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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (date of earliest event reported): February 23, 1998
IDEX Corporation
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(Exact name of registrant as specified in its charter)
Delaware 1-10235 36-3555336
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(State or other jurisdiction) (Commission File (I.R.S. Employer
Number) Identification
Number)
630 Dundee Road, Suite 400 Northbrook, Illinois 60062
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(Address of principal executive offices)
Registrant's telephone number (847) 498-7070
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Item 5.
Attached hereto as exhibits are the executed underwriting agreement dated
February 18, 1998 among IDEX Corporation ("IDEX") and Merrill Lynch & Co.,
Merrill, Lynch, Pierce, Fenner & Smith Incorporated and each of the
underwriters named in Schedule A thereto, the executed indenture dated February
23, 1998 between IDEX and Norwest Bank Minnesota, National Association, as
Trustee, and the form of the note, each relating to IDEX's issuance of its
6 7/8% Senior Notes due February 15, 2008 pursuant to registration statement no.
333-41627.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
IDEX Corporation
February 23, 1998 /s/ WAYNE P. SAYATOVIC
-----------------------------
Wayne P. Sayatovic
Senior Vice President-Finance,
Chief Financial Officer
and Secretary (Principal
Financial Officer)
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EXHIBIT INDEX
Exhibit 1 Underwriting Agreement dated February 18, 1998 among
IDEX and Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner &
Smith and each of the underwriters named in Schedule A thereto.
Exhibit 4.1 Indenture dated February 23, 1998 between IDEX and Norwest Bank
Minnesota, National Association, as Trustee, relating
to the 6 7/8% Senior Notes of IDEX due February 15, 2008
Exhibit 4.2 Specimen Senior Note of IDEX
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Exhibit 1
IDEX CORPORATION
(a Delaware corporation)
$150,000,000 6 7/8% Senior Notes due 2008
UNDERWRITING AGREEMENT
February 18, 1998
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Goldman, Sachs & Co.
c/o Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
North Tower
World Financial Center
New York, New York 10281-1209
Ladies and Gentlemen:
IDEX Corporation, a Delaware corporation (the "Company"), confirms its
agreement with Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith
Incorporated ("Merrill Lynch") and each of the Underwriters named in Schedule A
hereto (collectively, the "Underwriters," which term shall also include any
underwriter substituted as hereinafter provided in Section 10 hereof), for whom
Merrill Lynch and Goldman, Sachs & Co. are acting as representatives (in such
capacity, the "Representatives"), with respect to the issue and sale by the
Company and the purchase by the Underwriters, acting severally and not jointly,
of the respective principal amounts set forth in said Schedule A of
$150,000,000 aggregate principal amount of the Company's Senior Notes due 2008
(the "Securities"). The Securities are to be issued pursuant to an indenture,
dated as of February 23, 1998 (the "Indenture"), between the Company and
Norwest Bank Minnesota, National Association, as trustee (the "Trustee").
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The Company understands that the Underwriters propose to make a public
offering of the Securities as soon as the Representatives deem advisable after
this Agreement has been executed and delivered.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-41627) for the
registration of the Securities and certain other securities of the Company
under the Securities Act of 1933, as amended (the "1933 Act"), and the offering
thereof from time to time in accordance with Rule 415 of the rules and
regulations of the Commission under the 1933 Act (the "1933 Act Regulations").
Such registration statement has been declared effective by the Commission and
the Indenture has been duly qualified under the Trust Indenture Act of 1939, as
amended (the "1939 Act"), and the Company has filed such post-effective
amendments thereto as may be required prior to the execution of this Agreement
and each such post-effective amendment has been declared effective by the
Commission. Such registration statement (as so amended, if applicable),
including the information, if any, deemed to be a part thereof pursuant to Rule
434(d) of the 1933 Act Regulations (the "Rule 434 Information"), is referred to
herein as the "Registration Statement"; and the final prospectus and the final
prospectus supplement relating to the offering of the Securities, in the form
first furnished to the Underwriters by the Company for use in connection with
the offering of the Securities, are collectively referred to herein as the
"Prospectus"; provided, however, that all references to the "Registration
Statement" and the "Prospectus" shall also be deemed to include all documents
incorporated therein by reference pursuant to the Securities Exchange Act of
1934, as amended (the "1934 Act"), prior to the execution of this Agreement;
provided, further, that if the Company files a registration statement with the
Commission pursuant to Rule 462(b) of the 1933 Act Regulations (the "Rule
462(b) Registration Statement"), then, after such filing, all references to
"Registration Statement" shall also be deemed to include the Rule 462
Registration Statement; and provided, further, that if the Company elects to
rely upon Rule 434 of the 1933 Act Regulations, then all references to
"Prospectus" shall also be deemed to include the final or preliminary
prospectus and the applicable term sheet or abbreviated term sheet (the "Term
Sheet"), as the case may be, in the form first furnished to the Underwriters by
the Company in
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reliance upon Rule 434 of the 1933 Act Regulations, and all references in this
Agreement to the date of the Prospectus shall mean the date of the Term Sheet.
A "preliminary prospectus" shall be deemed to refer to any prospectus used
before the Registration Statement became effective and any prospectus that
omitted, as applicable, the Rule 434 Information or other information to be
included upon pricing in a form of prospectus filed with the Commission
pursuant to Rule 424(b) of the 1933 Act Regulations and was used after such
effectiveness. For purposes of this Agreement, all references to the
Registration Statement, Prospectus, Term Sheet or preliminary prospectus or to
any amendment or supplement to any of the foregoing shall be deemed to include
any copy filed with the Commission pursuant to its Electronic Data Gathering,
Analysis and Retrieval system ("EDGAR").
All references in this Agreement to financial statements and schedules and
other information which is "contained," "included" or "stated" (or other
references of like import) in the Registration Statement, Prospectus or
preliminary prospectus shall be deemed to mean and include all such financial
statements and schedules and other information which is incorporated by
reference in the Registration Statement, Prospectus or preliminary prospectus,
as the case may be; and all references in this Agreement to amendments or
supplements to the Registration Statement, Prospectus or preliminary prospectus
shall be deemed to mean and include the filing of any document under the 1934
Act which is incorporated by reference in the Registration Statement,
Prospectus or preliminary prospectus, as the case may be.
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Company. The Company
represents and warrants to each Underwriter as of the date hereof and as of the
Closing Time (as defined below), and agrees with each Underwriter, as follows:
(1) Compliance with Registration Requirements. The Company meets
the requirements for use of Form S-3 under the 1933 Act. The
Registration Statement (including any Rule 462(b) Registration Statement)
has become effective under the 1933 Act and no stop order suspending the
effectiveness of the Registration Statement (or such Rule 462(b)
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Registration Statement) has been issued under the 1933 Act and no
proceedings for that purpose have been instituted or are pending or, to
the knowledge of the Company, are contemplated by the Commission, and any
request on the part of the Commission for additional information has been
complied with. In addition, the Indenture has been duly qualified under
the 1939 Act.
At the respective times the Registration Statement (including any
Rule 462(b) Registration Statement) and any post-effective amendments
thereto (including the filing of the Company's most recent Annual Report
on Form 10-K with the Commission (the "Annual Report on Form 10-K"))
became effective and at the Closing Time, the Registration Statement
(including any Rule 462(b) Registration Statement) and any amendments
thereto complied and will comply in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations and the 1939
Act and the rules and regulations of the Commission under the 1939 Act
(the "1939 Act Regulations") and did not and will not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading. At the date of the Prospectus and at the Closing Time,
neither the Prospectus nor any amendments and supplements thereto
included or will include an untrue statement of a material fact or
omitted or will omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which
they were made, not misleading. If the Company elects to rely upon Rule
434 of the 1933 Act Regulations, the Company will comply with the
requirements of Rule 434. Notwithstanding the foregoing, the
representations and warranties in this subsection shall not apply to
statements in or omissions from the Registration Statement or the
Prospectus made in reliance upon and in conformity with information
furnished to the Company in writing by any Underwriter through Merrill
Lynch expressly for use in the Registration Statement or the Prospectus.
Each preliminary prospectus and prospectus filed as part of the
Registration Statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the 1933 Act, complied when
so filed in all
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material respects with the 1933 Act Regulations and each preliminary
prospectus and the Prospectus delivered to the Underwriters for use in
connection with the offering was identical to any electronically
transmitted copies thereof filed with the Commission pursuant to EDGAR,
except to the extent permitted by Regulation S-T.
(2) Incorporated Documents. The documents incorporated or deemed
to be incorporated by reference in the Registration Statement and the
Prospectus, at the time they were or hereafter are filed with the
Commission, complied and will comply in all material respects with the
requirements of the 1934 Act and the rules and regulations of the
Commission thereunder (the "1934 Act Regulations") and, when read
together with the other information in the Prospectus, at the date of the
Prospectus and at the Closing Time, did not and will not include an
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(3) Independent Accountants. The accountants who certified the
financial statements and any supporting schedules thereto included or
incorporated by reference in the Registration Statement and the
Prospectus are independent public accountants as required by the 1933 Act
and the 1933 Act Regulations.
(4) Financial Statements. The consolidated financial statements of
the Company included in the Registration Statement and the Prospectus,
together with the related schedules and notes, as well as those financial
statements, schedules and notes of any other entity included therein,
present fairly the financial position of the Company and its consolidated
subsidiaries, or such other entity, as the case may be, at the dates
indicated and the statement of operations, stockholders' equity and cash
flows of the Company and its consolidated subsidiaries, or such other
entity, as the case may be, for the periods specified. Such financial
statements have been prepared in conformity with generally accepted
accounting principles ("GAAP") applied on a consistent basis throughout
the periods involved (except as may be indicated in the notes thereto).
The supporting
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schedules, if any, included in the Registration Statement and the
Prospectus present fairly in accordance with GAAP (except as may be
indicated in the notes thereto) the information required to be stated
therein. The selected financial data and the summary financial
information included in the Prospectus present fairly the information
shown therein and have been compiled on a basis consistent with that of
the audited financial statements included in the Registration Statement
and the Prospectus. In addition, any pro forma financial statements of
the Company and its subsidiaries and the related notes thereto included
in the Registration Statement and the Prospectus present fairly the
information shown therein, have been prepared in accordance with the
Commission's rules and guidelines with respect to pro forma financial
statements and have been properly compiled on the bases described
therein, and the assumptions used in the preparation thereof are
reasonable and the adjustments used therein are appropriate to give
effect to the transactions and circumstances referred to therein.
(5) No Material Adverse Change in Business. Since the respective
dates as of which information is given in the Registration Statement and
the Prospectus, except as otherwise stated therein, (A) there has been no
material adverse change in the condition, financial or otherwise, or in
the earnings, business affairs or business prospects of the Company and
its subsidiaries considered as one enterprise, whether or not arising in
the ordinary course of business (a "Material Adverse Effect"), (B) there
have been no transactions entered into by the Company or any of its
subsidiaries, other than those arising in the ordinary course of
business, which are material with respect to the Company and its
subsidiaries considered as one enterprise and (C) except for regular
dividends on the Company's common stock, in amounts per share that are
consistent with past practice, there has been no dividend or distribution
of any kind declared, paid or made by the Company on any class of its
capital stock.
(6) Good Standing of the Company. The Company has been duly
organized and is validly existing as a corporation in good standing under
the laws of the State of Delaware and has corporate power and authority
to own, lease and operate
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its properties and to conduct its business as described in the Prospectus
and to enter into and perform its obligations under, or as contemplated
under, this Agreement. The Company is duly qualified as a foreign
corporation to transact business and is in good standing in each other
jurisdiction in which such qualification is required, whether by reason
of the ownership or leasing of property or the conduct of business,
except where the failure to so qualify or be in good standing would not
result in a Material Adverse Effect.
(7) Good Standing of Subsidiaries. Each "significant subsidiary"
of the Company (as such term is defined in Rule 1-02 of Regulation S-X
promulgated under the 1933 Act) (each, a "Subsidiary" and, collectively,
the "Subsidiaries"), if any, has been duly organized and is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has corporate power and authority to
own, lease and operate its properties and to conduct its business as
described in the Prospectus and is duly qualified as a foreign
corporation to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by reason
of the ownership or leasing of property or the conduct of business,
except where the failure to so qualify or be in good standing would not
result in a Material Adverse Effect. Except as otherwise stated in the
Registration Statement and the Prospectus, all of the issued and
outstanding capital stock of each Subsidiary has been duly authorized and
is validly issued, fully paid and non-assessable and is owned by the
Company, directly or through subsidiaries, free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equity. None of
the outstanding shares of capital stock of any Subsidiary was issued in
violation of preemptive or other similar rights of any securityholder of
such Subsidiary.
(8) Capitalization. The authorized, issued and outstanding shares
of capital stock of the Company is as set forth in the column entitled
"Historical" under the "Capitalization" section (except for subsequent
issuances thereof pursuant to reservations, agreements or employee
benefit plans referred to in the Prospectus or pursuant to
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the exercise of convertible securities or options referred to in the
Prospectus). Such shares of capital stock have been duly authorized and
validly issued by the Company and are fully paid and non-assessable, and
none of such shares of capital stock was issued in violation of
preemptive or other similar rights of any securityholder of the Company.
(9) Authorization of this Agreement. This Agreement has been duly
authorized, executed and delivered by the Company.
(10) Authorization of the Securities. The Securities have been
duly authorized and, at the Closing Time, will have been duly executed by
the Company and, when authenticated, issued and delivered in the manner
provided for in the Indenture and delivered against payment of the
purchase price therefor as specified in this Agreement, 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 (including, without limitation,
all laws relating to fraudulent transfers), reorganization, moratorium or
other similar laws affecting the enforcement of creditors' rights
generally or by general equitable principles (regardless of whether
enforcement is considered in a proceeding in equity or at law). The
Securities will be in the form contemplated by, and each registered
holder thereof is entitled to the benefits of, the Indenture.
(11) Authorization of the Indenture. The Indenture has been duly
authorized by the Company and duly qualified under the 1939 Act and, when
duly executed and delivered by the Company and the Trustee, will
constitute a valid and binding agreement of the Company, enforceable
against the Company in accordance with its terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency (including,
without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights generally or by general equitable
principles (regardless of whether enforcement is considered in a
proceeding in equity or at law).
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(12) Descriptions of the Securities and the Indenture. The
Securities and the Indenture will conform in all material respects to the
statements relating thereto contained in the Prospectus and will be in
substantially the respective forms filed or incorporated by reference, as
the case may be, as exhibits to the Registration Statement.
(13) Absence of Defaults and Conflicts. Neither the Company nor
any of its subsidiaries is in violation of its charter or by-laws or in
default in the performance or observance of any obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage,
deed of trust, loan or credit agreement, note, lease or other agreement
or instrument to which the Company or any of its subsidiaries is a party
or by which it or any of them may be bound, or to which any of the
assets, properties or operations of the Company or any of its
subsidiaries is subject (collectively, "Agreements and Instruments"),
except for such defaults that would not result in a Material Adverse
Effect. The execution, delivery and performance of this Agreement, the
Indenture and any other agreement or instrument entered into or issued or
to be entered into or issued by the Company in connection with the
transactions contemplated hereby or thereby and the consummation of the
transactions contemplated herein (including the issuance and sale of the
Securities and the use of the proceeds from the sale of the Securities as
described under the caption "Use of Proceeds") and compliance by the
Company with its obligations hereunder and thereunder have been duly
authorized by all necessary corporate action and do not and will not,
whether with or without the giving of notice or passage of time or both,
conflict with or constitute a breach of, or default or Repayment Event
(as defined below) under, or result in the creation or imposition of any
lien, charge or encumbrance upon any assets, properties or operations of
the Company or any of its subsidiaries pursuant to, any Agreements and
Instruments (except for such conflicts, breaches or defaults or liens,
charges or encumbrances that would not result in a Material Adverse
Effect), nor will such action result in any violation of the provisions
of the charter or by-laws of the Company or any of its subsidiaries or
(except for such violations that would not result in a Material Adverse
Effect) any
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applicable law, statute, rule, regulation, judgment, order, writ or
decree of any government, government instrumentality or court, domestic
or foreign, having jurisdiction over the Company or any of its
subsidiaries or any of their assets, properties or operations. As used
herein, a "Repayment Event" means any event or condition which gives the
holder of any note, debenture or other evidence of indebtedness (or any
person acting on such holder's behalf) the right to require the
repurchase, redemption or repayment of all or a portion of such
indebtedness by the Company or any of its subsidiaries.
(14) Absence of Labor Dispute. No labor dispute with the employees
of the Company or any of its subsidiaries exists or, to the knowledge of
the Company, is imminent, and the Company is not aware of any existing or
imminent labor disturbance by the employees of any of its or any
subsidiary's principal suppliers, manufacturers, customers or
contractors, which, in either case, may reasonably be expected to result
in a Material Adverse Effect.
(15) Absence of Proceedings. There is no action, suit, proceeding,
inquiry or investigation before or brought by any court or governmental
agency or body, domestic or foreign, now pending, or to the knowledge of
the Company threatened, against or affecting the Company or any of its
subsidiaries which is required to be disclosed in the Registration
Statement and the Prospectus (other than as stated therein), or which
might reasonably be expected to result in a Material Adverse Effect, or
which might reasonably be expected to materially and adversely affect the
assets, properties or operations thereof or the consummation of the
transactions contemplated under this Agreement or the Indenture or the
performance by the Company of its obligations hereunder and thereunder.
The aggregate of all pending legal or governmental proceedings to which
the Company or any of its subsidiaries is a party or of which any of
their respective assets, properties or operations is the subject which
are not described in the Registration Statement and the Prospectus,
including ordinary routine litigation incidental to the business, could
not reasonably be expected to result in a Material Adverse Effect.
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(16) Accuracy of Exhibits. There are no contracts or documents
which are required to be described in the Registration Statement, the
Prospectus or the documents incorporated by reference therein or to be
filed as exhibits thereto which have not been so described and filed as
required.
(17) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or
agency, domestic or foreign, is necessary or required for the due
authorization, execution and delivery by the Company of this Agreement or
for the performance by the Company of the transactions contemplated under
the Prospectus, this Agreement or the Indenture, except such as have been
already made, obtained or rendered, as applicable.
(18) Possession of Intellectual Property. The Company and its
subsidiaries own or possess, or can acquire on reasonable terms, adequate
patents, patent rights, licenses, inventions, copyrights, know-how
(including trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems or procedures),
trademarks, service marks, trade names or other intellectual property
(collectively, "Intellectual Property") necessary to carry on the
business now operated by them, other than those the absence of which
would not, singly or in the aggregate, result in a Material Adverse
Effect, and neither the Company nor any of its subsidiaries has received
any notice or is otherwise aware of any infringement of or conflict with
asserted rights of others with respect to any Intellectual Property or of
any facts or circumstances which would render any Intellectual Property
invalid or inadequate to protect the interest of the Company or any of
its subsidiaries therein, and which infringement or conflict (if the
subject of any unfavorable decision, ruling or finding) or invalidity or
inadequacy, singly or in the aggregate, would result in a Material
Adverse Effect.
(19) Possession of Licenses and Permits. The Company and its
subsidiaries possess such permits, licenses, approvals, consents and
other authorizations (collectively,
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"Governmental Licenses") issued by the appropriate federal, state, local
or foreign regulatory agencies or bodies necessary to conduct the
business now operated by them except where the failure to possess the
same would not, individually or in the aggregate, have a Material Adverse
Effect. The Company and its subsidiaries are in compliance with the
terms and conditions of all such Governmental Licenses, except where the
failure so to comply would not, singly or in the aggregate, result in a
Material Adverse Effect. All of the Governmental Licenses are valid and
in full force and effect, except where the invalidity of such
Governmental Licenses or the failure of such Governmental Licenses to be
in full force and effect would not result in a Material Adverse Effect.
Neither the Company nor any of its subsidiaries has received any notice
of proceedings relating to the revocation or modification of any such
Governmental Licenses which, singly or in the aggregate, if the subject
of an unfavorable decision, ruling or finding, would result in a Material
Adverse Effect.
(20) Title to Property. The Company and its subsidiaries have good
and marketable title to all real property owned by the Company and its
subsidiaries and good title to all other properties owned by them, in
each case, free and clear of all mortgages, pledges, liens, security
interests, claims, restrictions or encumbrances of any kind, except (A)
as otherwise stated in the Registration Statement and the Prospectus or
(B) those which do not, singly or in the aggregate, materially affect the
value of such property and do not interfere with the use made and
proposed to be made of such property by the Company or any of its
subsidiaries. All of the leases and subleases material to the business
of the Company and its subsidiaries considered as one enterprise, and
under which the Company or any of its subsidiaries holds properties
described in the Prospectus, are in full force and effect, and neither
the Company nor any of its subsidiaries has received any notice of any
material claim of any sort that has been asserted by anyone adverse to
the rights of the Company or any of its subsidiaries under any of the
leases or subleases mentioned above, or affecting or questioning the
rights of the Company or such subsidiary of the continued possession of
the leased or subleased premises under any such lease or sublease.
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(21) Commodity Exchange Act. The Securities, upon issuance, will be
excluded or exempted under, or beyond the purview of, the Commodity
Exchange Act, as amended (the "Commodity Exchange Act"), and the rules
and regulations of the Commodity Futures Trading Commission under the
Commodity Exchange Act (the "Commodity Exchange Act Regulations").
(22) Investment Company Act. The Company is not, and upon the
issuance and sale of the Securities as herein contemplated and the
application of the net proceeds therefrom as described in the Prospectus
will not be, an "investment company" within the meaning of the Investment
Company Act of 1940, as amended (the "1940 Act").
(23) Environmental Laws. Except as otherwise stated in the
Registration Statement and the Prospectus and except as would not, singly
or in the aggregate, result in a Material Adverse Effect, (A) neither the
Company nor any of its subsidiaries is in violation of any federal,
state, local or foreign statute, law, rule, regulation, ordinance, code,
policy or rule of common law or any judicial or administrative
interpretation thereof including any judicial or administrative order,
consent, decree or judgment, relating to pollution or protection of human
health, the environment (including, without limitation, ambient air,
surface water, groundwater, land surface or subsurface strata) or
wildlife, including, without limitation, laws and regulations relating to
the release or threatened release of chemicals, pollutants, contaminants,
wastes, toxic substances, hazardous substances, petroleum or petroleum
products (collectively, "Hazardous Materials") or to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport or
handling of Hazardous Materials (collectively, "Environmental Laws"), (B)
the Company and its subsidiaries have all permits, authorizations and
approvals required under any applicable Environmental Laws and are each
in compliance with their requirements, (C) there are no pending or
threatened administrative, regulatory or judicial actions, suits,
demands, demand letters, claims, liens, notices of noncompliance or
violation, investigation or proceedings relating to any Environmental Law
against the Company or any
<PAGE> 14
of its subsidiaries and (D) there are no events or circumstances that
might reasonably be expected to form the basis of an order for clean-up
or remediation, or an action, suit or proceeding by any private party or
governmental body or agency, against or affecting the Company or any of
its subsidiaries relating to Hazardous Materials or any Environmental
Laws.
