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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 5, 2000
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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DOVER CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 280 PARK AVENUE 53-0257888
(STATE OR OTHER JURISDICTION OF NEW YORK, NEW YORK 10017-1292 (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) (212) 922-1640 IDENTIFICATION NUMBER)
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
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ROBERT G. KUHBACH, ESQ.
DOVER CORPORATION
280 PARK AVENUE
NEW YORK, NEW YORK 10017-1292
(212) 922-1640
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
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COPY TO:
JOSEPH W. SCHMIDT, ESQ.
COUDERT BROTHERS
1114 AVENUE OF THE AMERICAS
NEW YORK, NEW YORK 10036
(212) 626-4400
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the effective date of this Registration Statement, as determined
by the Registrant.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
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CALCULATION OF REGISTRATION FEE
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PROPOSED PROPOSED
TITLE OF EACH CLASS OF AMOUNT TO BE MAXIMUM OFFERING MAXIMUM AGGREGATE AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED(1) PRICE PER UNIT(2) OFFERING PRICE(2) REGISTRATION FEE
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Debt Securities............... $1,000,000,000 100% $1,000,000,000 $264,000
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(1) Or, if any Debt Securities are issued at an original issue discount, such
greater principal amount as shall result in an aggregate offering price
equal to $1,000,000,000.
(2) Estimated solely for purposes of calculating the registration fee, which is
calculated in accordance with Rule 457(o).
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933, OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
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THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED.
WE HAVE FILED A REGISTRATION STATEMENT RELATING TO THESE SECURITIES WITH
THE SECURITIES AND EXCHANGE COMMISSION. WE MAY NOT SELL THESE SECURITIES
UNTIL THE REGISTRATION STATEMENT IS EFFECTIVE. THIS PROSPECTUS IS NOT AN
OFFER TO SELL THESE SECURITIES AND WE ARE NOT SOLICITING OFFERS TO BUY
THESE SECURITIES IN ANY STATE IN WHICH THE OFFER OR SALE IS NOT
PERMITTED.
Subject To Completion, Dated October 5, 2000
$1,000,000,000
[LOGO]
DEBT SECURITIES
We may use this prospectus to offer, issue and sell one or more series or
issuances of our secured or unsecured debt securities. These securities will
have an aggregate initial public offering price not to exceed $1,000,000,000. We
will offer and sell these securities at prices and on terms to be determined at
the time of the sale. When we offer a particular series of our debt securities,
we will deliver with this prospectus a supplement to this prospectus. The
prospectus supplement will set forth the specific terms of the offering and sale
of the debt securities.
We currently do not intend to list any of the debt securities on any
exchange or over-the-counter market. If we decide to seek listing of any of the
debt securities, the prospectus supplement relating to those securities will
disclose the exchange or market on which those securities will be listed.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
We may sell all or a portion of the debt securities directly to purchasers,
to or through agents, underwriters or dealers, as designated from time to time,
or through a combination of such methods. We reserve the sole right to accept,
and, together with our agents, from time to time, to reject in whole or in part
any proposed purchase of debt securities to be made directly or through agents.
If our agents or any underwriters are involved in the sale of the debt
securities, we will identify the names of such agents or underwriters and any
applicable commissions or discounts in the prospectus supplement with respect to
such securities. See "Plan of Distribution."
We will not sell any debt securities without delivering a prospectus
supplement describing the method and terms of the offering of debt securities.
The date of this prospectus is October , 2000.
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TABLE OF CONTENTS
PAGE(S)
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ABOUT THIS PROSPECTUS....................................... 2
WHERE YOU CAN FIND MORE INFORMATION......................... 2
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE............. 2
FORWARD-LOOKING STATEMENTS.................................. 3
THE COMPANY................................................. 4
USE OF PROCEEDS............................................. 4
RATIO OF EARNINGS TO FIXED CHARGES.......................... 5
DESCRIPTION OF DEBT SECURITIES.............................. 5
PLAN OF DISTRIBUTION........................................ 15
LEGAL MATTERS............................................... 15
EXPERTS..................................................... 15
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ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we have filed with
the Securities and Exchange Commission utilizing a "shelf" registration process.
Under this shelf process, we may from time to time sell any combination of the
securities described in the prospectus in one or more offerings up to a total
offering amount of $1,000,000,000.
We provide information to you about the securities in two separate
documents that progressively provide more specific detail:
- this prospectus, which contains general information, some of which may
not apply to your securities, and
- the accompanying prospectus supplement, which describes the specific
terms of your securities and may also, add, update or change information
contained in this prospectus.
If the terms of your securities vary between the accompanying prospectus
supplement and this prospectus, you should rely on the different information
contained in the prospectus supplement.
You should read both this prospectus and any prospectus supplement together
with the additional information described below under "Where You Can Find More
Information" to learn more about us and the securities we are offering.
As used in this prospectus, the term "we" refers to Dover Corporation and
its consolidated subsidiaries, unless otherwise indicated or unless the context
otherwise requires.
WHERE YOU CAN FIND MORE INFORMATION
We have filed a registration statement incorporating this prospectus and
related exhibits with the Securities and Exchange Commission. The registration
statement and related exhibits contain additional information about us and our
debt securities.
We file annual, quarterly and other reports, proxy statements and other
information with the Commission. You may inspect and copy the reports and other
information we have filed with the Commission at the following sites:
- the Public Reference Room of the Commission at 450 Fifth Street, N.W.,
Washington D.C., 20549, and
- the offices of the New York Stock Exchange, 20 Broad Street, New York,
New York 10005.
You may obtain information on the operation of the Public Reference Room by
calling the Commission at 1-800-SEC-0330. The Commission also maintains a web
site at http://www.sec.gov, which contains reports, proxy statements and other
information regarding registrants that file electronically with the Commission
and most of our filings are available at such web site.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Commission allows us to "incorporate by reference" information filed
with it, which means that we can disclose important information to you by
referring to those documents. The information incorporated by reference is an
important part of this prospectus, and information filed later by us with the
Commission will automatically update and supersede this information.
We incorporate by reference the following documents we have filed with the
Commission pursuant to the Securities Exchange Act of 1934:
- Annual Report on Form 10-K for the fiscal year ended December 31, 1999
including any amendment(s) or report(s) filed for the purpose of updating
such filing; and
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- Quarterly Reports on Form 10-Q for the quarters ended March 31 and June
30, 2000 including any amendment(s) or report(s) filed for the purpose of
updating such filings.
Any future filings that we make with the Commission under Sections 13(a), 13(c),
14 or 15(d) of the Exchange Act after the date of this prospectus and before the
termination of the offering of all debt securities to which this prospectus
relates will be automatically incorporated by reference as of and from the date
of filing.
We undertake to provide to you without charge, upon your written or oral
request, a copy of any and all documents we incorporate by reference in this
prospectus (other than exhibits to such documents unless such exhibits are
incorporated by reference in such documents). Requests for such copies should be
directed to Dover Corporation, 280 Park Avenue, New York, New York 10017-1292,
Attn: Corporate Secretary, telephone number (212) 922-1640. The information
relating to us contained in this prospectus is not comprehensive and should be
read together with the information contained in the documents we incorporate by
reference in this prospectus.
FORWARD-LOOKING STATEMENTS
This prospectus and the documents that we incorporate by reference contain
forward-looking statements within the meaning of the Securities Act of 1933, the
Exchange Act and the Private Securities Litigation Reform Act of 1995. Such
statements relate to, among other things, industries in which we operate, the
U.S. and global economies, earnings, cash flow and operating improvements. In
some cases, you can identify forward looking statements by words or phrases such
as "believes, "may," "could," "will," "estimate," "predict," "intend,"
"anticipates," "supports," "plans," "projects," "expects," "should," "hope,"
"forecast," "management is of the opinion" and similar words or phrases.
Forward-looking statements are subject to inherent uncertainties and risks,
including among others:
- increasing price and product/service competition by foreign and domestic
competitors, including new entrants into a particular market;
- technological developments and changes;
- the ability to continue to introduce competitive new products and
services on a timely, cost effective basis;
- the mix of products/services;
- the achievement of lower costs and expenses;
- domestic and foreign governmental and public policy changes including
environmental regulations;
- protection and validity of patent and other intellectual property rights;
- the continued success of our acquisition program;
- the cyclical nature of our businesses; and
- the outcome of pending and future litigation and governmental
proceedings.
In addition, general industry and market conditions and growth rates, and
general domestic and international economic conditions including interest rate
and currency exchange rate fluctuations could affect such statements. In light
of these risks and uncertainties, actual events and results may vary
significantly from those included in or contemplated or implied by such
statements. We caution readers not to place undue reliance on such
forward-looking statements. We undertake no obligation to publicly update or
revise any forward-looking statements, whether as a result of new information,
future events or otherwise.
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THE COMPANY
We are a diversified industrial manufacturing corporation encompassing over
50 operating companies which manufacture a broad range of specialized industrial
products and sophisticated manufacturing equipment.
Our businesses are divided into the following four business segments:
- Dover Technologies builds sophisticated automated assembly and testing
equipment for the electronics industry, industrial printers for coding
and marking, and specialized electronic components.
- Dover Industries makes products for use in the waste handling, bulk
transport, automotive service, commercial food service, packaging,
welding and construction equipment industries.
- Dover Diversified builds packaging and printing machinery, heat transfer
equipment, construction and agricultural cabs, specialized bearings and
compressors, and food refrigeration and display cases, as well as
products for use in the defense, aerospace and other industries.
- Dover Resources manufactures products primarily for the automotive, fluid
handling, petroleum and chemical industries.
We sold Dover Elevator, which was our fifth business segment through 1998,
on January 5, 1999. Dover Elevator manufactured, installed and serviced
elevators primarily in North America and we accounted for Dover Elevator as a
discontinued operation in our consolidated financial statements for 1999.
We emphasize growth and strong internal cash flow. We have a long-standing
and successful acquisition program pursuant to which, from January 1, 1995
through December 31, 1999, we made 68 acquisitions at a total acquisition cost
of $2,021,000,000. These acquisitions have had a substantial impact on the
increase in our sales and earnings since 1995. Our acquisition program
traditionally focused on acquiring new or stand-alone businesses. However, since
1993, we have placed increased emphasis on acquiring businesses which can be
added on to existing operations. In 1999, we completed 3 stand-alone and 15
add-on acquisitions at a total cost of approximately $599 million. For 2000,
through September 30, 2000, we have completed one stand-alone and 17 add-on
acquisitions at a total cost of approximately $335 million. We aim to be in
businesses marked by growth, innovation and higher than average profit margins.
We seek to have each of our businesses be a leader in its market as measured by
market share, innovation, profitability and return on assets.
We practice a highly decentralized management style. The presidents of our
operating companies are very autonomous and have a high level of independent
responsibility for their businesses and their performance. This is in keeping
with our operating philosophy that small independent operations are better able
to serve customers by focusing closely on their products and reacting quickly to
customer needs. Our executive management becomes involved only to guide and
manage capital, assist in major acquisitions, evaluate, motivate and, if
necessary, replace operating management, and provide selected other services.
The address and telephone number of our principal executive offices are 280
Park Avenue, New York, New York 10017-1292, (212) 922-1640. We are a Delaware
corporation which conducts substantially all its business through subsidiaries.
USE OF PROCEEDS
Unless otherwise indicated in a prospectus supplement, we anticipate using
any net proceeds from the sale of the debt securities for our general corporate
purposes. These purposes may include, among other purposes, acquisitions and the
reduction of the level of our outstanding commercial paper. When we offer a
particular series of debt securities, we will set forth in the prospectus
supplement relating to such securities our intended use for the net proceeds
received from the sale of such securities. We have historically used commercial
paper and debt securities, together with internally generated cash, to finance
acquisitions.
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RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth our ratio of earnings to fixed charges for
the periods indicated.
YEAR ENDED DECEMBER 31,
SIX MONTHS ENDED -----------------------------------
JUNE 30, 2000 1999 1998 1997 1996 1995
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Ratio of earnings to fixed charges....... 9.0x 10.6x 8.2x 10.5x 11.6x 9.8x
We have computed these ratios by dividing earnings available for fixed
charges for each period by fixed charges for that period. We calculated earnings
available for fixed charges by adding pre-tax income and fixed charges. Fixed
charges are the sum of interest expense, including the amount we amortize for
debt financing costs, and our estimate of the amount of interest within our
rental expense. The ratios reflect the disposition of the Dover Elevator segment
of our business on January 5, 1999.
DESCRIPTION OF DEBT SECURITIES
The following is a general description of the debt securities that we may
offer from time to time. We will issue the debt securities under an indenture
between us and a trustee whom we will select, a copy of which is filed as an
exhibit to the registration statement of which this prospectus is a part. We may
issue debt securities from time to time in one or more series. We will describe
in a prospectus supplement the particular terms of each series, or of debt
securities forming a part of a series, which are offered by that prospectus
supplement. If any information in the prospectus supplement differs from the
general terms described below, you should rely on the information in the
prospectus supplement with respect to the particular debt securities being
offered.
The following description of the debt securities summarizes certain of the
material provisions of the indenture and the debt securities. This summary is
not intended to be a full restatement of all of the terms of the debt
securities. We urge you to read the indenture and, with respect to any
particular debt securities, the indenture supplement related to such debt
securities which will be described in the applicable prospectus supplement,
because they, and not this description, will define your rights as a holder of
the debt securities.
The numerical references in parentheses below are to sections of the
indenture. Unless otherwise indicated, terms used in the following summary that
are defined in the indenture have the meanings used in the indenture.
We conduct substantially all our business through subsidiaries. Although
the debt securities are our senior obligations, they are effectively
subordinated to all existing and future liabilities of our subsidiaries. The
indenture does not restrict the ability of our subsidiaries to incur
indebtedness. Because we are a holding company, our ability to service our
indebtedness is dependent on dividends and other payments made to us on our
investments in our subsidiaries.
GENERAL
The indenture will provide that we may issue debt securities in separate
series from time to time without limitation as to aggregate principal amount. We
may specify a maximum aggregate principal amount for the debt securities of any
series. (Section 301) The debt securities will have such terms and provisions
which are not inconsistent with the indenture, including as to maturity,
principal and interest, as we may determine. The debt securities will be our
unsecured obligations and will rank on a parity with all of our other unsecured
and unsubordinated indebtedness.
We will set forth in the applicable prospectus supplement the price or
prices at which the debt securities we will offer will be issued. We will also
describe the following terms of such debt securities:
- the title of the debt securities;
- any limit on the aggregate principal amount of the debt securities or the
series of which they are a part;
- the date or dates on which the principal of any of the debt securities
will be payable;
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- the rate or rates at which any of the debt securities will bear interest,
if any, the date or dates from which any interest will accrue, the
interest payment dates on which any interest will be payable and the
regular record date for any such interest payable on any interest payment
date;
- the place or places where the principal of and any premium and interest
on any of the debt securities will be payable;
- the period or periods within which, the price or prices at which and the
terms and conditions on which we may redeem any of the debt securities in
whole or in part, at our option;
- our obligation, if any, to redeem or purchase any of the debt securities
pursuant to any sinking fund or analogous provision or at the option of
the holder thereof, and the period or periods within which, the price or
prices at which and the terms and conditions on which we will redeem or
purchase any of the debt securities in whole or in part, pursuant to any
such obligation;
- the denominations in which any of the debt securities will be issuable,
if other than denominations of $1,000 and any integral multiple of
$1,000;
- if other than the currency of the United States of America, (a) the
currency, currencies or currency units in which the principal of or any
premium or interest on any of the debt securities will be payable, and
(b) the manner in which the equivalent of the principal amount thereof in
the currency of the United States of America will be determined for any
purpose, including for the purpose of determining the principal amount
deemed to be outstanding at any time;
- if other than the entire principal amount of the debt securities, the
portion of the principal amount of any of the debt securities which will
be payable upon declaration of acceleration of the maturity thereof;
- if the principal amount payable at the stated maturity of any of the debt
securities will not be determinable as of any one or more dates prior to
the stated maturity, the amount which will be deemed to be the principal
amount as of any such date for any purpose, including the principal
amount thereof which will be due and payable upon any maturity other than
the stated maturity or which will be deemed to be outstanding as of any
such date, or, in any such case, the manner in which the deemed principal
amount is to be determined;
- if applicable, that the debt securities, in whole or any specified part,
are defeasible pursuant to certain provisions of the indenture;
- whether any of the debt securities will be issuable in whole or in part
in the form of one or more global securities and, if so, the respective
depositaries for the global securities and the form of any legend or
legends any such global security will bear in addition to or in lieu of
the legend referred to in the indenture;
- if different from those described in the indenture, any circumstances
under which any global security may be exchanged in whole or in part for
debt securities registered, and any transfer of a global security in
whole or in part may be registered, in the names of persons other than
the depositary for such global security or its nominee;
- any addition to or change in the events of default applicable to any of
the debt securities and any change in the right of the trustee or the
holders to declare the principal amount of any of the debt securities due
and payable;
- any addition to or change in the covenants in the indenture applicable to
any of the debt securities; and
- any other terms of the debt securities not inconsistent with the
provisions of the indenture. (Section 301)
We may sell debt securities, including original issue discount securities,
at a substantial discount below their principal amount. We may describe in the
applicable prospectus supplement certain special United States federal income
tax considerations, if any, applicable to debt securities sold at an original
issue discount.
