claims Against
Company
The Trustee shall comply with TIA Section 311(a).
A Trustee which has resigned or been removed is subject
to TIA Section 311(a) to the extent indicated therein.
SECTION 614. Appointment of Authenticating Agent
At any time when any of the Securities remain
Outstanding the Trustee, with the concurrence of the
Company, may appoint an Authenticating Agent or Agents
with respect to one or more series of Securities which
shall be authorized to act on behalf of the Trustee to
authenticate Securities of such series, and Securities
so authenticated shall be entitled to the benefits of
this Indenture and shall be valid and obligatory for
all purposes as if authenticated by the Trustee
hereunder. Wherever reference is made in this Indenture
to the authentication and delivery of Securities by the
Trustee or the Trustee's certificate of authentication,
such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by
an Authenticating Agent and a certificate of
authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall
be acceptable to the Company and shall at all times be
a Corporation organized and doing business under the
laws of the United States of America, any State thereof
or the District of Columbia authorized under such laws
to act as Authenticating Agent, having a combined
capital and surplus of not less than $50,000,000 and
subject to supervision or examination by Federal, State
or District of Columbia authority. If such
Authenticating Agent 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 Authenticating Agent shall be deemed to
be its combined capital and surplus as set forth in its
most recent report of condition so published. If at any
time an Authenticating Agent shall cease to be eligible
in accordance with the provisions of this Section, such
Authenticating Agent shall resign immediately in the
manner and with the effect specified in this Section.
Any Corporation into which an Authenticating Agent
may be merged or converted or with which it may be
consolidated, or any Corporation resulting from any
merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any
Corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent,
shall continue to be an Authenticating Agent, provided
such Corporation shall be otherwise eligible under this
Section, without the execution or filing of any paper
or any further act on the part of the Trustee or the
Authenticating Agent.
An Authenticating Agent may resign at any time by
giving written notice thereof to the Trustee and to the
Company. The Trustee may at any time terminate the
agency of an Authenticating Agent by giving written
notice thereof to such Authenticating Agent and to the
Company. Upon receiving such a notice of resignation or
upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, the
Trustee may appoint a successor Authenticating Agent
which shall be acceptable to the Company and shall mail
written notice of such appointment by first class mail,
postage prepaid, to all Holders of Securities of the
series with respect to which such Authenticating Agent
will serve, as their names and addresses appear in the
Security Register. Any successor Authenticating Agent
upon acceptance of its appointment hereunder shall
become vested with all the rights, powers and duties of
its predecessor hereunder, with like effect as if
originally named as an Authenticating Agent. No
successor Authenticating Agent shall be appointed
unless eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating
Agent from time to time reasonable compensation for its
services under this Section.
If an appointment with respect to one or more
series is made pursuant to this Section, the Securities
of such series may have endorsed thereon, in addition
to the Trustee's certificate of authentication, an
alternate certificate of authentication in the
following form:
This is one of the Securities of the series
designated herein and issued pursuant to the within-
mentioned Indenture.
U.S. Bank Trust National
Association,
as Trustee
By________________________
As Authenticating Agent
By________________________
Authorized Officer
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and
Addresses of Holders.
If the Trustee is not acting as Security Registrar
for the Securities of any series, the Company will
furnish or cause to be furnished to the Trustee.
(a) at intervals of no more than six months
commencing after the first issue of such series, a
list, in such form as the Trustee may reasonably
require, of the names and addresses of the Holders
as of a date not more than 15 days prior to the
time such information is furnished, 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.
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 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 privileges of the Trustee,
shall be as provided by TIA Section 312(b).
(c) Every Holder of Securities, by receiving and
holding the same, agrees with the Company and the
Trustee that neither the Company nor the Trustee nor
any agent of either of them shall be held accountable
by reason of the disclosure of any such information as
to the names and addresses of the Holders in accordance
with Section 702(b), regardless of the source from
which such information was derived, and that the
Trustee shall not be held accountable by reason of
mailing any material pursuant to a request made under
Section 702(b).
SECTION 703. Reports by Trustee.
Within 60 days after May 15 of each year
commencing with the later of May 1, 2000 or the first
May 1 after the first issuance of Securities pursuant
to this Indenture, the Trustee shall transmit by mail
to all Holders of Securities as provided in TIA Section
313(c) a brief report dated as of such May 1 if
required by TIA Section 313(a). A copy of each such
report shall, at the time of such transmission to
Holders, be filed by the Trustee with each stock
exchange upon which any Securities are listed, with the
Commission and with the Company. The Company will
notify the Trustee when any Securities are listed on
any stock exchange.
SECTION 704. Reports by Company
The Company shall:
(1) file with the Trustee, within 15 days
after the Company is required to file the same
with the Commission, copies of the annual reports
and of the information, documents and other
reports (or copies of such portions of any of the
foregoing as the Commission may from time to time
by rules and regulations prescribe) which the
Company may be required to file with the
Commission pursuant to Section 13 or Section 15
(d) of the Securities Exchange Act of 1934; or, if
the Company is not required to file information,
documents or reports pursuant to either of said
Sections, then it shall file with the Trustee and
the Commission, in accordance with rules and
regulations prescribed from time to time by the
Commission, such of the supplementary and periodic
information, documents and reports which may be
required pursuant to Section 13 of the Securities
Exchange Act of 1934 in respect of a security
listed and registered on a national securities
exchange as may be prescribed from time to time in
such rules and regulations;
(2) file with the Trustee and the
Commission, in accordance with rules and
regulations prescribed from time to time by the
Commission, such additional information, documents
and reports with respect to compliance by the
Company with the conditions and covenants of this
Indenture as may be required from time to time by
such rules and regulations;
(3) transmit by mail to all Holders, as
their names and addresses appear in the Security
Register, within 30 days after the filing thereof
with the Trustee, such summaries of any
information, documents and reports required to be
filed by the Company pursuant to paragraphs (1)
and (2) of this Section as may be required by
rules and regulations prescribed from time to time
by the Commission; and
(4) furnish to the Trustee, within 120 days
after the end of each fiscal year of the Company
ending after the date hereof, a brief certificate
of the Company's principal executive officer,
principal financial officer or principal
accounting officer as to his or her knowledge of
the Company's compliance with all conditions and
covenants under this Indenture. For purposes of
this paragraph, such compliance shall be
determined without regard to any period of grace
or requirement of notice provided under this
Indenture.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc., Only on
Certain Terms.