(24) Solvency. The Company is, and immediately after the Closing
Time will be, Solvent. As used herein, the term "Solvent" means, with
respect to the Company on a particular date, that on such date (A) the
fair market value of the assets of the Company is greater than the total
amount of liabilities (including contingent liabilities) of the Company,
(B) the present fair salable value of the assets of the Company is
greater than the amount that will be required to pay the probable
liabilities of the Company on its debts as they become absolute and
matured, (C) the Company is able to realize upon its assets and pay its
debts and other liabilities, including contingent obligations, as they
mature, and (D) the Company does not have unreasonably small capital.
(b) Officers' Certificates. Any certificate signed by any officer of the
Company or any of its subsidiaries and delivered to the Representatives or to
counsel for the Underwriters in connection with the offering of the Securities
shall be deemed a representation and warranty by the Company to each
Underwriter as to the matters covered thereby on the date of such certificate.
SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) Underwritten Securities. On the basis of the representations and
warranties herein contained and subject to the terms and conditions herein set
forth, the Company agrees to sell, to each Underwriter, severally and not
jointly, and each Underwriter, severally and not jointly, agrees to purchase,
from the Company, at the price set forth in Schedule B, the aggregate principal
amount of Securities set forth in Schedule A opposite the name of such
Underwriter, plus any additional principal amount of Securities which such
Underwriter may become obligated to purchase pursuant to the provisions of
Section 10 hereof.
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(b) Payment. Payment of the purchase price for, and delivery of
certificates for, the Securities shall be made at the offices of Mayer, Brown &
Platt, 190 South LaSalle Street, Chicago, Illinois 60603, or at such other
place as shall be agreed upon by the Representatives and the Company, at 10:00
A.M. (Eastern time) on the third (fourth, if the pricing occurs after 4:30 P.M.
(Eastern time) on any given day) business day after the date hereof (unless
postponed in accordance with the provisions of Section 10 hereof), or such
other time not later than ten business days after such date as shall be agreed
upon by the Representatives and the Company (such time and date of payment and
delivery being herein called "Closing Time").
Payment shall be made to the Company by wire transfer of immediately
available funds to a bank account designated by the Company, against delivery
to the Representatives for the respective accounts of the Underwriters of
certificates for the Securities to be purchased by them. It is understood that
each Underwriter has authorized the Representatives, for its account, to accept
delivery of, receipt for, and make payment of the purchase price for, the
Securities which it has agreed to purchase. Merrill Lynch, individually and
not as representative of the Underwriters, may (but shall not be obligated to)
make payment of the purchase price for the Securities to be purchased by any
Underwriter whose funds have not been received by the Closing Time but such
payment shall not relieve such Underwriter from its obligations hereunder.
(c) Denominations; Registration. Certificates for the Securities shall
be in such denominations ($1,000 or integral multiples thereof) and registered
in such names as the Representatives may request in writing at least one full
business day prior to the Closing Time. Certificates for the Securities will
be made available for examination and packaging by the Representatives in The
City of New York not later than 10:00 A.M. (Eastern time) on the business day
prior to the Closing Time.
SECTION 3. Covenants of the Company. The Company covenants with each
Underwriter as follows:
(a) Compliance with Securities Regulations and Commission Requests.
The Company, subject to Section 3(b), will comply with the requirements
of Rule 434 of the 1933
<PAGE> 16
Act Regulations, if and as applicable, and will notify the
Representative(s) immediately, and confirm the notice in writing, of (i)
the effectiveness of any post-effective amendment to the Registration
Statement or the filing of any supplement or amendment to the Prospectus,
(ii) the receipt of any comments from the Commission, (iii) any request
by the Commission for any amendment to the Registration Statement or any
amendment or supplement to the Prospectus or for additional information,
and (iv) the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any order preventing or
suspending the use of any preliminary prospectus, or of the suspension of
the qualification of the Securities for offering or sale in any
jurisdiction, or of the initiation or threatening of any proceedings for
any of such purposes. The Company will promptly effect the filings
necessary pursuant to Rule 424 and will take such steps as it deems
necessary to ascertain promptly whether the Prospectus transmitted for
filing under Rule 424 was received for filing by the Commission and, in
the event that it was not, it will promptly file the Prospectus. The
Company will make every reasonable effort to prevent the issuance of any
stop order and, if any stop order is issued, to obtain the lifting
thereof at the earliest possible moment.
(b) Filing of Amendments. The Company will give the
Representatives notice of its intention to file or prepare any amendment
to the Registration Statement (including any filing under Rule 462(b) of
the 1933 Act Regulations), any Term Sheet or any amendment, supplement or
revision to either the prospectus included in the Registration Statement
at the time it became effective or to the Prospectus, whether pursuant to
the 1933 Act, the 1934 Act or otherwise, will furnish the Representatives
with copies of any such documents a reasonable amount of time prior to
such proposed filing or use, as the case may be, and will not file or use
any such document to which the Representatives or counsel for the
Underwriters shall reasonably object.
(c) Delivery of Registration Statements. The Company has furnished
or will deliver to the Representatives and counsel for the Underwriters,
without charge, signed copies of the Registration Statement as originally
filed and of
<PAGE> 17
each amendment thereto (including exhibits filed therewith or
incorporated by reference therein and documents incorporated or deemed to
be incorporated by reference therein) and signed copies of all consents
and certificates of experts, and will also deliver to the
Representatives, without charge, a conformed copy of the Registration
Statement as originally filed and of each amendment thereto (without
exhibits) for each of the Underwriters. The Registration Statement and
each amendment thereto furnished to the Underwriters will be identical to
any electronically transmitted copies thereof filed with the Commission
pursuant to EDGAR, except to the extent permitted by Regulation S-T.
(d) Delivery of Prospectuses. The Company has delivered to each
Underwriter, without charge, as many copies of each preliminary
prospectus as such Underwriter may reasonably request, and the Company
hereby consents to the use of such copies for purposes permitted by the
1933 Act. The Company will furnish to each Underwriter, without charge,
during the period when the Prospectus is required to be delivered under
the 1933 Act or the 1934 Act, such number of copies of the Prospectus as
such Underwriter may reasonably request. The Prospectus and any
amendments or supplements thereto furnished to the Underwriters will be
identical to any electronically transmitted copies thereof filed with the
Commission pursuant to EDGAR, except to the extent permitted by
Regulation S-T.
(e) Continued Compliance with Securities Laws. The Company will
comply with the 1933 Act and the 1933 Act Regulations, the 1934 Act and
the 1934 Act Regulations and the 1939 Act and the 1939 Act Regulations so
as to permit the completion of the distribution of the Securities as
contemplated in this Agreement and in the Registration Statement and the
Prospectus. If at any time when the Prospectus is required by the 1933
Act or the 1934 Act to be delivered in connection with sales of the
Securities, any event shall occur or condition shall exist as a result of
which it is necessary, in the opinion of counsel for the Underwriters or
for the Company, to amend the Registration Statement in order that the
Registration Statement will not contain an untrue statement of a material
fact or omit to
<PAGE> 18
state a material fact required to be stated therein or necessary to make
the statements therein not misleading or to amend or supplement the
Prospectus in order that the Prospectus will not include an untrue
statement of a material fact or omit to state a material fact necessary
in order to make the statements therein not misleading in the light of
the circumstances existing at the time it is delivered to a purchaser, or
if it shall be necessary, in the opinion of such counsel, at any such
time to amend the Registration Statement or amend or supplement the
Prospectus in order to comply with the requirements of the 1933 Act or
the 1933 Act Regulations, the Company will promptly prepare and file with
the Commission, subject to Section 3(b), such amendment or supplement as
may be necessary to correct such statement or omission or to make the
Registration Statement or the Prospectus comply with such requirements,
and the Company will furnish to the Underwriters, without charge, such
number of copies of such amendment or supplement as the Underwriters may
reasonably request.
(f) Blue Sky Qualifications. The Company will use its best
efforts, in cooperation with the Underwriters, to qualify the Securities
for offering and sale under the applicable securities laws of such states
and other jurisdictions (domestic or foreign) as the Representatives may
designate and to maintain such qualifications in effect for a period of
not less than one year from the date hereof; provided, however, that the
Company shall not be obligated to file any general consent to service of
process or to qualify as a foreign corporation or as a dealer in
securities in any jurisdiction in which it is not so qualified or to
subject itself to taxation in respect of doing business in any
jurisdiction in which it is not otherwise so subject. In each
jurisdiction in which the Securities have been so qualified, the Company
will file such statements and reports as may be required by the laws of
such jurisdiction to continue such qualification in effect for a period
of not less than one year from the effective date of the Registration
Statement.
(g) Earnings Statement. The Company will timely file such reports
pursuant to the 1934 Act as are necessary in order to make generally
available to its securityholders as soon as practicable an earnings
statement for the purposes
<PAGE> 19
of, and to provide the benefits contemplated by, the last paragraph of
Section 11(a) of the 1933 Act.
(h) Use of Proceeds. The Company will use the net proceeds
received by it from the sale of the Securities in the manner specified in
the Prospectus under "Use of Proceeds".
(i) Restriction on Sale of Securities. During a period of 45 days
from the date of the Prospectus, the Company will not, without the prior
written consent of Merrill Lynch, directly or indirectly, issue, sell,
offer or contract to sell, grant any option for the sale of, or otherwise
transfer or dispose of, any debt securities of the Company.
(j) Reporting Requirements. The Company, during the period when
the Prospectus is required to be delivered under the 1933 Act or the 1934
Act, will file all documents required to be filed with the Commission
pursuant to the 1934 Act within the time periods required by the 1934 Act
and the 1934 Act Regulations.
SECTION 4. Payment of Expenses. (a) Expenses. The Company will pay all
expenses incident to the performance of its obligations under this Agreement,
including (i) the preparation, printing and filing of the Registration
Statement (including financial statements and exhibits) as originally filed and
of each amendment thereto, (ii) the preparation, printing and delivery to the
Underwriters of this Agreement, any Agreement among Underwriters, the Indenture
and such other documents as may be required in connection with the offering,
purchase, sale, issuance or delivery of the Securities, (iii) the preparation,
issuance and delivery of the Securities, any certificates for the Securities to
the Underwriters, including any transfer taxes and any stamp or other duties
payable upon the sale, issuance or delivery of the Securities to the
Underwriters, (iv) the fees and disbursements of the Company's counsel,
accountants and other advisors or agents (including transfer agents and
registrars), as well as the fees and disbursements of the Trustee and its
counsel, (v) the qualification of the Securities under state securities laws in
accordance with the provisions of Section 3(f) hereof, including filing fees
and the reasonable fees and
<PAGE> 20
disbursements of counsel for the Underwriters in connection therewith and in
connection with the preparation, printing and delivery of the Blue Sky Survey,
and any amendment thereto, (vi) the printing and delivery to the Underwriters
of copies of each preliminary prospectus, any Term Sheet, and the Prospectus
and any amendments or supplements thereto or (vii) the fees charged by
nationally recognized statistical rating organizations for the rating of the
Securities.
(b) Termination of Agreement. If this Agreement is terminated by the
Representatives, in accordance with the provisions of Section 5 or Section
9(a)(i) hereof, the Company shall reimburse the Underwriters for all of their
out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the Underwriters.
SECTION 5. Conditions of Underwriters' Obligations. The obligations of
the several Underwriters hereunder are subject to the accuracy of the
representations and warranties of the Company contained in Section 1 hereof or
in certificates of any officer of the Company or any of its subsidiaries
delivered pursuant to the provisions hereof, to the performance by the Company
of its covenants and other obligations hereunder, and to the following further
conditions:
(a) Effectiveness of Registration Statement. The Registration
Statement, including any Rule 462(b) Registration Statement, shall have
become effective under the 1933 Act and at Closing Time no stop order
suspending the effectiveness of the Registration Statement shall have
been issued under the 1933 Act and no proceedings for that purpose shall
have been instituted or be pending or threatened by the Commission, and
any request on the part of the Commission for additional information
shall have been complied with to the reasonable satisfaction of counsel
to the Underwriters. A prospectus shall have been filed with the
Commission in accordance with Rule 424(b) or a post-effective amendment
providing such information shall have been filed and declared effective,
or, if the Company has elected to rely upon Rule 434 of the 1933 Act
Regulations, a Term Sheet including the Rule 434 Information shall have
been filed with the Commission in accordance with Rule 424(b)(7).
<PAGE> 21
(b) Opinion of Counsel for Company. At Closing Time, the
Representatives shall have received the favorable opinion, dated as of
Closing Time, of Latham & Watkins, counsel for the Company, in form and
substance satisfactory to counsel for the Underwriters, together with
signed or reproduced copies of such letter for each of the other
Underwriters, to the effect set forth in Exhibit A hereto.
(c) Opinion of Counsel for Underwriters. At Closing Time, the
Representatives shall have received the favorable opinion, dated as of
Closing Time, of Mayer, Brown & Platt, counsel for the Underwriters,
together with signed or reproduced copies of such letter for each of the
other Underwriters, with respect to the matters set forth in (1) (as to
the Company's valid existence and good standing), (2), (6), (7), (8), (9)
(solely as to the information in the Prospectus under "Description of the
Underwritten Securities" and "Description of the Underlying Securities",
if any, or any caption purporting to describe any such Securities),(14),
(15), (18) and the penultimate paragraph of Exhibit A hereto. In giving
such opinion, such counsel may rely, as to all matters governed by the
laws of jurisdictions other than the law of the State of New York, the
federal law of the United States and the General Corporation Law of the
State of Delaware, upon the opinions of counsel satisfactory to the
Representatives. Such counsel may also state that, insofar as such
opinion involves factual matters, they have relied, to the extent they
deem proper, upon certificates of officers of the Company and its
subsidiaries and certificates of public officials.
(d) Officers' Certificate. At Closing Time, there shall not have
been, since the date hereof or since the respective dates as of which
information is given in the Prospectus, any material adverse change in
the condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary
course of business, and the Representatives shall have received a
certificate of the President or a Vice President of the Company and of
the chief financial officer
<PAGE> 22
or chief accounting officer of the Company, dated as of Closing Time, to
the effect that (i) there has been no such material adverse change, (ii)
the representations and warranties in Section 1(a) are true and correct
with the same force and effect as though expressly made at and as of the
Closing Time, (iii) the Company has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied at or
prior to the Closing Time, and (iv) no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been instituted, are pending or, to the
best of such officer's knowledge, are threatened by the Commission.
(e) Accountants' Comfort Letters. At the time of the execution of
this Agreement, the representatives shall have received from each of
Deloitte & Touche LLP, Grant Thornton LLP and Lesley, Thomas, Schwarz &
Postma, Inc., a letter dated as of the date hereof, in form and substance
satisfactory to Merrill Lynch, together with signed or reproduced copies
of such letter for each of the other Underwriters, containing statements
and information of the type ordinarily included in accountants' "comfort
letters" to underwriters with respect to the financial statements and
certain financial information contained in the Registration Statement and
the Prospectus.
(f) Bring-down Comfort Letters. At Closing Time, Merrill Lynch
shall have received from each of Deloitte & Touche LLP, Grant Thornton
LLP and Lesley, Thomas, Schwarz & Postma, Inc., a letter, dated as of
Closing Time, to the effect that they reaffirm the statements made in the
letter furnished pursuant to subsection (e) of this Section 5, except
that the specified date referred to shall be a date not more than three
business days prior to the Closing Time.
(g) Ratings. At Closing Time, the Securities shall have an
investment grade rating by a "nationally recognized statistical rating
organization", as defined by the Commission for purposes of Rule
436(g)(2) of the 1933 Act Regulations, and the Company shall have
delivered to the Representatives a letter, dated as of such date, from
each such rating organization, or other evidence satisfactory to
<PAGE> 23
the Representatives, confirming that the Securities have such rating.
Since the time of execution of this Agreement, there shall not have
occurred a downgrading in, or withdrawal of, the rating assigned to the
Securities or any of the Company's other securities by any such rating
organization, and no such rating organization shall have publicly
announced that it has under surveillance or review its rating of the
Securities or any of the Company's other securities.
(h) Additional Documents. At Closing Time, counsel for the
Underwriters shall have been furnished with such documents and opinions
as they may require for the purpose of enabling them to pass upon the
issuance and sale of the Securities as herein contemplated, or in order
to evidence the accuracy of any of the representations or warranties, or
the fulfillment of any of the conditions, herein contained; and all
proceedings taken by the Company in connection with the issuance and sale
of the Securities as herein contemplated shall be satisfactory in form
and substance to the Representatives and counsel for the Underwriters.
(i) Termination of Agreement. If any condition specified in this
Section 5 shall not have been fulfilled when and as required to be
fulfilled, this Agreement may be terminated by the Representatives by
notice to the Company at any time at or prior to the Closing Time, and
such termination shall be without liability of any party to any other
party except as provided in Section 4 and except that Sections 1, 6, 7
and 8 shall survive any such termination and remain in full force and
effect.
SECTION 6. Indemnification.
(a) Indemnification of Underwriters. The Company agrees to indemnify and
hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act as follows:
(1) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material
<PAGE> 24
fact contained in the Registration Statement (or any amendment thereto),
including the Rule 434 Information deemed to be a part thereof, if
applicable, or the omission or alleged omission therefrom of a material
fact required to be stated therein or necessary to make the statements
therein not misleading or arising out of any untrue statement or alleged
untrue statement of a material fact included in any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto), or
the omission or alleged omission therefrom of a material fact necessary
in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(2) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided that (subject to Section
6(d) below) any such settlement is effected with the written consent of
the Company; and
(3) against any and all expense whatsoever, as incurred (including
the reasonable fees and disbursements of counsel chosen by Merrill
Lynch), reasonably incurred in investigating, preparing or defending
against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, to the extent that any such expense
is not paid under (1) or (2) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
Underwriter through Merrill Lynch expressly for use in the Registration
Statement (or any amendment thereto), including the Rule 434 Information deemed
to be a part thereof, if applicable, or any preliminary prospectus or the
Prospectus (or any amendment
<PAGE> 25
or supplement thereto), and provided, further, that such indemnity with
respect to any preliminary prospectus or Prospectus shall not inure to the
benefit of any Underwriter (or to the benefit of any person controlling such
Underwriter) from whom the person asserting any such loss, claim, damage or
liability purchased Securities which are the subject thereof if such
Underwriter failed to send or give a copy of the Prospectus (as amended or
supplemented) to such person at or prior to the confirmation of the sale of
such Securities to such person in any case where such delivery is required by
the 1933 Act and the untrue statement or omission (or the alleged untrue
statement or omission) of a material fact contained in such preliminary
prospectus or Prospectus was corrected in the Prospectus (as amended and
supplemented).
(b) Indemnification of Company, Directors and Officers. Each Underwriter
severally agrees to indemnify and hold harmless the Company, its directors,
each of its officers who signed the Registration Statement, and each person, if
any, who controls the Company within the meaning of Section 15 of the 1933 Act
or Section 20 of the 1934 Act against any and all loss, liability, claim,
damage and expense described in the indemnity contained in subsection (a) of
this Section, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Registration
Statement (or any amendment thereto), including the Rule 434 Information deemed
to be a part thereof, if applicable, or any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto) in reliance upon and in
conformity with written information furnished to the Company by such
Underwriter through Merrill Lynch expressly for use in the Registration
Statement (or any amendment thereto) or such preliminary prospectus or the
Prospectus (or any amendment or supplement thereto).
(c) Actions against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve
such indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this
indemnity agreement. In
<PAGE> 26
the case of parties indemnified pursuant to Section 6(a) above, counsel to the
indemnified parties shall be selected by Merrill Lynch, and, in the case of
parties indemnified pursuant to Section 6(b) above, counsel to the indemnified
parties shall be selected by the Company. An indemnifying party may
participate at its own expense in the defense of any such action; provided,
however, that counsel to the indemnifying party shall not (except with the
consent of the indemnified party) also be counsel to the indemnified party. In
no event shall the indemnifying parties be liable for fees and expenses of more
than one counsel (in addition to any local counsel) separate from their own
counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances. No indemnifying party shall,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 6 or Section
7 hereof (whether or not the indemnified parties are actual or potential
parties thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding or claim and (ii) does not
include a statement as to or an admission of fault, culpability or a failure to
act by or on behalf of any indemnified party.
(d) Settlement without Consent if Failure to Reimburse. If at any time
an indemnified party shall have requested an indemnifying party to reimburse
the indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 6(a)(2) effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall have received notice of
the terms of such settlement at least 30 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement.
<PAGE> 27
SECTION 7. Contribution. If the indemnification provided for in Section
6 hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company, on the
one hand, and the Underwriters, on the other hand, from the offering of the
Securities pursuant to this Agreement or (ii) if the allocation provided by
clause (i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company, on the one hand, and the
Underwriters, on the other hand, in connection with the statements or omissions
which resulted in such losses, liabilities, claims, damages or expenses, as
well as any other relevant equitable considerations.
The relative benefits received by the Company, on the one hand, and the
Underwriters, on the other hand, in connection with the offering of the
Securities pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of the
Securities pursuant to this Agreement (before deducting expenses) received by
the Company and the total underwriting discount received by the Underwriters,
in each case as set forth on the cover of the Prospectus, or, if Rule 434 is
used, the corresponding location on the Term Sheet bear to the aggregate
initial public offering price of the Securities as set forth on such cover.
The relative fault of the Company, on the one hand, and the Underwriters,
on the other hand, shall be determined by reference to, among other things,
whether any such untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to information
supplied by the Company or by the Underwriters and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7
<PAGE> 28
were determined by pro rata allocation (even if the Underwriters were treated
as one entity for such purpose) or by any other method of allocation which does
not take account of the equitable considerations referred to above in this
Section 7. The aggregate amount of losses, liabilities, claims, damages and
expenses incurred by an indemnified party and referred to above in this Section
7 shall be deemed to include any legal or other expenses reasonably incurred by
such indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of any such untrue or
alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 1933 Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter,
and each director of the Company, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the Company
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act
shall have the same rights to contribution as the Company. The Underwriters'
respective obligations to contribute pursuant to this Section 7 are several in
proportion to the principal amount of Securities set forth opposite their
respective names in Schedule A hereto and not joint.
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements
<PAGE> 29
contained in this Agreement or in certificates of officers of the Company or
any of its subsidiaries submitted pursuant hereto shall remain operative and in
full force and effect, regardless of any investigation made by or on behalf of
any Underwriter or controlling person, or by or on behalf of the Company, and
shall survive delivery of the Securities to the Underwriters.
SECTION 9. Termination of Agreement.
(a) Termination; General. The Representatives may terminate this
Agreement, by notice to the Company, at any time at or prior to the Closing
Time if (i) there has been, since the time of execution of this Agreement or
since the respective dates as of which information is given in the Prospectus,
any material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, or (ii) there has occurred any material adverse
change in the financial markets in the United States or any outbreak of
hostilities or escalation thereof or other calamity or crisis or any change or
development involving a prospective change in national or international
political, financial or economic conditions, in each case the effect of which
is such as to make it, in the judgment of the Representatives, impracticable to
market the Securities or to enforce contracts for the sale of the Securities,
or (iii) trading in any securities of the Company has been suspended or
materially limited by the Commission or the New York Stock Exchange, or if
trading generally on the New York Stock Exchange or the American Stock Exchange
or in the Nasdaq National Market has been suspended or materially limited, or
minimum or maximum prices for trading have been fixed, or maximum ranges for
prices have been required, by either of said exchanges or by such system or by
order of the Commission, the NASD or any other governmental authority, or (iv)
a banking moratorium has been declared by either Federal or New York
authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this
Section 9, such termination shall be without liability of any party to any
other party except as provided in Section 4 hereof, and provided further that
Sections 1, 6, 7 and 8 shall survive such termination and remain in full force
and effect.