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In addition, we may describe in the applicable prospectus supplement certain
special United States federal income tax or other considerations, if any,
applicable to any debt securities which are denominated in a currency or
currency unit other than United States dollars.
FORM, EXCHANGE AND TRANSFER
We will issue the debt securities of each series only in fully registered
form, without coupons, and, unless otherwise specified in the applicable
prospectus supplement, only in denominations of $1,000 and integral multiples
thereof. (Section 302)
At the option of the holder, subject to the terms of the indenture and the
limitations applicable to global securities, debt securities of each series will
be exchangeable for other debt securities of the same series of any authorized
denomination and of a like tenor and aggregate principal amount. (Section 305)
Subject to the terms of the indenture and the limitations applicable to
global securities, holders may present debt securities for exchange as provided
above or for registration of transfer, duly endorsed or with the form of
transfer endorsed thereon duly executed, at the office of the security registrar
or at the office of any transfer agent we designate for such purpose. Holders
will not incur any service charge for any registration of transfer or exchange
of debt securities. We may require, however, payment of a sum sufficient to
cover any tax or other governmental charge payable in connection with such
registration. Such transfer or exchange will occur at such time as the security
registrar or such transfer agent, as the case may be, is satisfied with the
documents of title and identity of the person making the request. We have
appointed the trustee as security registrar. We will name in the applicable
prospectus any transfer agent, in addition to the security registrar, we
initially designate for any debt securities. (Section 305) We may at any time
designate additional transfer agents or rescind the designation of any transfer
agent or approve a change in the office through which any transfer agent acts,
except that we will be required to maintain a transfer agent in each place of
payment for the debt securities of each series. (Section 1002)
If the debt securities of any series, or of any series and specified terms,
are to be redeemed in part, we will not be required to:
- issue, register the transfer of or exchange any security of that series,
or of that series and specified terms, as the case may be, during a
period beginning at the opening of business 15 days before the day of
mailing of a notice of redemption of any such security that may be
selected for redemption and ending at the close of business on the day of
such mailing; or
- register the transfer of or exchange any security so selected for
redemption, in whole or in part, except the unredeemed portion of any
such security being redeemed in part. (Section 305)
GLOBAL SECURITIES
Some or all of the debt securities of any series may be represented, in
whole or in part, by one or more global securities which will have an aggregate
principal amount equal to that of the debt securities represented thereby. Each
global security (a) will be registered in the name of a depositary or a nominee
of such depositary identified in the applicable prospectus supplement, (b) will
be deposited with such depositary or nominee or a custodian, and (c) will bear a
legend regarding the restrictions on exchanges and registration of transfer of
such security referred to below and any such other matters as may be provided
for pursuant to the indenture.
Notwithstanding any provision of the indenture or any security described
here, no global security may be exchanged in whole or in part for debt
securities registered, and no transfer of a global security in whole or in part
may be registered, in the name of any person other than the depositary for such
global security or any nominee of such depositary unless:
- the depositary has notified us that it is unwilling or unable to continue
as depositary for such global security or has ceased to be qualified to
act as a depositary as required by the indenture;
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- there has occurred and is continuing an event of default with respect to
the debt securities represented by such global security; or
- there exist such circumstances, if any, in addition to or in lieu of
those described above as may be described in the applicable prospectus
supplement.
All securities issued in exchange for a global security or any portion thereof
will be registered in such names as the depositary may direct. (Sections 204 and
305)
As long as the depositary, or its nominee, is the registered holder of a
global security, we will consider the depositary or such nominee, as the case
may be, to be the sole owner and holder of such global security and the debt
securities represented thereby for all purposes under the debt securities and
the indenture. Except in the limited circumstances referred to above, owners of
beneficial interests in a global security will not:
- be entitled to have such global security or any debt securities
represented thereby registered in their names;
- receive or be entitled to receive physical delivery of certificated debt
securities in exchange therefor; or
- be considered to be the owners or holders of such global security or any
debt securities represented thereby for any purpose under the debt
securities or the indenture.
We will make all payments of principal of and any premium and interest on a
global security to the depositary or its nominee, as the case may be, as the
holder of such security. The laws of some jurisdictions require that certain
purchasers of securities take physical delivery of such securities in definitive
form. These laws may impair the ability to transfer beneficial interests in a
global security.
Ownership of beneficial interests in a global security will be limited to
institutions that have accounts with the depositary or its nominee, and to
persons that may hold beneficial interests through these institutions. These
institutions are called participants. In connection with the issuance of any
global security, the depositary will credit, on its book-entry registration and
transfer system, the respective principal amounts of debt securities represented
by the global security to the accounts of its participants. Ownership of
beneficial interests in a global security will be shown only on, and the
transfer of those ownership interests will be effected only through, records
maintained by (a) the depositary, with respect to participants' interests, or
(b) any such participant, with respect to interests of persons held by such
participant on their behalf. Payments, transfers, exchanges and others matters
relating to beneficial interests in a global security may be subject to various
policies and procedures adopted by the depositary from time to time. We, the
trustee and any of our agents will not have any responsibility or liability for
any aspect of the depositary's or any participant's records relating to, or for
payments made on account of, beneficial interests in a global security, or for
maintaining, supervising or reviewing any records relating to such beneficial
interests.
PAYMENT AND PAYING AGENTS
Unless otherwise indicated in the applicable prospectus supplement, payment
of interest on a security on any interest payment date will be made to the
person in whose name such security, or one or more predecessor securities, is
registered at the close of business on the regular record date for such
interest. (Section 307)
Unless otherwise indicated in the applicable prospectus supplement,
principal of and any premium and interest on the debt securities of a particular
series will be payable at the office of such paying agent or paying agents as we
may designate for such purpose from time to time, except that at our option
payment of any interest may be made by check mailed to the address of the person
entitled to such payment as such address appears in the security register.
Unless otherwise indicated in the applicable prospectus supplement, the
corporate trust office of the trustee in The City of New York will be designated
as our sole paying agent for payments with respect to debt securities of each
series. Any other paying agents we initially designate for the debt securities
of a particular series will be named in the applicable prospectus supplement. We
may at any time designate additional paying agents or rescind the designation of
any paying agent or approve a change in the office through which any paying
agent acts, except that we will be required to maintain a paying agent in each
place of payment for the debt securities of a particular series. (Section 1002)
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All moneys we pay to a paying agent for the payment of the principal of or
any premium or interest on any security which remain unclaimed at the end of two
years after such principal, premium or interest has become due and payable will
be repaid to us, and the holder of such security after such time may look only
to us for payment of the principal of or any premium or interest on the
security. (Section 1003)
COVENANTS
The indenture contains the following covenants:
Limitation on Secured Debt
We may not, and may not permit any restricted subsidiary to, incur or
guarantee any evidence of indebtedness for money borrowed secured by a lien on
any (a) principal property or any part thereof, (b) capital stock of a
restricted subsidiary we or any restricted subsidiary now own or hereafter
acquire or (c) debt of a restricted subsidiary owed to us or any of our
restricted subsidiaries, except if:
- we effectively provide that the debt securities are secured equally and
ratably with, or, at our option, prior to, such secured debt, and
- any other debt required to be so secured, unless the aggregate amount of
all such secured debt, plus all our and our restricted subsidiaries'
attributable debt with respect to sale and leaseback transactions
involving principal properties (with the exception of such transactions
which are excluded under the indenture), would not exceed 10% of our
consolidated net tangible assets.
The foregoing restriction will not apply to, and we will exclude from debt
in any computation under such restriction, the following items:
- debt secured by a lien in our favor or in favor of a restricted
subsidiary;
- debt secured by a lien in favor of governmental bodies to secure progress
or advance payments or payments pursuant to contracts or statute;
- debt secured by a lien on property, capital stock or debt existing at the
time of acquisition thereof, including acquisition through merger,
consolidation or otherwise;
- debt incurred or guaranteed to finance the acquisition of property,
capital stock or debt, or to finance construction on, or improvement or
expansion of, property, which debt is incurred within 180 days of such
acquisition or completion of construction, improvement or expansion, and
is secured solely by a lien on the property, capital stock or debt
acquired, constructed, improved or expanded;
- debt consisting of industrial revenue or pollution control bonds or
similar financing secured solely by a lien on the property the subject
thereof; or
- any extension, renewal or replacement of any debt referred to in the
third and fourth clauses above. (Section 1008)
Limitation on Sale and Leaseback Transactions
Neither we nor any restricted subsidiary may enter into any sale and
leaseback transaction involving any principal property or any part thereof after
the date of the indenture unless the aggregate amount of all our attributable
debt and that of our restricted subsidiaries with respect to such transactions
plus all secured debt to which the restrictions described above apply would not
exceed 10% of our consolidated net tangible assets.
The foregoing restriction will not apply to any sale and leaseback
transaction, and we will exclude any sale and leaseback transaction from
attributable debt in any computation under such restriction, if:
- the lease is for a period of three years or less, including renewal
rights;
- the lease secures or relates to industrial revenue or pollution control
bonds or similar financing;
- the transaction is between us and a restricted subsidiary or between
restricted subsidiaries; or
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- we or such restricted subsidiary, within 180 days after the sale is
completed, applies an amount equal to the greater of (A) the net proceeds
of the sale of the principal property leased or (B) the fair market value
of the principal property leased either to (1) the retirement of debt
securities, other of our funded debt ranking on a parity with the debt
securities, or funded debt of a restricted subsidiary or (2) the purchase
of other property which will constitute a principal property having a
value at least equal to the value of the principal property leased.
(Section 1009)
MERGERS, CONSOLIDATIONS AND CERTAIN SALES OF ASSETS
We will not, in a single transaction or a series of related transactions,
consolidate with or merge with or into any other person or sell, assign, convey,
transfer or lease or otherwise dispose of all or substantially all of our
properties and assets to any person or group of affiliated persons or permit any
of our restricted subsidiaries to enter into any such transaction or
transactions if such transaction or transactions, in the aggregate, would result
in a sale, assignment, transfer, lease or disposal of all or substantially all
of our and our restricted subsidiaries' properties and assets on a consolidated
basis to any other person or group of affiliated persons, unless several
conditions are met. These conditions include the following. In a transaction in
which we do not survive or in which we sell, lease or otherwise dispose of all
or substantially all of our assets, our successor entity must be organized under
the laws of the United States of America or any State thereof or the District of
Columbia and must expressly assume, by a supplemental indenture executed and
delivered to the trustee in form satisfactory to the trustee, all of our
obligations under the indenture. Immediately before and after giving effect to
such transaction and treating any debt which becomes our or our restricted
subsidiary's obligation as a result of such transaction as if incurred at the
time of the transaction, no event of default or event that with the passing of
time or the giving of notice, or both, would constitute an event of default can
have occurred and be continuing. If, as a result of any such transaction, our
property or assets or that of any restricted subsidiary would become subject to
a lien prohibited by the provisions of the indenture, we or our successor entity
must have secured the debt securities as required by the indenture. (Section
801)
CERTAIN DEFINITIONS
Set forth below is a summary of certain of the defined terms used in the
indenture. Reference is made to the indenture for the full definition of all
such terms, as well as any other terms used herein for which no definition is
provided. (Section 101)
"Attributable Debt" means, with respect to a lease in a sale and leaseback
transaction, the total net amount of rent required to be paid during the
remaining primary term of such lease, discounted at a rate per annum equal to
6.45% calculated in accordance with generally accepted accounting practices. The
net amount of rent required to be paid under any such lease for any such period
will be the aggregate amount of rent payable by the lessee with respect to such
period after excluding amounts required to be paid on account of maintenance,
repairs, insurance, taxes, assessments, utility, operating and labor costs and
similar charges.
"Capital Stock" of any person means any and all shares, interests,
participations or other equivalents (however designated) of corporate stock or
other equity participation, including partnership interests, whether general or
limited, of such person.
"Consolidated Net Tangible Assets" means the aggregate amount of our assets
and that of our subsidiaries after deducting (a) all liabilities other than
deferred income taxes, commercial paper, short-term bank debt, funded debt and
shareholders' equity, and (b) all goodwill and other intangibles.
"Funded Debt" means (a) all debt having a maturity of more than 12 months
from the date as of which the determination is made or having a maturity of 12
months or less but by its terms being renewable or extendible beyond 12 months
from such date at the option of the borrower and (b) rental obligations payable
more than 12 months from such date under leases which are capitalized in
accordance with generally accepted accounting principles, such rental
obligations to be included as funded debt at the amount so capitalized at the
date of such computation and to be included for the purposes of the definition
of consolidated net tangible assets both as an asset and as funded debt at the
amount so capitalized.
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"Lien" means, with respect to any property or assets, any mortgage or deed
of trust, pledge, hypothecation, assignment, deposit arrangement, security
interest, lien, charge, easement, other than any easement not materially
impairing usefulness or marketability, encumbrance, preference, priority or
other security agreement, or any equivalent of any of the foregoing under the
laws of any applicable jurisdiction, on or with respect to such property or
assets, including, without limitation, any conditional sale or other title
retention agreement having substantially the same economic effect as any of the
foregoing.
"Principal Property" means any facility we or any restricted subsidiary
owns the gross book value of which, including related land, improvements,
machinery and equipment so owned, without deduction of any depreciation
reserves, on the date as of which the determination is being made exceeds 1% of
consolidated net tangible assets.
"Restricted Subsidiary" means any subsidiary which owns a principal
property.
"Sale and Leaseback Transaction" means an arrangement with any lender or
investor or to which such lender or investor is a party providing for the
leasing by such person of any property or asset of such person which has been or
is being sold or transferred by such person more than 180 days after the
acquisition thereof or the completion of construction or commencement of
operation thereof to such lender or investor or to any person to whom funds have
been or are to be advanced by such lender or investor on the security of such
property or asset. The stated maturity of such arrangement will be the date of
the last payment of rent or any other amount due under such arrangement prior to
the first date on which such arrangement may be terminated by the lessee without
payment of a penalty.
"Subsidiary" means (a) a corporation more than 50% of the voting stock of
which we and/or one or more subsidiaries owns or (b) any other person (other
than a corporation) of which we and/or one or more subsidiaries has at least a
majority ownership and power to direct the policies, management and affairs.
EVENTS OF DEFAULT
Each of the following will constitute an event of default under the
indenture with respect to debt securities of any series:
- failure to pay principal of or any premium on any security of that series
when due;
- failure to pay any interest on any debt securities of that series when
due, continued for 30 days;
- failure to deposit any sinking fund payment, when due, in respect of any
security of that series;
- failure to perform any other of our covenants in the indenture, other
than a covenant included in the indenture solely for the benefit of a
series other than that series, continued for 60 days after written notice
has been given by the trustee, or the holders of at least 10% in
principal amount of the outstanding debt securities of that series, as
provided in the indenture; and
- certain events in bankruptcy, insolvency or reorganization involving us
or any restricted subsidiary. (Section 501)
If an event of default, other than the last event of default described in
the paragraph above, with respect to the debt securities of any series at the
time outstanding occurs and is continuing, either the trustee or the holders of
at least 25% in aggregate principal amount of the outstanding debt securities of
that series by notice as provided in the indenture may declare the principal
amount of the debt securities of that series, or, in the case of any security
that is an original issue discount security or the principal amount of which is
not then determinable, such portion of the principal amount of such security, or
such other amount in lieu of such principal amount, as may be specified in the
terms of such security, to be due and payable immediately. If an event of
default described in the last clause of the paragraph above with respect to the
debt securities of any series at the time outstanding occurs, the principal
amount of all the debt securities of that series, or, in the case of any such
original issue discount security or other security, such specified amount, will
automatically, and without any action by the trustee or any holder, become
immediately due and payable. After any such acceleration, but before a judgment
or decree based on acceleration, the holders of a majority in aggregate
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principal amount of the outstanding debt securities of that series may, under
certain circumstances, rescind and annul such acceleration if all events of
default, other than the non-payment of accelerated principal, or other specified
amount, have been cured or waived as provided in the indenture. (Section 502)
Subject to the provisions of the indenture relating to the duties of the
trustee in case an event of default occurs and is continuing, the trustee will
be under no obligation to exercise any of its rights or powers under the
indenture at the request or direction of any of the holders, unless such holders
have offered to the trustee reasonable indemnity. (Section 603) Subject to such
provisions for the indemnification of the trustee, the holders of a majority in
aggregate principal amount of the outstanding debt securities of any series will
have the right to direct the time, method and place of conducting any proceeding
for any remedy available to the trustee or exercising any trust or power
conferred on the trustee with respect to the debt securities of that series.
(Section 512)
No holder of a security of any series will have any right to institute any
proceeding with respect to the indenture, or for the appointment of a receiver
or a trustee, or for any other remedy thereunder, unless:
- such holder has previously given to the trustee written notice of a
continuing event of default with respect to the debt securities of that
series;
- the holders of at least 25% in aggregate principal amount of the
outstanding debt securities of that series have made written request, and
such holder or holders have offered reasonable indemnity, to the trustee
to institute such proceeding as trustee; and
- the trustee has failed to institute such proceeding, and has not received
from the holders of a majority in aggregate principal amount of the
outstanding debt securities of that series a direction inconsistent with
such request, within 60 days after such notice, request and offer.