The Company shall not consolidate with or merge
into any other Person or convey, transfer or lease its
properties and assets substantially as an entirety to
any Person unless: (1) the Person formed by such
consolidation or into which the Company is merged or
the Person which acquires by conveyance or transfer, or
which leases, the properties and assets of the Company
substantially as an entirety 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 or observance of every covenant of this
Indenture on the part of the Company to be performed or
observed; (2) immediately after giving effect to such
transaction and treating any indebtedness which becomes
an obligation of the Company or any Subsidiary 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; and (3) the Company has delivered to the
Trustee an Officers' Certificate and an Opinion of
Counsel, each stating that such consolidation, merger,
conveyance, transfer or lease and supplemental
indenture comply with this Article and that all
conditions precedent herein provided for relating to
such transaction have been complied with.
SECTION 802. Successor Substituted
Upon any consolidation of the Company with, or
merger by the Company into, any other Person or any
conveyance, transfer or lease of the properties and
assets of the Company substantially as an entirety in
accordance with Section 801, the successor Person
formed by such consolidation or into which the Company
is merged or to which such conveyance, transfer or
lease is made shall succeed to, and be substituted for,
and may exercise every right and power of, the Company
under this Indenture with the same effect as if such
successor Person 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 or pursuant to a Board Resolution,
and the Trustee, at any time and from time to time, may
enter into one or more indentures supplemental hereto,
in form satisfactory to the Trustee, for any of the
following purposes:
(1) to evidence the succession of another
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 of all or any
series of Securities (and if such covenants are to
be for the benefit of less than all series of
Securities, stating that such covenants are
expressly being included solely for the benefit of
one or more specified series) or to surrender any
right or power herein conferred upon the Company;
or
(3) to add any additional Events of Default
(and if such Events of Default are to be for the
benefit of less than all series of Securities,
stating that such Events of Default are being
included solely for the benefit of one or more
specified series); or
(4) to add to or change any of the
provisions of this Indenture to such extent as
shall be necessary to permit or facilitate the
issuance of Securities in bearer form, registrable
or not registrable as to principal, and with or
without interest coupons; or
(5) to add to, change or eliminate any of
the provisions of this Indenture in respect of one
or more series of Securities, provided that any
such addition, change or elimination (i) shall
neither (A) apply to any Security of any series
created prior to the execution of such
supplemental indenture and entitled to the benefit
of such provision nor (B) modify the rights of the
Holder of any such Security with respect to such
provision or (ii) shall become effective only when
there is no such Security Outstanding; or
(6) to secure the Securities; or
(7) to establish the form or terms of
Securities of any series as permitted by Sections
201 and 301; or
(8) to evidence and provide for the
acceptance of appointment hereunder by a successor
Trustee with respect to the Securities of one or
more series and to add to or change any of the
provisions of this Indenture as shall be necessary
to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee,
pursuant to the requirements of Section 611(b); or
(9) to cure any ambiguity, to correct or
supplement any provision herein which may be
inconsistent with any other provision herein, or
to make any other provisions with respect to
matters or questions arising under this Indenture,
provided such action shall not adversely affect
the interests of the Holders of Securities of any
series in any material respect.
SECTION 902. Supplemental Indentures with Consent of
Holders
With the consent of the Holders of not less than a
majority in aggregate principal amount of the
Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders
delivered to the Company and the Trustee, the Company,
when authorized by a Board Resolution, and the Trustee
may enter into an indenture or indentures supplemental
hereto for the purpose of adding any provisions to or
changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any
manner the rights of the Holders of Securities of such
series under this Indenture; provided, however, that no
such supplemental indenture shall, without the consent
of the Holder of each Outstanding Security affected
thereby,
(1) change the Stated Maturity of the
principal of, or any installment of principal of
or interest on, any such Security, or reduce the
principal amount thereof or the rate of interest
thereon or any premium payable upon the redemption
thereof, or reduce the amount of the principal of
an Original Issue Discount Security that would be
due and payable upon a declaration of acceleration
of the Maturity thereof pursuant to Section 502,
or change any Place of Payment where, or the coin
or currency in which, any such 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 or repayment, on or after the
Redemption Date or any repayment date), or
(2) reduce the percentage in principal
amount of the Outstanding Securities of any
series, the consent of whose Holders is required
for any such supplemental indenture, or the
consent of whose Holders is required for any
waiver of compliance with certain provisions of
this Indenture or certain defaults hereunder and
their consequences provided for in this Indenture,
or
(3) modify any of the provisions of this
Section 902, Section 513 or Section 1010, except
to increase any such percentage or to provide that
certain other provisions of this Indenture cannot
be modified or waived without the consent of the
Holder of each Outstanding Security affected
thereby; provided however, that this Clause shall
not be deemed to require the consent of any Holder
with respect to changes in the references to "the
Trustee" and concomitant changes in this Section
902 and Section 1010, or the deletion of this
proviso, in accordance with the requirements of
Sections 611(b) and 901(8).