<PAGE> 30
SECTION 10. Default by One or More of the Underwriters. If one or more
of the Underwriters shall fail at the Closing Time to purchase the Securities
which it or they are obligated to purchase under this Agreement (the "Defaulted
Securities"), then the Representatives shall have the right, within 24 hours
thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than
all, of the Defaulted Securities in such amounts as may be agreed upon and upon
the terms herein set forth; if, however, the Representatives shall not have
completed such arrangements within such 24-hour period, then:
(a) if the number or aggregate principal amount, as the case may
be, of Defaulted Securities does not exceed 10% of the number or
aggregate principal amount, as the case may be, of Securities to be
purchased hereunder, each of the non-defaulting Underwriters shall be
obligated, severally and not jointly, to purchase the full amount thereof
in the proportions that their respective underwriting obligations
hereunder bear to the underwriting obligations of all non-defaulting
Underwriters, or
(b) if the number or aggregate principal amount, as the case may
be, of Defaulted Securities exceeds 10% of the number or aggregate
principal amount, as the case may be, of Securities to be purchased
hereunder, this Agreement shall terminate without liability on the part
of any non-defaulting Underwriter.
No action taken pursuant to this Section 10 shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination of
this Agreement, either the Representatives or the Company shall have the right
to postpone the Closing Time for a period not exceeding seven days in order to
effect any required changes in the Registration Statement or the Prospectus or
in any other documents or arrangements. As used herein, the term "Underwriter"
includes any person substituted for an Underwriter under this Section 10.
<PAGE> 31
SECTION 11. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to Merrill Lynch at World Financial Center,
North Tower, New York, New York 10281-1201, attention of Todd Kaplan; and
notices to the Company shall be directed to it at IDEX Corporation, 630 Dundee
Road, Northbrook, Illinois 60062, attention of Wayne P. Sayatovic.
SECTION 12. Parties. This Agreement shall inure to the benefit of and be
binding upon the Company, the Underwriters and their respective successors.
Nothing expressed or mentioned in this Agreement is intended or shall be
construed to give any person, firm or corporation, other than the Underwriters
and the Company and their respective successors and the controlling persons and
officers and directors referred to in Sections 6 and 7 and their heirs and
legal representatives, any legal or equitable right, remedy or claim under or
in respect of this Agreement or any provision herein contained. This Agreement
and all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the Underwriters and the Company and their respective
successors, and said controlling persons and officers and directors and their
heirs and legal representatives, and for the benefit of no other person, firm
or corporation. No purchaser of Securities from any Underwriter shall be
deemed to be a successor by reason merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. SPECIFIED
TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 14. Effect of Headings. The Article and Section headings herein
and the Table of Contents are for convenience only and shall not affect the
construction hereof.
<PAGE> 32
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof,
whereupon this Agreement, along with all counterparts, will become a binding
agreement between the Underwriters and the Company in accordance with its
terms.
Very truly yours,
IDEX CORPORATION
By: /s/ Douglas C. Lennox
------------------------
Name: Douglas C. Lennox
Title: Treasurer
CONFIRMED AND ACCEPTED,
as of the date first
above written:
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: /s/ Brit Bartter
--------------------------------
Authorized Signatory
For themselves and as Representatives of the other Underwriter named in
Schedule A hereto.
<PAGE> 33
SCHEDULE A
<TABLE>
<CAPTION>
Name of Underwriter Principal
- ------------------- Amount of
Securities
-------------
<S> <C>
Merrill Lynch, Pierce, Fenner & Smith
Incorporated........................ 97,500,000
Goldman, Sachs & Co.................................. 52,500,000
_____________
Total................................................ $150,000,000
=============
</TABLE>
<PAGE> 34
SCHEDULE B
IDEX Corporation
$150,000,000 6 7/8% Senior Notes due February 15, 2008
1. The initial public offering price of the Securities shall be 99.689% of
the principal amount thereof, plus accrued interest, if any, from the date of
issuance.
2. The purchase price to be paid by the Underwriters for the Securities
shall be 99.039% of the principal amount thereof.
3. The interest rate on the Securities shall be 6 7/8% per annum.
<PAGE> 35
Exhibit A
FORM OF OPINION OF COMPANY'S COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
(1) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware.
(2) The Company has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectus and to enter into and perform its obligations under the Underwriting
Agreement.
(3) Based solely on certificates from public officials, we confirm that
the Company is duly qualified as a foreign corporation to transact business and
is in good standing in the states of [Add states where the Company conducts
business].
(4) Each Subsidiary (as defined herein) has been duly incorporated and is
validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has corporate power and authority to own,
lease and operate its properties and to conduct its business as described in
the Prospectus. Based solely on certificates from public officials, we confirm
that each of the Subsidiaries is duly qualified as a foreign corporation to
transact business and is in good standing in each of the jurisdictions set
forth opposite its name on Schedule A hereto. Except as otherwise stated in the
Registration Statement and the Prospectus, all of the issued and outstanding
capital stock of each Subsidiary has been duly authorized and is validly
issued, fully paid and non-assessable and, to the best of such counsel's
knowledge, is owned by the Company, directly or through subsidiaries, free and
clear of any security interest, mortgage, pledge, lien, encumbrance, claim or
equity. As used in this Section 4, the term "Subsidiary" shall mean each of
the subsidiaries of the Company listed on Schedule A hereto. [Schedule A shall
include Band-It, Corken, Fluid Management, Hale, Lubriquip,
<PAGE> 36
Micropump, Pulsafeeder, Viking Pump, Warren Rupp, Gast, Knight, Vibratech and
Strippit.]
(5) The authorized, issued and outstanding shares of capital stock of the
Company is as set forth in the column entitled "Historical" under the caption
"Capitalization" (except for subsequent issuances thereof, if any, contemplated
under the Underwriting Agreement, pursuant to reservations, agreements or
employee benefit plans referred to in the Prospectus or pursuant to the
exercise of convertible securities or options referred to in the Prospectus).
Such shares of capital stock have been duly authorized and validly issued by
the Company and are fully paid and non-assessable, and none of such shares of
capital stock was issued in violation of preemptive or other similar rights of
any securityholder of the Company.
(6) The Underwriting Agreement has been duly authorized, executed and
delivered by the Company.
(7) The Securities have been duly authorized by the Company for issuance
and sale pursuant to the Underwriting Agreement. The Securities, when issued
and authenticated in the manner provided for in the applicable Indenture and
delivered against payment of the purchase price therefor as specified in the
Underwriting Agreement (assuming the due authorization, execution and delivery
of the Indenture by the Trustee), 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
(including, without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or other similar laws affecting the enforcement of
creditors' rights generally or by general equitable principles (regardless of
whether enforcement is considered in a proceeding in equity or at law). The
Securities are in the form contemplated by, and each registered holder thereof
is entitled to the benefits of, the Indenture.
(8) The Indenture has been duly authorized, executed and delivered by
the Company and (assuming due authorization, execution and delivery thereof by
the Trustee) constitutes a valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms, except as the
enforcement thereof may
<PAGE> 37
be limited by bankruptcy, insolvency (including, without limitation, all laws
relating to fraudulent transfers), reorganization, moratorium or other similar
laws affecting the enforcement of creditors' rights generally or by general
equitable principles (regardless of whether enforcement is considered in a
proceeding in equity or at law).
(9) The Securities and the Indenture conform in all material respects to
the statements relating thereto contained in the Prospectus under the headings
"Description of Notes" and "Description of Debt Securities" and are in
substantially the form filed or incorporated by reference, as the case may be,
as an exhibit to the Registration Statement.
(10) To the best of such counsel's knowledge, the execution, delivery and
performance of the Underwriting Agreement and the Indenture and any other
agreement or instrument entered into or issued or to be entered into or issued
by the Company in connection with the transactions contemplated by the
Underwriting Agreement and the Indenture and the consummation of the
transactions contemplated by the Underwriting Agreement and the Indenture
(including the issuance and sale of the Securities and the use of the proceeds
from the sale of the Securities as described under the caption "Use of
Proceeds" in the Prospectus) and compliance by the Company with its obligations
thereunder do not and will not, whether with or without the giving of notice or
passage of time or both, conflict with or constitute a breach of, or default
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any assets, properties or operations of the Company or any of
its subsidiaries pursuant to, any contract, indenture, mortgage, deed of trust,
loan or credit agreement, note, lease or any other agreement or instrument to
which the Company or any of its subsidiaries is a party or by which it or any
of them may be bound, or to which any of the assets, properties or operations
of the Company or any of its subsidiaries is subject, and which is listed as
Exhibit 4 or Exhibit 10 to the Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1997, except for such conflicts, breaches,
defaults, events, liens, charges or encumbrances that would not result in a
Material Adverse Effect, nor will such action result in any violation of the
provisions of the charter or by-laws of the Company or any of its subsidiaries
or any applicable law, statute,
<PAGE> 38
rule, regulation, judgment, order, writ or decree, known to such counsel, of
any government, government instrumentality or court having jurisdiction over
the Company or any of its subsidiaries or any of their assets, properties or
operations.
(11) To the best of such counsel's knowledge, and except as disclosed in
the Prospectus, there is not pending or threatened any action, suit,
proceeding, inquiry or investigation to which the Company or any of its
subsidiaries thereof is a party or to which the assets, properties or
operations of the Company or any of its subsidiaries thereof is subject, before
or by any court or governmental agency or body, domestic or foreign, which
might reasonably be expected to result in a Material Adverse Effect or which
might reasonably be expected to materially and adversely affect the assets,
properties or operations thereof or the consummation of the transactions
contemplated under the Underwriting Agreement or the Indenture or the
performance by the Company of its obligations thereunder.
(12) All descriptions in the Prospectus of contracts and other documents
to which the Company or its subsidiaries are a party are accurate in all
material respects. To the best of such counsel's knowledge, there are no
franchises, contracts, indentures, mortgages, loan agreements, notes, leases or
other instruments required to be described or referred to in the Prospectus or
to be filed as exhibits to the Registration Statement other than those
described or referred to therein or filed or incorporated by reference as
exhibits thereto, and the descriptions thereof or references thereto are
correct in all material respects.
(13) To the best of such counsel's knowledge, there are no statutes or
regulations that are required to be described in the Prospectus that are not
described as required.
(14) The Registration Statement (including any Rule 462(b) Registration
Statement) has been declared effective under the 1933 Act. Any required filing
of the Prospectus pursuant to Rule 424(b) has been made in the manner and
within the time period required by Rule 424(b). To the best of such counsel's
knowledge, no stop order suspending the effectiveness of the Registration
Statement (or such Rule 462(b) Registration Statement) has been issued under
the 1933
<PAGE> 39
Act and no proceedings for that purpose have been initiated or are pending or
threatened by the Commission.
(15) The Registration Statement (including any Rule 462(b) Registration
Statement) and the Prospectus, excluding the documents incorporated by
reference therein, and each amendment or supplement to the Registration
Statement (including any Rule 462(b) Registration Statement) and Prospectus,
excluding the documents incorporated by reference therein, as of their
respective effective or issue dates (other than the financial statements and
supporting schedules and notes included therein or omitted therefrom and other
financial data included therein and the Trustee's Statement of Eligibility on
Form T-1 (the "Form T-1s"), as to which such counsel need express no opinion)
complied as to form in all material respects with the requirements of the 1933
Act and the 1933 Act Regulations. In passing upon compliance as to form, such
counsel may assume that the statements made and incorporated by reference
therein are true, correct and complete.
(16) The documents incorporated by reference in the Prospectus (other
than the financial statements and supporting schedules and notes therein or
omitted therefrom and other financial data included therein, as to which such
counsel need express no opinion), when they were filed with the Commission
complied as to form in all material respects with the requirements of the 1934
Act and the rules and regulations of the Commission thereunder. In passing upon
compliance as to form, such counsel may assume that the statements made and
incorporated by reference therein are true, correct and complete.
(17) No filing with, or authorization, approval, consent, license, order,
registration, qualification or decree of, any court or governmental authority
or agency is required for the due authorization, execution or delivery by the
Company of the Underwriting Agreement or for the performance by the Company of
the transactions contemplated under the Underwriting Agreement or the
Indenture, other than under the 1933 Act, the 1933 Act Regulations, the 1939
Act and the 1939 Act Regulations, which have already been made, obtained or
rendered, as applicable, or as may be required under state securities or blue
sky laws.
(18) The Indenture has been duly qualified under the 1939 Act.
<PAGE> 40
(19) The Company is not, and upon the issuance and sale of the Securities
as herein contemplated and the application of the net proceeds therefrom as
described in the Prospectus will not be, an "investment company" or "an entity
controlled by an investment company" within the meaning of the Investment
Company Act of 1940, as amended (the "1940 Act").
Nothing has come to such counsel's attention that would lead such counsel
to believe that the Registration Statement (including any Rule 462(b)
Registration Statement) or any post-effective amendment thereto (except for
financial statements and supporting schedules and notes and other financial
data included therein or omitted therefrom and for the Form T-1s, as to which
such counsel need make no statement), at the time the Registration Statement
(including any Rule 462(b) Registration Statement) or any post-effective
amendment thereto (including the filing of the Company's Annual Report on Form
10-K with the Commission) became effective, contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading or that the
Prospectus or any amendment or supplement thereto (except for financial
statements and supporting schedules and notes and other financial data included
therein or omitted therefrom, as to which such counsel need make no statement),
at the time the Prospectus was issued, at the time any such amended or
supplemented prospectus was issued or at the Closing Time, included or includes
an untrue statement of a material fact or omitted or omits to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
Such opinion may be limited to the federal laws of the United States, the
internal laws of the State of New York, and the Delaware General Corporation
Law.
<PAGE> 1
Exhibit 4.1
- -------------------------------------------------------------------------------
IDEX CORPORATION
-------------------------------
INDENTURE
Dated as of February 23, 1998
-------------------------------
Norwest Bank Minnesota,
National Association
Trustee
- -------------------------------------------------------------------------------
<PAGE> 2
TABLE OF CONTENTS
PAGE
<TABLE>
<S> <C> <C>
ARTICLE I.DEFINITIONS AND INCORPORATION BY REFERENCE.................................1
Section 1.1 Definitions..............................................1
Section 1.2 Other Definitions........................................7
Section 1.3 Incorporation by Reference of Trust Indenture Act........8
Section 1.4 Rules of Construction....................................8
ARTICLE II.THE SECURITIES............................................................9
Section 2.1 Issuable in Series.......................................9
Section 2.2 Establishment of Terms of Series of Securities...........9
Section 2.3 Execution and Authentication............................11
Section 2.4 Registrar and Paying Agent..............................12
Section 2.5 Paying Agent to Hold Money in Trust.....................13
Section 2.6 Securityholder Lists....................................13
Section 2.7 Transfer and Exchange...................................14
Section 2.8 Mutilated, Destroyed, Lost and Stolen Securities........14
Section 2.9 Outstanding Securities..................................15
Section 2.10 Treasury Securities.....................................16
Section 2.11 Temporary Securities....................................16
Section 2.12 Cancellation............................................16
Section 2.13 Defaulted Interest......................................16
Section 2.14 Global Securities.......................................16
Section 2.15 CUSIP, ISIN and Common Code Numbers.....................18
ARTICLE III.REDEMPTION..............................................................18
Section 3.1 Notice to Trustee.......................................18
Section 3.2 Selection of Securities to be Redeemed..................19
Section 3.3 Notice of Redemption....................................19
Section 3.4 Effect of Notice of Redemption..........................20
Section 3.5 Deposit of Redemption Price.............................21
Section 3.6 Securities Redeemed in Part.............................21
ARTICLE IV.COVENANTS................................................................21
Section 4.1 Payment of Principal and Interest.......................21
Section 4.2 SEC Reports.............................................22
Section 4.3 Compliance Certificate..................................22
Section 4.4 Stay, Extension and Usury Laws..........................23
Section 4.5 Corporate Existence.....................................23
Section 4.6 Taxes...................................................23
</TABLE>
i
<PAGE> 3
<TABLE>
<S> <C> <C>
Section 4.7 Limitation on Secured Debt. ............................23
Section 4.8 Limitation on Sale and Leaseback........................25
Section 4.9 Offices For Payments, Etc...............................27
Section 4.10 Appointment To Fill A Vacancy In Office Of Trustee. ....28
Section 4.11 Paying Agents...........................................28
ARTICLE V.SUCCESSORS................................................................29
Section 5.1 When Company May Merge, Etc.............................29
Section 5.2 Successor Corporation Substituted.......................29
ARTICLE VI.DEFAULTS AND REMEDIES....................................................30
Section 6.1 Events of Default.......................................30
Section 6.2 Acceleration of Maturity; Rescission and Annulment......31
Section 6.3 Collection of Indebtedness and Suits for Enforcement
by Trustee..............................................32
Section 6.4 Trustee May File Proofs of Claim........................33
Section 6.5 Trustee May Enforce Claims Without Possession
of Securities...........................................34
Section 6.6 Application of Money Collected..........................34
Section 6.7 Limitation on Suits.....................................35
Section 6.8 Unconditional Right of Holders to Receive Principal
and Interest............................................35
Section 6.9 Restoration of Rights and Remedies......................35
Section 6.10 Rights and Remedies Cumulative..........................36
Section 6.11 Delay or Omission Not Waiver............................36
Section 6.12 Control by Holders......................................36
Section 6.13 Waiver of Past Defaults.................................37
Section 6.14 Undertaking for Costs...................................37
ARTICLE VII.TRUSTEE.................................................................37
Section 7.1 Duties of Trustee.......................................37
Section 7.2 Rights of Trustee.......................................39
Section 7.3 Individual Rights of Trustee............................39
Section 7.4 Trustee's Disclaimer....................................39
Section 7.5 Notice of Defaults......................................40
Section 7.6 Reports by Trustee to Holders...........................40
Section 7.7 Compensation and Indemnity..............................40
Section 7.8 Replacement of Trustee..................................41
Section 7.9 Successor Trustee by Merger, etc........................42
Section 7.10 Eligibility; Disqualification...........................42
Section 7.11 Preferential Collection of Claims Against Company.......42
ARTICLE VIII.SATISFACTION AND DISCHARGE; DEFEASANCE.................................42
</TABLE>
ii
<PAGE> 4
<TABLE>
<S> <C> <C>
Section 8.1 Satisfaction and Discharge of Indenture.................42
Section 8.2 Application of Trust Funds; Indemnification.............44
Section 8.3 Legal Defeasance of Securities of any Series............44
Section 8.4 Covenant Defeasance.....................................46
Section 8.5 Repayment to Company....................................47
Section 8.6 Reinstatement of Company's Obligations..................47
ARTICLE IX.AMENDMENTS AND WAIVERS...................................................48
Section 9.1 Without Consent of Holders..............................48
Section 9.2 With Consent of Holders.................................48
Section 9.3 Limitations.............................................49
Section 9.4 Compliance with Trust Indenture Act.....................50
Section 9.5 Revocation and Effect of Consents.......................50
Section 9.6 Notation on or Exchange of Securities...................50
Section 9.7 Trustee Protected.......................................50
ARTICLE X.MISCELLANEOUS.............................................................51
Section 10.1 Trust Indenture Act Controls............................51
Section 10.2 Notices.................................................51
Section 10.3 Communication by Holders with Other Holders.............52
Section 10.4 Certificate and Opinion as to Conditions Precedent......52
Section 10.5 Statements Required in Certificate or Opinion...........52
Section 10.6 Rules by Trustee and Agents.............................52
Section 10.7 Legal Holidays..........................................53
Section 10.8 No Recourse Against Others..............................53
Section 10.9 Counterparts............................................53
Section 10.10 Governing Laws..........................................53
Section 10.11 No Adverse Interpretation of Other Agreements...........53
Section 10.12 Successors..............................................53
Section 10.13 Severability............................................53
Section 10.14 Table of Contents, Headings, Etc........................54
Section 10.15 Securities in a Foreign Currency or in ECU..............54
Section 10.16 Judgment Currency.......................................55
ARTICLE XI.SINKING FUNDS............................................................55
Section 11.1 Applicability of Article................................55
Section 11.2 Satisfaction of Sinking Fund Payments with Securities...56
Section 11.3 Redemption of Securities for Sinking Fund...............56
</TABLE>
iii
<PAGE> 5
IDEX CORPORATION
Reconciliation and tie between Trust Indenture Act of 1939 and
Indenture, dated as of February, 1998
Section 310(a)(1) ........................................... 7.10
(a)(2) ........................................... 7.10
(a)(3) ........................................... Not Applicable
(a)(4) ........................................... Not Applicable
(a)(5) ........................................... 7.10
(b) ........................................... 7.10
Section 311(a) ........................................... 7.11
(b) ........................................... 7.11
(c) ........................................... Not Applicable
Section 312(a) ........................................... 2.6
(b) ........................................... 10.3
(c) ........................................... 10.3
Section 313(a) ........................................... 7.6
(b)(1) ........................................... 7.6
(b)(2) ........................................... 7.6
(c)(1) ........................................... 7.6
(d) ........................................... 7.6
Section 314(a) ........................................... 4.2, 10.5
(b) ........................................... Not Applicable
(c)(1) ........................................... 10.4
(c)(2) ........................................... 10.4
(c)(3) ........................................... Not Applicable
(d) ........................................... Not Applicable
(e) ........................................... 10.5
(f) ........................................... Not Applicable
Section 315(a) ........................................... 7.1
(b) ........................................... 7.5
(c) ........................................... 7.1
(d) ........................................... 7.1
(e) ........................................... 6.14
Section 316(a) ........................................... 2.10
(a)(1)(A) ........................................... 6.12
(a)(1)(B) ........................................... 6.13
(b) ........................................... 6.8
Section 317(a)(1) ........................................... 6.3
(a)(2) ........................................... 6.4
(b) ........................................... 2.5
Section 318(a) ........................................... 10.1
Note: This reconciliation and tie shall not, for any purpose, be deemed to be
part of the Indenture.
<PAGE> 6
Indenture dated as of February 23, 1998 between IDEX Corporation, a
Delaware corporation ("Company"), and Norwest Bank Minnesota, National
Association ("Trustee").
Each party agrees as follows for the benefit of the other party and for
the equal and ratable benefit of the Holders of the Securities issued under
this Indenture.
ARTICLE I.
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1 Definitions.
"Additional Amounts" means any additional amounts which are required
hereby or by any Security, under circumstances specified herein or therein, to
be paid by the Company in respect of certain taxes imposed on Holders specified
therein and which are owing to such Holders.
"Affiliate" of any specified person means any other person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified person. For the purposes of this definition,
"control" (including, with correlative meanings, the terms "controlled by" and
"under common control with"), as used with respect to any person, shall mean
the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such person, whether through the
ownership of voting securities or by agreement or otherwise.