(Section 507)
However, such limitations do not apply to a suit instituted by a holder of a
security for the enforcement of payment of the principal of or any premium or
interest on such security on or after the applicable due date specified in such
security. (Section 508)
We will furnish to the trustee annually a statement by certain of our
officers as to whether or not we, to their knowledge, are in default in the
performance or observance of any of the terms, provisions and conditions of the
indenture and, if so, specifying all such known defaults. (Section 1004)
MODIFICATION AND WAIVER
We and the trustee may make modifications and amendments to the indenture
with the consent of the holders of a majority in aggregate principal amount of
the outstanding debt securities of each series affected by such modification or
amendment, provided that no such modification or amendment may, without the
consent of the holder of each outstanding security affected by such modification
or amendment:
- change the stated maturity of the principal of, or any installment of
principal of or interest on, any security;
- reduce the principal amount of, or any premium or interest on, any
security;
- reduce the amount of principal of an original issue discount security or
any other security payable upon acceleration of the maturity thereof;
- change the place or currency of payment of principal of, or any premium
or interest on, any security;
- impair the right to institute suit for the enforcement of any payment on
or with respect to any security;
- reduce the percentage in principal amount of outstanding debt securities
of any series, the consent of whose holders is required for modification
or amendment of the indenture;
- reduce the percentage in principal amount of outstanding debt securities
of any series necessary for waiver of compliance with certain provisions
of the indenture or for waiver of certain defaults; or
- modify such provisions with respect to modification and waiver. (Section
902)
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The holders of a majority in principal amount of the outstanding debt
securities of any series may waive our compliance with certain restrictive
provisions of the indenture. (Section 1010) The holders of a majority in
principal amount of the outstanding debt securities of any series may waive any
past default under the indenture, except a default in the payment of principal,
premium or interest and certain covenants and provisions of the indenture which
cannot be amended without the consent of the holder of each outstanding security
of such series affected. (Section 513)
The indenture will provide that in determining whether the holders of the
requisite principal amount of the outstanding debt securities have given or
taken any direction, notice, consent, waiver or other action under the indenture
as of any date:
- the principal amount of an original issue discount security that will be
deemed to be outstanding will be the amount of the principal thereof that
would be due and payable as of such date upon acceleration of the
maturity thereof to such date;
- if, as of such date, the principal amount payable at the stated maturity
of a security is not determinable, for example, because it is based on an
index, the principal amount of such security deemed to be outstanding as
of such date will be an amount determined in the manner prescribed for
such security; and
- the principal amount of a security denominated in one or more foreign
currencies or currency units that will be deemed to be outstanding will
be the U.S. dollar equivalent, determined as of such date in the manner
prescribed for such security, of the principal amount of such security,
or, in the case of a security described in either of the first two
clauses above, of the amount described in that clause. Certain debt
securities, including those for whose payment or redemption money has
been deposited or set aside in trust for the holders and those that have
been fully defeased pursuant to Section 1302 of the indenture, will not
be deemed to be outstanding. (Section 101)
Except in certain limited circumstances, we will be entitled to set any day
as a record date for the purpose of determining the holders of outstanding debt
securities of any series entitled to give or take any direction, notice,
consent, waiver or other action under the indenture, in the manner and subject
to the limitations provided in the indenture. In certain limited circumstances,
the trustee will be entitled to set a record date for action by holders. If a
record date is set for any action to be taken by holders of a particular series,
such action may be taken only by persons who are holders of outstanding debt
securities of that series on the record date. Holders of the requisite principal
amount of such debt securities within a specified period following the record
date must take such action for it to be effective. For any particular record
date, this period will be 180 days or such period as we may specify, or as the
trustee may specify, if it set the record date, and may be shortened or
lengthened, but not beyond 180 days, from time to time. (Section 104)
DEFEASANCE AND COVENANT DEFEASANCE
If and to the extent indicated in the applicable prospectus supplement, we
may elect, at our option at any time, to have certain provisions of the
indenture relating to defeasance and discharge of indebtedness or defeasance of
certain restrictive covenants in the indenture, applied to the debt securities
of any series, or to any specified part of a series. (Section 1301)
Defeasance and Discharge
The indenture will provide that, upon our exercise of our option, if any,
to have Section 1302 of the indenture applied to any debt securities, we will be
discharged from all our obligations with respect to such debt securities, except
for certain obligations to exchange or register the transfer of debt securities,
to replace stolen, lost or mutilated debt securities, to maintain paying
agencies and to hold moneys for payment in trust, upon the deposit in trust for
the benefit of the holders of such debt securities of money or U.S. Government
obligations, or both, which, through the payment of principal and interest in
respect thereof in accordance with their terms, will provide money in an amount
sufficient to pay the principal of and any premium and interest
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on such debt securities on the respective stated maturities in accordance with
the terms of the indenture and such debt securities. Such defeasance or
discharge may occur only if, among other things:
- we have delivered to the trustee an opinion of counsel to the effect that
we have received from, or there has been published by, the United States
Internal Revenue Service a ruling; or
- there has been a change in tax law;
in either case to the effect that holders of such debt securities will not
recognize gain or loss for federal income tax purposes as a result of such
deposit, defeasance and discharge and will be subject to federal income tax on
the same amount, in the same manner and at the same times as would have been the
case if such deposit, defeasance and discharge were not to occur. (Sections 1302
and 1304)
Defeasance of Certain Covenants
The indenture will provide that, upon our exercise of our option, if any,
to have Section 1303 of the indenture applied to any debt securities, we may
omit to comply with certain restrictive covenants, including any that may be
described in the applicable prospectus supplement, and the occurrence of certain
events of default, including any that may be described in the applicable
prospectus supplement, will be deemed not to be or result in an event of
default, in each case with respect to such debt securities. We, in order to
exercise such option, will be required to deposit, in trust for the benefit of
the holders of such debt securities, money or U.S. Government obligations, or
both, which, through the payment of principal and interest in respect thereof in
accordance with their terms, will provide money in an amount sufficient to pay
the principal of and any premium and interest on such debt securities on the
respective stated maturities in accordance with the terms of the indenture and
such debt securities. We will also be required, among other things, to deliver
to the trustee an opinion of counsel to the effect that holders of such debt
securities will not recognize gain or loss for federal income tax purposes as a
result of such deposit and defeasance of certain obligations and will be subject
to federal income tax on the same amount, in the same manner and at the same
times as would have been the case if such deposit and defeasance were not to
occur. In the event we exercised this option with respect to any debt securities
and such debt securities were declared due and payable because of the occurrence
of any event of default, the amount of money and U.S. Government obligations so
deposited in trust would be sufficient to pay amounts due on such debt
securities at the time of their respective stated maturities but may not be
sufficient to pay amounts due on such debt securities upon any acceleration
resulting from such event of default. In such case, we would remain liable for
such payments. (Sections 1303 and 1304)
NOTICES
We will provide notices to holders of debt securities by mail to the
addresses of such holders as they may appear in the security register. (Sections
101 and 106)
TITLE
We, the trustee and any of our agents or those of the trustee may treat the
person in whose name a security is registered as the absolute owner of such
security, whether or not such security may be overdue, for the purpose of making
payment and for all other purposes. (Section 308)
GOVERNING LAW
The indenture and the debt securities will be governed by, and construed
and enforced in accordance with, the law of the State of New York. (Section 112)
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PLAN OF DISTRIBUTION
We may sell the debt securities to or through one or more underwriters, to
be designated from time to time, for public offering and sale by them and may
also sell such securities to investors directly or through agents or
broker-dealers. We will name any such underwriter or agent involved in the offer
and sale of the debt securities in the applicable prospectus supplement. We have
reserved the right to sell or exchange the debt securities directly to investors
on our own behalf in those jurisdictions where and in such manner as we are
authorized to do so.
The distribution of the debt securities may be effected from time to time
in one or more transactions at a fixed price or prices, which may be changed, or
at market prices prevailing at the time of sale, at prices related to such
prevailing market prices, or at negotiated prices. We may also, from time to
time, authorize dealers, acting as our agents, to offer and sell debt securities
upon the terms and conditions as are set forth in the applicable prospectus
supplement. In connection with the sale of the debt securities, we may
compensate underwriters in the form of underwriting discounts or commissions.
Underwriters may also receive commissions from purchasers of the debt securities
for whom they may act as agent. Underwriters may sell debt securities to or
through dealers, and such dealers may receive compensation in the form of
discounts, concessions or commissions from the underwriters and/or commissions
from the purchasers for whom they may act as agent.
We will set forth in the applicable prospectus supplement any underwriting
compensation we pay to underwriters or agents in connection with the offering of
debt securities, and any discounts, concessions or commissions allowed by
underwriters to participating dealers. Dealers and agents participating in the
distribution of debt securities may be deemed to be underwriters, and any
discounts and commissions received by them and any profit realized by them on
resale of such securities may be deemed to be underwriting discounts and
commissions. Underwriters, dealers and agents may be entitled, under agreements
we enter into with them, to indemnification against and contribution toward
certain civil liabilities, including liabilities under the Securities Act, and
to our reimbursement for certain expenses.
Certain of the underwriters, dealers or agents and their associates may
engage in transactions with and perform services for us in the ordinary course
of business.
LEGAL MATTERS
Robert G. Kuhbach, Esq., our Vice President, General Counsel and Secretary,
on our behalf, will pass upon certain legal matters with respect to the debt
securities to which this prospectus relates. Counsel for any agents or
underwriters identified in the applicable prospectus supplement will pass upon
certain legal matters on behalf of such agents or underwriters.
EXPERTS
We have incorporated by reference in this prospectus the financial
statements contained in our Annual Report on Form 10-K for the year ended
December 31, 1999 in reliance on the report of PricewaterhouseCoopers LLP,
independent accountants, given on that firm's authority as experts in auditing
and accounting.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The expenses to be paid by the Company in connection with the distribution
of the securities being registered are as set forth in the following table:
Securities and Exchange Commission Fee...................... $264,000
*Rating Agency.............................................. 285,000
*Legal Fees and Expenses.................................... 125,000
*Accounting Fees and Expenses............................... 10,000
*Printing Expenses.......................................... 20,000
*Blue Sky Fees.............................................. 20,000
*Trustee/Issuing & Paying Agent Fees and Expenses........... 50,000
*Miscellaneous.............................................. 6,000
*Total............................................ $780,000
========
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* Estimated.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company is a Delaware corporation. Section 145 of the Delaware General
Corporation Law generally provides that a corporation is empowered to indemnify
any person who is or is threatened to be made a party to any threatened, pending
or completed action, suit or proceeding by reason of the fact that he or she is
or was a director, officer, employee or agent of the Company or is or was
serving, at the request of the Company, in any of such capacities of another
corporation or other enterprise, if such director, officer, employee or agent
acted in good faith and in a manner he or she reasonably believed to be in or
not opposed to the best interests of the Company, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his or her
conduct was unlawful. The statute describes in detail the right of the Company
to indemnify any such person. Article XII of the By-Laws of the Company provides
for indemnification of directors, officers, employees and agents of the Company
for expenses (including attorney's fees), judgments, fines, ERISA excise taxes
or penalties and amounts paid in settlement with respect to threatened, pending
or completed actions, suits or proceedings to the full extent permitted under
the laws of the State of Delaware. Article SEVENTEENTH of the Restated
Certificate of Incorporation of the Company, as amended, eliminates the
liability of directors to the fullest extent permitted under the
above-referenced Delaware statute.
The Company has in effect a policy insuring itself, its subsidiaries and
their respective directors and officers, to the extent they may be required or
permitted to indemnify such officers or directors, against certain liabilities
arising from acts or omissions in the discharge of their duties that they will
become legally obligated to pay. The policy is for a period ending November 5,
2000 and provides a maximum coverage of $35 million and (subject to certain
enumerated exclusions) covers 100% of all losses without a deductible.
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ITEM 16. EXHIBITS
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
- ------- ----------------------
*1 Form of Underwriting Agreement.
4.1 Form of Indenture.
*4.2 Form of Debt Security.
5 Opinion of Robert G. Kuhbach, Esq.
12 Statement regarding Computation of Ratio of Earnings to
Fixed Charges.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Robert G. Kuhbach, Esq. (contained in his opinion
filed as Exhibit 5 to this Registration Statement).
24 Powers of Attorney (contained on the signature page).
**25 Statement of Eligibility of Trustee on Form T-1.
- ---------------
* To be filed by amendment or by a report on Form 8-K pursuant to Regulation
S-K, Item 601(b).
** To be filed separately pursuant to Trust Indenture Act Section 305(b)(2).
ITEM 17. UNDERTAKINGS
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20 percent change
in the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration statement
or any material change to such information in the registration
statement;
provided, however, that the information required to be included in a
post-effective amendment by paragraphs (a)(1)(i) and (a)(1)(ii) above may
be contained in periodic reports filed with or furnished to the Commission
by the registrant pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the registration
statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment will be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time will be deemed to
be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
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(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement will be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time will be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities Act
of 1933 and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act of 1933 and will be governed by the final adjudication of such issue.
(d) The undersigned registrant hereby undertakes to file an application for
the purpose of determining the eligibility of the trustee to act under
Subsection (a) of Section 310 of the Trust Indenture Act (the "Act") in
accordance with the rules and regulations prescribed by the Commission under
Section 305(b)(2) of the Act.
II-3
21
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of New York, State of New York on September 29, 2000.
DOVER CORPORATION
By: /s/ THOMAS L. REECE
-------------------------------------
Thomas L. Reece
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below does hereby constitute and appoint Thomas L. Reece, David S. Smith
and Robert G. Kuhbach, and each of them, with full power of substitution and
full power to act without the other, his true and lawful attorney-in-fact and
agent to act for him in his name, place and stead, in any and all capacities, to
sign a registration statement on Form S-3 and any or all amendments thereto
(including without limitation any post-effective amendments thereto), and any
registration statement for the same offering that is to be effective under Rule
462(b) of the Securities Act, and to file each of the same, with all exhibits
thereto, and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and each
of them, full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises in order to
effectuate the same as fully, to all intents and purposes, as they or he might
or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or any of them, may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by each of the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
--------- ----- ----
/s/ THOMAS L. REECE President, Chief Executive September 29, 2000
- --------------------------------------------------- Officer and Chairman
Thomas L. Reece (Principal Executive
Officer)
/s/ DAVID S. SMITH Vice President -- Finance September 29, 2000
- --------------------------------------------------- and Director (Principal
David S. Smith Financial Officer)
/s/ GEORGE F. MESEROLE Controller (Principal September 29, 2000
- --------------------------------------------------- Accounting Officer)
George F. Meserole
/s/ DAVID H. BENSON Director September 29, 2000
- ---------------------------------------------------
David H. Benson
/s/ JEAN-PIERRE M. ERGAS Director September 29, 2000
- ---------------------------------------------------
Jean-Pierre M. Ergas
/s/ RODERICK J. FLEMING Director September 29, 2000
- ---------------------------------------------------
Roderick J. Fleming
II-4
22
SIGNATURE TITLE DATE
--------- ----- ----
/s/ KRISTIANE C. GRAHAM Director September 29, 2000
- ---------------------------------------------------
Kristiane C. Graham
/s/ JAMES L. KOLEY Director September 29, 2000
- ---------------------------------------------------
James L. Koley
/s/ RICHARD K. LOCHRIDGE Director September 29, 2000
- ---------------------------------------------------
Richard K. Lochridge
/s/ GARY L. ROUBOS Director September 29, 2000
- ---------------------------------------------------
Gary L. Roubos
/s/ MICHAEL B. STUBBS Director September 29, 2000
- ---------------------------------------------------
Michael B. Stubbs
II-5
23
EXHIBIT INDEX
EXHIBIT PAGE
NUMBER DESCRIPTION OF EXHIBIT NO.
- ------- ---------------------- ----
*1 Form of Underwriting Agreement.
4.1 Form of Indenture.
*4.2 Form of Debt Security.
5 Opinion of Robert G. Kuhbach, Esq.
12 Statement regarding Computation of Ratio of Earnings to
Fixed Charges.
23.1 Consent of PricewaterhouseCoopers LLP
23.2 Consent of Robert G. Kuhbach, Esq. (contained in his opinion
filed as Exhibit 5 to this Registration Statement)
24 Powers of Attorney (contained on the signature page).
**25 Statement of Eligibility of Trustee on Form T-1.
- ---------------
* To be filed by amendment or by a report on Form 8-K pursuant to Regulation
S-K, Item 601(b).