A supplemental indenture which changes or eliminates
any covenant or other provision of this Indenture which
has expressly been included solely for the benefit of
one or more particular series of Securities, or which
modifies the rights of the Holders of Securities of
such series with respect to such covenant or other
provision, shall be deemed not to affect the rights
under this Indenture of the Holders of Securities of
any other series.
The Company may, but shall not be obligated to,
fix a record date for the purpose of determining the
Persons entitled to consent to any indenture
supplemental hereto. If a record date is fixed for such
purpose, the Holders on such record date or their duly
designated proxies, and only such Persons, shall be
entitled to consent to such supplemental indenture,
whether or not such Holders remain Holders after such
record date; provided, that unless such consent shall
have become effective by virtue of the requisite
percentage having been obtained prior to the date which
is 90 days after such record date, any such consent
previously given shall automatically and without
further action by any Holder be canceled and of no
further effect.
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 to the extent provided therein.
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 as then in effect.
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 a form approved by the Trustee as to
any matter provided for in such supplemental indenture.
If the Company shall so determine, new Securities of
any series so modified as to conform, in the opinion of
the Trustee and the Company, to any such supplemental
indenture may be prepared and executed by the Company
and authenticated and delivered by the Trustee in
exchange for Outstanding Securities of such series.
SECTION 907. Notice of Supplemental Indentures.
Promptly after the execution by the Company and
the Trustee of any supplemental indenture pursuant to
the provisions of Section 902, the Company shall give
notice thereof to the Holders of each Outstanding
Security so affected, pursuant to Section 106, setting
forth in general terms the substance of such
supplemental indenture.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and
Interest.
The Company covenants and agrees for the benefit
of each series of Securities that it will duly and
punctually pay the principal of (and premium, if any)
and interest on the Securities of that series in
accordance with the terms of the Securities and this
Indenture. In the absence of contrary provisions with
respect to the Securities of any series, interest on
the Securities of any series may, at the option of the
Company, be paid by check mailed to the address of the
Person entitled thereto as it appears on the Security
Register.
SECTION 1002. Maintenance of Office or Agency
The Company will maintain in each Place of Payment
for any series of Securities an office or agency where
Securities of that series may be presented or
surrendered for payment, where Securities of that
series may be surrendered for registration of transfer
or exchange and where notices and demands to or upon
the Company in respect of the Securities of that series
and this Indenture may be served. The Company will give
prompt written notice to the Trustee of the location
and any change in the location of such office or
agency. If at any time the Company shall fail to
maintain any such required office or agency or shall
fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may
be made or served at the Corporate Trust Office of the
Trustee, and the Company hereby appoints the Trustee as
its agent to receive all such presentations,
surrenders, notices and demands.
The Company may also from time to time designate
one or more other offices or agencies where the
Securities of one or more series may be presented or
surrendered for any or all such purposes and may from
time to time rescind such designations; provided,
however, that no such designation or rescission shall
in any manner relieve the Company of its obligation to
maintain an office or agency in each Place of Payment
for Securities of any series for such purposes. The
Company will give prompt written notice to the Trustee
of any such designation or rescission and of any change
in the location of any such other office or agency.
SECTION 1003. Money for Securities Payments to Be Held
in Trust
If the Company shall at any time act as its own
Paying Agent with respect to any series of Securities,
it will, on or before each due date of the principal of
(and premium, if any) or interest on any of the
Securities of that series, segregate and hold in trust
for the benefit of the Persons entitled thereto a sum
in the currency in which such series of Securities is
payable 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 or will promptly notify the Trustee
of its failure so to act.
Whenever the Company shall have one or more Paying
Agents for any series of Securities, it will, prior to
each due date of the principal of (and premium, if any)
or interest on any Securities of that series, deposit
with a Paying Agent a sum sufficient to pay the
principal (and premium, if any) or interest so becoming
due, such sum to be held in trust for the benefit of
the Persons entitled to such principal, premium or
interest, or (unless such Paying Agent is the Trustee)
the Company will promptly notify the Trustee of its
failure so to act.
The Company will cause each Paying Agent for any
series of Securities other than the Trustee to execute
and deliver to the Trustee an instrument in which such
Paying Agent shall agree with the Trustee, subject to
the provisions of this Section, that such Paying Agent
will:
(1) hold all sums held by it for the
payment of the principal of (and premium, if any)
or interest on Securities of that series in trust
for the benefit of the Persons entitled thereto
until such sums shall be paid to such Persons or
otherwise disposed of as herein provided;
(2) give the Trustee notice of any
default by the Company (or any other obligor upon
the Securities of that series) in the making of
any payment of principal (and premium, if any) or
interest on the Securities of that series; and
(3) at any time during the continuance
of any such default, upon the written request of
the Trustee, forthwith pay to the Trustee all sums
so held in trust by such Paying Agent.
The Company may at any time, for the purpose of
obtaining the satisfaction and discharge of this
Indenture or for any other purpose, pay, or by Company
Order direct any Paying Agent to pay, to the Trustee
all sums held in trust by the Company or such Paying
Agent, such sums to be held by the Trustee upon the
same trusts as those upon which such sums were held by
the Company or such Paying Agent, and, upon such
payment by any Paying Agent to the Trustee, such Paying
Agent shall be released from all further liability with
respect to such money.
Any money deposited with the Trustee or any Paying
Agent, or then held by the Company, in trust for the
payment of the principal of (and premium, if any) or
interest on any Security of any series 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; provided,
however, that the Trustee or such Paying Agent, before
being required to make any such repayment, may at the
expense of the Company cause to be published once, in a
newspaper published in the English language,
customarily published on each Business Day and of
general circulation in the Borough of Manhattan, The
City of New York, notice that such money remains
unclaimed and that, after a date specified therein,
which shall not be less than 30 days from the date of
such publication, any unclaimed balance of such money
then remaining will be repaid to the Company on Company
Request.