"Agent" means any Registrar, Paying Agent or Service Agent.
"Authorized Newspaper" means a newspaper in an official language of the
country of publication customarily published at least once a day for at least
five days in each calendar week and of general circulation in the place in
connection with which the term is used. If it shall be impractical in the
opinion of the Trustee to make any publication of any notice required hereby in
an Authorized Newspaper, any publication or other notice in lieu thereof that
is made or given by the Trustee shall constitute a sufficient publication of
such notice.
"Bearer" means anyone in possession from time to time of a Bearer
Security.
"Bearer Security" means any Security, including any interest coupon
appertaining thereto, that does not provide for the identification of the
Holder thereof.
"Board of Directors" means the Board of Directors of the Company or any
duly authorized committee thereof.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been adopted by the
Board of Directors or pursuant to
<PAGE> 7
authorization by the Board of Directors and to be in full force and effect on
the date of the certificate and delivered to the Trustee.
"Business Day" means, unless otherwise provided by Board Resolution,
Officers' Certificate or supplemental indenture hereto for a particular Series,
any day except a Saturday, Sunday or a legal holiday in The City of New York or
the City of Chicago, Illinois on which banking institutions are authorized or
required by law, regulation or executive order to close.
"Capital Stock" means and includes any and all shares, interests,
participations or other equivalents (however designated) of ownership in a
corporation or other Person.
"Capitalization" means with respect to a Person the total of (a) Funded
Debt, (b) the par value or, in the case of Capital Stock with no par value, a
value stated on the books, of all outstanding shares of Capital Stock, (c) the
paid-in surplus and retained earnings (or minus the net surplus deficit, as the
case may be), (d) deferred taxes and deferred investment tax credits, (e)
Capitalized Rent and (f) minority interests in Subsidiaries, of such Person.
"Capitalized Rent" means the present value (discounted semi-annually at
a discount rate equal to the weighted average rate of interest borne by the
Securities then Outstanding) of the total net amount of rent payable for the
remaining term of any lease of property by the Company (including any period
for which such lease has been extended); provided, however, that no such rental
obligation shall be deemed to be Capitalized Rent unless the lease resulted
from a Sale and Leaseback Transaction. The total net amount of rent payable
under any lease for any period shall be the total amount of the rent payable by
the lessee with respect to such period but shall not include amounts required
to be paid on account of maintenance and repairs, insurance, taxes,
assessments, water rates, sewer rates and similar charges.
"Company" means the party named as such above until a successor
replaces it and thereafter means the successor.
"Company Order" means a written order signed in the name of the Company
by two Officers, one of whom must be the Company's principal executive officer,
principal financial officer or principal accounting officer.
"Company Request" means a written request signed in the name of the
Company by its Chairman of the Board, its President or a Vice President, and by
its Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary,
and delivered to the Trustee.
"Consolidated Capitalization" means the Capitalization of the Company
and its Subsidiaries determined on a consolidated basis as of the end of the
Company's then most recently reported fiscal year or quarter, as the case may
be, including minority interests in Subsidiaries.
2
<PAGE> 8
"Corporate Trust Office" means the office of the Trustee at which at
any particular time its corporate trust business shall be principally
administered.
"Debt" means with respect to a Person all obligations of such Person
for borrowed money and all such obligations of any other Person for borrowed
money guaranteed by such Person.
"Default" means any event which is, or after notice or passage of time
would be, an Event of Default.
"Depository" means, with respect to the Securities of any Series
issuable or issued in whole or in part in the form of one or more Global
Securities, the person designated as Depository for such Series by the Company,
which Depository shall be a clearing agency which (i) credits beneficial
interests in such Global Securities to its participating organizations through
a computerized book-entry system and (ii) if located in the United States, is
registered under the Exchange Act; and if at any time there is more than one
such person, "Depository" as used with respect to the Securities of any Series
shall mean the Depository with respect to the Securities of such Series.
"Discount Security" means any Security that provides for an amount less
than the stated principal amount thereof to be due and payable upon declaration
of acceleration of the maturity thereof pursuant to Section 6.2.
"Dollars" means the currency of The United States of America.
"ECU" means the European Currency Unit as determined by the Commission
of the European Union.
"Eligible Obligations" shall mean obligations as a result of the
deposit of which (along with the simultaneous deposit, if any, of money or U.S.
Government Obligations or Foreign Government Obligations or any of them) the
Securities will be rated in the highest generic long-term debt rating category
assigned by one or more nationally recognized rating agencies to debt with
respect to which the issuer thereof has been released from its obligations to
the same extent that the Company has been released from its obligations under
this Indenture pursuant to the defeasance provision of this Indenture.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Foreign Currency" means any currency or currency unit issued by a
government other than the government of The United States of America.
"Foreign Government Obligations" means with respect to Securities of
any Series that are denominated in a Foreign Currency, (i) direct obligations
of the government that issued or caused to be issued such currency for the
payment of which obligations its full faith and credit is pledged or (ii)
obligations of a person controlled or supervised by or acting as an agency or
instrumentality
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of such government the timely payment of which is unconditionally guaranteed as
a full faith and credit obligation by such government, which, in either case
under clauses (i) or (ii), are not callable or redeemable at the option of the
issuer thereof.
"Funded Debt" means any Debt maturing by its terms more than one year
from its date of issuance (notwithstanding that any portion of such Debt is
included in current liabilities).
"Global Security" or "Global Securities" means a Security or
Securities, as the case may be, in the form established pursuant to Section 2.2
evidencing all or part of a Series of Securities, issued to the Depository for
such Series or its nominee, and registered in the name of such Depository or
nominee.
"Holder" or "Securityholder" means a person in whose name a Security is
registered or the holder of a Bearer Security.
"Indenture" means this Indenture as amended from time to time and shall
include the form and terms of particular Series of Securities established as
contemplated hereunder.
"interest" with respect to any Discount Security which by its terms
bears interest only after Maturity, means interest payable after Maturity.
"Lien" means any mortgage, pledge, security interest, lien, charge or
other encumbrance.
"Maturity," when used with respect to any Security or installment of
principal thereof or interest thereon, means the date on which the principal of
such Security or such installment of principal or interest becomes due and
payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption, notice of option to elect
repayment or otherwise.
"Officer" means the Chairman of the Board, any President, any Vice
President, the Treasurer, the Secretary, the Controller, any Assistant
Treasurer or any Assistant Secretary of the Company.
"Officers' Certificate" means a certificate signed by two Officers, one
of whom must be the Company's principal executive officer, principal financial
officer, principal accounting officer or Treasurer.
"Opinion of Counsel" means a written opinion of legal counsel who is
acceptable to the Trustee. The counsel may be an employee of or counsel to the
Company.
"Outstanding" when used with reference to Securities shall mean, as of
any particular time, all Securities authenticated and delivered by the Trustee
under this Indenture, except:
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(a) Securities theretofore canceled by the Trustee or delivered to
the Trustee for cancellation;
(b) Subject to Article VIII, Securities with respect to which the
provisions of Sections 8.1, 8.3 or 8.4 have been satisfied; provided that
if such securities, or portions thereof, are to be redeemed prior to the
maturity thereof, notice of such redemption shall have been given as
herein provided, or provision satisfactory to the Trustee shall have been
made for giving such notice; and
(c) Securities in substitution for which other Securities shall have
been authenticated and delivered pursuant to the terms of Section 2.8.
In determining whether the Holders of the requisite principal amount of
Outstanding Securities of any or all Series have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, the principal
amount of an Original Issue Discount Security that shall be deemed to be
Outstanding for such purposes shall be the amount of the principal thereof that
would be due and payable as of the date of such determination upon a
declaration of acceleration of the maturity thereof pursuant to Section 6.2.
"Person" means any individual, corporation, limited liability company,
partnership, joint venture, association, joint stock company, trust,
unincorporated organization or government or any agency or political
subdivision thereof.
"principal" of a Security means the principal of the Security plus,
when appropriate, the premium, if any, on, and any Additional Amounts in
respect of, the Security.
"Property" means any directly-held interest of a Person in any kind of
property or asset, whether real, personal or mixed and whether tangible or
intangible, and includes Capital Stock of a Subsidiary or other Person.
"Redemption Date" when used with respect to any Security to be redeemed
shall mean the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price" shall mean the amount payable for the redemption of
any Security on the Redemption Date, and shall always include interest accrued
and unpaid to the Redemption Date and any Additional Amounts payable with
respect thereto, unless otherwise specifically provided.
"Registered Security" means any Security registered on the Security
Register of the Company.
"Responsible Officer" means any officer of the Trustee in its Corporate
Trust Office and also means, with respect to a particular corporate trust
matter, any other officer to whom any
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corporate trust matter is referred because of his or her knowledge of and
familiarity with a particular subject.
"Sale and Leaseback Transaction" means any arrangement with any Person
other than a Tax Consolidated Subsidiary providing for the leasing (as lessee)
by the Company of any property (except for temporary leases for a term,
including any renewal thereof, of not more than three years (provided that any
such temporary lease may be for a term of up to five years if (a) the Board of
Directors reasonably finds such term to be in the best interest of the Company
and (b) the primary purpose of the transaction of which such lease is a part is
not to provide funds to or financing for the Company)), which property has been
or is to be sold or transferred by the Company (i) to any subsidiary of the
Company in contemplation of or in connection with such arrangement or (ii) to
such other Person.
"SEC" means the Securities and Exchange Commission.
"Secured Debt" means Debt of the Company or any Subsidiary secured by
any Lien on property (including Capital Stock or indebtedness of Subsidiaries
of the Company) owned by the Company or any Subsidiary.
"Securities" means the debentures, notes or other debt instruments of
the Company of any Series authenticated and delivered under this Indenture.
"Series" or "Series of Securities" means each Series of debentures,
notes or other debt instruments of the Company created pursuant to Sections 2.1
and 2.2 hereof.
"Significant Subsidiary" means (i) any direct or indirect Subsidiary of
the Company that would be a "significant subsidiary" as defined in Article 1,
Rule 1-02 of Regulation S-X, promulgated pursuant to the Securities Act of
1933, as amended, as such regulation is in effect on the date hereof, or (ii)
any group of direct or indirect Subsidiaries of the Company that, taken
together as a group, would be a "significant subsidiary" as defined in Article
1, Rule 1-02 of Regulation S-X, promulgated pursuant to the Securities Act of
1933, as amended, as such regulation is in effect on the date hereof.
"Stated Maturity" when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal of such Security or
such installment of principal or interest is due and payable.
"Subsidiary" means a Person which is consolidated with the Company in
accordance with generally accepted accounting principles.
"Tax Consolidated Subsidiary" means a subsidiary of the Company with
which, at the time a Sale and Leaseback Transaction is entered into by the
Company, the Company would be entitled to file a consolidated federal income
tax return.
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"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code Sections
77aaa-77bbbb) as in effect on the date of this Indenture; provided, however,
that in the event the Trust Indenture Act of 1939 is amended after such date,
"TIA" means, to the extent required by any such amendment, the Trust Indenture
Act as so amended.
"Trustee" means the person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each person who is then a Trustee hereunder,
and if at any time there is more than one such person, "Trustee" as used with
respect to the Securities of any Series shall mean the Trustee with respect to
Securities of that Series.
"U.S. Government Obligations" means securities which are (i) direct
obligations of The United States of America for the payment of which its full
faith and credit is pledged or (ii) obligations of a person controlled or
supervised by and acting as an agency or instrumentality of The United States
of America the payment of which is unconditionally guaranteed as a full faith
and credit obligation by The United States of America, and which in the case of
(i) and (ii) are not callable or redeemable at the option of the issuer
thereof, and shall also include a depository receipt issued by a bank or trust
company as custodian with respect to any such U.S. Government Obligation or a
specific payment of interest on or principal of any such U.S. Government
Obligation held by such custodian for the account of the holder of a depository
receipt, provided that (except as required by law) such custodian is not
authorized to make any deduction from the amount payable to the holder of such
depository receipt from any amount received by the custodian in respect of the
U.S. Government Obligation evidenced by such depository receipt.
Section 1.2 Other Definitions.
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TERM DEFINED IN
SECTION
"Bankruptcy Law" 6.1
"Custodian" 6.1
"Event of Default" 6.1
"Journal" 10.15
"Judgment Currency" 10.16
"Legal Holiday" 10.7
"mandatory sinking fund payment" 11.1
"Market Exchange Rate" 10.15
"New York Banking Day" 10.16
"optional sinking fund payment" 11.1
"Paying Agent" 2.4
"Registrar" 2.4
"Required Currency" 10.16
"Service Agent" 2.4
"successor person" 5.1
Section 1.3 Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the provision
is incorporated by reference in and made a part of this Indenture. The
following TIA terms used in this Indenture have the following meanings:
"Commission" means the SEC.
"indenture securities" means the Securities.
"indenture security holder" means a Securityholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means
the Trustee.
"obligor" on the indenture securities means the
Company and any successor obligor upon the Securities.
All other terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule under the
TIA and not otherwise defined herein are used herein as so defined.
Section 1.4 Rules of Construction.
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Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with generally accepted accounting
principles;
(3) references to "generally accepted accounting principles" shall
mean generally accepted accounting principles in effect as of the time
when and for the period as to which such accounting principles are to be
applied;
(4) "or" is not exclusive;
(5) words in the singular include the plural, and in the plural
include the singular; and
(6) provisions apply to successive events and transactions.
ARTICLE II.
THE SECURITIES
Section 1.5 Issuable in Series.
The aggregate principal amount of Securities that may be authenticated
and delivered under this Indenture is unlimited. The Securities may be issued
in one or more Series. All Securities of a Series shall be identical except as
may be set forth in a Board Resolution, a supplemental indenture or an
Officers' Certificate detailing the adoption of the terms thereof pursuant to
the authority granted under a Board Resolution. In the case of Securities of a
Series to be issued from time to time, the Board Resolution, Officers'
Certificate or supplemental indenture may provide for the method by which
specified terms (such as interest rate, maturity date, record date or date from
which interest shall accrue) are to be determined. Securities may differ
between Series in respect of any matters, provided that all Series of
Securities shall be equally and ratably entitled to the benefits of the
Indenture.
Section 1.6 Establishment of Terms of Series of Securities.
At or prior to the issuance of any Securities within a Series, the
following shall be established (as to the Series generally, in the case of
Subsection 2.2.1, and either as to such Securities within the Series or as to
the Series generally, in the case of Subsections 2.2.2 through 2.2.22) by a
Board Resolution, a supplemental indenture or an Officers' Certificate pursuant
to authority granted under a Board Resolution:
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1.6.1 the title of the Series (which shall distinguish the Securities
of that particular Series from the Securities of any other Series);
1.6.2 the price or prices (expressed as a percentage of the principal
amount thereof) at which the Securities of the Series will be issued;
1.6.3 any limit upon the aggregate principal amount of the Securities
of the Series which may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of the Series
pursuant to Section 2.7, 2.8, 2.11, 3.6 or 9.6);
1.6.4 the date or dates on which the principal of the Securities of the
Series is payable;
1.6.5 the rate or rates (which may be fixed or variable) per annum or,
if applicable, the method used to determine such rate or rates (including, but
not limited to, any commodity, commodity index, stock exchange index or
financial index) at which the Securities of the Series shall bear interest, if
any, the date or dates from which such interest, if any, shall accrue, the date
or dates on which such interest, if any, shall commence and be payable and any
regular record date for the interest payable on any interest payment date;
1.6.6 the place or places where the principal of, premium, if any, and
interest, if any, on the Securities of the Series shall be payable, or the
method of such payment, if by wire transfer, mail or other means;
1.6.7 if applicable, the period or periods within which, the price or
prices at which and the terms and conditions upon which the Securities of the
Series may be redeemed, in whole or in part, at the option of the Company;
1.6.8 the obligation, if any, of the Company to redeem or purchase the
Securities of the Series pursuant to any sinking fund or analogous provisions
or at the option of a Holder thereof and the period or periods within which,
the price or prices at which and the terms and conditions upon which Securities
of the Series shall be redeemed or purchased, in whole or in part, pursuant to
such obligation;
1.6.9 the dates, if any, on which and the price or prices at which the
Securities of the Series will be repurchased by the Company at the option of
the Holders thereof and other detailed terms and provisions of such repurchase
obligations;
1.6.10 if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which the Securities of the Series shall be
issuable;
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1.6.11 the forms of the Securities of the Series in bearer or fully
registered form, and whether the Securities will be issuable as Global
Securities;
1.6.12 if other than the principal amount thereof, the portion of the
principal amount of the Securities of the Series that shall be payable upon
declaration of acceleration of the maturity thereof pursuant to Section 6.2;
1.6.13 the currency of denomination of the Securities of the Series,
which may be Dollars or any Foreign Currency, including, but not limited to,
the ECU, and if such currency of denomination is a composite currency other
than the ECU, the agency or organization, if any, responsible for overseeing
such composite currency;
1.6.14 the designation of the currency, currencies or currency units in
which payment of the principal of, premium, if any, and interest, if any, on
the Securities of the Series will be made;
1.6.15 if payments of principal of, premium, if any, or interest, if
any, on the Securities of the Series are to be made in one or more currencies
or currency units other than that or those in which such Securities are
denominated, the manner in which the exchange rate with respect to such
payments will be determined;
1.6.16 the manner in which the amounts of payment of principal of,
premium, if any, or interest, if any, on the Securities of the Series will be
determined, if such amounts may be determined by reference to an index based on
a currency or currencies other than that in which the Securities are
denominated or designated to be payable or by reference to a commodity,
commodity index, stock exchange index or financial index;
1.6.17 the provisions, if any, relating to any security provided for
the Securities of the Series;
1.6.18 the provisions, if any, relating to the subordination the
Securities of the Series;
1.6.19 the provisions, if any, relating to restrictions on transfer of
the Securities of the Series;
1.6.20 any addition to or change in the Events of Default which applies
to any Securities of the Series and any change in the right of the Trustee or
the requisite Holders of such Securities to declare the principal amount
thereof due and payable pursuant to Section 6.2;
1.6.21 any addition to or change in the covenants set forth in Articles
IV or V which applies to Securities of the Series;
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1.6.22 any other terms of the Securities of the Series (which terms
shall not be inconsistent with the provisions of this Indenture, except as
permitted by Section 9.1, but which may modify or delete any provision of this
Indenture insofar as it applies to such Series); and
1.6.23 the Depository, if any, and any interest rate calculation
agents, exchange rate calculation agents or other agents with respect to
Securities of such Series if other than those appointed herein.
All Securities of any one Series need not be issued at the same time
and may be issued from time to time, consistent with the terms of this
Indenture, if so provided by or pursuant to the Board Resolution, supplemental
indenture or Officers' Certificate referred to above, and the authorized
principal amount of any Series may not be increased to provide for issuances of
additional Securities of such Series, unless otherwise provided in such Board
Resolution, supplemental indenture or Officers' Certificate.
Section 1.7 Execution and Authentication.
Two Officers shall sign the Securities for the Company by manual or
facsimile signature.
If an Officer whose signature is on a Security no longer holds that
office at the time the Security is authenticated, the Security shall
nevertheless be valid.
A Security shall not be valid until authenticated by the manual
signature of the Trustee or an authenticating agent. The signature shall be
conclusive evidence that the Security has been authenticated under this
Indenture.
The Trustee shall at any time, and from time to time, authenticate
Securities for original issue in the principal amount provided in the Board
Resolution, supplemental indenture hereto or Officers' Certificate, upon
receipt by the Trustee of a Company Order. Such Company Order may authorize
authentication and delivery pursuant to oral or electronic instructions from
the Company or its duly authorized agent or agents, which oral instructions
shall be promptly confirmed in writing. Each Security shall be dated the date
of its authentication unless otherwise provided by a Board Resolution, a
supplemental indenture hereto or an Officers' Certificate.
The aggregate principal amount of Securities of any Series outstanding
at any time may not exceed any limit upon the maximum principal amount for such
Series set forth in the Board Resolution, supplemental indenture hereto or
Officers' Certificate delivered pursuant to Section 2.2, except as provided in
Section 2.8.
Prior to the issuance of Securities of any Series, the Trustee shall
have received and (subject to Section 7.2) shall be fully protected in relying
on: (a) the Board Resolution, supplemental indenture hereto or Officers'
Certificate establishing the form of the Securities of that Series or of
Securities within that Series and the terms of the Securities of that Series or
of
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Securities within that Series and (b) an Officers' Certificate complying
with Section 10.4.
The Trustee shall have the right to decline to authenticate and deliver
any Securities of such Series: (a) if the Trustee, being advised by counsel,
determines that such action may not lawfully be taken; or (b) if the Trustee in
good faith by its board of directors or trustees, executive committee or a
trust committee of directors and/or vice-presidents shall determine that such
action would expose the Trustee to personal liability to Holders of any then
outstanding Series of Securities.
The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Securities. An authenticating agent may authenticate
Securities whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as an Agent to deal with the Company
or an Affiliate.
Section 1.8 Registrar and Paying Agent.
The Company shall maintain, with respect to each Series of Securities,
at the place or places specified with respect to such Series pursuant to
Section 2.2, an office or agency where Securities of such Series may be
presented or surrendered for payment ("Paying Agent"), where Securities of such
Series may be surrendered for registration of transfer or exchange
("Registrar") and where notices and demands to or upon the Company in respect
of the Securities of such Series and this Indenture may be served ("Service
Agent"). The Registrar shall keep a register with respect to each Series of
Securities and their transfer and exchange. The Company will give prompt
written notice to the Trustee of the name and address, and any change in the
name or address, of each Registrar, Paying Agent or Service Agent. If at any
time the Company shall fail to maintain any such required Registrar, Paying
Agent or Service Agent or shall fail to furnish the Trustee with the name and
address thereof, such presentations, surrenders, notices and demands may be
made or served at the Corporate Trust Office of the Trustee, and the Company
hereby appoints the Trustee as its agent to receive all such presentations,
surrenders, notices and demands.
The Company may also from time to time designate one or more
co-registrars, additional paying agents or additional service agents and may
from time to time rescind such designations; provided, however, that no such
designation or rescission shall in any manner relieve the Company of its
obligations to maintain a Registrar, Paying Agent and Service Agent in each
place so specified pursuant to Section 2.2 for Securities of any Series for
such purposes. The Company will give prompt written notice to the Trustee of
any such designation or rescission and of any change in the name or address of
any such co-registrar, additional paying agent or additional service agent. The
term "Registrar" includes any co-registrar; the term "Paying Agent" includes
any additional paying agent; and the term "Service Agent" includes any
additional service agent.
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The Company hereby appoints the Trustee the initial Registrar, Paying
Agent and Service Agent for each Series unless another Registrar, Paying Agent
or Service Agent, as the case may be, is appointed prior to the time Securities
of that Series are first issued.
Section 1.9 Paying Agent to Hold Money in Trust.
The Company shall require each Paying Agent other than the Trustee to
agree in writing that the Paying Agent will hold in trust, for the benefit of
Securityholders of any Series of Securities, or the Trustee, all money held by
the Paying Agent for the payment of principal of or interest on the Series of
Securities, and will notify the Trustee of any default by the Company in making
any such payment. While any such default continues, the Trustee may require a
Paying Agent to pay all money held by it to the Trustee. The Company at any
time may require a Paying Agent to pay all money held by it to the Trustee.