** To be filed separately pursuant to Trust Indenture Act Section 305(b)(2).
1
EXHIBIT 4.1
DOVER CORPORATION
TO
TRUSTEE
INDENTURE
DATED AS OF _______________, 200_
2
DOVER CORPORATION
CERTAIN SECTIONS OF THIS INDENTURE RELATING TO SECTIONS 310 THROUGH 318,
INCLUSIVE, OF THE TRUST INDENTURE ACT OF 1939:
TRUST INDENTURE
ACT SECTION INDENTURE SECTION
Section 10 (a)(1).................................................................................. 609
(a)(2).................................................................................. 609
(a)(3).................................................................................. Not Applicable
(a)(4).................................................................................. Not Applicable
(b)..................................................................................... 608
610
Section 311 (a)..................................................................................... 613
(b)..................................................................................... 613
Section 312 (a)..................................................................................... 701
............................................................................................ 702
(b)..................................................................................... 702
(c)..................................................................................... 702
Section 313 (a)..................................................................................... 703
(b)..................................................................................... 703
(c)..................................................................................... 703
(d)..................................................................................... 703
Section 314 (a)..................................................................................... 704
(a)(4).................................................................................. 101
1004
(b)..................................................................................... Not Applicable
(c)(1).................................................................................. 102
(c)(2).................................................................................. 102
(c)(3).................................................................................. Not Applicable
(d)..................................................................................... Not Applicable
(e)..................................................................................... 102
Section 315 (a)..................................................................................... 601
(b)..................................................................................... 602
(c)..................................................................................... 601
(d)..................................................................................... 601
(e)..................................................................................... 514
Section 316 (a)..................................................................................... 101
(a)(1)(A)............................................................................... 502
512
(a)(1)(B)............................................................................... 513
(a)(2).................................................................................. Not Applicable
(b)..................................................................................... 508
(c)..................................................................................... 104
Section 317 (a)(1).................................................................................. 503
(a)(2).................................................................................. 504
(b)..................................................................................... 1003
Section 318 (a)..................................................................................... 107
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be
a part of the Indenture.
3
TABLE OF CONTENTS
Page
----
ARTICLE ONE Definitions and Other Provisions of General Application............................................... 1
Section 101 Definitions..................................................................................... 1
Act"........................................................................................................ 2
Affiliate".................................................................................................. 2
Attributable Debt".......................................................................................... 2
Authenticating Agent"....................................................................................... 2
Board Resolution"........................................................................................... 2
Business Day"............................................................................................... 2
Capital Stock".............................................................................................. 2
Commission"................................................................................................. 2
Company".................................................................................................... 3
Company Request" or "Company Order"......................................................................... 3
Consolidated Net Tangible Assets"........................................................................... 3
Corporate Trust Office"..................................................................................... 3
corporation"................................................................................................ 3
Covenant Defeasance"........................................................................................ 3
Defaulted Interest"......................................................................................... 3
Defeasance"................................................................................................. 3
Depositary"................................................................................................. 3
Event of Default"........................................................................................... 3
Exchange Act"............................................................................................... 3
Expiration Date"............................................................................................ 3
Funded Debt"................................................................................................ 3
Global Security"............................................................................................ 4
Holder"..................................................................................................... 4
Indenture".................................................................................................. 4
interest"................................................................................................... 4
Interest Payment Date"...................................................................................... 4
Investment Company Act"..................................................................................... 4
Lien"....................................................................................................... 4
Maturity"................................................................................................... 4
Notice of Default".......................................................................................... 4
Officers' Certificate"...................................................................................... 4
Opinion of Counsel"......................................................................................... 4
Original Issue Discount Security"........................................................................... 5
Outstanding"................................................................................................ 5
Paying Agent"............................................................................................... 6
Person"..................................................................................................... 6
Place of Payment"........................................................................................... 6
Predecessor Security"....................................................................................... 6
Principal Property"......................................................................................... 6
i
4
Redemption Date"............................................................................................ 6
Redemption Price"........................................................................................... 6
Regular Record Date"........................................................................................ 6
Restricted Subsidiary"...................................................................................... 6
Sale and Leaseback Transaction"............................................................................. 6
Securities"................................................................................................. 7
Securities Act"............................................................................................. 7
Special Record Date"........................................................................................ 7
Stated Maturity"............................................................................................ 7
Subsidiary"................................................................................................. 7
Trust Indenture Act"........................................................................................ 7
Trustee".................................................................................................... 7
U.S. Government Obligation"................................................................................. 7
Vice President"............................................................................................. 7
Section 102 Compliance Certificates and Opinions............................................................ 7
Section 103 Form of Documents Delivered to Trustee.......................................................... 8
Section 104 Acts of Holders; Record Dates................................................................... 9
Section 105 Notices, Etc., to Trustee and Company.......................................................... 11
Section 106 Notice to Holders; Waiver...................................................................... 11
Section 107 Conflict with Trust Indenture Act.............................................................. 11
Section 108 Effect of Headings and Table of Contents....................................................... 12
Section 109 Successors and Assigns......................................................................... 12
Section 110 Separability Clause............................................................................ 12
Section 111 Benefits of Indenture.......................................................................... 12
Section 112 Governing Law.................................................................................. 12
Section 113 Legal Holidays................................................................................. 12
ARTICLE TWO Security Forms....................................................................................... 13
Section 201 Forms Generally................................................................................ 13
Section 202 Form of Face of Security....................................................................... 13
Section 203 Form of Reverse of Security.................................................................... 15
Section 204 Form of Legend for Global Securities........................................................... 19
Section 205 Form of Trustee's Certificate of Authentication................................................ 19
ARTICLE THREE The Securities..................................................................................... 19
Section 301 Amount Unlimited; Issuable in Series........................................................... 19
Section 302 Denominations.................................................................................. 22
Section 303 Execution, Authentication, Delivery and Dating................................................. 22
Section 304 Temporary Securities........................................................................... 23
Section 305 Registration, Registration of Transfer and Exchange............................................ 24
Section 306 Mutilated, Destroyed, Lost and Stolen Securities............................................... 25
Section 307 Payment of Interest; Interest Rights Preserved................................................. 26
Section 308 Persons Deemed Owners.......................................................................... 27
Section 309 Cancellation................................................................................... 27
Section 310 Computation of Interest........................................................................ 28
ii
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ARTICLE FOUR Satisfaction and Discharge.......................................................................... 28
Section 401 Satisfaction and Discharge of Indenture........................................................ 28
Section 402 Application of Trust Money..................................................................... 29
ARTICLE FIVE Remedies............................................................................................ 29
Section 501 Events of Default.............................................................................. 29
Section 502 Acceleration of Maturity; Rescission and Annulment............................................. 31
Section 503 Collection of Indebtedness and Suits for Enforcement by Trustee................................ 32
Section 504 Trustee May File Proofs of Claim............................................................... 32
Section 505 Trustee May Enforce Claims Without Possession of Securities.................................... 33
Section 506 Application of Money Collected................................................................. 33
Section 507 Limitation on Suits............................................................................ 34
Section 508 Unconditional Right of Holders to Receive Principal, Premium and Interest...................... 34
Section 509 Restoration of Rights and Remedies............................................................. 34
Section 510 Rights and Remedies Cumulative................................................................. 35
Section 511 Delay or Omission Not Waiver................................................................... 35
Section 512 Control by Holders............................................................................. 35
Section 513 Waiver of Past Defaults........................................................................ 35
Section 514 Undertaking for Costs.......................................................................... 36
Section 515 Waiver of Usury, Stay or Extension Laws........................................................ 36
ARTICLE SIX The Trustee.......................................................................................... 36
Section 601 Certain Duties and Responsibilities............................................................ 36
Section 602 Notice of Defaults............................................................................. 37
Section 603 Certain Rights of Trustee...................................................................... 37
Section 604 Not Responsible for Recitals or Issuance of Securities......................................... 38
Section 605 May Hold Securities............................................................................ 38
Section 606 Money Held in Trust............................................................................ 38
Section 607 Compensation and Reimbursement................................................................. 38
Section 608 Conflicting Interests.......................................................................... 39
Section 609 Corporate Trustee Required; Eligibility........................................................ 39
Section 610 Resignation and Removal; Appointment of Successor.............................................. 40
Section 611 Acceptance of Appointment by Successor......................................................... 41
Section 612 Merger, Conversion, Consolidation or Succession to Business.................................... 42
Section 613 Preferential Collection of Claims Against Company.............................................. 42
Section 614 Appointment of Authenticating Agent............................................................ 42
ARTICLE SEVEN Holders' Lists and Reports by Trustee and Company.................................................. 44
Section 701 Company to Furnish Trustee Names and Addresses of Holders...................................... 44
Section 702 Preservation of Information; Communications to Holders......................................... 44
Section 703 Reports by Trustee............................................................................. 45
Section 704 Reports by Company............................................................................. 45
ARTICLE EIGHT Consolidation, Merger, Conveyance, Transfer or Lease............................................... 45
iii
6
Section 801 Company May Consolidate, Etc., Only on Certain Terms........................................... 45
Section 802 Successor Substituted.......................................................................... 46
ARTICLE NINE Supplemental Indentures............................................................................. 47
Section 901 Supplemental Indentures Without Consent of Holders............................................. 47
Section 902 Supplemental Indentures With Consent of Holders................................................ 48
Section 903 Execution of Supplemental Indentures........................................................... 49
Section 904 Effect of Supplemental Indentures.............................................................. 49
Section 905 Conformity with Trust Indenture Act............................................................ 49
Section 906 Reference in Securities to Supplemental Indentures............................................. 50
ARTICLE TEN Covenants............................................................................................ 50
Section 1001 Payment of Principal, Premium and Interest.................................................. 50
Section 1002 Maintenance of Office or Agency............................................................. 50
Section 1003 Money for Securities Payments to Be Held in Trust........................................... 51
Section 1004 Statement by Officers as to Default......................................................... 52
Section 1005 Existence................................................................................... 52
Section 1006 Maintenance of Properties................................................................... 52
Section 1007 Payment of Taxes and Other Claims........................................................... 52
Section 1008 Limitation on Secured Debt.................................................................. 53
Section 1009 Limitation on Sale and Leaseback Transactions............................................... 53
Section 1010 Waiver of Certain Covenants................................................................. 54
ARTICLE ELEVEN Redemption of Securities.......................................................................... 54
Section 1101 Applicability of Article.................................................................... 54
Section 1102 Election to Redeem; Notice to Trustee....................................................... 54
Section 1103 Selection by Trustee of Securities to Be Redeemed........................................... 55
Section 1104 Notice of Redemption........................................................................ 55
Section 1105 Deposit of Redemption Price................................................................. 56
Section 1106 Securities Payable on Redemption Date....................................................... 56
Section 1107 Securities Redeemed in Part................................................................. 57
ARTICLE TWELVE Sinking Funds..................................................................................... 57
Section 1201 Applicability of Article.................................................................... 57
Section 1202 Satisfaction of Sinking Fund Payments with Securities....................................... 57
Section 1203 Redemption of Securities for Sinking Fund................................................... 58
ARTICLE THIRTEEN Defeasance and Covenant Defeasance.............................................................. 58
Section 1301 Company's Option to Effect Defeasance or Covenant Defeasance................................ 58
Section 1302 Defeasance and Discharge.................................................................... 58
Section 1303 Covenant Defeasance......................................................................... 59
Section 1304 Conditions to Defeasance or Covenant Defeasance............................................. 59
iv
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Section 1305 Deposited Money and U.S. Government Obligations to Be Held in Trust; Miscellaneous Provisions 61
Section 1306 Reinstatement............................................................................... 62
v
8
INDENTURE, dated as of ____________, 200_ between DOVER CORPORATION, a
corporation duly organized and existing under the laws of the State of Delaware
(herein called the "Company"), having its principal office at 280 Park Avenue,
New York, New York 10017-1292, and _____________________, a ________________
duly organized and existing under the laws of _______ , as Trustee (herein
called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein called the
"Securities"), to be issued in one or more series as in this Indenture provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Securities or of series thereof, as
follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
Section 101 Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles, and, except as otherwise herein expressly
provided, the term "generally accepted accounting principles" with
respect to any computation required or permitted hereunder shall mean
such accounting principles as are generally accepted at the date of
such computation;
9
(4) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the case
may be, of this Indenture; and
(5) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to
any particular Article, Section or other subdivision.
"Act", when used with respect to any Holder, has the meaning specified
in Section 104.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Attributable Debt" means, with respect to a lease in a Sale and
Leaseback Transaction, the total net amount of rent required to be paid during
the remaining primary term of such lease, discounted at a rate per annum equal
to the interest rate on the Securities, calculated in accordance with generally
accepted accounting practices. The net amount of rent required to be paid under
any such lease for any such period shall be the aggregate amount of rent payable
by the lessee with respect to such period after excluding amounts required to be
paid on account of maintenance, repairs, insurance, taxes, assessments, utility,
operating and labor costs and similar charges.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 614 to act on behalf of the Trustee to authenticate
Securities of one or more series.
"Board of Directors" means either the board of directors of the Company
or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day", when used with respect to any Place of Payment, means
each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in that Place of Payment are authorized or obligated by law
or executive order to close.
"Capital Stock" of any Person means any and all shares, interests,
participations or other equivalents (however designated) of corporate stock or
other equity participation, including partnership interests, whether general or
limited, of such Person.
"Commission" means the Securities and Exchange Commission, from time to
time constituted, created under the Exchange Act, or, if at any time after the
execution of this instrument such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
2
10
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its Vice
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 Net Tangible Assets" means the aggregate amount of assets
of the Company and its Subsidiaries after deducting (i) all liabilities other
than deferred income taxes, commercial paper, short-term bank Debt, Funded Debt
and shareholders' equity, and (ii) all goodwill and other intangibles.
"Corporate Trust Office" means the principal office of the Trustee in
__________________________________ at which at any particular time its corporate
trust business shall be administered.
"corporation" means a corporation, association, company, joint-stock
company or business trust.
"Covenant Defeasance" has the meaning specified in Section 1303.
"Defaulted Interest" has the meaning specified in Section 307.
"Defeasance" has the meaning specified in Section 1302.
"Depositary" means, with respect to Securities of any series issuable
in whole or in part in the form of one or more Global Securities, a clearing
agency registered under the Exchange Act that is designated to act as Depositary
for such Securities as contemplated by Section 301.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934 and any
statute successor thereto, in each case as amended from time to time.
"Expiration Date" has the meaning specified in Section 104.
"Funded Debt" means (i) all Debt having a maturity of more than 12
months from the date as of which the determination is made or having a maturity
of 12 months or less but by its terms being renewable or extendible beyond 12
months from such date at the option of the borrower and (ii) rental obligations
payable more than 12 months from such date under leases which are capitalized in
accordance with generally accepted accounting principles (such rental
obligations to be included as Funded Debt at the amount so capitalized at the
date of such computation and to be included for the purposes of the definition
of Consolidated Net Tangible Assets both as an asset and as Funded Debt at the
amount so capitalized).
3
11
"Global Security" means a Security that evidences all or part of the
Securities of any series and bears the legend set forth in Section 204 (or such
legend as may be specified as contemplated by Section 301 for such Securities).
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Indenture" means this instrument as originally executed and as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
including, for all purposes of this instrument and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively. The term "Indenture" shall also include the terms of particular
series of Securities established as contemplated by Section 301.
"interest", when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity.
"Interest Payment Date", when used with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
"Investment Company Act" means the Investment Company Act of 1940 and
any statute successor thereto, in each case as amended from time to time.
"Lien" means, with respect to any property or assets, any mortgage or
deed of trust, pledge, hypothecation, assignment, deposit arrangement, security
interest, lien, charge, easement (other than any easement not materially
impairing usefulness or marketability), encumbrance, preference, priority or
other security agreement, or any equivalent of any of the foregoing under the
laws of any applicable jurisdiction, on or with respect to such property or
assets (including, without limitation, any conditional sale or other title
retention agreement having substantially the same economic effect as any of the
foregoing).
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Notice of Default" means a written notice of the kind specified in
Section 501(4) or 501(5).
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, a Vice Chairman of the Board, the President or a Vice President, and
by the Treasurer, an Assistant Treasurer, the Secretary or an Assistant
Secretary, of the Company, and delivered to the Trustee. One of the officers
signing an Officers' Certificate given pursuant to Section 1004 shall be the
principal executive, financial or accounting officer of the Company.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company, and who shall be acceptable to the Trustee.
4
12
"Original Issue Discount Security" means any Security which provides
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to Section 502.
"Outstanding", when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(1) Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(2) Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as its own
Paying Agent) for the Holders of such Securities; provided that, if
such Securities are to be redeemed, notice of such redemption has been
duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made;
(3) Securities as to which Defeasance has been effected
pursuant to Section 1302; and
(4) Securities which have been paid pursuant to Section 306 or
in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held by a
bona fide purchaser in whose hands such Securities are valid
obligations of the Company;
provided, however, that in determining whether the Holders of the
requisite principal amount of the Outstanding Securities have given, made or
taken any request, demand, authorization, direction, notice, consent, waiver or
other action hereunder as of any date, (A) the principal amount of an Original
Issue Discount Security which shall be deemed to be Outstanding shall be the
amount of the principal thereof which would be due and payable as of such date
upon acceleration of the Maturity thereof to such date pursuant to Section 502,
(B) if, as of such date, the principal amount payable at the Stated Maturity of
a Security is not determinable, the principal amount of such Security which
shall be deemed to be Outstanding shall be the amount as specified or determined
as contemplated by Section 301, (C) the principal amount of a Security
denominated in one or more foreign currencies or currency units which shall be
deemed to be Outstanding shall be the U.S. dollar equivalent, determined as of
such date in the manner provided as contemplated by Section 301, of the
principal amount of such Security (or, in the case of a Security described in
Clause (A) or (B) above, of the amount determined as provided in such Clause),
and (D) Securities owned by the Company or any other obligor upon the Securities
or any Affiliate of the Company or of such other obligor shall be disregarded
and deemed not to be Outstanding, except that, in determining whether the
Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent, waiver or other action, only
Securities which the Trustee knows to be so owned shall be so disregarded.