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, corporate
rights (charter and statutory) and corporate
franchises; provided, however, that the Company shall
not be required to preserve any such right or franchise
if the Board of Directors shall determine that the
preservation thereof is no longer desirable in the
conduct of the business of the Company and that the
loss thereof is not disadvantageous in any material
respect to the Holders.
SECTION 1005. Maintenance of Properties
The Company will cause all Principal Properties
used or useful in the conduct of its business to be
maintained and kept in good condition, repair and
working order and will cause to be made all necessary
repairs, renewals, replacements, betterments and
improvements thereof, all as in the judgment of the
Company may be necessary so that the business carried
on in connection therewith may be properly and
advantageously conducted; provided, however, that
nothing in this Section shall prevent the Company from
discontinuing the operation or maintenance or selling
or disposing of any of such Principal Properties if
such discontinuance, sale or disposition is, in the
judgment of the Company, desirable in the conduct of
its business 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 and a lien upon its property: (1) all
taxes, assessments and governmental charges levied or
imposed upon it or upon its income, profits or
property, and (2) all lawful claims for labor,
materials and supplies upon its property; provided,
however, that the Company shall not be required to pay
or discharge or cause to be paid or discharged any such
tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good
faith.
SECTION 1007. [Intentionally Deleted]
SECTION 1008. [Intentionally Deleted]
SECTION 1009. Defeasance of Certain Obligations
The following provisions shall apply to the
Securities of each series unless specifically otherwise
provided in a Board Resolution, Officers' Certificate
or indenture supplemental hereto provided pursuant to
Section 301. The Company may omit to comply with any
term, provision or condition set forth in Sections
1005, 1006, 1007 and 1008, and any such omission with
respect to Sections 1005, 1006, 1007 and 1008 shall not
be an Event of Default, in each case with respect to
the Securities of that series, provided that the
following conditions have been satisfied:
(1) with reference to this Section 1009, the
Company has deposited or caused to be irrevocably
deposited with the Trustee (or another trustee
satisfying the requirements of Section 609) as
trust funds in trust, specifically pledged as
security for, and dedicated solely to, the benefit
of the Holders of the Securities of that series,
(i) money in an amount, or (ii) U.S. Government
Obligations which through the payment of interest
and principal in respect thereof in accordance
with their terms will provide not later than one
day before the due date of any payment referred to
in clause (A) or (B) of this subparagraph (1)
money in an amount, or (iii) 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 (A) the principal of (and premium, if
any) and each installment of principal of (and
premium, if any) and interest on the Outstanding
Securities on the Stated Maturity of such
principal or installments of principal and
interest and (B) any mandatory sinking fund
payments or analogous payments applicable to the
Securities of such series on the day on which such
payments are due and payable in accordance with
the terms of this Indenture and of such
Securities;
(2) such deposit shall not cause the Trustee
with respect to the Securities of that series to
have a conflicting interest as defined in Section
608 and for purposes of the Trust Indenture Act
with respect to the Securities of any series;
(3) such deposit will not result in a breach
or violation of, or constitute a default under,
this Indenture or any material agreement or
instrument to which the Company is a party or by
which it is bound;
(4) such deposit will not cause any
Outstanding Securities then listed on the New York
Stock Exchange or other securities exchange to be
de-listed as a result thereof;
(5) no Event of Default under Sections
501(6) or (7) or event which with notice or lapse
of time would become an Event of Default under
Sections 501(6) or (7) with respect to the
Securities of that series shall have occurred and
be continuing on the date of such deposit;
(6) the Company has delivered to the Trustee
an Opinion of Counsel to the effect that Holders
of the Securities of such series will not
recognize income, gain or loss for Federal income
tax purposes as a result of such deposit and
defeasance of certain obligations and will be
subject to Federal income tax on the same amount
and in the same manner and at the same times as
would have been the case if such deposit and
defeasance had not occurred; and
(7) 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
defeasance contemplated in this Section have been
complied with.
SECTION 1010. Waiver of Certain Covenants.
The Company may omit in any particular instance to
comply with any term, provision or condition set forth
in Sections 1004 to 1008, inclusive, with respect to
the Securities of any series if before the time for
such compliance the Holders of not less than a majority
in aggregate principal amount of the Outstanding
Securities of such series shall, by Act of such
Holders, either waive such compliance in such instance
or generally waive compliance with such term, provision
or condition, but no such waiver shall extend to or
affect such term, provision or condition except to the
extent so expressly waived, and, until such waiver
shall become effective, the obligations of the Company
and the duties of the Trustee in respect of any such
term, provision or condition shall remain in full force
and effect.
The Company may, but shall not be obligated to,
fix a record date for the purpose of determining the
Persons entitled to waive any such term, provision or
condition. If a record date is fixed for such purpose,
the Holders on such record date or their duly
designated proxies, and only such Persons, shall be
entitled to waive any such term, provision or condition
hereunder, whether or not such Holders remain Holders
after such record date; provided that unless the
Holders of not less than a majority in principal amount
of the Outstanding Securities of such series shall have
waived such term, provision or condition prior to the
date which is 90 days after such record date, any such
waiver previously given shall automatically and without
further action by any Holder be canceled and of no
further effect.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article.
Securities of any series which are redeemable
before their Stated Maturity shall be redeemable in
accordance with their terms and (except as otherwise
specified as contemplated by Section 301 for Securities
of any series) in accordance with this Article.