Upon payment over to the Trustee, the Paying Agent (if other than the Company
or a Subsidiary) shall have no further liability for the money. If the Company
or a Subsidiary acts as Paying Agent, it shall segregate and hold in a separate
trust fund for the benefit of Securityholders of any Series of Securities all
money held by it as Paying Agent.
Section 1.10 Securityholder Lists.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Securityholders of each Series of Securities issued in fully registered form
and shall otherwise comply with TIA Section 312(a). If the Trustee is not
the Registrar, the Company shall furnish to the Trustee at least ten days
before each interest payment date and at such other times as the Trustee may
request in writing a list, in such form and as of such date as the Trustee may
reasonably require, of the names and addresses of Securityholders of each
Series of Securities issued in fully registered form.
Section 1.11 Transfer and Exchange.
Where Securities of a Series are presented to the Registrar or a
co-registrar with a request to register a transfer or to exchange them for an
equal principal amount of Securities of the same Series, the Registrar shall
register the transfer or make the exchange if its requirements for such
transactions are met. To permit registrations of transfers and exchanges, the
Trustee shall authenticate Securities at the Registrar's request. No service
charge shall be made for any registration of transfer or exchange (except as
otherwise expressly permitted herein), but the Company may require payment of a
sum sufficient to cover any transfer tax or similar governmental charge payable
in connection therewith (other than any such transfer tax or similar
governmental charge payable upon exchanges pursuant to Sections 2.11, 3.6 or
9.6).
Neither the Company nor the Registrar shall be required to (a) issue,
register the transfer of, or exchange Securities of any Series for the period
beginning at the opening of business
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fifteen days immediately preceding the mailing of a notice of redemption of
Securities of that Series selected for redemption and ending at the close of
business on the day of such mailing, (b) register the transfer of or exchange
Securities of any Series selected, called or being called for redemption as a
whole or the portion being redeemed of any such Securities selected, called or
being called for redemption in part, or (c) transfer, register the transfer of,
or exchange Securities of any Series that contain transfer restrictions, unless
and until all such restrictions are removed or satisfied.
Section 1.12 Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of the same Series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence
to their satisfaction of the destruction, loss or theft of any Security and
(ii) such security or indemnity as may be required by them to save each of them
and any agent of either of them harmless, then, in the absence of notice to the
Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and upon its request the Trustee shall
authenticate and make available for delivery, in lieu of any such destroyed,
lost or stolen Security, a new Security of the same Series and of like tenor
and principal amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any Series issued pursuant to this Section in
lieu of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by anyone, and shall
be entitled to all the benefits of this Indenture equally and proportionately
with any and all other Securities of that Series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
Section 1.13 Outstanding Securities.
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The Securities outstanding at any time are all the Securities
authenticated by the Trustee except for those canceled by it, those delivered
to it for cancellation, those reductions in the interest on a Global Security
effected by the Trustee in accordance with the provisions hereof and those
described in this Section as not outstanding.
If a Security is replaced pursuant to Section 2.8, it ceases to be
outstanding until the Trustee receives proof satisfactory to it that the
replaced Security is held by a bona fide purchaser.
If the Paying Agent (other than the Company, a Subsidiary or an
Affiliate of any thereof) holds on the Maturity of Securities of a Series money
sufficient to pay such Securities payable on that date, then on and after that
date such Securities of the Series cease to be outstanding and interest on them
ceases to accrue.
A Security does not cease to be outstanding because the Company or an
Affiliate holds the Security.
In determining whether the Holders of the requisite principal amount of
outstanding Securities have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, the principal amount of a
Discount Security that shall be deemed to be outstanding for such purposes
shall be the amount of the principal thereof that would be due and payable as
of the date of such determination upon a declaration of acceleration of the
Maturity thereof pursuant to Section 6.2.
Section 1.14 Treasury Securities.
In determining whether the Holders of the required principal amount of
Securities of a Series have concurred in any request, demand, authorization,
direction, notice, consent or waiver, Securities of a Series owned by the
Company or an Affiliate shall be disregarded, except that for the purposes of
determining whether the Trustee shall be protected in relying on any such
request, demand, authorization, direction, notice, consent or waiver, only
Securities of a Series that the Trustee knows are so owned shall be so
disregarded.
Section 1.15 Temporary Securities.
Until definitive Securities are ready for delivery, the Company may
prepare and the Trustee shall authenticate temporary Securities upon a Company
Order. Temporary Securities shall be substantially in the form of definitive
Securities but may have variations that the Company considers appropriate for
temporary Securities. Without unreasonable delay, the Company shall prepare
and the Trustee upon request shall authenticate definitive Securities of the
same Series and date of maturity in exchange for temporary Securities. Until
so exchanged, temporary securities shall have the same rights under this
Indenture as the definitive Securities.
Section 1.16 Cancellation.
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The Company at any time may deliver Securities to the Trustee for
cancellation. The Registrar and the Paying Agent shall forward to the Trustee
any Securities surrendered to them for registration of transfer, exchange or
payment. The Trustee shall cancel all Securities surrendered for transfer,
exchange, payment, replacement or cancellation and shall destroy such canceled
Securities (subject to the record retention requirement of the Exchange Act)
and deliver a certificate of such destruction to the Company, unless the
Company otherwise directs. The Company may not issue new Securities to replace
Securities that it has paid or delivered to the Trustee for cancellation.
Section 1.17 Defaulted Interest.
If the Company defaults in a payment of interest on a Series of
Securities, it shall pay the defaulted interest, plus, to the extent permitted
by law, any interest payable on the defaulted interest, to the persons who are
Securityholders of the Series on a subsequent special record date. The Company
shall fix the record date and payment date. At least 30 days before the record
date, the Company shall mail to the Trustee and to each Securityholder of the
Series a notice that states the record date, the payment date and the amount of
interest to be paid. The Company may pay defaulted interest in any other
lawful manner.
Section 1.18 Global Securities.
1.18.1 Terms of Securities. A Board Resolution, a supplemental
indenture hereto or an Officers' Certificate shall establish whether the
Securities of a Series shall be issued in whole or in part in the form of one
or more Global Securities and the Depository for such Global Security or
Securities.
1.18.2 Transfer and Exchange. Notwithstanding any provisions to the
contrary contained in Section 2.7 of the Indenture and in addition thereto, any
Global Security held by a Depository in the United States shall be exchangeable
pursuant to Section 2.7 of the Indenture for Securities registered in the names
of Holders other than the Depository for such Security or its nominee only if
(i) such Depository notifies the Company that it is unwilling or unable to
continue as Depository for such Global Security or if at any time such
Depository ceases to be a clearing agency registered under the Exchange Act,
and, in either case, the Company fails to appoint a successor Depository within
90 days of such event, (ii) the Company executes and delivers to the Trustee an
Officers' Certificate to the effect that such Global Security shall be so
exchangeable or (iii) an Event of Default with respect to the Securities
represented by such Global Security shall have happened and be continuing. Any
Global Security that is exchangeable pursuant to the preceding sentence shall
be exchangeable for Securities registered in such names as the Depository shall
direct in writing in an aggregate principal amount equal to the principal
amount of the Global Security with like tenor and terms.
Except as provided in this Section 2.14.2, a Global Security held by a
Depository in the United States may not be transferred except as a whole by the
Depository with respect to such
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Global Security to a nominee of such Depository, by a nominee of such
Depository to such Depository or another nominee of such Depository or by the
Depository or any such nominee to a successor Depository or a nominee of such a
successor Depository.
1.18.3 Legend. Any Global Security issued hereunder to a Depository in
the United States shall bear a legend in substantially the following form:
"This Security is a Global Security within the meaning of the
Indenture hereinafter referred to and is registered in the name of the
Depository or a nominee of the Depository. Unless this certificate is
presented by an authorized representative of the Depository to the
Company or its agent for registration of transfer, exchange or payment,
and any certificate issued is registered in the name of Cede & Co. or in
such other name as is requested by an authorized representative of the
Depository (and any payment is made to Cede & Co. or to such other entity
as is requested by an authorized representative of the Depository), any
transfer, pledge or other use hereof for value or otherwise by or to any
person is wrongful inasmuch as the registered owner hereof, Cede & Co.,
has an interest herein."
1.18.4 Acts of Holders. The Depository, as a Holder, may appoint
agents and otherwise authorize participants to give or take any request,
demand, authorization, direction, notice, consent, waiver or other action which
a Holder is entitled to give or take under the Indenture.
1.18.5 Payments. Notwithstanding the other provisions of this
Indenture, unless otherwise specified as contemplated by Section 2.2, payment
of the principal of, premium, if any, and interest, if any, on any Global
Security shall be made to the Holder thereof.
1.18.6 Consents, Declaration and Directions. Except as provided in
Section 2.14.5, the Company, the Trustee and any Agent shall treat a person as
the Holder of such principal amount of outstanding Securities of such Series
represented by a Global Security as shall be specified in a written statement
of the Depository with respect to such Global Security, for purposes of
obtaining any consents, declarations, waivers or directions required to be
given by the Holders pursuant to this Indenture.
Section 1.19 CUSIP, ISIN and Common Code Numbers.
The Company in issuing the Securities may use "CUSIP," "ISIN" or
"Common Code" numbers (if then generally in use), and, if so, the Trustee shall
use "CUSIP," "ISIN" or "Common Code" numbers in notices of redemption as a
convenience to Holders; provided that any such notice may state that no
representation is made as to the correctness of such numbers either as printed
on the Securities or as contained in any notice of a redemption and that
reliance may be placed only on the other elements of identification printed on
the Securities, and any such redemption shall not be affected by any defect in
or omission of such numbers.
ARTICLE III.
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REDEMPTION
Section 1.20 Notice to Trustee.
If the Company elects to redeem Securities pursuant to the optional
redemption provisions, if any, set forth in such Securities, it shall furnish
to the Trustee an Officers' Certificate setting forth the Redemption Date, the
principal amount of Securities to be redeemed and the Redemption Price.
If Securities of any Series by their terms are redeemable pursuant to
the operation of a sinking fund or pursuant to another mandatory redemption
provision of the Securities, the Company shall notify the Trustee by an
Officers' Certificate of the amount of the next sinking fund payment or amount
required to satisfy such mandatory redemption payment and the portion of such
payment which is to be satisfied by delivering and crediting Securities of the
same Series pursuant to Section 3.5
If the Company elects to reduce pursuant to the terms of such
Securities the principal amount of Securities to be redeemed, it shall notify
the Trustee by Officers' Certificate of the amount of the reduction and the
basis for it. If the Company elects to credit against any such redemption
Securities of the same Series it has not previously delivered to the Trustee
for cancellation, it shall deliver the Securities with such Officers'
Certificate.
The Company shall provide to the Trustee each notice or Officers'
Certificate provided for in this Section at least 45 days (unless a shorter
period shall be satisfactory to the Trustee) but not more than 60 days before
the applicable Redemption Date.
If the Registrar is not the Trustee, the Company shall, concurrently
with each notice of redemption or repurchase, cause the Registrar to deliver to
the Trustee a certificate (upon which the Trustee may rely) setting forth the
principal amounts of Securities held by each Holder.
Section 1.21 Selection of Securities to be Redeemed.
Unless otherwise indicated for a particular Series by a Board
Resolution, a supplemental indenture or an Officers' Certificate, if less than
all the Securities of a Series are to be redeemed, the Trustee shall select the
Securities of the Series to be redeemed on a pro rata basis or in any manner
that the Trustee deems fair and appropriate. The Trustee shall make the
selection from Securities of the Series outstanding not previously called for
redemption. The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Security selected
for partial redemption, the principal amount thereof to be redeemed. The
Trustee may select for redemption portions of the principal of Securities of
the Series that have denominations larger than $1,000. Securities of the
Series and portions of them it selects shall be in amounts of $1,000 or whole
multiples of $1,000 or, with respect to Securities of any Series issuable in
other denominations pursuant to Section 2.2.10, the minimum principal
denomination for each Series and integral multiples thereof. Provisions of
this Indenture that apply to Securities
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of a Series called for redemption also apply to portions of Securities of that
Series called for redemption.
Section 1.22 Notice of Redemption.
The Company shall give notice of a redemption at least 30 days but not
more than 60 days before the Redemption Date, with respect to Registered
Securities, by mailing a notice of redemption to each Holder of Registered
Securities of such Series to be redeemed at such Holder's address as it appears
on the Securities register maintained by the Registrar and, with respect to
Bearer Securities, by publishing in an Authorized Newspaper notice of such
redemption on two separate days.
The notice shall identify the Securities to be redeemed and shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) the name and address of the Paying Agent;
(4) that Securities called for redemption must be
surrendered to the Paying Agent to collect the Redemption
Price;
(5) that, unless the Company defaults in making the
redemption payment, interest on Securities called for
redemption ceases to accrue on and after the Redemption Date
and the only remaining right of the Holders of such Securities
is to receive payment of the Redemption Price upon surrender
to the Paying Agent of the Securities to be redeemed;
(6) if any Security is to be redeemed in part, the
portion of the principal amount (equal to $1,000 or any
integral multiple thereof) of such Security to be redeemed and
that, on or after the Redemption Date, upon surrender of such
Security, a new Security or Securities of the same Series in
aggregate principal amount equal to the unredeemed portion
thereof will be issued without charge to the Securityholder;
(7) if less than all of the Securities of a Series
are to be redeemed, the identification of the particular
Securities of such Series (or portion thereof) to be redeemed,
as well as the aggregate principal amount of Securities of
such Series to be redeemed and the aggregate principal amount
of Securities of such Series estimated to be outstanding after
such partial redemption; and
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(8) the CUSIP number of the Securities, if any. The
Trustee shall not be responsible for the correctness or
accuracy of any such CUSIP number.
At the Company's request, the Trustee shall give the notice of
redemption in the name and at the expense of the Company. In such event, the
Company shall provide the Trustee with the information required by this Section
and shall provide notice of such redemption to the Trustee at least 45 days
prior to the Redemption Date (unless a shorter period shall be satisfactory to
the Trustee). If such notice is given by the Company, the Company shall
provide a copy of such notice given to the Holders to the Trustee and any
Paying Agent at least 2 days prior to the date such notice is given to such
Holders, but in any event at least 15 days prior to the Redemption Date (unless
a shorter period shall be satisfactory to the Trustee).
Section 1.23 Effect of Notice of Redemption.
Once notice of redemption is mailed, Securities of the Series called
for redemption become due and payable on the Redemption Date at the Redemption
Price. Upon surrender to any Paying Agent, such Securities shall be paid at
the Redemption Price, plus accrued interest to the Redemption Date and any
Additional Amounts with respect thereto; provided, however, that if the Stated
Maturity with respect to an interest payment on any such Security occurs on or
prior to the Redemption Date, such interest and any Additional Amounts shall be
payable, in the case of Bearer Securities, to bearers of the coupons for such
interest and Additional Amounts upon surrender thereof and, in the case of
Registered Securities, to the Holders of such Series of Securities, registered
as such, at the close of business on the relevant record date for the payment
of such installment of interest and Additional Amounts.
Notice of redemption shall be deemed to be given when mailed or first
published, as the case may be, whether or not the Holder receives the notice.
In any event, failure to give such notice, or any defect therein, shall not
affect the validity of the proceedings for the redemption of the Securities.
Section 1.24 Deposit of Redemption Price.
On or prior to the Redemption Date, the Company shall irrevocably
deposit with the Trustee or with the Paying Agent (or if the Company or a
Subsidiary of the Company is acting as the Paying Agent, set aside, segregate
and hold in trust, as provided herein) in immediately available funds money
sufficient to pay the Redemption Price of and accrued and unpaid interest, if
any, on all Securities to be redeemed on that date.
If the Company complies with the preceding paragraph, interest on the
Securities to be redeemed will cease to accrue on the applicable Redemption
Date, whether or not such Securities are presented for payment. If any
Security called for redemption shall not be so paid upon surrender for
redemption because of the failure of the Company to comply with the preceding
paragraph, interest will be paid on the unpaid principal, from the Redemption
Date until such principal is paid,
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and, to the extent lawful, on any interest not paid on such unpaid principal,
in each case at the rate provided in the Securities for the applicable Series.
If any Security by its terms permits any sinking fund payment
obligation to be satisfied by delivering and crediting Securities, the Company
shall deliver such Securities to the Trustee for crediting against such payment
obligation in accordance with the terms of such Securities and this Indenture.
Section 1.25 Securities Redeemed in Part.
Upon surrender of a Security that is redeemed in part, the Company
shall issue and the Trustee shall authenticate for the Holder at the expense of
the Company a new Security of the same Series equal in principal amount to the
unredeemed portion of the Security surrendered.
If a Security in global form is surrendered upon redemption in part,
the Company shall execute, and the Trustee shall authenticate and deliver to
the Depository for such Security, upon receipt of a Company Order to the
Trustee with respect thereto, without service charge, a new Security in global
form in a denomination equal to and in exchange for the unredeemed portion of
the principal of the Security in global form so surrendered.
ARTICLE IV.
COVENANTS
Section 1.26 Payment of Principal and Interest.
The Company will punctually pay the principal of, interest and
Additional Amounts, if any, on the Securities on the dates and in the manner
provided in the Securities, any coupons appertaining thereto and this
Indenture. Principal, interest and any Additional Amounts shall be considered
paid on the date due if the Paying Agent (other than the Company or any of its
Subsidiaries) holds on that date money sufficient to pay all principal,
interest and any Additional Amounts then due.
Any interest due on and any Additional Amounts payable in respect of
Bearer Securities on or before their Maturity, in respect of the principal of
such a Security, shall be payable only upon presentation and surrender of those
coupons evidencing such interest installments as have become due.
The Company shall pay interest on overdue principal and, to the extent
lawful, interest on overdue installments of interest or Additional Amounts, if
any, at the rate borne by such Securities.
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In the event a Bearer Security of any Series is surrendered or
exchanged for a Registered Security of such Series after the close of business
(at an office or agency in a place of payment for such Series) on any record
date established to determine the Person to whom interest or any Additional
Amounts are payable on the next following interest payment date therefor and
before the opening of business (at such office or agency) on such subsequent
interest payment date, such Bearer Security shall be surrendered without the
coupon relating to such subsequent interest payment date, and interest will not
be payable on such subsequent interest payment date in respect of the
Registered Security issued in exchange of such Bearer Security, but will be
payable only to the Holder of such coupon when due in accordance with the
provisions of this Indenture.
Section 1.27 SEC Reports.
The Company shall deliver to the Trustee within 15 days after it files
them with the SEC copies of the annual reports and of the information,
documents, and other reports (or copies of such portions of any of the
foregoing as the SEC may by rules and regulations prescribe) which the Company
is required to file with the SEC pursuant to Section 13 or 15(d) of the
Exchange Act. The Company also shall comply with the other provisions of TIA
Section 314(a).
Section 1.28 Compliance Certificate.
The Company shall deliver to the Trustee, within 90 days after the end
of each fiscal year of the Company, an Officers' Certificate stating that a
review of the activities of the Company and its Subsidiaries during the
preceding fiscal year has been made under the supervision of the signing
Officers with a view to determining whether the Company has kept, observed,
performed and fulfilled its obligations under this Indenture, and further
stating, as to each such Officer signing such certificate, that to the best of
his knowledge the Company has kept, observed, performed and fulfilled each and
every covenant contained in this Indenture and is not in default in the
performance or observance of any of the terms, provisions and conditions hereof
(or, if a Default or Event of Default shall have occurred, describing all such
Defaults or Events of Default of which he may have knowledge).
The Company will, so long as any of the Securities are outstanding,
deliver to the Trustee, forthwith upon becoming aware of any Default or Event
of Default, an Officers' Certificate specifying such Default or Event of
Default and what action the Company is taking or proposes to take with respect
thereto.
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Section 1.29 Stay, Extension and Usury Laws.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay, extension or usury law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture or the Securities; and the Company (to the
extent it may lawfully do so) hereby expressly waives all benefit or advantage
of any such law and covenants that it will not, by resort to any such law,
hinder, delay or impede the execution of any power herein granted to the
Trustee, but will suffer and permit the execution of every such power as though
no such law has been enacted.
Section 1.30 Corporate Existence.
Subject to Article V, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence and the corporate, partnership or other existence of each Significant
Subsidiary in accordance with the respective organizational documents of each
Significant Subsidiary and the rights (charter and statutory), licenses and
franchises of the Company and its Significant Subsidiaries; provided, however,
that the Company shall not be required to preserve any such right, license or
franchise, or the corporate, partnership or other existence of any Significant
Subsidiary, if the Board of Directors shall determine that the preservation
thereof is no longer desirable in the conduct of the business of the Company
and its Subsidiaries taken as a whole and that the loss thereof is not adverse
in any material respect to the Holders.
Section 1.31 Taxes.
The Company shall, and shall cause each of its Significant Subsidiaries
to, pay prior to delinquency all taxes, assessments and governmental levies,
except as contested in good faith and by appropriate proceedings.
Section 1.32 Limitation on Secured Debt.