Securities so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect
5
13
to such Securities and that the pledgee is not the Company or any other obligor
upon the Securities or any Affiliate of the Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of or any premium or interest on any Securities on behalf of the
Company.
"Person" means any individual, corporation, partnership, joint venture,
trust, unincorporated organization or government or any agency or political
subdivision thereof.
"Place of Payment", when used with respect to the Securities of any
series, means the place or places where the principal of and any premium and
interest on the Securities of that series are payable as specified as
contemplated by Section 301.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Principal Property" means any facility owned by the Company or any
Restricted Subsidiary the gross book value of which (including related land,
improvements, machinery and equipment so owned, without deduction of any
depreciation reserves) on the date as of which the determination is being made
exceeds 1% of Consolidated Net Tangible Assets.
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Securities of any series means the date specified for that purpose
as contemplated by Section 301.
"Restricted Subsidiary" means any Subsidiary which owns a Principal
Property.
"Sale and Leaseback Transaction" means an arrangement with any lender
or investor or to which such lender or investor is a party providing for the
leasing by such Person of any property or asset of such Person which has been or
is being sold or transferred by such Person more than 180 days after the
acquisition thereof or the completion of construction or commencement of
operation thereof to such lender or investor or to any person to whom funds have
been or are to be advanced by such lender or investor on the security of such
property or asset. The stated maturity of such arrangement shall be the date of
the last payment of rent or any other amount due under such arrangement prior to
the first date on which such arrangement may be terminated by the lessee without
payment of a penalty.
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"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and delivered
under this Indenture.
"Securities Act" means the Securities Act of 1933 and any statute
successor thereto, in each case as amended from time to time.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or any
instalment of principal thereof or interest thereon, means the date specified in
such Security as the fixed date on which the principal of such Security or such
instalment of principal or interest is due and payable.
"Subsidiary" means (i) a corporation more than 50% of the voting stock
of which is owned by the Company and/or one or more Subsidiaries or (ii) any
other Person (other than a corporation) of which the Company and/or one or more
Subsidiaries has at least a majority ownership and power to direct the policies,
management and affairs.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force
at the date as of which this instrument was executed; provided, however, that in
the event the Trust Indenture Act of 1939 is amended after such date, "Trust
Indenture Act" means, to the extent required by any such amendment, the Trust
Indenture Act of 1939 as so amended.
"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 Obligation" has the meaning specified in Section 1304.
"Vice President", when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president".
Section 102 Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
the Trustee such certificates and opinions as may be required under the Trust
Indenture Act. Each such certificate or opinion shall be given in the form of an
Officers' Certificate, if to be given by an officer of the Company, or
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an Opinion of Counsel, if to be given by counsel, and shall comply with the
requirements of the Trust Indenture Act and any other requirements set forth in
this Indenture.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include,
(1) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions
herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual,
he has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 103 Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or opinion of counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
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Section 104 Acts of Holders; Record Dates.
Any request, demand, authorization, direction, notice, consent, waiver
or other action provided or permitted by this Indenture to be given, made or
taken by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 601) conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Section.
The fact and date of the execution by any Person of any such instrument
or writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such execution is by
a signer acting in a capacity other than his individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his
authority. The fact and date of the execution of any such instrument or writing,
or the authority of the Person executing the same, may also be proved in any
other manner which the Trustee deems sufficient.
The ownership of Securities shall be proved by the Security Register.
Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Holder of any Security shall bind every future Holder of the
same Security and the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee or the Company in
reliance thereon, whether or not notation of such action is made upon such
Security.
The Company may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities of any series entitled to
give, make or take any request, demand, authorization, direction, notice,
consent, waiver or other action provided or permitted by this Indenture to be
given, made or taken by Holders of Securities of such series, provided that the
Company may not set a record date for, and the provisions of this paragraph
shall not apply with respect to, the giving or making of any notice,
declaration, request or direction referred to in the next paragraph. If any
record date is set pursuant to this paragraph, the Holders of Outstanding
Securities of the relevant series on such record date, and no other Holders,
shall be entitled to take the relevant action, whether or not such Holders
remain Holders after such record date; provided that no such action shall be
effective hereunder unless taken on or prior to the applicable Expiration Date
by Holders of the requisite principal amount of Outstanding Securities of such
series on such record date. Nothing in this paragraph shall be construed to
prevent the Company from setting a new record date for any action for which a
record date has previously been set pursuant to this paragraph (whereupon the
record date previously set shall automatically and with no action by any Person
be canceled and of no effect), and nothing in this
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paragraph shall be construed to render ineffective any action taken by Holders
of the requisite principal amount of Outstanding Securities of the relevant
series on the date such action is taken. Promptly after any record date is set
pursuant to this paragraph, the Company, at its own expense, shall cause notice
of such record date, the proposed action by Holders and the applicable
Expiration Date to be given to the Trustee in writing and to each Holder of
Securities of the relevant series in the manner set forth in Section 106.
The Trustee may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities of any series entitled to join
in the giving or making of (i) any Notice of Default, (ii) any declaration of
acceleration referred to in Section 502, (iii) any request to institute
proceedings referred to in Section 507(2) or (iv) any direction referred to in
Section 512, in each case with respect to Securities of such series. If any
record date is set pursuant to this paragraph, the Holders of Outstanding
Securities of such series on such record date, and no other Holders, shall be
entitled to join in such notice, declaration, request or direction, whether or
not such Holders remain Holders after such record date; provided that no such
action shall be effective hereunder unless taken on or prior to the applicable
Expiration Date by Holders of the requisite principal amount of Outstanding
Securities of such series on such record date. Nothing in this paragraph shall
be construed to prevent the Trustee from setting a new record date for any
action for which a record date has previously been set pursuant to this
paragraph (whereupon the record date previously set shall automatically and with
no action by any Person be canceled and of no effect), and nothing in this
paragraph shall be construed to render ineffective any action taken by Holders
of the requisite principal amount of Outstanding Securities of the relevant
series on the date such action is taken. Promptly after any record date is set
pursuant to this paragraph, the Trustee, at the Company's expense, shall cause
notice of such record date, the proposed action by Holders and the applicable
Expiration Date to be given to the Company in writing and to each Holder of
Securities of the relevant series in the manner set forth in Section 106.
With respect to any record date set pursuant to this Section, the party
hereto which sets such record dates may designate any day as the "Expiration
Date" and from time to time may change the Expiration Date to any earlier or
later day; provided that no such change shall be effective unless notice of the
proposed new Expiration Date is given to the other party hereto in writing, and
to each Holder of Securities of the relevant series in the manner set forth in
Section 106, on or prior to the existing Expiration Date. If an Expiration Date
is not designated with respect to any record date set pursuant to this Section,
the party hereto which set such record date shall be deemed to have initially
designated the 180th day after such record date as the Expiration Date with
respect thereto, subject to its right to change the Expiration Date as provided
in this paragraph. Notwithstanding the foregoing, no Expiration Date shall be
later than the 180th day after the applicable record date.
Without limiting the foregoing, a Holder entitled hereunder to take any
action hereunder with regard to any particular Security may do so with regard to
all or any part of the principal amount of such Security or by one or more duly
appointed agents each of which may do so pursuant to such appointment with
regard to all or any part of such principal amount.
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Section 105 Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust Office,
Attention: ________________________________________, or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to the Company addressed to it at the address of its principal
office specified in the first paragraph of this instrument or at any
other address previously furnished in writing to the Trustee by the
Company.
Section 106 Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at his address as it appears in the Security Register, not later
than the latest date (if any), and not earlier than the earliest date (if any),
prescribed for the giving of such notice. In any case where notice to Holders is
given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder shall affect the sufficiency of such
notice with respect to other Holders. Where this Indenture provides for notice
in any manner, such notice may be waived in writing by the Person entitled to
receive such notice, either before or after the event, and such waiver shall be
the equivalent of such notice. Waivers of notice by Holders shall be filed with
the Trustee, but such filing shall not be a condition precedent to the validity
of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
Section 107 Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a provision
of the Trust Indenture Act which is required under such Act to be a part of and
govern this Indenture, the latter provision shall control. If any provision of
this Indenture modifies or excludes any provision of the Trust Indenture Act
which may be so modified or excluded, the latter provision shall be deemed to
apply to this Indenture as so modified or to be excluded, as the case may be.
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Section 108 Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
Section 109 Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
Section 110 Separability Clause.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
Section 111 Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder[, the holders of Senior Debt] and the Holders, any benefit or any
legal or equitable right, remedy or claim under this Indenture.
Section 112 Governing Law.
This Indenture and the Securities shall be governed by and construed
and enforced in accordance with the law of the State of New York.
Section 113 Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of this Indenture or of the Securities
(other than a provision of any Security which specifically states that such
provision shall apply in lieu of this Section)) payment of interest or principal
(and premium, if any) need not be made at such Place of Payment on such date,
but may be made on the next succeeding Business Day at such Place of Payment
with the same force and effect as if made on the Interest Payment Date or
Redemption Date, or at the Stated Maturity; provided that no interest shall
accrue for the period from and after such interest Payment Date, Redemption Date
or Stated Maturity, as the case may be.
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ARTICLE TWO
SECURITY FORMS
Section 201 Forms Generally.
The Securities of each series shall be in substantially the form set
forth in this Article, or in such other form as shall be established by or
pursuant to a Board Resolution or in one or more indentures supplemental hereto,
in each case with such appropriate insertions, omissions, substitutions and
other variations as are required or permitted by this Indenture, and may have
such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange or Depositary therefor or as may, consistently herewith, be
determined by the officers executing such Securities, as evidenced by their
execution thereof. If the form of Securities of any series is established by
action taken pursuant to a Board Resolution, a copy of an appropriate record of
such action shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the Company
Order contemplated by Section 303 for the authentication and delivery of such
Securities.
The definitive Securities shall be printed, lithographed or engraved on
steel engraved borders or may be produced in any other manner, all as determined
by the officers executing such Securities, as evidenced by their execution of
such Securities.
Section 202 Form of Face of Security.
[Insert any legend required by the Internal Revenue Code and the regulations
thereunder.]
DOVER CORPORATION
No. ________ $ ______________
Dover Corporation, a corporation duly organized and existing under the laws
of Delaware (herein called the "Company", which term includes any successor
Person under the Indenture hereinafter referred to), for value received, hereby
promises to pay to __________________, or registered assigns, the principal sum
of________________ Dollars on __________________ [if the Security is to bear
interest prior to Maturity, insert C , and to pay interest thereon from or from
the most recent Interest Payment Date to which interest has been paid or duly
provided for, semi-annually on __________________ and _______________________ in
each year, commencing ____________________________ , at the rate of _______% per
annum, until the principal hereof is paid or made available for payment. The
interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date will, as provided in such Indenture, be paid to the Person in whose
name this Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest, which shall be
the ____________ or _____________(whether or not a Business Day), as the case
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may be, next preceding such Interest Payment Date. Any such interest not so
punctually paid or duly provided for will forthwith cease to be payable to the
Holder on such Regular Record Date and may either be paid to the Person in whose
name this Security (or one or more Predecessor Securities) is registered at the
close of business on a Special Record Date for the payment of such Defaulted
Interest to be fixed by the Trustee, notice whereof shall be given to Holders of
Securities of this series not less than 10 days prior to such Special Record
Date, or be paid at any time in any other lawful manner not inconsistent with
the requirements of any securities exchange on which the Securities of this
series may be listed, and upon such notice as may be required by such exchange,
all as more fully provided in said Indenture].
[If the Security is not to bear interest prior to Maturity, insert C
The principal of this Security shall not bear interest except in the case of a
default in payment of principal upon acceleration, upon redemption or at Stated
Maturity and in such case the overdue principal and any overdue premium shall
bear interest at the rate of ....% per annum (to the extent that the payment of
such interest shall be legally enforceable), from the dates such amounts are due
until they are paid or made available for payment. Interest on any overdue
principal or premium shall be payable on demand.]
Payment of the principal of (and premium, if any) and [if applicable,
insert C any such] interest on this Security will be made at the office or
agency of the Company maintained for that purpose in ___________, in such coin
or currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts [if applicable, insert C;
provided, however, that at the option of the Company payment of interest may be
made by check mailed to the address of the Person entitled thereto as such
address shall appear in the Security Register].
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
DOVER CORPORATION
By:_____________________________________________
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Attest:
______________________________________
Section 203 Form of Reverse of Security.
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of ________________ (herein called the
"Indenture", which term shall have the meaning assigned to it in such
instrument), between the Company and ____________________ , as Trustee (herein
called the "Trustee", which term includes any successor trustee under the
Indenture), and reference is hereby made to the Indenture for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of
the Company, the Trustee and the Holders of the Securities and of the terms upon
which the Securities are, and are to be, authenticated and delivered. This
Security is one of the series designated on the face hereof [if applicable,
insert C, limited in aggregate principal amount to $____________________].
[If applicable, insert C The Securities of this series are subject to
redemption upon not less than 30 days' notice by mail, [if applicable, insert C
(1) on ____________ in any year commencing with the year _____ and ending with
the year _____ through operation of the sinking fund for this series at a
Redemption Price equal to 100% of the principal amount, and (2)] at any time [if
applicable, insert C on or after _____________, 19__], as a whole or in part, at
the election of the Company, at the following Redemption Prices (expressed as
percentages of the principal amount): If redeemed [if applicable, insert C on or
before ___________, ___%, and if redeemed] during the 12-month period beginning
___________ of the years indicated,
Redemption Redemption
Year Price Year Price
____ _____ ____ _____
and thereafter at a Redemption Price equal to ____% of the principal amount,
together in the case of any such redemption [if applicable, insert C (whether
through operation of the sinking fund or otherwise)] with accrued interest to
the Redemption Date, but interest installments whose Stated Maturity is on or
prior to such Redemption Date will be payable to the Holders of such Securities,
or one or more Predecessor Securities, of record at the close of business on the
relevant Record Dates referred to on the face hereof, all as provided in the
Indenture.]
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[If applicable, insert C The Securities of this series are subject to
redemption upon not less than 30 days' notice by mail, (1) on _________ in any
year commencing with the year _____ and ending with the year _____ through
operation of the sinking fund for this series at the Redemption Prices for
redemption through operation of the sinking fund (expressed as percentages of
the principal amount) set forth in the table below, and (2) at any time [if
applicable, insert C on or after _____________], as a whole or in part, at the
election of the Company, at the Redemption Prices for redemption otherwise than
through operation of the sinking fund (expressed as percentages of the principal
amount) set forth in the table below: If redeemed during the 12-month period
beginning __________ of the years indicated,
Year Redemption Price Redemption Price For
____ For Redemption Redemption Otherwise
Through Operation Than Through Operation
of the of the Sinking Fund
Sinking Fund ______________________
____________
and thereafter at a Redemption Price equal to ___% of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued interest to the Redemption Date, but
interest installments whose Stated Maturity is on or prior to such Redemption
Date will be payable to the Holders of such Securities, or one or more
Predecessor Securities, of record at the close of business on the relevant
Record Dates referred to on the face hereof, all as provided in the Indenture.]
[If applicable, insert C Notwithstanding the foregoing, the Company may
not, prior to ______________________ , redeem any Securities of this series as
contemplated by [if applicable, insert C Clause (2) of] the preceding paragraph
as a part of, or in anticipation of, any refunding operation by the application,
directly or indirectly, of moneys borrowed having an interest cost to the
Company (calculated in accordance with generally accepted financial practice) of
less than ___% per annum.]
[If applicable, insert C The sinking fund for this series provides for
the redemption on ________________________________________ in each year
beginning with the year ____ and ending with the year ____ of [if applicable,
insert C not less than $__________ ("mandatory sinking fund") and not more than]
$__________ aggregate principal amount of Securities of this series. Securities
of this series
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acquired or redeemed by the Company otherwise than through [if applicable,
insert C mandatory] sinking fund payments may be credited against subsequent [if
applicable, insert C mandatory] sinking fund payments otherwise required to be
made [if applicable, insert C, in the inverse order in which they become due].]
[If the Security is subject to redemption of any kind, insert C In the
event of redemption of this Security in part only, a new Security or Securities
of this series and of like tenor for the unredeemed portion hereof will be
issued in the name of the Holder hereof upon the cancellation hereof.]
[If applicable, insert C The Indenture contains provisions for
defeasance at any time of [the entire indebtedness of this Security] [or]
[certain restrictive covenants and Events of Default with respect to this
Security] [, in each case] upon compliance with certain conditions set forth in
the Indenture.]
[If the Security is not an Original Issue Discount Security, insert C
If an Event of Default with respect to Securities of this series shall occur and
be continuing, the principal of the Securities of this series may be declared
due and payable in the manner and with the effect provided in the Indenture.]
[If the Security is an Original Issue Discount Security, insert C If an
Event of Default with respect to Securities of this series shall occur and be
continuing, an amount of principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture. Such amount shall be equal to C insert formula for determining the
amount. Upon payment (i) of the amount of principal so declared due and payable
and (ii) of interest on any overdue principal, premium and interest (in each
case to the extent that the payment of such interest shall be legally
enforceable), all of the Company's obligations in respect of the payment of the
principal of and premium and interest, if any, on the Securities of this series
shall terminate.]