SECTION 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any
Securities shall be evidenced by an Officers'
Certificate. The Company shall, at least 45 days prior
to the Redemption Date fixed by the Company (unless a
shorter notice shall be satisfactory to the Trustee),
notify the Trustee of
(1) such Redemption Date,
(2) if the Securities of such series have
different terms and less than all of the
Securities of such series are to be redeemed, the
terms of the Securities to be redeemed, and
(3) if less than all the Securities of
such series with identical terms are to be
redeemed, the principal amount of such Securities
to be redeemed.
In the case of any redemption of Securities prior to
the expiration of any restriction on such redemption
provided in the terms of such Securities or elsewhere
in this Indenture, the Company shall furnish the
Trustee with an Officers' Certificate evidencing
compliance with such restriction.
SECTION 1103. Selection by Trustee of Securities to Be
Redeemed
If less than all the Securities of like tenor of
any series are to be redeemed, the particular
Securities to be redeemed shall be selected not more
than 60 days prior to the Redemption Date by the
Trustee, from the Outstanding Securities of like tenor
of such series not previously called for redemption, by
such method as the Trustee shall deem fair and
appropriate and which may provide for the selection for
redemption of portions (equal to the minimum authorized
denomination for Securities of like tenor of that
series or any integral multiple thereof) of the
principal amount of Securities of such series of a
denomination larger than the minimum authorized
denomination for Securities of that series.
The Trustee shall promptly notify the Company in
writing of the Securities selected for redemption and,
in the case of any Securities selected for partial
redemption, the principal amount thereof to be
redeemed.
For all purposes of this Indenture, unless the
context otherwise requires, all provisions relating to
the redemption of Securities shall relate, in the case
of any Securities redeemed or to be redeemed only in
part, to the portion of the principal amount of such
Securities which has been or is to be redeemed.
SECTION 1104. 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 each such
Holder's address appearing in the Security Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding
Securities of like tenor of any series are to be
redeemed, the identification (and, in the case of
partial redemption, the principal amounts) of the
particular Securities to be redeemed,
(4) that on the Redemption Date the
Redemption Price will become due and payable upon
each such Security to be redeemed and, if
applicable, that interest thereon will cease to
accrue on and after said date,
(5) the place or places where such
Securities are to be surrendered for payment of
the Redemption Price, and
(6) that the redemption is for a sinking
fund, if such is the case.
Notice of redemption of Securities to be redeemed
at the election of the Company shall be given by the
Company or, at the Company's request, by the Trustee in
the name and at the expense of the Company.
SECTION 1105. Deposit of Redemption Price
On or 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 in immediately available funds
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 1106. Securities Payable on Redemption Date
Notice of redemption having been given as
aforesaid, the Securities so to be redeemed shall, on
the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after
such date (unless the Company shall default in the
payment of the Redemption Price and accrued interest)
such Securities shall cease to bear interest. Upon
surrender of any such Security for redemption in
accordance with said notice, such Security shall be
paid by the Company at the Redemption Price, together
with accrued interest to the Redemption Date; provided,
however, that, unless otherwise specified as
contemplated by Section 301, 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 Regular 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
prescribed therefor in the Security.
SECTION 1107. Securities Redeemed in Part
Any Security which is to be redeemed in part shall
be surrendered at a Place of Payment for such series
(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 such Holder's
attorney duly authorized in writing), and the Company
shall execute, and the Trustee shall authenticate and
deliver to the Holder of such Security without service
charge, a new Security or Securities of the same series
and of like tenor, 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; provided,
however, that if a Global Security is so surrendered,
such new Security so issued shall be a new Global
Security in a denomination equal to the unredeemed
portion of the principal of the Global Security so
surrendered.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article
The provisions of this Article shall be applicable
to any sinking fund for the retirement of Securities of
a series except as otherwise specified as contemplated
by Section 301 for Securities of such series.
The minimum amount of any sinking fund payment
provided for by the terms of Securities of any series
is herein referred to as a "mandatory sinking fund
payment", and any payment in excess of such minimum
amount provided for by the terms of Securities of any
series is herein referred to as an "optional sinking
fund payment". If provided for by the terms of
Securities of any series, the cash amount of any
sinking fund payment may be subject to reduction as
provided in Section 1202. Each sinking fund payment
shall be applied to the redemption of Securities of any
series as provided for by the terms of Securities of
such series.
SECTION 1202. Satisfaction of Sinking Fund Payments
with Securities.
The Company (1) may deliver Outstanding Securities
of like tenor of a series (other than any previously
called for redemption) and (2) may apply as a credit
Securities of like tenor of a series which have been
redeemed either at the election of the Company pursuant
to the terms of such Securities or through the
application of permitted optional sinking fund payments
pursuant to the terms of such Securities, in each case
in satisfaction of all or any part of any sinking fund
payment with respect to the Securities of like tenor of
such series required to be made pursuant to the terms
of such Securities as provided for by the terms of such
series; provided that such Securities have not been
previously so credited. Such Securities shall be
received and credited for such purpose by the Trustee
at the Redemption Price specified in such Securities
for redemption through operation of the sinking fund
and the amount of such sinking fund payment shall be
reduced accordingly.
SECTION 1203. Redemption of Securities for Sinking Fund
Not less than 60 days prior to each sinking fund
payment date for Securities of like tenor of a series,
the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing
sinking fund payment for such Securities pursuant to
the terms of such Securities, the portion thereof, if
any, which is to be satisfied by payment of cash and
the portion thereof, if any, which is to be satisfied
by delivering and crediting Securities of like tenor of
that series pursuant to Section 1202 and, at the time
of delivery of such Officers' Certificate, will also
deliver to the Trustee any Securities to be so
delivered. If no such notice shall be delivered by the
Company, such sinking fund payment shall be satisfied
by payment of cash. Not less than 45 days before each
such sinking fund payment date the Trustee shall select
the Securities to be redeemed upon such sinking fund
payment date in the manner specified in Section 1103
and cause notice of the redemption thereof to be given
in the name of and at the expense of the Company in the
manner provided in Section 1104. Such notice having
been duly given, the redemption of such Securities
shall be made upon the terms and in the manner stated
in Sections 1106 and 1107.