So long as any of the Securities remain Outstanding, the Company will
not, nor will it permit its Subsidiaries to, create or incur any Secured Debt
without in any such case effectively providing concurrently with the creation
or incurrence of any such Secured Debt that the Securities then Outstanding
(together with, if the Company shall so determine, any other Debt of or
guaranteed by the Company ranking equally with the Securities and then existing
or thereafter created) shall be secured equally and ratably with (or, at the
option of the Company, prior to) such Secured Debt, unless immediately after
the incurrence of such Secured Debt (and after giving effect to the application
of the proceeds, if any, therefrom), the aggregate principal amount of all such
Secured Debt, together with the aggregate amount of Capitalized Rent in respect
of Sale and Leaseback Transactions (other than Sale and Leaseback Transactions
described in clauses (a) to (e), inclusive,
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of Section 4.8), would not exceed 10% of Consolidated Capitalization; provided,
however, that the foregoing restrictions shall not apply to, and there shall be
excluded in computing Secured Debt for the purpose of such restrictions,
Secured Debt secured by:
(1) Liens on property existing at the time of acquisition of such property
by the Company or a Subsidiary, or Liens to secure the payment of all or any
part of the purchase price of property acquired or constructed by the Company
or a Subsidiary (including any improvements to existing property) created at
the time of or within 120 days following the acquisition or construction of
such property by the Company, or Liens to secure any Secured Debt incurred
by the Company or a Subsidiary prior to, at the time of or within 120 days
following the acquisition of such property which Secured Debt is incurred for
the purpose of financing all or any part of purchase price thereof; provided,
however, that in the case of any such acquisition, the Lien shall not apply
to any property theretofore owned by the Company or a Subsidiary (including
property transferred by the Company to any Subsidiary in contemplation of or
in connection with the creation of such Lien) or to any property of the
Company or a Subsidiary other than the property so acquired (other than, in
the case of construction or improvement, any theretofore unimproved real
property or portions thereof on which the property so constructed, or the
improvement, is located);
(2) Liens on property of a Person (i) existing at the time such Person is
merged into or consolidated with the Company or a Subsidiary or at the time
of a sale, lease or other disposition of the properties of a Person as an
entirety or substantially as an entirety to the Company or a Subsidiary, (ii)
resulting from such merger, consolidation, sale, lease or disposition by
virtue of any Lien on property granted by the Company or a Subsidiary prior
to such merger, consolidation, sale, lease or disposition (and not in
contemplation thereof or in connection therewith) which applies to
after-acquired property of the Company or a Subsidiary or (iii) resulting
from such merger, consolidation, sale, lease or disposition pursuant to a
Lien or contractual provision granted or entered into by such Person prior to
such merger, consolidation, sale, lease or disposition (and not at the
request of the Company); provided, however, that any such Lien referred to
in clause (i) shall not apply to any property
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of the Company or a Subsidiary other than the property subject thereto at the
time such Person or properties were acquired and any such Lien referred to
in clause (ii) or (iii) shall not apply to any property of the Company or a
Subsidiary other than the property so acquired;
(3) Liens existing on the date of this Indenture;
(4) Liens in favor of a government or governmental entity to secure
partial progress, advance or other payments, or other obligations, pursuant
to any contract or statute or to secure any Debt incurred for the purpose of
financing all or any part of the cost of acquiring, constructing or improving
the property subject to such Liens (including, without limitation, Liens
incurred in connection with pollution control, industrial revenue, private
activity bond or similar financing);
(5) Liens arising by reason of deposits with, or the giving of any form
of security to, any governmental agency or any body created or approved by
law or governmental regulation, which Lien is required by law or governmental
regulation as a condition to the transaction of any business or the exercise
of any privilege, franchise, license or permit;
(6) Liens for taxes, assessments or governmental charges or levies not yet
delinquent or governmental charges or levies already delinquent, the validity
of which charge or levy is being contested in good faith and for which any
reserves required in accordance with generally accepted accounting principles
have been established;
(7) Liens (including judgment liens) arising in connection with legal
proceedings so long as such proceedings are being contested in good faith
and, in the case of judgment liens, execution thereon is stayed and for which
any reserves required in accordance with generally accepted accounting
principles have been established; and
(8) any extension, renewal or replacement (or successive extensions,
renewals or replacements) in whole or in part of any Lien referred to in the
foregoing clauses (a) to (g), inclusive; provided, however, that the
principal amount of Secured Debt secured thereby shall not exceed the
principal amount of Secured Debt secured thereby at the time of such
extension, renewal or replacement, and that such extension, renewal or
replacement shall be limited to all or a part of the property which secured
the Lien so extended, renewed or replaced (plus improvements to such
property).
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Section 1.33 Limitation on Sale and Leaseback.
So long as any of the Securities remain Outstanding, the Company will not,
nor will it permit its Subsidiaries to, enter into any Sale and Leaseback
Transaction unless immediately thereafter (and after giving effect to the
application of the proceeds, if any, therefrom), the aggregate amount of
Capitalized Rent in respect of Sale and Leaseback Transactions, together with
the aggregate principal amount of all Secured Debt (other than Secured Debt
described in clauses (a) to (h), inclusive, of Section 4.7), would not exceed
10% of Consolidated Capitalization; provided, however, that the foregoing
restrictions shall not apply to, and there shall be excluded in computing the
aggregate amount of Capitalized Rent for the purpose of such restrictions, the
following Sale and Leaseback Transactions:
(1) any Sale and Leaseback Transaction entered into to finance the
payment of all or any part of the purchase price of property acquired or
constructed by the Company or a Subsidiary (including any improvements to
existing property) or entered into prior to, at the time of or within 120
days after the acquisition or construction of such property, which Sale and
Leaseback Transaction is entered into for the purpose of financing all or
part of the purchase or construction price thereof; provided, however, that
in the case of any such acquisition, such Sale and Leaseback Transaction
shall not involve any property transferred by the Company to a Subsidiary in
contemplation of or in connection with such Sale and Leaseback Transaction or
involve any property of the Company or a Subsidiary other than the property
so acquired (other than, in the case of construction or improvement, any
theretofore unimproved real property or portion thereof on which the
property so constructed, or the improvement, is located);
(2) any Sale and Leaseback Transaction involving property of a Person
existing at the time such Person is merged into or consolidated with the
Company or a Subsidiary or at the time of a sale, lease or other disposition
of the properties of a Person as an entirety or substantially as an entirety
to the Company or a Subsidiary.
(3) any Sale and Leaseback Transaction in which the lessor is a government
or governmental entity and which Sale and Leaseback Transaction is entered
into to secure partial progress, advance or other payments, or other
obligations, pursuant to any contract or statute or to secure any Debt
incurred for the purpose of financing all or any part of the cost of
constructing or improving the property subject to such Sale and Leaseback
Transaction (including, without limitation, Sale and Leaseback Transactions
incurred in connection with pollution control, industrial revenue, private
activity bond or similar financing);
(4) any Sale and Leaseback Transaction involving the extension, renewal or
replacement (or successive extensions, renewals or replacements) in whole or
in part of a lease pursuant to a Sale and Leaseback Transaction referred to
in the foregoing clauses (a) to (c), inclusive; provided, however, that such
lease extension, renewal or replacement shall
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be limited to all or any part of the same property leased under the lease so
extended, renewed or replaced (plus improvements to such property); and
(5) any Sale and Leaseback Transaction the net proceeds of which are at
least equal to the fair value (as determined by the Board of Directors) of
the property leased pursuant to such Sale and Leaseback Transaction, so long
as within 120 days of the effective date of such Sale and Leaseback
Transaction, the Company or the Subsidiary applies (or irrevocably commits to
an escrow account for the purpose or purposes hereinafter mentioned) as
amount equal to the net proceeds of such Sale and Leaseback Transaction to
either (x) the purchase of other property having a fair value at least equal
to the fair value of the property leased in such Sale and Leaseback
Transaction and having a similar utility and function, or (y) the retirement
or repayment (other than any mandatory retirement or repayment at maturity)
of (i) Securities, (ii) other Funded Debt of the Company which ranks prior to
or on a parity with the Securities or (iii) indebtedness of any Subsidiary
maturing by its terms more than one year from its date of issuance
(notwithstanding that any portion of such indebtedness is included in current
liabilities) or preferred stock of any Subsidiary (other than any such
indebtedness owed to or preferred stock owned by the Company or any
Subsidiary); provided, however, that in lieu of applying an amount equivalent
to all or any part of such net proceeds to such retirement or repayment (or
committing such an amount to an escrow account for such purpose), the Company
or a Subsidiary may deliver to the Trustee Outstanding Securities and thereby
reduce the amount to be applied pursuant to (y) of this clause (e) by an
amount equivalent to the aggregate principal amount of the Securities so
delivered.
Section 1.34 Offices For Payments, Etc.
So long as any Registered Securities are outstanding hereunder, the
Company will maintain in the Borough of Manhattan, The City of New York, an
office or agency where the Registered Securities of each Series may be
presented for payment, exchange or transfer, as in this Indenture provided and
where notices and demands to or upon the Company in respect of the Securities
of any Series, the Coupons appertaining thereto or this Indenture may be
served.
In the event that the Company shall issue any Bearer Securities, it will
maintain one or more offices or agencies in a city or cities located outside
the United States (including any city in which such an office or agency is
required to be maintained under the rules of any stock exchange on which the
Securities of any Series are listed) where the Bearer Securities, if any, of
each Series and Coupons, if any, appertaining thereto may be presented for
payment. No payment on any Bearer Security or Coupon will be made upon
presentation of such Bearer Security or Coupon at an office or agency of the
Company within the United States, nor will any payment be made by transfer to
an account in, or by mail to an address in, the United States unless pursuant
to applicable United States laws and regulations then in effect such payment
can be made without adverse tax consequences to the Company. Notwithstanding
the foregoing, payments in Dollars on Bearer Securities of any Series and
Coupons appertaining thereto which are payable in Dollars may be made at an
office or
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agency of the Company maintained in the Borough of Manhattan, The
City of New York, if such payment in Dollars at each office or agency
maintained by the Company outside the United States for payment on such Bearer
Securities is illegal or effectively precluded by exchange controls or other
similar restrictions.
The Company shall give to the Trustee written notice of the location of
each such office or agency and of any change of location thereof. In case the
Company shall fail to maintain any office or agency required by this Section
4.9 to be located in the Borough of Manhattan, The City of New York, or shall
fail to give such notice of the location or of any change in the location of
any of the above offices or agencies, presentations and demands may be made and
notices may be served at the Corporate Trust Office of the Trustee.
The Company may from time to time designate one or more additional offices
or agencies where the Securities of any Series and any Coupons appertaining
thereto may be presented for payment, where the Securities of such Series may
be presented for exchange as in this Indenture provided and where the
Registered Securities of such Series may be presented for registration of
transfer as in this Indenture provided, and the Company may from time to time
rescind any such designation; provided, however, that no such designation or
rescission shall in any manner relieve the Company of its obligation to
maintain any office or agency required to be provided for in this Section. The
Company will give to the Trustee prompt written notice of any such designation
or rescission thereof.
Section 1.35 Appointment To Fill A Vacancy In Office Of Trustee.
The Company, whenever necessary to avoid or fill a vacancy in the office
of Trustee, will appoint, in the manner provided in Section 7.8, a Trustee, so
that there shall at all times be a Trustee with respect to each Series of
Securities hereunder.
Section 1.36 Paying Agents.
In the event the Company appoints a paying agent other than the Trustee
with respect to the Securities of any Series, it shall cause such paying agent
to execute and deliver to the Trustee an instrument in which such agent shall
agree with the Trustee, subject to the provisions of this Section:
(1) that it will hold all sums received by it as such agent for the
payment of the principal of or interest on the Securities of such Series
(whether such sums have been paid to it by the Company or by any other
obligor on the Securities of such Series) in trust for the benefit of the
Holders of the Securities of such Series and the Coupons appertaining
thereto, if any, or of the Trustee, and
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(2) that it will give the Trustee notice of any failure by the
Company (or by any other obligor on the Securities of such Series) to
make any payment of the principal of or interest on the Securities of
such Series when the same shall be due and payable, and
(3) that at any time during the continuance of any such failure
referred to in the foregoing paragraph (b), it will upon written request of
the Trustee forthwith pay to the Trustee all sums so held in trust by such
agent.
The Company shall, on or prior to the applicable Stated Maturities with
respect to principal of or interest on the Securities of any Series, deposit
with the paying agent a sum sufficient to pay such principal or interest so
maturing, and (unless such paying agent is the Trustee) the Company will
promptly notify the Trustee of any failure to take such action.
If the Company acts as its own paying agent with respect to the Securities
of any Series, it shall, on or before the applicable Stated Maturities with
respect to principal of or interest on the Securities of such Series, set
aside, segregate and hold in trust for the benefit of the Holders of the
Securities of such Series or the Coupons, if any, appertaining thereto, a sum
sufficient to pay such principal or interest so becoming due. The Company
shall promptly notify the Trustee of any failure to take such action.
Nothing in this Section 4.9 shall prevent the Company from satisfying,
discharging or defeasing its obligations hereunder pursuant to Article VIII.
ARTICLE V.
SUCCESSORS
Section 1.37 When Company May Merge, Etc.
The Company shall not consolidate with or merge into, or convey, transfer
or lease its properties and assets substantially as an entirety to any Person
(a "successor person"), unless:
(i) the successor person (if any) is a corporation, partnership or
trust organized and validly existing under the laws of the U.S., any State
or the District of Columbia and any successor person expressly assumes the
Company's obligations on the Securities and under this Indenture;
(ii) immediately after giving effect to the transaction, no Event of
Default, and no event which, after notice or lapse of time or both, would
become an Event of Default, shall have occurred and be continuing;
(iii) if properties or assets of the Company become subject to a
mortgage not otherwise permitted by this Indenture, the Company or such
successor person, as the case
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may be, takes such steps as shall be necessary effectively to secure the
Securities equally and ratably with (or prior to) all indebtedness secured
thereby; and
(iv) the Company has delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel stating compliance with these provisions.
Section 1.38 Successor Corporation Substituted.
Upon any consolidation or merger, or any sale, lease, conveyance or other
disposition of all or substantially all of the assets of the Company in
accordance with Section 5.1, the successor corporation formed by such
consolidation or into or with which the Company is merged or to which such
sale, lease, conveyance or other disposition is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under
this Indenture with the same effect as if such successor person has been named
as the Company herein; provided, however, that the predecessor Company in the
case of a sale, lease, conveyance or other disposition shall not be released
from the obligation to pay the principal of and interest, if any, on the
Securities.
ARTICLE VI.
DEFAULTS AND REMEDIES
Section 1.39 Events of Default.
"Event of Default," wherever used herein with respect to Securities of any
Series, means any one of the following events, unless in the establishing Board
Resolution, supplemental indenture or Officers' Certificate, it is provided
that such Series shall not have the benefit of said Event of Default:
(1) default in the payment of any interest on any Security of that
Series when it becomes due and payable, and continuance of such default for a
period of 30 days (unless the entire amount of such payment is deposited by
the Company with the Trustee or with a Paying Agent prior to the expiration
of such period of 30 days); or
(2) default in the payment of the principal of, or premium, if any, on,
any Security of that Series at its Maturity; or
(3) default in the deposit of any sinking fund payment, when and as due in
respect of any Security of that Series; or
(4) default in the performance or breach of any covenant or warranty of
the Company in this Indenture (other than a covenant or warranty that has
been included in this Indenture solely for the benefit of Series of
Securities other than that Series), which default continues uncured for a
period of 60 days after there has been given, by registered or certified
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mail, to the Company by the Trustee or to the Company and the Trustee by
the Holders of not less than 25% in principal amount of the outstanding
Securities of that Series a written notice specifying such default or
breach and requiring it to be remedied and stating that such notice is a
"Notice of Default" hereunder; or
(5) (i) a default occurs under any instrument (including this
Indenture) under which there is at the time outstanding, or by which
there may be secured or evidenced, any indebtedness of the Company for
money borrowed by the Company (other than non-recourse indebtedness)
which results in acceleration (whether by declaration or automatically)
of, or the non-payment at maturity (after giving effect to any applicable
grace period) of, such indebtedness in an aggregate amount exceeding
$15,000,000 or, if greater, 2% of Consolidated Capitalization, in which
case the Company shall immediately give notice to the Trustee of such
acceleration or non-payment and (ii) there shall have been a failure to
cure such default or to discharge all such defaulted indebtedness within
ten days after notice thereof to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 25% in principal
amount of the Securities then Outstanding (excluding, if such defaulted
indebtedness includes any Series of Securities, such Series of
Securities) and such acceleration shall not be rescinded or annulled;
provided, however, that it shall not constitute an Event of Default
hereunder as long as the Company is contesting any such default or
acceleration in good faith and by appropriate proceedings; or
(6) the Company or any of its Significant Subsidiaries pursuant to
or within the meaning of any Bankruptcy Law:
(1) commences a voluntary case,
(2) consents to the entry of an order for relief against it in
an involuntary case,
(3) consents to the appointment of a Custodian of it or for
all or substantially all of its property,
(4) makes a general assignment for the benefit of its creditors,
(5) generally is unable to pay its debts as the same become due,
(6) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(a) is for relief against the Company or any of its
Significant Subsidiaries in an involuntary case,
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(b) appoints a Custodian of the Company or any of its
Significant Subsidiaries or for all or substantially
all of its property, or
(c) orders the liquidation of the Company or any of its
Significant Subsidiaries,
and the order or decree remains unstayed and in effect for 60 days; or
(7) any other Event of Default provided with respect to Securities
of that Series, which is specified in a Board Resolution, a supplemental
indenture hereto or an Officers' Certificate, in accordance with Section
2.2.20.
The term "Bankruptcy Law" means Title 11, U.S. Code or any similar
Federal or State law for the relief of debtors. The term "Custodian" means any
receiver, trustee, assignee, liquidator or similar official under any
Bankruptcy Law.
Section 1.40 Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Securities of any Series at the
time outstanding occurs and is continuing (other than an Event of Default
referred to in Section 6.1(f) or (g)) then in every such case the Trustee or
the Holders of not less than 25% in principal amount of the outstanding
Securities of that Series may declare the principal amount (or, if any
Securities of that Series are Discount Securities, such portion of the
principal amount as may be specified in the terms of such Securities) of and
accrued and unpaid interest, if any, on all of the Securities of that Series to
be due and payable immediately, by a notice in writing to the Company (and to
the Trustee if given by Holders), and upon any such declaration such principal
amount (or specified amount) and accrued and unpaid interest, if any, shall
become immediately due and payable. If an Event of Default specified in
Section 6.1(f) or (g) shall occur, the principal amount (or specified amount)
of and accrued and unpaid interest, if any, on all outstanding Securities shall
ipso facto become and be immediately due and payable without any declaration or
other act on the part of the Trustee or any Holder.
At any time after such a declaration of acceleration with respect to any
Series has been made and before a judgment or decree for payment of the money
due has been obtained by the Trustee as hereinafter in this Article provided,
the Holders of 25% in principal amount of the outstanding Securities of that
Series, by written notice to the Company and the Trustee, may rescind and annul
such declaration and its consequences if:
(1) the Company has paid or deposited with the Trustee a sum sufficient
to pay
(1) all overdue interest, if any, on all Securities of that Series,
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(2) the principal of any Securities of that Series which have
become due otherwise than by such declaration of acceleration and interest
thereon at the rate or rates prescribed therefor in such Securities,
(3) to the extent that payment of such interest is lawful, interest
upon any overdue principal and overdue interest at the rate or rates
prescribed therefor in such Securities, and
(4) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel;
and
(2) all Events of Default with respect to Securities of that Series,
other than the non-payment of the principal of Securities of that Series
which have become due solely by such declaration of acceleration, have been
cured or waived as provided in Section 6.13.
No such rescission shall affect any subsequent Default or impair any right
consequent thereon.
Section 1.41 Collection of Indebtedness and Suits for Enforcement by
Trustee.
The Company covenants that if
(1) default is made in the payment of any interest on any Security when
such interest becomes due and payable and such default continues for a period
of 30 days, or
(2) default is made in the payment of principal of any Security at the
Maturity thereof, or
(3) default is made in the deposit of any sinking fund payment when and as
due by the terms of a Security,
then, the Company will, upon demand of the Trustee, pay to it, for the benefit
of the Holders of such Securities, the whole amount then due and payable on
such Securities for principal and interest and, to the extent that payment of
such interest shall be legally enforceable, interest on any overdue principal
or any overdue interest, at the rate or rates prescribed therefor in such
Securities, and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
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If the Company fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon such Securities and collect the
moneys adjudged or deemed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon such Securities, wherever
situated.
If an Event of Default with respect to any Securities of any Series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such Series
by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
Section 1.42 Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of overdue principal or interest) shall be entitled
and empowered, by intervention in such proceeding or otherwise,
(1) to file and prove a claim for the whole amount of principal and
interest owing and unpaid in respect of the Securities and to file such other
papers or documents as may be necessary or advisable in order to have the
claims of the Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel)
and of the Holders allowed in such judicial proceeding, and
(2) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same, and any custodian,
receiver, assignee, trustee, liquidator, sequestrator or other similar
official in any such judicial proceeding is hereby authorized by each Holder
to make such payments to the Trustee and, in the event that the Trustee shall
consent to the making of such payments directly to the Holders, to pay to the
Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any
other amounts due the Trustee under Section 7.7.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
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Section 1.43 Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities may
be prosecuted and enforced by the Trustee without the possession of any of the
Securities or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Trustee shall be brought in its own name
as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
Section 1.44 Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal or interest,
upon presentation of the Securities and the notation thereon of the payment if
only partially paid and upon surrender thereof if fully paid:
First: To the payment of all amounts due the Trustee under Section 7.7; and
Second: To the payment of the amounts then due and unpaid for principal of
and interest on the Securities in respect of which or for the benefit of
which such money has been collected, ratably, without preference or priority
of any kind (subject to any subordination provisions applicable to the
Securities of any Series), according to the amounts due and payable on such
Securities for principal and interest, respectively; and
Third: To the Company.
Section 1.45 Limitation on Suits.
No Holder of any Security of any Series shall have any right to institute
any proceeding, judicial or otherwise, with respect to this Indenture, or for
the appointment of a receiver or trustee, or for any other remedy hereunder,
unless
(1) such Holder has previously given written notice to the Trustee of a
continuing Event of Default with respect to the Securities of that Series;
(2) the Holders of not less than 25% in principal amount of the
outstanding Securities of that Series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default
in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
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(4) the Trustee for 60 days after its receipt of such notice, request and
offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period by the Holders of 25% in principal
amount of the outstanding Securities of that Series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all such
Holders.
Section 1.46 Unconditional Right of Holders to Receive Principal and
Interest.
Notwithstanding any other provision in this Indenture, the Holder of any
Security shall have the right, which is absolute and unconditional, to receive
payment of the principal of, premium, if any, and interest, if any, on, such
Security on the Stated Maturity or Stated Maturities expressed in such Security
(or, in the case of redemption, on the redemption date) and to institute suit
for the enforcement of any such payment, and such rights shall not be impaired
without the consent of such Holder.
Section 1.47 Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder, then and in every such case, subject to any determination in
such proceeding, the Company, the Trustee and the Holders shall be restored
severally and respectively to their former positions hereunder and thereafter
all rights and remedies of the Trustee and the Holders shall continue as though
no such proceeding had been instituted.
Section 1.48 Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities in Section 2.8, no right or
remedy herein conferred upon or reserved to the Trustee or to the Holders is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at
law or in equity or otherwise. The assertion or employment of any right or
remedy hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
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Section 1.49 Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Securities to
exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default or
an acquiescence therein. Every right and remedy given by this Article or by
law to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case
may be.
Section 1.50 Control by Holders.
The Holders of 25% in principal amount of the outstanding Securities of
any Series shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, with respect to the
Securities of such Series, provided that
(1) such direction shall not be in conflict with any rule of law or with
this Indenture,
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction, and
(3) subject to the provisions of Section 6.1, the Trustee shall have the
right to decline to follow any such direction if the Trustee in good faith
shall, by a Responsible Officer of the Trustee, determine that the proceeding
so directed would involve the Trustee in personal liability.
Section 1.51 Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
outstanding Securities of any Series may on behalf of the Holders of all the
Securities of such Series waive any past Default hereunder with respect to such
Series and its consequences, except a Default in the payment of the principal
of, premium, if any, or interest, if any, on, any Security of such Series or,
if applicable, in respect of a covenant or provision which cannot be modified
or amended without the consent of the Holder of each outstanding Security of
such Series affected. Upon any such waiver, such Default shall cease to exist,
and any Event of Default arising therefrom shall be deemed to have been cured,
for every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other Default or impair any right consequent thereon.
Section 1.52 Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security by
his acceptance thereof shall be deemed to have agreed, that any court may in
its discretion require, in any suit for the enforcement of any right or remedy
under this Indenture, or in any suit against the Trustee for
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any action taken, suffered or omitted by it as Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of such suit, and that
such court may in its discretion assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in such suit, having due regard to
the merits and good faith of the claims or defenses made by such party
litigant; but the provisions of this Section shall not apply to any suit
instituted by the Company, to any suit instituted by the Trustee, to any suit
instituted by any Holder, or group of Holders, holding in the aggregate more
than 10% in principal amount of the outstanding Securities of any Series, or to
any suit instituted by any Holder for the enforcement of the payment of the
principal of or interest on any Security on or after the Stated Maturity or
Stated Maturities expressed in such Security (or, in the case of redemption,
on the redemption date).