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in principal amount of the Securities at
the time Outstanding of each series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Securities of each series at the time Outstanding, on behalf of the
Holders of all Securities of such series, to waive compliance by the Company
with certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the registration
of transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, the
Holder of this Security shall not have the right to institute any proceeding
with respect to the Indenture or for the
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appointment of a receiver or trustee or for any other remedy thereunder, unless
such Holder shall have previously given the Trustee written notice of a
continuing Event of Default with respect to the Securities of this series, the
Holders of a majority in principal amount of the Securities of this series at
the time Outstanding shall have made written request to the Trustee to institute
proceedings in respect of such Event of Default as Trustee and offered the
Trustee reasonable indemnity, and the Trustee shall not have received from the
Holders of a majority in principal amount of Securities of this series at the
time Outstanding a direction inconsistent with such request, and shall have
failed to institute any such proceeding, for 60 days after receipt of such
notice, request and offer of indemnity. The foregoing shall not apply to any
suit instituted by the Holder of this Security for the enforcement of any
payment of principal hereof or any premium or interest hereon on or after the
respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of and any premium and
interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in any place where the principal of and any
premium and interest on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities of
this series and of like tenor, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of $_________ and any integral multiple
thereof. As provided in the Indenture and subject to certain limitations therein
set forth, Securities of this series are exchangeable for a like aggregate
principal amount of Securities of this series and of like tenor of a different
authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
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Section 204 Form of Legend for Global Securities.
Unless otherwise specified as contemplated by Section 301 for the
Securities evidenced thereby, every Global Security authenticated and delivered
hereunder 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 A DEPOSITARY OR A
NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A
SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE
REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE
THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
Section 205 Form of Trustee's Certificate of Authentication.
The Trustee's certificates of authentication shall be in substantially
the following form:
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
__________________________________________
As Trustee
By________________________________________
Authorized Officer
ARTICLE THREE
THE SECURITIES
Section 301 Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution and, subject to Section 303,
set forth, or determined in the manner provided, in an Officers' Certificate, or
established in one or more indentures supplemental hereto, prior to the issuance
of Securities of any series,
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from Securities of any other
series);
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(2) any limit upon the aggregate principal amount of the Securities of
the series which may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 304, 305, 306, 906 or 1107 and except for any
Securities which, pursuant to Section 303, are deemed never to have been
authenticated and delivered hereunder);
(3) the Person to whom any interest on a Security of the series shall be
payable, if other than the Person in whose name that Security (or one or
more Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest;
(4) the date or dates on which the principal of any Securities of the
series is payable;
(5) the rate or rates at which any Securities of the series shall bear
interest, if any, the date or dates from which any such interest shall
accrue, the Interest Payment Dates on which any such interest shall be
payable and the Regular Record Date for any such interest payable on any
Interest Payment Date;
(6) the place or places where the principal of and any premium and
interest on any Securities of the series shall be payable;
(7) the period or periods within which, the price or prices at which and
the terms and conditions upon which any Securities of the series may be
redeemed, in whole or in part, at the option of the Company and, if other
than by a Board Resolution, the manner in which any election by the Company
to redeem the Securities shall be evidenced;
(8) the obligation, if any, of the Company to redeem or purchase any
Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of the Holder thereof and the period or periods
within which, the price or prices at which and the terms and conditions upon
which any Securities of the series shall be redeemed or purchased, in whole
or in part, pursuant to such obligation;
(9) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which any Securities of the series shall be
issuable;
(10) if other than the currency of the United States of America, the
currency, currencies or currency units in which the principal of or any
premium or interest on any Securities of the series shall be payable and the
manner of determining the equivalent thereof in the currency of the United
States of America for any purpose, including for purposes of the definition
of "Outstanding" in Section 101;
(11) if other than the entire principal amount thereof, the portion of
the principal amount of any Securities of the series which shall be payable
upon declaration of acceleration of the Maturity thereof pursuant to Section
502;
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(12) if the principal amount payable at the Stated Maturity of any
Securities of the series will not be determinable as of any one or more
dates prior to the Stated Maturity, the amount which shall be deemed to be
the principal amount of such Securities as of any such date for any purpose
thereunder or hereunder, including the principal amount thereof which shall
be due and payable upon any Maturity other than the Stated Maturity or which
shall be deemed to be Outstanding as of any date prior to the Stated
Maturity (or, in any such case, the manner in which such amount deemed to be
the principal amount shall be determined);
(13) if applicable, that the Securities of the series, in whole or any
specified part, shall be defeasible pursuant to Section 1302 or Section 1303
or both such Sections and, if other than by a Board Resolution, the manner
in which any election by the Company to defease such Securities shall be
evidenced;
(14) if applicable, that any Securities of the series shall be issuable
in whole or in part in the form of one or more Global Securities and, in
such case, the respective Depositaries for such Global Securities, the form
of any legend or legends which shall be borne by any such Global Security in
addition to or in lieu of that set forth in Section 204 and any
circumstances in addition to or in lieu of those set forth in Clause (2) of
the last paragraph of Section 305 in which any such Global Security may be
exchanged in whole or in part for Securities registered, and any transfer of
such Global Security in whole or in part may be registered, in the name or
names of Persons other than the Depositary for such Global Security or a
nominee thereof;
(15) 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 502;
(16) any addition to or change in the covenants set forth in Article Ten
which applies to Securities of the series; and
(17) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture, except as permitted by
Section 901(5)).
All Securities of any one series shall be substantially identical except as
to denomination and except as may otherwise be provided in or pursuant to the
Board Resolution referred to above and (subject to Section 303) set forth, or
determined in the manner provided, in the Officers' Certificate referred to
above or in any such indenture supplemental hereto.
If any of the terms of the series are established by action taken pursuant
to a Board Resolution, a copy of an appropriate record of such action shall be
certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
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Section 302 Denominations.
The Securities of each series shall be issuable only in registered form
without coupons and only in such denominations as shall be specified as
contemplated by Section 301. In the absence of any such specified denomination
with respect to the Securities of any series, the Securities of such series
shall be issuable in denominations of $1,000 and any integral multiple thereof.
Section 303 Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its Chairman of
the Board, its Vice Chairman of the Board, its President or one of its Vice
Presidents, under its corporate seal reproduced thereon attested by its
Secretary or one of its Assistant Secretaries. The signature of any of these
officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee in accordance
with the Company Order shall authenticate and deliver such Securities. If the
form or terms of the Securities of the series have been established by or
pursuant to one or more Board Resolutions as permitted by Sections 201 and 301,
in authenticating such Securities, and accepting the additional responsibilities
under this Indenture in relation to such Securities, the Trustee shall be
entitled to receive, and (subject to Section 601) shall be fully protected in
relying upon, an Opinion of Counsel stating,
(1) if the form of such Securities has been established by or pursuant
to Board Resolution as permitted by Section 201, that such form has been
established in conformity with the provisions of this Indenture;
(2) if the terms of such Securities have been established by or pursuant
to Board Resolution as permitted by Section 301, that such terms have been
established in conformity with the provisions of this Indenture; and
(3) that such Securities, when authenticated and delivered by the
Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid and
legally binding obligations of the Company enforceable in accordance with
their terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity principles.
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If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of the preceding
paragraph, if all Securities of a series are not to be originally issued at one
time, it shall not be necessary to deliver the Officers' Certificate otherwise
required pursuant to Section 301 or the Company Order and Opinion of Counsel
otherwise required pursuant to such preceding paragraph at or prior to the
authentication of each Security of such series if such documents are delivered
at or prior to the authentication upon original issuance of the first Security
of such series to be issued.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder. Notwithstanding the
foregoing, if any Security shall have been authenticated and delivered hereunder
but never issued and sold by the Company, and the Company shall deliver such
Security to the Trustee for cancellation as provided in Section 309, for all
purposes of this Indenture such Security shall be deemed never to have been
authenticated and delivered hereunder and shall never be entitled to the
benefits of this Indenture.
Section 304 Temporary Securities.
Pending the preparation of definitive Securities of any series, the Company
may execute, and upon Company Order the Trustee shall authenticate and deliver,
temporary Securities which are printed, lithographed, typewritten, mimeographed
or otherwise produced, in any authorized denomination, substantially of the
tenor of the definitive Securities in lieu of which they are issued and with
such appropriate insertions, omissions, substitutions and other variations as
the officers executing such Securities may determine, as evidenced by their
execution of such Securities.
If temporary Securities of any series are issued, the Company will cause
definitive Securities of that series to be prepared without unreasonable delay.
After the preparation of definitive Securities of such series, the temporary
Securities of such series shall be exchangeable for definitive Securities of
such series upon surrender of the temporary Securities of such series at the
office or agency of the Company in a Place of Payment for that series, without
charge to the Holder. Upon surrender for cancellation of any one or more
temporary Securities of any series, the Company shall execute and the Trustee
shall authenticate and deliver in exchange therefor one or more definitive
Securities of the same series, of any authorized denominations and of like tenor
and aggregate principal amount. Until so exchanged, the temporary Securities
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of any series shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities of such series and tenor.
Section 305 Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office of the
Trustee a register (the register maintained in such office and in any other
office or agency of the Company in a Place of Payment being herein sometimes
collectively referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Securities and of transfers of Securities. The Trustee is hereby
appointed "Security Registrar" for the purpose of registering Securities and
transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security of a series at
the office or agency of the Company in a Place of Payment for that series, the
Company shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Securities of
the same series, of any authorized denominations and of like tenor and aggregate
principal amount.
At the option of the Holder, Securities of any series may be exchanged for
other Securities of the same series, of any authorized denominations and of like
tenor and aggregate principal amount, upon surrender of the Securities to be
exchanged at such office or agency. Whenever any Securities are so surrendered
for exchange, the Company shall execute, and the Trustee shall authenticate and
deliver, the Securities which the Holder making the exchange is entitled to
receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or for
exchange shall (if so required by the Company or the Trustee) be duly endorsed,
or be accompanied by a written instrument of transfer in form satisfactory to
the Company and the Security Registrar duly executed, by the Holder thereof or
his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or exchange
of Securities, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in connection with any
registration of transfer or exchange of Securities, other than exchanges
pursuant to Section 304, 906 or 1107 not involving any transfer.
If the Securities of any series (or of any series and specified tenor) are
to be redeemed in part, the Company shall not be required (A) to issue, register
the transfer of or exchange any Securities of that series (or of that series and
specified tenor, as the case may be) during a period beginning at the opening of
business 15 days before the day of the mailing of a notice of redemption of any
such Securities selected for redemption under Section 1103 and ending at the
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close of business on the day of such mailing, or (B) to register the transfer of
or exchange any Security so selected for redemption in whole or in part, except
the unredeemed portion of any Security being redeemed in part.
The provisions of Clauses (1), (2), (3) and (4) below shall apply only to
Global Securities:
(1) Each Global Security authenticated under this Indenture shall be
registered in the name of the Depositary designated for such Global Security
or a nominee thereof and delivered to such Depositary or a nominee thereof
or custodian therefor, and each such Global Security shall constitute a
single Security for all purposes of this Indenture.
(2) Notwithstanding any other provision in this Indenture, no Global
Security may be exchanged in whole or in part for Securities registered, and
no transfer of a Global Security in whole or in part may be registered, in
the name of any Person other than the Depositary for such Global Security or
a nominee thereof unless (A) such Depositary (i) has notified the Company
that it is unwilling or unable to continue as Depositary for such Global
Security or (ii) has ceased to be a clearing agency registered under the
Exchange Act, (B) there shall have occurred and be continuing an Event of
Default with respect to such Global Security or (C) there shall exist such
circumstances, if any, in addition to or in lieu of the foregoing as have
been specified for this purpose as contemplated by Section 301.
(3) Subject to Clause (2) above, any exchange of a Global Security for
other Securities may be made in whole or in part, and all Securities issued
in exchange for a Global Security or any portion thereof shall be registered
in such names as the Depositary for such Global Security shall direct.
(4) Every Security authenticated and delivered upon registration of
transfer of, or in exchange for or in lieu of, a Global Security or any
portion thereof, whether pursuant to this Section, Section 304, 306, 906 or
1107 or otherwise, shall be authenticated and delivered in the form of, and
shall be, a Global Security, unless such Security is registered in the name
of a Person other than the Depositary for such Global Security or a nominee
thereof.
Section 306 Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
new Security of the same series and of like tenor and principal amount and
bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence to
their satisfaction of the destruction, loss or theft of any Security and (ii)
such security or indemnity as may be required by them to save each of them and
any agent of either of them harmless, then, in the absence of notice to the
Company or the Trustee that such Security has been acquired by a
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bona fide purchaser, the Company shall execute and the Trustee shall
authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become or
is about to become due and payable, the Company in its discretion may, instead
of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in lieu of
any destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
Section 307 Payment of Interest; Interest Rights Preserved.
Except as otherwise provided as contemplated by Section 301 with respect to
any series of Securities, interest on any Security which is payable, and is
punctually paid or duly provided for, on any Interest Payment Date shall be paid
to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest.
Any interest on any Security of any series which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the close of business
on a Special Record Date for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The Company shall notify the Trustee
in writing of the amount of Defaulted Interest proposed to be paid on each
Security of such series and the date of the proposed payment, and at the
same time the Company shall deposit with the Trustee an amount of money
equal to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the Trustee
for such deposit prior to the date of the
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proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this Clause
provided. Thereupon the Trustee shall fix a Special Record Date for the
payment of such Defaulted Interest which shall be not more than 15 days and
not less than 10 days prior to the date of the proposed payment and not less
than 10 days after the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company of such Special
Record Date and, in the name and at the expense of the Company, shall cause
notice of the proposed payment of such Defaulted Interest and the Special
Record Date therefor to be given to each Holder of Securities of such series
in the manner set forth in Section 106, not less than 10 days prior to such
Special Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been so mailed, such
Defaulted Interest shall be paid to the Persons in whose names the
Securities of such series (or their respective Predecessor Securities) are
registered at the close of business on such Special Record Date and shall no
longer be payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest on the
Securities of any series in any other lawful manner not inconsistent with
the requirements of any securities exchange on which such Securities may be
listed, and upon such notice as may be required by such exchange, if, after
notice given by the Company to the Trustee of the proposed payment pursuant
to this Clause, such manner of payment shall be deemed practicable by the
Trustee.
Subject to the foregoing provisions of this Section, each Security delivered
under this Indenture upon registration of transfer of or in exchange for or in
lieu of any other Security shall carry the rights to interest accrued and
unpaid, and to accrue, which were carried by such other Security.
Section 308 Persons Deemed Owners.
Prior to due presentment of a Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name such Security is registered as the owner of such Security
for the purpose of receiving payment of principal of and any premium and
(subject to Section 307) any interest on such Security and for all other
purposes whatsoever, whether or not such Security be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
Section 309 Cancellation.
All Securities surrendered for payment, redemption, registration of transfer
or exchange or for credit against any sinking fund payment shall, if surrendered
to any Person other than the Trustee, be delivered to the Trustee and shall be
promptly canceled by it. The Company may at any time deliver to the Trustee for
cancellation any Securities previously authenticated and delivered hereunder
which the Company may have acquired in any manner whatsoever, and may
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deliver to the Trustee (or to any other Person for delivery to the Trustee) for
cancellation any Securities previously authenticated hereunder which the Company
has not issued and sold, and all Securities so delivered shall be promptly
canceled by the Trustee. No Securities shall be authenticated in lieu of or in
exchange for any Securities canceled as provided in this Section, except as
expressly permitted by this Indenture. All canceled Securities held by the
Trustee shall be disposed of as directed by a Company Order.
Section 310 Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for Securities
of any series, interest on the Securities of each series shall be computed on
the basis of a 360-day year of twelve 30-day months.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
Section 401 Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further effect
(except as to any surviving rights of registration of transfer or exchange of
Securities herein expressly provided for), and the Trustee, at the expense of
the Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered (other
than (i) Securities which have been destroyed, lost or stolen and which
have been replaced or paid as provided in Section 306 and (ii)
Securities for whose payment money has theretofore been deposited in
trust or segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as provided in
Section 1003) have been delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the Trustee for
cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within one
year, or
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(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the
Company,
and the Company, in the case of (i), (ii) or (iii) above, has deposited
or caused to be deposited with the Trustee as trust funds in trust for
the purpose money in an amount sufficient to pay and discharge the
entire indebtedness on such Securities not theretofore delivered to the
Trustee for cancellation, for principal and any premium and interest to
the date of such deposit (in the case of Securities which have become
due and payable) or to the Stated Maturity or Redemption Date, as the
case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture
have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 607, the obligations of
the Trustee to any Authenticating Agent under Section 614 and, if money shall
have been deposited with the Trustee pursuant to subclause (B) of Clause (1) of
this Section, the obligations of the Trustee under Section 402 and the last
paragraph of Section 1003 shall survive.
Section 402 Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all money
deposited with the Trustee pursuant to Section 401 shall be held in trust and
applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal and any premium and
interest for whose payment such money has been deposited with the Trustee.
ARTICLE FIVE
REMEDIES
Section 501 Events of Default.