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 as of the day and
year first above written.
PENTAIR, INC.
By___________________
[Name]
[Title]
Attest:
____________________________
[Name]
Secretary
U.S. BANK TRUST
NATIONAL ASSOCIATION,
as Trustee
By___________________
[Name]
[Title]
Attest:
____________________________
[Name]
[Title]
EXHIBIT 5.1
[LETTERHEAD OF HENSON & EFRON, P.A.]
June 7, 1999
Board of Directors
Pentair, Inc.
1500 County Road B2 West
St. Paul, Minnesota 55113
Ladies and Gentlemen:
We are acting as counsel to Pentair, Inc., a
Minnesota corporation (the "Company"), in
connection with its registration statement on Form
S-3, as amended (the "Registration Statement"),
filed with the Securities and Exchange Commission
under the Securities Act of 1933, as amended (the
"Securities Act"), relating to the proposed public
offering of up to $700,000,000 in aggregate amount
of one or more series of the Company's securities,
which securities may include any or all of the
Company's (i) shares of common stock, par value
$.16 2/3 per share including rights attached
thereto to purchase shares of Common Stock
pursuant to the Rights Agreement dated as of July
31, 1995, (collectively the "Common Stock"); or
(ii) debt securities (the "Debt Securities"), all
of which Common Stock and Debt Securities may be
offered and sold from time to time on a continuous
or delayed basis as set forth in the prospectus
which forms a part of the Registration Statement
(the "Prospectus"), and as set forth in one or
more supplements to the Prospectus (each, a
"Prospectus Supplement"). This opinion letter is
furnished to you at your request to enable you to
fulfill the requirements of Item 601(b)(5) of
Regulation S-K, 17 C.F.R. Section 229.601(b)(5),
in connection with the Registration Statement.
For purposes of this opinion letter, we have
examined copies of the following documents:
1. The Registration Statement.
2. The Amended and Restated Articles of
Incorporation of the Company, (the
"Articles of Incorporation") as
certified by the Secretary of State of
the State of Minnesota on June 4, 1999
and by the Secretary of the Company on
the date hereof as then being complete,
accurate and in effect. We note that
the deletion of the previously
designated series of preferred shares,
which was approved at the most recent
shareholder meeting, is not as yet
reflected in the document as filed with
and certified by the Secretary of State.
3. The Amended and Restated Bylaws of the
Company (the "Bylaws"), as certified by the
Secretary of the Company on the date hereof
as then being complete, accurate and in
effect.
4. The form of Indenture relating to Debt
Securities between the Company and Trustee,
filed as Exhibit 4.2 to the Registration
Statement.
5. Resolutions of the Board of Directors of the
Company adopted at a meeting held on June 2,
1999 as certified by the Secretary of the
Company on the date hereof as being complete,
accurate and in effect, relating to the
filing by the Company of the Registration
Statement and related matters.
In our examination of the aforesaid documents, we
have assumed the genuineness of all signatures, the
legal capacity of natural persons, the authenticity,
accuracy and completeness of all documents submitted to
us, and the conformity with the original documents of
all documents submitted to us as certified, telecopied,
photostatic, or reproduced copies. In giving this
opinion, we also have relied as to certain matters on
information obtained from public officials, officers of
the Company and other sources we believe to be
responsible. This opinion letter is given, and all
statements herein are made, in the context of the
foregoing.
For purposes of this opinion letter, we have
assumed that (i) the issuance, sale, amount and terms
of the Common Stock and Debt Securities to be offered
from time to time will be duly authorized and
established by proper action of the Board of Directors
of the Company (each, a "Board Action") and in
accordance with the Company's Certificate of
Incorporation, Bylaws and applicable Minnesota law; and
(ii) any Debt Securities will be issued pursuant to an
Indenture, the form of which will be filed as an
exhibit on a current Form 8-K filed prior to issuance
thereof.
This opinion letter is based as to matters of law
solely on the laws of the State of Minnesota. We
express no opinion herein as to any other laws,
statutes, regulations or ordinances.
Based upon, subject to and limited by the
foregoing, we are of the opinion that, as of the date
hereof:
(a) With respect to the Common Stock, when the
Registration Statement has become effective
under the Securities Act, upon due
authorization by Board Action of an issuance
of shares of Common Stock, and upon issuance
and delivery of certificates for shares of
Common Stock against payment therefor in
accordance with the terms of such Board
Action and any applicable underwriting
agreement or purchase agreement, and as
contemplated by the Registration Statement
and/or the applicable Prospectus Supplement,
the Common Stock represented by such
certificates will be validly issued, fully
paid and non-assessable.