ARTICLE VII.
TRUSTEE
Section 1.53 Duties of Trustee.
(1) If an Event of Default has occurred and is continuing, the Trustee
shall exercise the rights and powers vested in it by this Indenture and use
the same degree of care and skill in their exercise as a prudent person would
exercise or use under the circumstances in the conduct of his or her own
affairs.
(2) Except during the continuance of an Event of Default:
(1) The Trustee need perform only those duties that are specifically
set forth in this Indenture and no others.
(2) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon Officers' Certificates or Opinions
of Counsel furnished to the Trustee and conforming to the requirements of
this Indenture; however, in the case of any such Officers' Certificates or
Opinions of Counsel which by any provisions hereof are specifically
required to be furnished to the Trustee, the Trustee shall examine such
Officers' Certificates and Opinions of Counsel to determine whether or
not they conform to the requirements of this Indenture.
(3) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(1) This paragraph does not limit the effect of paragraph (b)
of this Section.
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(2) The Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it is proved
that the Trustee was negligent in ascertaining the pertinent facts.
(3) The Trustee shall not be liable with respect to any action
taken, suffered or omitted to be taken by it with respect to
Securities of any Series in good faith in accordance with the
direction of the Holders of a majority in principal amount of the
outstanding Securities of such Series relating to the time, method
and place of conducting any proceeding for any remedy available to
the Trustee, or exercising any trust or power conferred upon the
Trustee, under this Indenture with respect to the Securities of
such Series.
(4) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraph (a), (b) and (c) of this Section.
(5) The Trustee may refuse to perform any duty or exercise any right
or power unless it receives indemnity satisfactory to it against any
loss, liability or expense.
(6) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the
Company. Money held in trust by the Trustee need not be segregated from
other funds except to the extent required by law.
(7) No provision of this Indenture shall require the Trustee to risk
its own funds or otherwise incur any financial liability in the
performance of any of its duties, or in the exercise of any of its rights
or powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk is not
reasonably assured to it.
(8) The Paying Agent, the Registrar and any authenticating agent
shall be entitled to the protections, immunities and standard of care as
are set forth in paragraphs (a), (b) and (c) of this Section with respect
to the Trustee.
Section 1.54 Rights of Trustee.
(1) The Trustee may rely on and shall be protected in acting or
refraining from acting upon any document believed by it to be genuine and
to have been signed or presented by the proper person. The Trustee need
not investigate any fact or matter stated in the document.
(2) Before the Trustee acts or refrains from acting, it may require
an Officers' Certificate or an Opinion of Counsel. The Trustee shall not
be liable for any action it takes or omits to take in good faith in
reliance on such Officers' Certificate or Opinion of Counsel.
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(3) The Trustee may act through agents and shall not be responsible
for the misconduct or negligence of any agent appointed with due care.
No Depository shall be deemed an agent of the Trustee and the Trustee
shall not be responsible for any act or omission by any Depository.
(4) The Trustee shall not be liable for any action it takes or omits
to take in good faith which it believes to be authorized or within its
rights or powers.
(5) The Trustee may consult with counsel and the advice of such
counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon.
(6) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or
direction of any of the Holders of Securities unless such Holders shall
have offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred by it in
compliance with such request or direction.
Section 1.55 Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Securities and may otherwise deal with the Company or an
Affiliate with the same rights it would have if it were not Trustee. Any Agent
may do the same with like rights. The Trustee is also subject to Sections 7.10
and 7.11.
Section 1.56 Trustee's Disclaimer.
The Trustee makes no representation as to the validity or adequacy
of this Indenture or the Securities, it shall not be accountable for the
Company's use of the proceeds from the Securities, and it shall not be
responsible for any statement in the Securities other than its authentication.
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Section 1.57 Notice of Defaults.
If a Default or Event of Default occurs and is continuing with respect to
the Securities of any Series and if it is known to a Responsible Officer of the
Trustee, the Trustee shall mail to each Securityholder of the Securities of
that Series and, if any Bearer Securities are outstanding, publish on one
occasion in an Authorized Newspaper, notice of a Default or Event of Default
within 90 days after it occurs or, if later, after a Responsible Officer of the
Trustee has knowledge of such Default or Event of Default. Except in the case
of a Default or Event of Default in payment of principal of or interest on any
Security of any Series, the Trustee may withhold the notice if and so long as
its corporate trust committee or a committee of its Responsible Officers in
good faith determines that withholding the notice is in the interests of
Securityholders of that Series.
Section 1.58 Reports by Trustee to Holders.
Within 60 days after May 15 in each year, the Trustee shall transmit by
mail to all Securityholders, as their names and addresses appear on the
register kept by the Registrar and, if any Bearer Securities are outstanding,
publish once in an Authorized Newspaper, a brief report dated as of such May
15, in accordance with, and to the extent required under, TIA Section 313.
A copy of each report at the time of its mailing to Securityholders of any
Series shall be filed with the SEC and each stock exchange on which the
Securities of that Series are listed. The Company shall promptly notify the
Trustee when Securities of any Series are listed on any stock exchange.
Section 1.59 Compensation and Indemnity.
The Company shall pay to the Trustee from time to time reasonable
compensation for its services. The Trustee's compensation shall not be limited
by any law on compensation of a trustee of an express trust. The Company shall
reimburse the Trustee upon request for all reasonable out-of-pocket expenses
incurred by it. Such expenses shall include the reasonable compensation and
expenses of the Trustee's agents and counsel.
Except as set forth in the next paragraph, the Company shall indemnify the
Trustee against any loss, liability or expense (including the cost of defending
itself) incurred by it in the performance of its duties under this Indenture as
Trustee or Agent. The Trustee shall notify the Company promptly of any claim
for which it may seek indemnity. The Company shall defend the claim and the
Trustee shall cooperate in the defense. The Trustee may have separate counsel
and the Company shall pay the reasonable fees and expenses of such counsel.
The Company need not pay for any settlement made without its consent, which
consent shall not be unreasonably withheld. This indemnification shall apply
to officers, directors, employees, shareholders and agents of the Trustee.
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The Company need not reimburse any expense or indemnify against any loss
or liability incurred by the Trustee or by any officer, director, employee,
shareholder or agent of the Trustee through negligence or bad faith.
To secure the Company's payment obligations in this Section, the Trustee
shall have a lien prior to the Securities of any Series on all money or
property held or collected by the Trustee, except that held in trust to pay
principal and interest on particular Securities of that Series.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.1(f) or (g) occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
Section 1.60 Replacement of Trustee.
A resignation or removal of the Trustee and appointment of a successor
Trustee shall become effective only upon the successor Trustee's acceptance of
appointment as provided in this Section.
The Trustee may resign with respect to the Securities of one or more
Series by so notifying the Company. The Holders of a majority in principal
amount of the Securities of any Series may remove the Trustee with respect to
that Series by so notifying the Trustee and the Company. The Company may
remove the Trustee with respect to Securities of one or more Series if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged a bankrupt or an insolvent or an order for
relief is entered with respect to the Trustee under any Bankruptcy Law;
(3) a Custodian or public officer takes charge of the Trustee or its
property; or
(4) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the office
of Trustee for any reason, the Company shall promptly appoint a successor
Trustee. Within one year after the successor Trustee takes office, the Holders
of a majority in principal amount of the then outstanding Securities may
appoint a successor Trustee to replace the successor Trustee appointed by the
Company.
If a successor Trustee with respect to the Securities of any one or more
Series does not take office within 60 days after the retiring Trustee resigns
or is removed, the retiring Trustee, the Company or the Holders of at least 10%
in principal amount of the Securities of the applicable Series may petition any
court of competent jurisdiction for the appointment of a successor Trustee.
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If the Trustee with respect to the Securities of any one or more Series
fails to comply with Section 7.10, any Securityholder of the applicable Series
may petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its appointment
to the retiring Trustee and to the Company. Immediately after that, the
retiring Trustee shall transfer all property held by it as Trustee to the
successor Trustee subject to the lien provided for in Section 7.7, the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
with respect to each Series of Securities for which it is acting as Trustee
under this Indenture. A successor Trustee shall mail a notice of its
succession to each Securityholder of each such Series and, if any Bearer
Securities are outstanding, publish such notice on one occasion in an
Authorized Newspaper. Notwithstanding replacement of the Trustee pursuant to
this Section 7.8, the Company's obligations under Section 7.7 hereof shall
continue for the benefit of the retiring trustee with respect to expenses and
liabilities incurred by it prior to such replacement.
Section 1.61 Successor Trustee by Merger, etc.
If the Trustee consolidates with, merges or converts into, or transfers
all or substantially all of its corporate trust business to, another
corporation, the successor corporation without any further act shall be the
successor Trustee.
Section 1.62 Eligibility; Disqualification.
This Indenture shall always have a Trustee who satisfies the requirements
of TIA Section 310(a)(1), (2) and (5). The Trustee shall always have a
combined capital and surplus of at least $25,000,000 as set forth in its most
recent published annual report of condition. The Trustee shall comply with TIA
Section 310(b).
Section 1.63 Preferential Collection of Claims Against Company.
The Trustee is subject to TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated.
ARTICLE VIII.
SATISFACTION AND DISCHARGE; DEFEASANCE
Section 1.64 Satisfaction and Discharge of Indenture.
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This Indenture shall upon Company Order cease to be of further effect
(except as hereinafter provided in this Section 8.1), and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when
(1) either
(1) all Securities theretofore authenticated and delivered (other
than Securities that have been destroyed, lost or stolen and that have
been replaced or paid) have been delivered to the Trustee for
cancellation; or
(2) all such Securities not theretofore delivered to the Trustee for
cancellation
a. have become due and payable, or
b. will become due and payable at their Stated Maturity
within one year, or
c. are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the
giving of notice of redemption by the Trustee in the
name, and at the expense, of the Company, or
d. are deemed paid and discharged pursuant to Section
8.3, as applicable;
and the Company, in the case of (a), (b) or (c) above, has deposited or caused
to be deposited with the Trustee as trust funds in trust an amount sufficient
for the purpose of paying and discharging the entire indebtedness on such
Securities not theretofore delivered to the Trustee for cancellation, for
principal and interest to the date of such deposit (in the case of Securities
which have become due and payable on or prior to the date of such deposit) or
to the Stated Maturity or redemption date, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture
have been complied with.
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Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 7.7, and, if money
shall have been deposited with the Trustee pursuant to clause (a) of this
Section, the provisions of Sections 2.4, 2.7, 2.8, 8.1 8.2 and 8.5 shall
survive.
Section 1.65 Application of Trust Funds; Indemnification.
(1) Subject to the provisions of Section 8.5, all money deposited with the
Trustee pursuant to Section 8.1, all money and U.S. Government Obligations or
Foreign Government Obligations or Eligible Obligations deposited with the
Trustee pursuant to Section 8.3 or 8.4 and all money received by the Trustee
in respect of U.S. Government Obligations or Foreign Government Obligations
or Eligible Obligations deposited with the Trustee pursuant to Section 8.3 or
8.4, shall be held in trust and applied by it, in accordance with the
provisions of the Securities and this Indenture, to the payment, either
directly or through any Paying Agent (including the Company acting as its own
Paying Agent) as the Trustee may determine, to the persons entitled thereto,
of the principal and interest for whose payment such money has been deposited
with or received by the Trustee or to make mandatory sinking fund payments
or analogous payments as contemplated by Sections 8.3 or 8.4.
(2) The Company shall pay and shall indemnify the Trustee against any tax,
fee or other charge imposed on or assessed against U.S. Government
Obligations or Foreign Government Obligations or Eligible Obligations
deposited pursuant to Sections 8.3 or 8.4 or the interest and principal
received in respect of such obligations other than any payable by or on
behalf of Holders.
(3) The Trustee shall deliver or pay to the Company from time to time
upon Company Request any U.S. Government Obligations or Foreign Government
Obligations or Eligible Obligations or money held by it as provided in
Sections 8.3 or 8.4 which, in the opinion of a nationally recognized firm of
independent certified public accountants expressed in a written certification
thereof delivered to the Trustee, are then in excess of the amount thereof
which then would have been required to be deposited for the purpose for which
such U.S. Government Obligations or Foreign Government Obligations or
Eligible Obligations or money were deposited or received. This provision
shall not authorize the sale by the Trustee of any U.S. Government
Obligations or Foreign Government Obligations or Eligible Obligations held
under this Indenture.
Section 1.66 Legal Defeasance of Securities of any Series.
Unless this Section 8.3 is otherwise specified, pursuant to Section
2.2.20, to be inapplicable to Securities of any Series, the Company shall be
deemed to have paid and discharged the entire indebtedness on all the
outstanding Securities of such Series on the 91st day after the date of the
deposit referred to in subparagraph (d) hereof, and the provisions of this
Indenture, as it relates
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to such outstanding Securities of such Series, shall no longer be in effect
(and the Trustee, at the expense of the Company, shall, at Company Request,
execute proper instruments acknowledging the same), except as to:
(1) the rights of Holders of Securities of such Series to receive, from
the trust funds described in subparagraph (d) hereof, (i) payment of the
principal of and each installment of principal of and interest on the
outstanding Securities of such Series on the Stated Maturity of such
principal or installment of principal or interest and (ii) the benefit of any
mandatory sinking fund payments applicable to the Securities of such Series
on the day on which such payments are due and payable in accordance with the
terms of this Indenture and the Securities of such Series;
(2) the provisions of Sections 2.4, 2.7, 2.8, 8.2, 8.3 and 8.5; and
(3) the rights, powers, trust and immunities of the Trustee hereunder;
provided that, the following conditions shall have been satisfied:
(4) the Company shall have deposited or caused to be deposited irrevocably
with the Trustee as trust funds in trust for the purpose of making the
following payments, specifically pledged as security for and dedicated solely
to the benefit of the Holders of such Securities (i) in the case of
Securities of such Series denominated in Dollars, cash in Dollars (or such
other money or currencies as shall then be legal tender in the United States)
and/or U.S. Government Obligations or Eligible Obligations, or (ii) in the
case of Securities of such Series denominated in a Foreign Currency (other
than a composite currency), money and/or Foreign Government Obligations or
Eligible Obligations, which through the payment of interest and principal in
respect thereof, in accordance with their terms, will provide (and without
reinvestment and assuming no tax liability will be imposed on such Trustee),
not later than one day before the due date of any payment of money, an amount
in cash, sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, to pay and discharge each installment of principal
(including mandatory sinking fund or analogous payments) of and interest,
if any, on all the Securities of such Series on the dates such installments
of interest or principal are due;
(5) such deposit will not result in a breach or violation of, or
constitute a default under, this Indenture or any other agreement or
instrument to which the Company is a party or by which it is bound;
(6) no Default or Event of Default with respect to the Securities of such
Series shall have occurred and be continuing on the date of such deposit or
during the period ending on the 91st day after such date;
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(7) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel to the effect that (i) the Company has
received from, or there has been published by, the Internal Revenue Service a
ruling, or (ii) since the date of execution of this Indenture, there has been
a change in the applicable Federal income tax law, in either case to the
effect that, and based thereon such Opinion of Counsel shall confirm that,
the Holders of the Securities of such Series will not recognize income, gain
or loss for Federal income tax purposes as a result of such deposit,
defeasance and discharge and will be subject to Federal income tax on the
same amount and in the same manner and at the same times as would have been
the case if such deposit, defeasance and discharge had not occurred;
(8) the Company shall have delivered to the Trustee an Officers'
Certificate stating that the deposit was not made by the Company with the
intent of preferring the Holders of the Securities of such Series over
any other creditors of the company or with the intent of defeating,
hindering, delaying or defrauding any other creditors of the Company;
(9) such deposit shall not result in the trust arising from such deposit
constituting an investment company (as defined in the Investment Company Act
of 1940, as amended), or such trust shall be qualified under such Act or
exempt from regulation thereunder; and
(10) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to the defeasance contemplated by this
Section have been complied with.
Section 1.67 Covenant Defeasance.
Unless this Section 8.4 is otherwise specified pursuant to Section 2.2.20
to be inapplicable to Securities of any Series, on and after the 91st day after
the date of the deposit referred to in subparagraph (a) hereof, the Company may
omit to comply with any term, provision or condition set forth under Sections
4.2, 4.3, 4.4, 4.5, 4.6, 4.7, 4.8, 4.9 and 5.1 as well as any additional
covenants contained in a supplemental indenture hereto for a particular Series
of Securities or a Board Resolution or an Officers' Certificate delivered
pursuant to Section 2.2.20 (and the failure to comply with any such covenants
shall not constitute a Default or Event of Default under Section 6.1) and the
occurrence of any event described in clause (e) of Section 6.1 shall not
constitute a Default or Event of Default hereunder, with respect to the
Securities of such Series, provided that the following conditions shall have
been satisfied:
(1) With reference to this Section 8.4, the Company has deposited or
caused to be irrevocably deposited (except as provided in Section 8.2(c))
with the Trustee as trust funds in trust, specifically pledged as security
for, and dedicated solely to, the benefit of the Holders of such Securities
(i) in the case of Securities of such Series denominated in Dollars, cash in
Dollars (or such other money or currencies as shall then be legal tender in
the United States) and/or U.S. Government Obligations or Eligible
Obligations, or (ii) in the case of Securities of such Series denominated in
a Foreign Currency (other than a composite
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currency), money and/or Foreign Government Obligations or Eligible
Obligations, which through the payment of interest and principal in respect
thereof, in accordance with their terms, will provide (and without
reinvestment and assuming no tax liability will be imposed on such Trustee),
not later than one day before the due date of any payment of money, an amount
in cash, sufficient, in the opinion of a nationally recognized firm of
independent certified public accountants expressed in a written certification
thereof delivered to the Trustee, to pay principal, premium, if any, and
interest, if any, on and any mandatory sinking fund in respect of the
Securities of such Series on the dates such installments of interest or
principal are due;
(2) Such deposit will not result in a breach or violation of, or
constitute a default under, this Indenture or any other agreement or
instrument to which the Company is a party or by which it is bound;
(3) No Default or Event of Default with respect to the Securities of
such Series shall have occurred and be continuing on the date of such
deposit or during the period ending on the 91st day after such date;
(4) the Company shall have delivered to the Trustee an Opinion of Counsel
confirming that Holders of the Securities of such Series will not recognize
income, gain or loss for federal income tax purposes as a result of such
deposit and defeasance and will be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been the case
if such deposit and defeasance had not occurred;
(5) the Company shall have delivered to the Trustee an Officers'
Certificate stating the deposit was not made by the Company with the intent
of preferring the Holders of the Securities of such Series over any other
creditors of the Company or with the intent of defeating, hindering, delaying
or defrauding any other creditors of the Company; and
(6) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the defeasance contemplated by this
Section have been complied with.
Section 1.68 Repayment to Company.
The Trustee and the Paying Agent shall pay to the Company upon request any
money held by them for the payment of principal and interest that remains
unclaimed for two years. After that, Securityholders entitled to the money
must look to the Company for payment as general creditors unless an applicable
abandoned property law designates another person.
Section 1.69 Reinstatement of Company's Obligations.
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If the Trustee or Paying Agent is unable to apply any money, U.S.
Government Obligations, Foreign Government Obligations or Eligible Obligations
in accordance with Section 8.3 by reason of any legal proceeding or by reason
of any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, the Company's
obligations under this Indenture and the Securities of the applicable Series
shall be revived and reinstated as though no deposit had occurred pursuant to
Section 8.3 until such time as the Trustee or Paying Agent is permitted to
apply all such money, U.S. Government Obligations, Foreign Government
Obligations or Eligible Obligations in accordance with Section 8.3; provided,
however, that if the Company has made any payment of interest on, Additional
Amounts payable with respect to or principal of any Securities because of the
reinstatement of its obligations, the Company shall be subrogated to the rights
of the Holders of such Securities to receive such payment from the money, U.S.
Government Obligations, Foreign Government Obligations or Eligible Obligations
held by the Trustee or Paying Agent.
ARTICLE IX.
AMENDMENTS AND WAIVERS
Section 1.70 Without Consent of Holders.
The Company and the Trustee may amend or supplement this Indenture or the
Securities of one or more Series without the consent of any Securityholder:
(1) to cure any ambiguity, defect or inconsistency;
(2) to comply with Article V;
(3) to provide for uncertificated Securities in addition to or in place of
certificated Securities;
(4) to make any change that does not adversely affect the rights of any
Securityholder;
(5) to provide for the issuance of and establish the form and terms and
conditions of Securities of any Series as permitted by this Indenture;
(6) to evidence and provide for the acceptance of appointment by a
successor Trustee with respect to the Securities of one or more Series and to
add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee; or
(7) to comply with requirements of the SEC in order to effect or maintain
the qualification of this Indenture under the TIA.
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Section 1.71 With Consent of Holders.
Unless otherwise specified with respect to any Series of Securities, the
Company and the Trustee may enter into a supplemental indenture with the
written consent of the Holders of at least a majority in principal amount of
the outstanding Securities of each Series affected by such supplemental
indenture (including consents obtained in connection with a tender offer or
exchange offer for the Securities of such Series), for the purpose of adding
any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of any supplemental indenture or of modifying
in any manner the rights of the Securityholders of each such Series. Except as
provided in Section 6.13, the Holders of at least a majority in principal
amount of the outstanding Securities of each Series affected by such waiver by
notice to the Trustee (including consents obtained in connection with a tender
offer or exchange offer for the Securities of such Series) may waive compliance
by the Company with any provision of this Indenture or the Securities with
respect to such Series.
It shall not be necessary for the consent of the Holders of Securities
under this Section 9.2 to approve the particular form of any proposed
supplemental indenture or waiver, but it shall be sufficient if such consent
approves the substance thereof. After a supplemental indenture or waiver under
this section becomes effective, the Company shall mail to the Holders of
Securities affected thereby and, if any Bearer Securities affected thereby are
outstanding, publish on one occasion in an Authorized Newspaper, a notice
briefly describing the supplemental indenture or waiver. Any failure by the
Company to mail or publish such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such supplemental
indenture or waiver.
Section 1.72 Limitations.
Without the consent of each Securityholder affected, an amendment or
waiver may not:
(1) change the amount of Securities whose Holders must consent to an
amendment, supplement or waiver;
(2) reduce the rate of or extend the time for payment of interest
(including default interest) on any Security;
(3) reduce the principal of, or premium, if any, on, or change the
Stated Maturity of, any Security or reduce the amount of, or postpone the
date fixed for, the payment of any sinking fund or analogous obligation;
(4) reduce the principal amount of Discount Securities payable upon
acceleration of the maturity thereof;
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(5) waive a Default or Event of Default in the payment of the principal of,
premium, if any, or interest, if any, on, any Security (except a rescission
of acceleration of the Securities of any Series by the Holders of at least a
majority in principal amount of the outstanding Securities of such Series and
a waiver of the payment default that resulted from such acceleration);
(6) make the principal of, premium, if any, or interest, if any, on, any
Security payable in any currency other than that stated in the Security;
(7) make any change in Sections 6.8, 6.13, 9.3 (this sentence), 10.15 or
10.16; or
(8) waive a redemption payment with respect to any Security or change any
of the provisions with respect to the redemption of any Securities.