"Event of Default", wherever used herein with respect to Securities of any
series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment,
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decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(1) default in the payment of any interest upon any Security of that
series when it becomes due and payable, and continuance of such default for
a period of 30 days; or
(2) default in the payment of the principal of or any premium on any
Security of that series at its Maturity; or
(3) default in the deposit of any sinking fund payment, when and as due
by the terms of a Security of that series; or
(4) default in the performance, or breach, of any covenant or warranty
of the Company in this Indenture (other than a covenant or warranty a
default in whose performance or whose breach is elsewhere in this Section
specifically dealt with or which has expressly been included in this
Indenture solely for the benefit of series of Securities other than that
series), and continuance of such default or breach for a period of 60 days
after there has been given, by registered or certified mail, to the Company
by the Trustee or to the Company and the Trustee by the Holders of at least
10% in principal amount of the Outstanding Securities of that series a
written notice specifying such default or breach and requiring it to be
remedied and stating that such notice is a "Notice of Default" hereunder; or
(5) the entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of the Company or any Restricted
Subsidiary in an involuntary case or proceeding under any applicable U.S.
Federal or State or other applicable bankruptcy, insolvency, reorganization
or other similar law or (B) a decree or order adjudging the Company or any
Restricted Subsidiary a bankrupt or insolvent, or approving as properly
filed a petition seeking reorganization, arrangement, adjustment or
composition of or in respect of the Company or any Restricted Subsidiary
under any applicable U.S. Federal or State or other applicable law, or
appointing a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or any Restricted
Subsidiary or of any substantial part of its property, or ordering the
winding up or liquidation of its affairs, and the continuance of any such
decree or order for relief or any such other decree or order unstayed and in
effect for a period of 60 consecutive days; or
(6) the commencement by the Company or any Restricted Subsidiary of a
voluntary case or proceeding under any applicable U.S. Federal or State or
other applicable bankruptcy, insolvency, reorganization or other similar law
or of any other case or proceeding to be adjudicated a bankrupt or
insolvent, or the consent by it to the entry of a decree or order for relief
in respect of the Company or any Restricted Subsidiary in an involuntary
case or proceeding under any applicable U.S. Federal or State or other
applicable bankruptcy, insolvency, reorganization or other similar law or to
the commencement of any bankruptcy or insolvency case or proceeding against
it, or the
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filing by it of a petition or answer or consent seeking reorganization or
relief under any applicable U.S. Federal or State or other applicable law,
or the consent by it to the filing of such petition or to the appointment of
or taking possession by a custodian, receiver, liquidator, assignee,
trustee, sequestrator or other similar official of the Company or any
Restricted Subsidiary or of any substantial part of its property, or the
making by it of an assignment for the benefit of creditors, or the admission
by it in writing of its inability to pay its debts generally as they become
due, or the taking of corporate action by the Company or any Restricted
Subsidiary in furtherance of any such action; or
(7) any other Event of Default provided with respect to Securities of
that series.
Section 502 Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than an Event of Default specified in Section
501(5) or 501(6)) with respect to Securities of any series at the time
Outstanding occurs and is continuing, then in every such case the Trustee or the
Holders of 25% in principal amount of the Outstanding Securities of that series
may declare the principal amount of all the Securities of that series (or, if
any Securities of that series are Original Issue Discount Securities, such
portion of the principal amount of such Securities as may be specified by the
terms thereof) to be due and payable immediately, by a notice in writing to the
Company (and to the Trustee if given by Holders), and upon any such declaration
such principal amount (or specified amount) shall become immediately due and
payable. If an Event of Default specified in Section 501(5) or 501 (6) with
respect to Securities of any series at the time Outstanding occurs, the
principal amount of all the Securities of that series (or, if any Securities of
that series are Original Issue Discount Securities, such portion of the
principal amount of such Securities as may be specified by the terms thereof)
shall automatically, and without any declaration or other action on the part of
the Trustee or any Holder, become immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum sufficient
to pay
(A) all overdue interest on all Securities of that series,
(B) the principal of (and premium, if any, on) any Securities of
that series which have become due otherwise than by such declaration of
acceleration and any interest thereon at the rate or rates prescribed
therefor in such Securities,
(C) to the extent that payment of such interest is lawful, interest
upon overdue interest at the rate or rates prescribed therefor in such
Securities, and
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(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel;
and
(2) all Events of Default with respect to Securities of that series,
other than the non-payment of the principal of Securities of that series
which have become due solely by such declaration of acceleration, have been
cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Section 503 Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if
(1) default is made in the payment of any interest on any Security when
such interest becomes due and payable and such default continues for a
period of 30 days, or
(2) default is made in the payment of the principal of (or premium, if
any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal and any premium and interest and, to the extent that
payment of such interest shall be legally enforceable, interest on any overdue
principal and premium and on any overdue interest, at the rate or rates
prescribed therefor in such Securities, and, in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel.
If an Event of Default with respect to Securities of any series occurs and
is continuing, the Trustee may in its discretion proceed to protect and enforce
its rights and the rights of the Holders of Securities of such series by such
appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any such rights, whether for the specific enforcement of any
covenant or agreement in this Indenture or in aid of the exercise of any power
granted herein, or to enforce any other proper remedy.
Section 504 Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the Company (or any other
obligor upon the Securities), its property or its creditors, the Trustee shall
be entitled and empowered, by intervention in such proceeding or otherwise, to
take any and all actions authorized under the Trust Indenture Act in order to
have claims of the Holders and the Trustee allowed in any such proceeding. In
particular, the Trustee shall be authorized to collect and receive any moneys or
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other property payable or deliverable on any such claims and to distribute the
same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator
or other similar official in any such judicial proceeding is hereby authorized
by each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to
pay to the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 607.
No provision of this Indenture shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding; provided, however,
that the Trustee may, on behalf of the Holders, vote for the election of a
trustee in bankruptcy or similar official and be a member of a creditors' or
other similar committee.
Section 505 Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities may
be prosecuted and enforced by the Trustee without the possession of any of the
Securities or the production thereof in any proceeding relating thereto, and any
such proceeding instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment shall, after provision
for the payment of the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, be for the ratable benefit of
the Holders of the Securities in respect of which such judgment has been
recovered.
Section 506 Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be applied
in the following order, at the date or dates fixed by the Trustee and, in case
of the distribution of such money on account of principal or any premium or
interest, upon presentation of the Securities and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:
FIRST. To the payment of all amounts due the Trustee under Section
607; and
SECOND. To the payment of the amounts then due and unpaid for
principal of and any premium and interest on the Securities in respect of
which or for the benefit of which such money has been collected, ratably,
without preference or priority of any kind, according to the amounts due
and payable on such Securities for principal and any premium and interest,
respectively.
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Section 507 Limitation on Suits.
No Holder of any Security of any series shall have any right to
institute any proceeding, judicial or otherwise, with respect to this Indenture,
or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless
(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default with respect to the Securities of that
series;
(2) the Holders of 25% in principal amount of the Outstanding
Securities of that series shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default in its own name
as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period by the Holders of a majority in
principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
Section 508 Unconditional Right of Holders to Receive Principal,
Premium and Interest.
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of and any premium and (subject to Section 307)
interest on such Security on the respective 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 509 Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders shall
be restored severally and respectively to their former positions hereunder and
thereafter all rights
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and remedies of the Trustee and the Holders shall continue as though no such
proceeding had been instituted.
Section 510 Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Securities in the last paragraph of
Section 306, no right or remedy herein conferred upon or reserved to the Trustee
or to the Holders is intended to be exclusive of any other right or remedy, and
every right and remedy shall, to the extent permitted by law, be cumulative and
in addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
Section 511 Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Securities
to exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default or
an acquiescence therein. Every right and remedy given by this Article or by law
to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case
may be.
Section 512 Control by Holders.
The Holders of a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, with respect to the
Securities of such series, provided that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture, and
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.
Section 513 Waiver of Past Defaults.
The Holders of not less than a majority in 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
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(1) in the payment of the principal of or any premium or interest
on any Security of such series, or
(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
Section 514 Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken, suffered or
omitted by it as Trustee, a court may require any party litigant in such suit to
file an undertaking to pay the costs of such suit, and may assess costs against
any such party litigant, in the manner and to the extent provided in the Trust
Indenture Act; provided that neither this Section nor the Trust Indenture Act
shall be deemed to authorize any court to require such an undertaking or to make
such an assessment in any suit instituted by the Company.
Section 515 Waiver of Usury, Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any usury, stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE SIX
THE TRUSTEE
Section 601 Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee shall be as provided by
the Trust Indenture Act. Notwithstanding the foregoing, no provision of this
Indenture shall require the Trustee to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of its duties hereunder,
or in the exercise of any of its rights or powers, if it shall have reasonable
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grounds for believing that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it. Whether or not therein
expressly so provided, every provision of this Indenture relating to the conduct
or affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section.
Section 602 Notice of Defaults.
If a default occurs hereunder with respect to Securities of any series,
the Trustee shall give the Holders of Securities of such series notice of such
default as and to the extent provided by the Trust Indenture Act; provided,
however, that in the case of any default of the character specified in Section
501(4) with respect to Securities of such series, no such notice to Holders
shall be given until at least 30 days after the occurrence thereof. For the
purpose of this Section, the term "default" means any event which is, or after
notice or lapse of time or both would become, an Event of Default with respect
to Securities of such series.
Section 603 Certain Rights of Trustee.
Subject to the provisions of Section 601:
(1) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other
paper or document believed by it to be genuine and to have been signed
or presented by the proper party or parties;
(2) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order,
and any resolution of the Board of Directors shall be sufficiently
evidenced by a Board Resolution;
(3) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior
to taking, suffering or omitting any action hereunder, the Trustee
(unless other evidence be herein specifically prescribed) may, in the
absence of bad faith on its part, rely upon an Officers' Certificate;
(4) the Trustee may consult with counsel and the written advice
of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in reliance thereon;
(5) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless
such Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
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(6) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other
paper or document, but the Trustee, in its discretion, may make such
further inquiry or investigation into such facts or matters as it may
see fit, and, if the Trustee shall determine to make such further
inquiry or investigation, it shall be entitled to examine the books,
records and premises of the Company, personally or by agent or
attorney; and
(7) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through
agents or attorneys and the Trustee shall not be responsible for any
misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder.
Section 604 Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and neither the Trustee nor any Authenticating Agent assumes any
responsibility for their correctness. The Trustee makes no representations as to
the validity or sufficiency of this Indenture or of the Securities. Neither the
Trustee nor any Authenticating Agent shall be accountable for the use or
application by the Company of Securities or the proceeds thereof.
Section 605 May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to Sections
608 and 613, may otherwise deal with the Company with the same rights it would
have if it were not Trustee, Authenticating Agent, Paying Agent, Security
Registrar or such other agent.
Section 606 Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed with the Company.
Section 607 Compensation and Reimbursement.
The Company agrees
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(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse
the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or advance
as may be attributable to its negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without negligence or
bad faith on its part, arising out of or in connection with the
acceptance or administration of the trust or trusts hereunder,
including the costs and expenses of defending itself against any claim
or liability in connection with the exercise or performance of any of
its powers or duties hereunder.
Section 608 Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture. To the extent
permitted by such Act, the Trustee shall not be deemed to have a conflicting
interest by virtue of being a trustee under this Indenture with respect to
Securities of more than one series or a trustee under that certain indenture
dated November 14, 1995 by and beteen the Company and First National Bank of
Chicago, as trustee.
Section 609 Corporate Trustee Required; Eligibility.
There shall at all times be one (and only one) Trustee hereunder with
respect to the Securities of each series, which may be Trustee hereunder for
Securities of one or more other series. Each Trustee shall be a Person that is
eligible pursuant to the Trust Indenture Act to act as such has a combined
capital and surplus of at least $50,000,000. If any such Person publishes
reports of condition at least annually, pursuant to law or to the requirements
of its supervising or examining authority, then for the purposes of this Section
and to the extent permitted by the Trust Indenture Act, the combined capital and
surplus of such Person shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time
the Trustee with respect to the Securities of any series shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
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Section 610 Resignation and Removal; Appointment of Successor.
No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 611.
The Trustee may resign at any time with respect to the Securities of
one or more series by giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required by Section 611 shall
not have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
The Trustee may be removed at any time with respect to the Securities
of any series by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series, delivered to the Trustee and to the
Company.
If at any time:
(1) the Trustee shall fail to comply with Section 608 after
written request therefor by the Company or by any Holder who has been
a bona fide Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609 and
shall fail to resign after written request therefor by the Company or
by any such Holder, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of
its property shall be appointed or any public officer shall take
charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation,
then, in any such case, (A) the Company by a Board Resolution may remove the
Trustee with respect to all Securities, or (B) subject to Section 514, any
Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
If the Trustee shall resign, be removed or become incapable of acting,
or if a vacancy shall occur in the office of Trustee for any cause, with respect
to the Securities of one or more series, the Company, by a Board Resolution,
shall promptly appoint a successor Trustee or Trustees with respect to the
Securities of that or those series (it being understood that any such successor
Trustee may be appointed with respect to the Securities of one or more or all of
such series and that at any time there shall be only one Trustee with respect to
the Securities of any particular series) and shall comply with the applicable
requirements of Section 611. If, within one year after such resignation, removal
or incapability, or the occurrence of such vacancy, a successor Trustee with
respect to the Securities of any series shall be appointed by Act of the Holders
of a majority in principal amount of the Outstanding Securities of such series
delivered
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to the Company and the retiring Trustee, the successor Trustee so appointed
shall, forthwith upon its acceptance of such appointment in accordance with the
applicable requirements of Section 611, become the successor Trustee with
respect to the Securities of such series and to that extent supersede the
successor Trustee appointed by the Company. If no successor Trustee with respect
to the Securities of any series shall have been so appointed by the Company or
the Holders and accepted appointment in the manner required by Section 611, any
Holder who has been a bona fide Holder of a Security of such series for at least
six months may, on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the appointment of a successor Trustee
with respect to the Securities of such series.
The Company shall give notice of each resignation and each removal of
the Trustee with respect to the Securities of any series and each appointment of
a successor Trustee with respect to the Securities of any series to all Holders
of Securities of such series in the manner provided in Section 106. Each notice
shall include the name of the successor Trustee with respect to the Securities
of such series and the address of its Corporate Trust Office.
Section 611 Acceptance of Appointment by Successor.
In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on the request
of the Company or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee and
shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder.
In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates, (2)
if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees co-trustees of the
same trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered
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by any other such Trustee; and upon the execution and delivery of such
supplemental indenture the resignation or removal of the retiring Trustee shall
become effective to the extent provided therein and each such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates; but, on request of the Company or any successor Trustee, such
retiring Trustee shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder with
respect to the Securities of that or those series to which the appointment of
such successor Trustee relates.
Upon request of any such successor Trustee, the Company shall execute
any and all instruments for more fully and certainly vesting in and confirming
to such successor Trustee all such rights, powers and trusts referred to in the
first or second preceding paragraph, as the case may be.
No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this Article.
Section 612 Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities.
Section 613 Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the Company
(or any other obligor upon the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Company (or any such other obligor).
Section 614 Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents with respect
to one or more series of Securities which shall be authorized to act on behalf
of the Trustee to authenticate Securities of such series issued upon original
issue and upon exchange, registration of transfer or partial redemption thereof
or pursuant to Section 306, and Securities so authenticated shall be entitled to
the benefits of this Indenture and shall be valid and obligatory for all
purposes as if
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authenticated by the Trustee hereunder. Wherever reference is made in this
Indenture to the authentication and delivery of Securities by the Trustee or the
Trustee's certificate of authentication, such reference shall be deemed to
include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation organized and
doing business under the laws of the United States of America, any State thereof
or the District of Columbia, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than $50,000,000 and
subject to supervision or examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time terminate
the agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall give notice of such
appointment in the manner provided in Section 106 to all Holders of Securities
of the series with respect to which such Authenticating Agent will serve. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section, and the
Trustee shall be entitled to be reimbursed for such payments, subject to the
provisions of Section 607.
If an appointment with respect to one or more series is made pursuant
to this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternative
certificate of authentication in the following form:
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This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
_________________________________
As Trustee
By: ____________________________
As Authenticating Agent
By: ____________________________
Authorized Officer
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 701 Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee
(1) semi-annually, not later than ________ and __________ in each
year, a list, in such form as the Trustee may reasonably require, of
the names and addresses of the Holders of Securities of each series as
of the preceding _______ or _________, as the case may be, and
(2) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a
list of similar form and content as of a date not more than 15 days
prior to the time such list is furnished;
excluding from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
Section 702 Preservation of Information; Communications to Holders.
The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 701 and the names and
addresses of Holders received by the Trustee in its capacity as
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Security Registrar. The Trustee may destroy any list furnished to it as provided
in Section 701 upon receipt of a new list so furnished.
The rights of Holders to communicate with other Holders with respect to
their rights under this Indenture or under the Securities, and the corresponding
rights and privileges of the Trustee, shall be as provided by the Trust
Indenture Act.
Every Holder of Securities, by receiving and holding the same, agrees
with the Company and the Trustee that neither the Company nor the Trustee nor
any agent of either of them shall be held accountable by reason of any
disclosure of information as to names and addresses of Holders made pursuant to
the Trust Indenture Act.