(b) With respect to the Debt Securities, when (i)
the Registration Statement has become
effective under the Securities Act, (ii) an
applicable Indenture has been duly executed
and delivered by the Company and the Trustee
named therein, (iii) by applicable Board
Action, the issuance of any series of Debt
Securities has been duly authorized and the
terms thereof have been duly established in
accordance with the provisions of the
Indenture, and (iv) such Debt Securities have
been duly authenticated by the Trustee and
duly executed and delivered on behalf of the
Company against payment therefor in
accordance with the terms of such Board
Action, any applicable underwriting agreement
or purchase agreement, the Indenture and any
applicable supplemental indenture, and as
contemplated by the Registration Statement or
the applicable Prospectus Supplement, the
Debt Securities will constitute valid and
binding obligations of the Company,
enforceable against the Company in accordance
with their terms, except as the enforcement
thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or
other laws affecting creditors' rights
(including, without limitation, the effect of
statutory and other law regarding fraudulent
conveyances, fraudulent transfer and
preferential transfers) and as may be limited
by the exercise of judicial discretion and
the application of principles of equity,
including, without limitation, requirements
of good faith, fair dealing, conscionability
and materiality (regardless of whether
enforcement is considered in a proceeding in
equity or at law).
To the extent that the obligations of the Company
under any Indenture may be dependent upon such matters,
we assume for purposes of this opinion that the Trustee
is duly organized, validly existing and in good
standing under the laws of its jurisdiction of
organization; that the Trustee is duly qualified to
engage in the activities contemplated by the Indenture;
that the Indenture has been duly authorized, executed
and delivered by the Trustee and constitutes the valid
and binding obligation of the Trustee enforceable
against the Trustee in accordance with its terms; that
the Trustee is in compliance, with respect to acting as
a trustee under the Indenture, with all applicable laws
and regulations; and that the Trustee has the requisite
organizational and legal power and authority to perform
its obligations under the Indenture.
The opinions expressed in Paragraph (b) above
shall be understood to mean only that if there is a
default in performance of an obligation, (i) if a
failure to pay or other damage can be shown and (ii) if
the defaulting party can be brought into a court which
will hear the case and apply the governing law, then,
subject to the availability of defenses, and to the
exceptions set forth in Paragraph (a), the court will
provide a money damage (or perhaps injunctive or
specific performance) remedy.
We assume no obligation to advise you of any
changes in the foregoing subsequent to the delivery of
this opinion letter. This opinion letter has been
prepared solely for your use in connection with the
filing of the Registration Statement on the date of
this opinion letter and should not be quoted in whole
or in part or otherwise be referred to, nor filed with
or furnished to any governmental agency or other person
or entity, without the prior written consent of this
firm.
We hereby consent to the filing of this opinion
letter as Exhibit 5.1 to the Registration Statement and
to the reference to this firm under the caption "Legal
Matters" in the prospectus constituting a part of the
Registration Statement. In giving this consent, we do
not thereby admit that we are an "expert" within the
meaning of the Securities Act.
Very truly yours,
HENSON & EFRON, P.A.
/s/ Henson & Efron, P.A.
EXHIBIT 12.1
PENTAIR, INC. AND SUBSIDIAIRES
COMPUTATION OF RATIO OF EARNINGS TO COMBINED FIXED CHARGES
($000)
Years Ended December 31 March 27,
1994 1995 1996 1997 1998 1999
Earnings calculation
Income before income taxes 83505 101694 124602 158382 170944 3528
Interest on indebtedness 23722 21861 19636 22389 24020 5058
Portion of rent expense
representative of interest factor 2400 4372 3800 5246 7552 1700
Less:
Capitalized interest (203) 0 (99) (128) 0 0
109424 127927 147939 185889 202516 10286
Fixed charges
Interest on indebtedness 23722 21861 19636 22389 24020 5058
Portion of rent expense
representative of interest factor 2400 4372 3800 5246 7552 1700
26122 26233 23436 27635 31572 6758
Ratio of earnings to
combined fixed charges 4.19 4.88 6.31 6.73 6.41 1.52
Notes:
Including amortization of debt discount and expense
Used 1/3 of rent expense per the Annual Report
1999 Ratio without $38 million restructuring charge would be 7.15x
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in
this Registration Statement of Pentair, Inc. on
Form S-3 of our report dated January 29, 1999,
appearing in the Annual Report on Form 10-K of
Pentair, Inc. for the year ended December 31, 1998
and to the reference to us under the heading
"Experts" in the Prospectus, which is part of this
Registration Statement.
Deloitte & Touche LLP
Minneapolis, Minnesota
June 2,1999
EXHIBIT 24.1
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person
whose signature appears below constitute and appoints
Richard W. Ingman and Louis L. Ainsworth, and each or
any one of them, his or her true and lawful attorneys-
in-fact and agents, each acting along, with full powers
of substitution and resubstitution, for or her in his
or her name, place and stead, in any and all
capacities, to sign any or all amendments (including
post-effective amendments) to this Registration
Statement, and to file the same, with all exhibits
thereto and other documents in connection therewith,
with the Securities and Exchange Commission, granting
onto said attorneys-in-fact and agents, each acting
along, full power and authority to do and perform each
and every act and thing requisite or necessary to be
done in and about the premises, as fully to all intents
and purposes as he or she might or could do in person,
hereby ratify and confirming all that said attorneys-in-
fact and agents, each acting along, or his or her
substitute or substitutes, may lawfully do or cause to
be done by virtue thereof.
Dated: June 2, 1999
Signature Title
/s/ Winslow H. Buxton Chairman, President, Chief
Winslow H. Buxton Executive Officer and Director
(principal executive officer)
/s/ Richard W. Ingman Executive Vice President and
Richard W. Ingman Chief Financial Officer
(principal financial and
accounting officer)
/s/ William J. Cadogan Director
William J. Cadogan
/s/ Joseph R. Collins Vice Chairman and Director
Joseph R. Collins
/s/ Barbara B. Grogan Director
Barbara B. Grogan
/s/ Charles A. Haggerty Director
Charles A. Haggerty
/s/ Harold V. Haverty Director
Harold V. Haverty
/s/ Quentin J. Hietpas Director
Quentin J. Hietpas
/s/ Stuart Maitland Director
Stuart Maitland
/s/ Augusto Meozzi Director
Augusto Meozzi
/s/ Richard M. Schulze Director
Richard M. Schulze
/s/ Karen E. Welke Director
Karen E. Welke
EXHIBIT 25.1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C.