Section 1.73 Compliance with Trust Indenture Act.
Every amendment to this Indenture or the Securities of one or more Series
shall be set forth in a supplemental indenture hereto that complies with the
TIA as then in effect.
Section 1.74 Revocation and Effect of Consents.
Until an amendment or waiver becomes effective, a consent to it by a
Holder of a Security is a continuing consent by the Holder and every subsequent
Holder of a Security or portion of a Security that evidences the same debt as
the consenting Holder's Security, even if notation of the consent is not made
on any Security. However, any such Holder or subsequent Holder may revoke the
consent as to his Security or portion of a Security if the Trustee receives the
notice of revocation before the date the amendment or waiver becomes effective.
Any amendment or waiver once effective shall bind every Securityholder of
each Series affected by such amendment or waiver unless it is of the type
described in any of clauses (a) through (g) of Section 9.3. In that case, the
amendment or waiver shall bind each Holder of a Security who has consented to
it and every subsequent Holder of a Security or portion of a Security that
evidences the same debt as the consenting Holder's Security.
Section 1.75 Notation on or Exchange of Securities.
The Trustee may place an appropriate notation about an amendment or waiver
on any Security of any Series thereafter authenticated. The Company in
exchange for Securities of that Series may issue and the Trustee shall
authenticate upon request new Securities of that Series that reflect the
amendment or waiver.
Section 1.76 Trustee Protected.
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In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby
of the trusts created by this Indenture, the Trustee shall be entitled to
receive, and (subject to Section 7.1) shall be fully protected in relying upon,
an Opinion of Counsel stating that the execution of such supplemental indenture
is authorized or permitted by this Indenture. The Trustee shall sign all
supplemental indentures, except that the Trustee need not sign any supplemental
indenture that adversely affects its rights.
ARTICLE X.
MISCELLANEOUS
Section 1.77 Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies, or conflicts with
another provision which is required or deemed to be included in this Indenture
by the TIA, such required or deemed provision shall control.
Section 1.78 Notices.
Any notice or communication by the Company or the Trustee to the other is
duly given if in writing and delivered in person or mailed by first-class mail:
if to the Company: IDEX Corporation
630 Dundee Road
Northbrook, Illinois 60062
(847) 498-7070
Attention: Wayne P. Sayatovic
if to the Trustee:
Norwest Bank Minnesota, National Association
6th Street & Marquette Ave.
Minneapolis, Minnesota 55479-0069
Attention: Corporate Trust Services
The Company or the Trustee by notice to the other may designate additional
or different addresses for subsequent notices or communications.
Any notice or communication to a Securityholder shall be mailed by
first-class mail to his address shown on the register kept by the Registrar
and, if any Bearer Securities are outstanding, published in an Authorized
Newspaper. Failure to mail a notice or communication to a Securityholder of
any Series or any defect in it shall not affect its sufficiency with respect to
other Securityholders of that or any other Series.
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If a notice or communication is mailed or published in the manner provided
above, within the time prescribed, it is duly given, whether or not the
Securityholder receives it.
If the Company mails a notice or communication to Securityholders, it
shall mail a copy to the Trustee and each Agent at the same time.
Section 1.79 Communication by Holders with Other Holders.
Securityholders of any Series may communicate pursuant to TIA Section
312(b) with other Securityholders of that Series or any other Series with
respect to their rights under this Indenture or the Securities of that Series
or all Series. The Company, the Trustee, the Registrar and anyone else shall
have the protection of TIA Section 312(c).
Section 1.80 Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to take any
action under this Indenture, the Company shall furnish to the Trustee:
(1) an Officers' Certificate stating that, in the opinion of the signers,
all conditions precedent, if any, provided for in this Indenture relating to
the proposed action have been complied with; and
(2) an Opinion of Counsel stating that, in the opinion of such counsel,
all such conditions precedent have been complied with.
Section 1.81 Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture (other than a certificate provided
pursuant to TIA Section 314(a)(4)) shall comply with the provisions of TIA
Section 314(e) and shall include:
(1) a statement that the person making such certificate or opinion has
read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of such person, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and
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(4) a statement as to whether or not, in the opinion of such person,
such condition or covenant has been complied with.
Section 1.82 Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or a meeting of
Securityholders of one or more Series. Any Agent may make reasonable rules and
set reasonable requirements for its functions.
Section 1.83 Legal Holidays.
Unless otherwise provided by Board Resolution, Officers' Certificate or
supplemental indenture for a particular Series, a "Legal Holiday" is any day
that is not a Business Day. If a payment date is a Legal Holiday at a place of
payment, payment may be made at that place on the next succeeding day that is
not a Legal Holiday, and no interest shall accrue for the intervening period.
Section 1.84 No Recourse Against Others.
A director, officer, employee or stockholder, as such, of the Company
shall not have any liability for any obligations of the Company under the
Securities or the Indenture or for any claim based on, in respect of or by
reason of such obligations or their creation. Each Securityholder by accepting
a Security waives and releases all such liability. The waiver and release are
part of the consideration for the issue of the Securities.
Section 1.85 Counterparts.
This Indenture may be executed in any number of counterparts and by the
parties hereto in separate counterparts, each of which when so executed shall
be deemed to be an original and all of which taken together shall constitute
one and the same agreement.
Section 1.86 Governing Laws.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY THE LAWS OF THE
STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN SUCH
STATE, WITHOUT REGARD TO THE CONFLICT OF LAWS PROVISIONS THEREOF.
Section 1.87 No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan or
debt agreement of the Company or a Subsidiary. Any such indenture, loan or
debt agreement may not be used to interpret this Indenture.
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Section 1.88 Successors.
All agreements of the Company in this Indenture and the Securities shall
bind its successor. All agreements of the Trustee in this Indenture shall bind
its successor.
Section 1.89 Severability.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
Section 1.90 Table of Contents, Headings, Etc.
The Table of Contents, Cross-Reference Table, and headings of the Articles
and Sections of this Indenture have been inserted for convenience of reference
only, are not to be considered a part hereof, and shall in no way modify or
restrict any of the terms or provisions hereof.
Section 1.91 Securities in a Foreign Currency or in ECU.
Unless otherwise specified in a Board Resolution, a supplemental indenture
hereto or an Officers' Certificate delivered pursuant to Section 2.2 of this
Indenture with respect to a particular Series of Securities, whenever for
purposes of this Indenture any action may be taken by the Holders of a
specified percentage in aggregate principal amount of Securities of all Series
or all Series affected by a particular action at the time outstanding and, at
such time, there are outstanding Securities of any Series which are denominated
in a coin or currency other than Dollars (including ECUs), then the principal
amount of Securities of such Series which shall be deemed to be outstanding for
the purpose of taking such action shall be that amount of Dollars that could be
obtained for such amount at the Market Exchange Rate at such time. For
purposes of this Section 10.15, "Market Exchange Rate" shall mean the noon
Dollar buying rate in New York City for cable transfers of that currency as
published by the Federal Reserve Bank of New York; provided, however, in the
case of ECUs, Market Exchange Rate shall mean the rate of exchange determined
by the Commission of the European Union (or any successor thereto) as published
in the Official Journal of the European Union (such publication or any
successor publication, the "Journal"). If such Market Exchange Rate is not
available for any reason with respect to such currency, the Trustee shall use,
in its sole discretion and without liability on its part, such quotation of the
Federal Reserve Bank of New York or, in the case of ECUs, the rate of exchange
as published in the Journal, as of the most recent available date, or
quotations or, in the case of ECUs, rates of exchange from one or more major
banks in The City of New York or in the country of issue of the currency in
question or, in the case of ECUs, in Luxembourg or such other quotations or, in
the case of ECUs, rates of exchange as the Trustee, upon consultation with the
Company, shall deem appropriate. The provisions of this paragraph shall apply
in determining the equivalent principal amount in respect of Securities of a
56
<PAGE> 62
Series denominated in currency other than Dollars in connection with any action
taken by Holders of Securities pursuant to the terms of this Indenture.
All decisions and determinations of the Trustee regarding the Market
Exchange Rate or any alternative determination provided for in the preceding
paragraph shall be in its sole discretion and shall, in the absence of manifest
error, be conclusive to the extent permitted by law for all purposes and
irrevocably binding upon the Company and all Holders.
Section 1.92 Judgment Currency.
The Company agrees, to the fullest extent that it may effectively do so
under applicable law, that (a) if for the purpose of obtaining judgment in any
court it is necessary to convert the sum due in respect of the principal of or
interest or other amount on the Securities of any Series (the "Required
Currency") into a currency in which a judgment will be rendered (the "Judgment
Currency"), the rate of exchange used shall be the rate at which in accordance
with normal banking procedures the Trustee could purchase in The City of New
York the Required Currency with the Judgment Currency on the day on which final
unappealable judgment is entered, unless such day is not a New York Banking
Day, then, the rate of exchange used shall be the rate at which in accordance
with normal banking procedures the Trustee could purchase in The City of New
York the Required Currency with the Judgment Currency on the New York Banking
Day preceding the day on which final unappealable judgment is entered and (b)
its obligations under this Indenture to make payments in the Required Currency
(i) shall not be discharged or satisfied by any tender, any recovery pursuant
to any judgment (whether or not entered in accordance with subsection (a)), in
any currency other than the Required Currency, except to the extent that such
tender or recovery shall result in the actual receipt, by the payee, of the
full amount of the Required Currency expressed to be payable in respect of such
payments, (ii) shall be enforceable as an alternative or additional cause of
action for the purpose of recovering in the Required Currency the amount, if
any, by which such actual receipt shall fall short of the full amount of the
Required Currency so expressed to be payable, and (iii) shall not be affected
by judgment being obtained for any other sum due under this Indenture. For
purposes of the foregoing, "New York Banking Day" means any day except a
Saturday, Sunday or a legal holiday in The City of New York on which banking
institutions are authorized or required by law, regulation or executive order
to close.
ARTICLE XI.
SINKING FUNDS
Section 1.93 Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund for
the retirement of the Securities of a Series, except as otherwise permitted or
required by any form of Security of such Series issued pursuant to this
Indenture.
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<PAGE> 63
The minimum amount of any sinking fund payment provided for by the terms
of the Securities of any Series is herein referred to as a "mandatory sinking
fund payment" and any other amount provided for by the terms of Securities of
such Series is herein referred to as an "optional sinking fund payment." If
provided for by the terms of Securities of any Series, the cash amount of any
sinking fund payment may be subject to reduction as provided in Section 11.2.
Each sinking fund payment shall be applied to the redemption of Securities of
any Series as provided for by the terms of the Securities of such Series.
Section 1.94 Satisfaction of Sinking Fund Payments with Securities.
The Company may, in satisfaction of all or any part of any sinking fund
payment with respect to the Securities of any Series to be made pursuant to the
terms of such Securities (1) deliver outstanding Securities of such Series to
which such sinking fund payment is applicable (other than any of such
Securities previously called for mandatory sinking fund redemption) and (2)
apply as credit Securities of such Series to which such sinking fund payment is
applicable and which have been redeemed either at the election of the Company
pursuant to the terms of such Series of Securities (except pursuant to any
mandatory sinking fund) or through the application of permitted optional
sinking fund payments or other optional redemptions pursuant to the terms of
such Securities, provided that such Securities have not been previously so
credited. Such Securities shall be received by the Trustee, together with an
Officers' Certificate with respect thereto, not later than 15 days prior to the
date on which the Trustee begins the process of selecting Securities for
redemption, and shall be credited for such purpose by the Trustee at the price
specified in such Securities for redemption through operation of the sinking
fund and the amount of such sinking fund payment shall be reduced accordingly.
If as a result of the delivery or credit of Securities in lieu of cash payments
pursuant to this Section 11.2, the principal amount of Securities of such
Series to be redeemed in order to exhaust the aforesaid cash payment shall be
less than $100,000, the Trustee need not call Securities of such Series for
redemption, except upon receipt of a Company Order that such action be taken,
and such cash payment shall be held by the Trustee or a Paying Agent and
applied to the next succeeding sinking fund payment, provided, however, that
the Trustee or such Paying Agent shall from time to time upon receipt of a
Company Order pay over and deliver to the Company any cash payment so being
held by the Trustee or such Paying Agent upon delivery by the Company to the
Trustee of Securities of that Series purchased by the Company having an unpaid
principal amount equal to the cash payment required to be released to the
Company.
Section 1.95 Redemption of Securities for Sinking Fund.
Not less than 45 days (unless otherwise indicated in the Board Resolution,
supplemental indenture hereto or Officers' Certificate in respect of a
particular Series of Securities) prior to each sinking fund payment date for
any Series of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing mandatory sinking fund
payment for that Series pursuant to the terms of that Series, the portion
thereof, if any, which is to be satisfied by payment of cash and the portion
thereof, if any, which is to be satisfied
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<PAGE> 64
by delivering and crediting of Securities of that Series pursuant to Section
11.2, and the optional amount, if any, to be added in cash to the next ensuing
mandatory sinking fund payment, and the Company shall thereupon be obligated to
pay the amount therein specified. Not less than 30 days (unless otherwise
indicated in the Board Resolution, Officers' Certificate or supplemental
indenture in respect of a particular Series of Securities) before each such
sinking fund payment date the Trustee shall select the Securities to be
redeemed upon such sinking fund payment date in the manner specified in Section
3.2 and cause notice of the redemption thereof to be given in the name of and
at the expense of the Company in the manner provided in Section 3.3. Such
notice having been duly given, the redemption of such Securities shall be made
upon the terms and in the manner stated in Sections 3.4, 3.5 and 3.6.
59
<PAGE> 65
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed as of the day and year first above written.
IDEX Corporation
By: /s/ Douglas C. Lennox
-------------------------------------
Name: Douglas C. Lennox
Title: Treasurer
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION
By: /s/ Curtis D. Schwegman
-------------------------------------
Name: Curtis D. Schwegman
Title: Assistant Vice President
60
<PAGE> 1
Exhibit 4.2
THIS NOTE MAY BE TRANSFERRED IN WHOLE BUT NOT IN PART BY THE DEPOSITARY TO A
NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY
OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE
TO A SUCCESSOR DEPOSITARY SELECTED OR APPROVED BY THE COMPANY OR A NOMINEE OF
SUCH SUCCESSOR DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
- --------------------------------------------------------------------------------
No. 1 $150,000,000.00
IDEX CORPORATION
6 7/8% SENIOR NOTES DUE FEBRUARY 15, 2008
CUSIP: 45167RAD6
IDEX Corporation, a Delaware corporation (herein called the "Company,"
which term includes any successor corporation under the Indenture referred to
herein), for value received, hereby promises to pay to:
CEDE & CO.
or registered assigns, the principal sum of
*ONE HUNDRED AND FIFTY MILLION DOLLARS*
on February 15, 2008 and to pay interest on such principal sum at the rate of
six and seven-eighths percent (6 7/8 %) per annum.
The Company will pay interest from the later of February 23, 1998 or the
most recent Interest Payment Date (as defined below) to which interest has been
paid or duly provided for, semi-annually on February 15 and on August 15
(beginning August 15, 1998, each an "Interest Payment Date"), until the
principal hereof is otherwise paid or duly provided for. The interest so
payable, and punctually paid or duly provided for, on any Interest Payment Date
will, as provided in the Indenture (as defined below), be paid to the Holder of
this Note (or one or more predecessor Notes) of record at the close of business
on the regular record date (the "Regular Record Date") for such Interest
Payment Date, which, except in the case of interest payable at Maturity (as
defined in the Indenture), shall be the February 1 or August 1 (whether or not
a Business Day), as the case may be, next preceding such Interest Payment Date
and, in the case of interest payable at Maturity, shall be the date such that
interest payable at Maturity is payable to the same Person to whom principal on
this Note is payable. Interest will be computed on the basis of a 360-day year
of twelve 30-day months.
Any such interest not so punctually paid or duly provided for shall
forthwith cease to be payable to the Holder on such Regular Record Date by
virtue of his having been such Holder, and may be paid to the Holder of this
Note (or one or more predecessor Notes) of record at the close of business on a
special record date (the "Special Record Date") fixed by the Company for the
payment of such defaulted interest, notice whereof shall be given to Holders
not less than 15 days prior to such Special Record Date, all as more fully
provided in the Indenture (as defined below).
<PAGE> 2
Payment of the principal of this Note and the interest thereon will be
made at the office or agency of the Company in the Borough of Manhattan, City
and State of New York, in such coin or currency of the United States of America
as at the time of payment is legal tender for payment of public and private
debts.
IDEX CORPORATION
6 7/8% Senior Notes due February 15, 2008
This Note is one of a duly authorized issue of debt securities of the
Company (herein called the "Securities"), issuable in one or more series,
unlimited in aggregate principal amount except as may be otherwise provided in
respect of the Securities of a particular series, issued and to be issued under
and pursuant to an Indenture dated as of February 23, 1998 (herein called the
"Indenture"), duly executed and delivered by the Company to Norwest Bank
Minnesota, National Association, as Trustee (the "Trustee"), and is one of a
series limited in aggregate principal amount to $150,000,000 and designated as
6 7/8% Senior Notes due February 15, 2008 (herein called the "Notes").
Reference is hereby made to the Indenture for a description of the rights,
limitations of rights, obligations, duties and immunities thereunder of the
Trustee, the Company and the Holders of Securities (including Holders of the
Notes).
The Notes may be redeemed at any time at the option of the Company, in
whole or from time to time in part, at a redemption price equal to the sum of
(i) the principal amount of the Notes being redeemed plus accrued interest
thereon to the redemption date and (ii) the Make-Whole Amount, if any, with
respect to such Notes (the "Redemption Price"). If notice of redemption has
been given as provided in the Indenture and funds for the redemption of any
Notes called for redemption have been made available on the redemption date
referred to in such notice, such Notes will cease to bear interest on the date
fixed for such redemption specified in such notice and the only right of the
Holders of the Notes from and after the redemption date will be to receive
payment of the Redemption Price upon surrender of such Notes in accordance with
such notice. Notice of any optional redemption of any Note will be given to
Holders at their addresses, as shown in the security register for the Notes,
not more than 60 nor less than 30 days prior to the date fixed for redemption.
The notice of redemption will specify, among other items, the Redemption Price
and the principal amount of Notes held by such Holder to be redeemed. If less
than all of the Notes are to be redeemed at the option of the Company, the
Company will notify the Trustee at least 45 days prior to giving notice of
redemption (or such shorter period as may be satisfactory to the Trustee) of
the aggregate principal amount of Notes to be redeemed and their redemption
date. The Trustee shall select, in such manner as it shall deem fair and
appropriate, Notes to be redeemed in whole or in part.
As used herein:
"Make-Whole Amount" means, in connection with any optional redemption of
the Notes, the excess, if any, of (i) the aggregate present value as of the
date of such redemption of each dollar of principal being redeemed and the
amount of interest (exclusive of interest accrued to the date of redemption)
that would have been payable in respect of each such dollar if such redemption
had not been made, determined by discounting, on a semi-annual basis, such
principal and interest at the Reinvestment Rate (determined on the third
business day preceding the date notice of such redemption is given) from the
respective dates on which such principal and interest would have been payable
if such redemption had not been made, to the date of redemption, over (ii) the
aggregate principal amount of the Notes being redeemed.
"Reinvestment Rate" means the yield on treasury securities at a constant
maturity corresponding to the remaining life (as of the date of redemption, and
rounded to the nearest month) to Stated Maturity of the principal being
redeemed (the "Treasury Yield"), plus 0.25%. For purposes hereof, the Treasury
Yield shall be equal to the arithmetic mean of the yields published
2
<PAGE> 3
in the Statistical Release under the heading "Week Ending" for "U.S. Government
Securities--Treasury Constant Maturities" with a maturity equal to such
remaining life; provided, that if no published maturity exactly corresponds to
such remaining life, then the Treasury Yield shall be interpolated or
extrapolated on a straight line basis from the arithmetic mean of the yields
for the next shortest and/or next longest published maturities, as applicable,
rounding each of such relevant periods to the nearest month. For purposes of
calculating the Reinvestment Rate, the most recent Statistical Release
published prior to the date of determination of the Make-Whole Amount shall be
used. If the format or content of the Statistical Release changes in a manner
that precludes determination of the Treasury Yield in the above manner, then
the Treasury Yield shall be determined in the manner that most closely
approximates the above manner, as reasonably determined by the Company.
"Statistical Release" means the statistical release designated "H.15(519)"
or any successor publication which is published weekly by the Federal Reserve
System and which reports yield on actively traded United States government
securities adjusted to constant maturities, or, if such statistical release is
not published at the time of any determination under the Indenture, then such
other reasonably comparable index which shall be designated by the Company.
The Notes are subject to defeasance at the option of the Company as
provided in the Indenture.
As long as this Note is represented in global form (the "Global Security")
registered in the name of the Depositary or its nominee, except as provided in
the Indenture and subject to certain limitations therein set forth, no Global
Security shall be exchangeable or transferrable.
If an Event of Default (as defined in the Indenture) with respect to the
Notes shall occur and be continuing, the principal plus any accrued interest
may be declared due and payable in the manner and with the effect and subject
to the conditions provided in the Indenture.
The Indenture permits the amendment thereof and the modification of the
rights and obligations of the Company and the rights of the Holders under the
Indenture at any time by the Company and the Trustee with the consent of the
Holders of a majority in aggregate principal amount of the Securities then
Outstanding of all series which are affected by such amendment or modification,
except that certain amendments which do not adversely affect the rights of any
Holder of the Securities may be made without the approval of Holders of the
Securities. No amendment or modification may, among other things, change the
Stated Maturity of any Security, reduce the principal amount thereof, reduce
the rate or change the time of payment of any interest thereon, or reduce the
aforesaid majority in aggregate principal amount of Securities of any series,
the consent of the Holders of which is required for any such amendment or
modification, without the consent of each Securityholder affected.
Notwithstanding any provision in the Indenture or any provision of this
Note, the Holder of this Note shall have the right, which is absolute and
unconditional, to receive payment of the principal of (and premium, if any) and
interest on this Note at the times, place and rate, and in the coin or currency
herein prescribed.
This Note shall be governed by, and construed in accordance with, the laws
of the state of New York, without regard to principles of conflicts of law.
All terms used in this Note which are defined in the Indenture have the
meanings assigned to them in the Indenture.
3
<PAGE> 4
Unless the certificate of authentication hereon has been executed by or on
behalf of the Trustee by manual signature, this Note shall not be entitled to
any benefit under the Indenture or be valid or obligatory for any purpose.
4
<PAGE> 5
IN WITNESS WHEREOF, the Company has caused this Note to be duly executed.
IDEX CORPORATION
By:
----------------------------------------------
Attest:
-------------------------------------------------
This is one of the Securities of the series designated
herein issued under the within-mentioned Indenture.
NORWEST BANK OF MINNESOTA, NATIONAL
ASSOCIATION
By:
----------------------------------------------
Authorized Officer
Dated: February 23 , 1998
5