20549
__________
FORM T-1
Statement of Eligibility Under the
Trust Indenture Act of
1939 of a Corporation
Designated to Act as
Trustee
U.S. BANK TRUST NATIONAL ASSOCIATION
(Exact name of Trustee as specified in its charter)
United States 41-0257700
(State of Incorporation) (I.R.S.Employer Identification No.)
U.S. Bank Trust Center
180 East Fifth Street
St. Paul, Minnesota 55101
(Address of Principal Executive
Offices)(Zip Code)
PENTAIR, INC.
(Exact name of Registrant as specified in its charter)
Minnesota 41-0907434
(State of Incorporation) (I.R.S.Employer Identification No.)
Pentair, Inc,
1500 County Road B2 West, Suite 400
St. Paul, MN 55113-3105
(Address of Principal Executive
Offices)(Zip Code)
Debt Securities
(Title of the Indenture Securities)
<PAGE>
GENERAL
1. General Information Furnish the
following information as to the Trustee.
(a)Name and address of each examining or supervising
authority to which it is subject.
Comptroller of the Currency
Washington, D.C.
(b)Whether it is authorized to exercise corporate
trust powers.
Yes
2. AFFILIATIONS WITH OBLIGOR AND
UNDERWRITERS If the obligor or any
underwriter for the obligor is an
affiliate of the Trustee, describe each
such affiliation.
None
See Note following Item 16.
Items 3-15 are not applicable because
to the best of the Trustee's knowledge
the obligor is not in default under any
Indenture for which the Trustee acts as
Trustee.
16. LIST OF EXHIBITS List below all
exhibits filed as a part of this statement of eligibility and
qualification.
1. Copy of Articles of Association.*
2. Copy of Certificate of Authority to Commence
Business.*
3. Authorization of the Trustee to
exercise corporate trust powers
(included in Exhibits 1 and 2; no
separate instrument).*
4. Copy of existing By-Laws.*
5. Copy of each Indenture referred to in Item 4.
N/A.
6. The consents of the Trustee required by Section
321(b) of the act.
7. Copy of the latest report of condition of the
Trustee published pursuant to law or the
requirements of its supervising or
examining authority is incorporated by
reference to Registration Number 333-70709.
* Incorporated by reference to
Registration Number 22-27000.
NOTE
The answers to this statement insofar
as such answers relate to what persons have
been underwriters for any securities of the
obligors within three years prior to the
date of filing this statement, or what
persons are owners of 10% or more of the
voting securities of the obligors, or
affiliates, are based upon information
furnished to the Trustee by the obligors.
While the Trustee has no reason to doubt
the accuracy of any such information, it
cannot accept any responsibility therefor.
SIGNATURE
Pursuant to the requirements of the
Trust Indenture Act of 1939, the Trustee,
U.S. Bank Trust National Association, an
Association organized and existing under
the laws of the United States, has duly
caused this statement of eligibility and
qualification to be signed on its behalf by
the undersigned, thereunto duly authorized,
and its seal to be hereunto affixed and
attested, all in the City of Saint Paul and
State of Minnesota on the 3rd day of June,
1999.
U.S. BANK TRUST NATIONAL ASSOCIATION
Richard H. Prokosch
Assistant Vice President
Harry H. Hall Jr.
Assistant Secretary
NOTE
The answers to this statement insofar
as such answers relate to what persons have
been underwriters for any securities of the
obligors within three years prior to the
date of filing this statement, or what
persons are owners of 10% or more of the
voting securities of the obligors, or
affiliates, are based upon information
furnished to the Trustee by the obligors.
While the Trustee has no reason to doubt
the accuracy of any such information, it
cannot accept any responsibility therefor.
SIGNATURE
Pursuant to the requirements of the
Trust Indenture Act of 1939, the Trustee,
U.S. Bank Trust National Association, an
Association organized and existing under
the laws of the United States, has duly
caused this statement of eligibility and
qualification to be signed on its behalf by
the undersigned, thereunto duly authorized,
and its seal to be hereunto affixed and
attested, all in the City of Saint Paul and
State of Minnesota on the 3rd day of June,
1999.
U.S. BANK TRUST NATIONAL ASSOCIATION
/s/ Richard H. Prokosch
Richard H. Prokosch
Assistant Vice President
/s/ Harry H. Hall Jr.
Harry H. Hall Jr.
Assistant Secretary
EXHIBIT 6
CONSENT
In accordance with Section 321(b) of
the Trust Indenture Act of 1939, the
undersigned, U.S. BANK TRUST NATIONAL
ASSOCITION hereby consents that reports of
examination of the undersigned by Federal,
State, Territorial or District authorities
may be furnished by such authorities to the
Securities and Exchange Commission upon its
request therefor.
Dated: June 3, 1999
U.S. BANK TRUST NATIONAL ASSOCIATION
Richard H. Prokosch
Assistant Vice President
EXHIBIT 6
CONSENT
In accordance with Section 321(b) of
the Trust Indenture Act of 1939, the
undersigned, U.S. BANK TRUST NATIONAL
ASSOCIATION hereby consents that reports of
examination of the undersigned by Federal,
State, Territorial or District authorities
may be furnished by such authorities to
the Securities and Exchange Commission
upon its request therefor.
Dated: June 3, 1999
U.S. BANK TRUST NATIONAL ASSOCIATION
/s/ Richard H. Prokosch
Richard H. Prokosch
Assistant Vice President