Section 703 Reports by Trustee.
The Trustee shall transmit to Holders such reports concerning the
Trustee and its actions under this Indenture as may be required pursuant to the
Trust Indenture Act at the times and in the manner provided pursuant thereto.
A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each stock exchange upon which any
Securities are listed, with the Commission and with the Company. The Company
will notify the Trustee when any Securities are listed on any stock exchange.
Section 704 Reports by Company.
The Company shall file with the Trustee and the Commission, and
transmit to Holders, such information, documents and other reports, and such
summaries thereof, as may be required pursuant to the Trust Indenture Act at the
times and in the manner provided pursuant to such Act; provided that any such
information, documents or reports required to be filed with the Commission
pursuant to Section 13 or 15(d) of the Exchange Act shall be filed with the
Trustee within 15 days after the same is so required to be filed with the
Commission.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 801 Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not, in a single transaction or a series of related
transactions, (a) consolidate with or merge with or into any other Person, (b)
convey, transfer or lease, or otherwise dispose of, all or substantially all of
its properties and assets to any Person or group of affiliated Persons, or (c)
permit any of its Restricted Subsidiaries to enter into any such
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transaction or transactions if such transaction or transactions, in the
aggregate, would result in a sale, assignment, transfer, lease or disposal of
all or substantially all of the properties and assets of the Company and its
Restricted Subsidiaries on a consolidated basis to any other Person or group of
affiliated Persons, unless:
(1) in a transaction in which the Company consolidates with or
merges with or into another Person and is not the surviving entity of
such consolidation or merger or in which the Company directly or
indirectly sells, assigns, conveys, transfers, leases or otherwise
disposes of all or substantially all of its properties and assets as
an entirety, (a) the Person formed by such consolidation or with or
into which the Company is merged or the Person that acquires by sale,
assignment, conveyance, transfer, lease or other disposition all or
substantially all of the properties and assets of the Company as an
entirety (for purposes of this Article Eight, a "Successor Company")
shall be a corporation, partnership or trust, shall be organized and
validly existing under the laws of the United States of America, any
State thereof or the District of Columbia and (b) the Successor
Company shall expressly assume by an indenture supplemental hereto
executed and delivered to the Trustee, in form satisfactory to the
Trustee, the due and punctual payment of the principal of and interest
on all the Securities and the performance of every covenant of this
Indenture on the part of the Company to be performed or observed;
(2) immediately before and after giving effect to such
transaction and treating any Debt incurred by the Company or a
Restricted Subsidiary as a result of such transaction as having been
incurred by the Company or such Restricted Subsidiary at the time of
such transaction, no Event of Default, and no event which, after
notice or lapse of time, or both, would become an Event of Default,
shall have occurred and be continuing;
(3) if, as a result of any such transaction, property and assets
of the Company or any Restricted Subsidiary would become subject to a
Lien which would not be permitted by Section 1008, the Company or, if
applicable, the Successor Company, as the case may be, shall take such
steps as shall be necessary effectively to secure the Securities
equally and ratably with (or prior to) Debt secured by such Lien; and
(4) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and, if a
supplemental indenture is required in connection with such
transaction, such supplemental indenture comply with this Article and
that all conditions precedent herein provided for relating to such
transaction have been complied with.
Section 802 Successor Substituted.
Upon any consolidation of the Company with, or merger of the Company
into, any other Person or any conveyance, transfer or lease of the properties
and assets of the Company substantially as an entirety in accordance with
Section 801, the Successor Company formed by such consolidation or into which
the Company is merged or to which such conveyance, transfer
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or lease is made shall succeed to, and be substituted for, and may exercise
every right and power of, the Company under this Indenture with the same effect
as if such successor Person had been named as the Company herein, and
thereafter, except in the case of a lease, the predecessor Person shall be
relieved of all obligations and covenants under this Indenture and the
Securities.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901 Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by a
Board Resolution, and the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto, in form satisfactory to the
Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company
and the assumption by any such successor of the covenants of the
Company herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (and if such covenants are
to be for the benefit of less than all series of Securities, stating
that such covenants are expressly being included solely for the
benefit of such series) or to surrender any right or power herein
conferred upon the Company; or
(3) to add any additional Events of Default for the benefit of
the Holders of all or any series of Securities (and if such additional
Events of Default are to be for the benefit of less than all series of
Securities, stating that such additional Events of Default are
expressly being included solely for the benefit of such series); or
(4) to add to or change any of the provisions of this Indenture
to such extent as shall be necessary to permit or facilitate the
issuance of Securities in bearer form, registrable or not registrable
as to principal, and with or without interest coupons, or to permit or
facilitate the issuance of Securities in uncertificated form; or
(5) to add to, change or eliminate any of the provisions of this
Indenture in respect of one or more series of Securities, provided
that any such addition, change or elimination (A) shall neither (i)
apply to any Security of any series created prior to the execution of
such supplemental indenture and entitled to the benefit of such
provision nor (ii) modify the rights of the Holder of any such
Security with respect to such provision or (B) shall become effective
only when there is no such Security Outstanding; or
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(6) to secure the Securities pursuant to the requirements of
Section 1008 or otherwise; or
(7) to establish the form or terms of Securities of any series as
permitted by Sections 201 and 301; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one
or more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee,
pursuant to the requirements of Section 611; or
(9) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture, provided that such action
pursuant to this Clause (9) shall not adversely affect the interests
of the Holders of Securities of any series.
Section 902 Supplemental Indentures With Consent of Holders.
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by a Board Resolution, and the Trustee may
enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of Securities of such series under this Indenture; provided, however,
that no such supplemental indenture shall, without the consent of the Holder of
each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any
instalment of principal of or interest on, any Security, or reduce the
principal amount thereof or the rate of interest thereon or any
premium payable upon the redemption thereof, or reduce the amount of
the principal of an Original Issue Discount Security or any other
Security which would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 502, or
change any Place of Payment where, or the coin or currency in which,
any Security or any premium or interest thereon is payable, or impair
the right to institute suit for the enforcement of any such payment on
or after the Stated Maturity thereof (or, in the case of redemption,
on or after the Redemption Date), or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for
any such supplemental indenture, or the consent of whose Holders is
required for any waiver (of compliance with certain provisions of this
Indenture or certain defaults hereunder and their consequences)
provided for in this Indenture, or
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(3) modify any of the provisions of this Section, Section 513 or
Section 1010, except to increase any such percentage or to provide
that certain other provisions of this Indenture cannot be modified or
waived without the consent of the Holder of each Outstanding Security
affected thereby; provided, however, that this clause shall not be
deemed to require the consent of any Holder with respect to changes in
the references to "the Trustee" and concomitant changes in this
Section and Section 1010, or the deletion of this proviso, in
accordance with the requirements of Sections 611 and 901(8).
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
Section 903 Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
Section 904 Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
Section 905 Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act.
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Section 906 Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
ARTICLE TEN
COVENANTS
Section 1001 Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of and any premium
and interest on the Securities of that series in accordance with the terms of
the Securities and this Indenture.
Section 1002 Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series may be presented
or surrendered for payment, where Securities of that series may be surrendered
for registration of transfer or exchange and where notices and demands to or
upon the Company in respect of the Securities of that series and this Indenture
may be served. The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee, and the Company hereby appoints the Trustee as its agent
to receive all such presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered for any or all such purposes and may from time to time rescind
such designations; provided, however, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an office
or agency in each Place of Payment for Securities of any series for such
purposes. The Company will give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such other
office or agency.
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Section 1003 Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of the
principal of or any premium or interest on any of the Securities of that series,
segregate and hold in trust for the benefit of the Persons entitled thereto a
sum sufficient to pay the principal and any premium and interest so becoming due
until such sums shall be paid to such Persons or otherwise disposed of as herein
provided and will promptly notify the Trustee of its action or failure so to
act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it will, prior to each due date of the principal of or any
premium or interest on any Securities of that series, deposit with a Paying
Agent a sum sufficient to pay such amount, such sum to be held as provided by
the Trust Indenture Act, and (unless such Paying Agent is the Trustee) the
Company will promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will (1) comply with the provisions of
the Trust Indenture Act applicable to it as a Paying Agent and (2) during the
continuance of any default by the Company (or any other obligor upon the
Securities of that series) in the making of any payment in respect of the
Securities of that series, upon the written request of the Trustee, forthwith
pay to the Trustee all sums held in trust by such Paying Agent for payment in
respect of the Securities of that series.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of or any premium or
interest on any Security of any series and remaining unclaimed for two years
after such principal, premium or interest has become due and payable shall be
paid to the Company on Company Request, or (if then held by the Company) shall
be discharged from such trust; and the Holder of such Security shall thereafter,
as an unsecured general creditor, look only to the Company for payment thereof,
and all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause to
be published once, in a newspaper published in the English language, customarily
published on each Business Day and of general circulation in the City of New
York, New York, notice that such money remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days from the date of such
publication, any unclaimed balance of such money then remaining will be repaid
to the Company.
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Section 1004 Statement by Officers as to Default.
The Company will deliver to the Trustee, within 120 days after the end
of each fiscal year of the Company ending after the date hereof, an Officers'
Certificate, stating whether or not to the best knowledge of the signers thereof
the Company is in default in the performance and observance of any of the terms,
provisions and conditions of this Indenture (without regard to any period of
grace or requirement of notice provided hereunder) and, if the Company shall be
in default, specifying all such defaults and the nature and status thereof of
which they may have knowledge.
Section 1005 Existence.
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its existence,
rights (charter and statutory) and franchises; provided, however, that the
Company shall not be required to preserve any such right or franchise if the
Board of Directors shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company and that the loss
thereof is not disadvantageous in any material respect to the Holders.
Section 1006 Maintenance of Properties.
The Company will cause all properties used or useful in the conduct of
its business or the business of any Subsidiary to be maintained and kept in good
condition, repair and working order and supplied with all necessary equipment
and will cause to be made all necessary repairs, renewals, replacements,
betterments and improvements thereof, all as in the judgment of the Company may
be necessary so that the business carried on in connection therewith may be
properly and advantageously conducted at all times; provided, however, that
nothing in this Section shall prevent the Company from discontinuing the
operation or maintenance of any of such properties if such discontinuance is, in
the judgment of the Company, desirable in the conduct of its business or the
business of any Subsidiary and not disadvantageous in any material respect to
the Holders.
Section 1007 Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (1) all taxes, assessments and
governmental charges levied or imposed upon the Company or any Subsidiary or
upon the income, profits or property of the Company or any Subsidiary, and (2)
all lawful claims for labor, materials and supplies which, if unpaid, might by
law become a lien upon the property of the Company or any Subsidiary; provided,
however, that the Company shall not be required to pay or discharge or cause to
be paid or discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings.
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Section 1008 Limitation on Secured Debt.
The Company will not, and will not permit any Restricted Subsidiary to,
incur or guarantee any evidence of indebtedness for money borrowed ("Debt")
secured by a Lien on any (i) Principal Property or any part thereof, (ii)
Capital Stock of a Restricted Subsidiary now owned or hereafter acquired by the
Company or any Restricted Subsidiary or (iii) Debt of a Restricted Subsidiary
owed to the Company or any Restricted Subsidiary of the Company, without in any
such case (i), (ii) or (iii) effectively providing that the Securities are
secured equally and ratably with (or, at the Company's option, prior to) such
secured Debt and any other Debt required to be so secured, unless the aggregate
amount of all such secured Debt, plus all Attributable Debt of the Company and
its Restricted Subsidiaries with respect to Sale and Leaseback transactions
involving Principal Properties (with the exception of such transactions which
are excluded by the second paragraph of Section 1009), would not exceed 10% of
Consolidated Net Tangible Assets.
The foregoing restriction shall not apply to, and there will be
excluded from Debt in any computation under such restriction, (i) Debt secured
by a Lien in favor of the Company or a Restricted Subsidiary, (ii) Debt secured
by a Lien in favor of governmental bodies to secure progress or advance payments
or payments pursuant to contracts or statute, (iii) Debt secured by a Lien on
property, Capital Stock or Debt existing at the time of acquisition thereof
(including acquisition through merger, consolidation or otherwise), (iv) Debt
incurred or guaranteed to finance the acquisition of property, Capital Stock or
Debt, or to finance construction on, or improvement or expansion of, property,
which Debt is incurred within 180 days of such acquisition or completion of
construction, improvement or expansion, and is secured solely by a Lien on the
property, Capital Stock or Debt acquired, constructed, improved or expanded, (v)
Debt consisting of industrial revenue or pollution control bonds or similar
financing secured solely by a Lien on the property the subject thereof, or (vi)
any extension, renewal or replacement of any Debt referred to in the foregoing
clauses (iii) or (iv).
Section 1009 Limitation on Sale and Leaseback Transactions.
Neither the Company nor any Restricted Subsidiary will enter into any
Sale and Leaseback Transaction involving any Principal Property or any part
thereof after the date of original issuance of the Securities unless the
aggregate amount of all Attributable Debt of the Company and its Restricted
Subsidiaries with respect to such transactions plus all secured Debt to which
the restrictions described in Section 1008 apply would not exceed 10% of
Consolidated Net Tangible Assets.
The foregoing restriction shall not apply to, and there shall be
excluded from Attributable Debt in any computation under such restriction, any
Sale and Leaseback Transaction if (i) the lease is for a period of not in excess
of three years, including renewal rights, (ii) the lease secures or relates to
industrial revenue or pollution control bonds or similar financing, (iii) the
transaction is between the Company and a Restricted Subsidiary or between
Restricted Subsidiaries, or (iv) the Company or such Restricted Subsidiary,
within 180 days after the sale is completed, applies an amount equal to the
greater of (A) the net proceeds of the sale of the
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Principal Property leased or (B) the fair market value of the Principal Property
leased either to (1) the retirement of Securities, other Funded Debt of the
Company ranking on a parity with the Securities, or Funded Debt of a Restricted
Subsidiary or (2) the purchase of other property which will constitute a
Principal Property having a value at least equal to the value of the Principal
Property leased.
Section 1010 Waiver of Certain Covenants.
Except as otherwise specified as contemplated by Section 301 for
Securities of such series, the Company may, with respect to the Securities of
any series, omit in any particular instance to comply with any term, provision
or condition set forth in any covenant provided pursuant to Section 301(16),
901(2) or 901(7) for the benefit of the Holders of such series or in any of
Sections 1008 to 1009, inclusive, if before the time for such compliance the
Holders of at least a majority in principal amount of the Outstanding Securities
of such series shall, by Act of such Holders, either waive such compliance in
such instance or generally waive compliance with such term, provision or
condition, but no such waiver shall extend to or affect such term, provision or
condition except to the extent so expressly waived, and, until such waiver shall
become effective, the obligations of the Company and the duties of the Trustee
in respect of any such term, provision or condition shall remain in full force
and effect.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 1101 Applicability of Article.
Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 301 for such Securities) in
accordance with this Article.
Section 1102 Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced
by a Board Resolution or in another manner specified as contemplated by Section
301 for such Securities. In case of any redemption at the election of the
Company of less than all the Securities of any series (including any such
redemption affecting only a single Security), the Company shall, at least 60
days prior to the Redemption Date fixed by the Company (unless a shorter notice
shall be satisfactory to the Trustee), notify the Trustee of such Redemption
Date, of the principal amount of Securities of such series to be redeemed and,
if applicable, of the tenor of the Securities to be redeemed. In the case of any
redemption of Securities prior to the expiration of any restriction on such
redemption provided in the terms of such Securities or elsewhere in this
Indenture, the
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Company shall furnish the Trustee with an Officers' Certificate evidencing
compliance with such restriction.
Section 1103 Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities of any series are to be redeemed
(unless all the Securities of such series and of a specified tenor are to be
redeemed or unless such redemption affects only a single Security), the
particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities of
such series not previously called for redemption, by such method as the Trustee
shall deem fair and appropriate and which may provide for the selection for
redemption of a portion of the principal amount of any Security of such series,
provided that the unredeemed portion of the principal amount of any Security
shall be in an authorized denomination (which shall not be less than the minimum
authorized denomination) for such Security. If less than all the Securities of
such series and of a specified tenor are to be redeemed (unless such redemption
affects only a single Security), the particular Securities to be redeemed shall
be selected not more than 60 days prior to the Redemption Date by the Trustee,
from the Outstanding Securities of such series and specified tenor not
previously called for redemption in accordance with the preceding sentence.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption as aforesaid and, in case of any Securities
selected for partial redemption as aforesaid, the principal amount thereof to be
redeemed.
The provisions of the two preceding paragraphs shall not apply with
respect to any redemption affecting only a single Security, whether such
Security is to be redeemed in whole or in part. In the case of any such
redemption in part, the unredeemed portion of the principal amount of the
Security shall be in an authorized denomination (which shall not be less than
the minimum authorized denomination) for such Security.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
Section 1104 Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption
Date, to each Holder of Securities to be redeemed, at his address appearing in
the Security Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
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(3) if less than all the Outstanding Securities of any series
consisting of more than a single Security are to be redeemed, the
identification (and, in the case of partial redemption of any such
Securities, the principal amounts) of the particular Securities to be
redeemed and, if less than all the Outstanding Securities of any series
consisting of a single Security are to be redeemed, the principal
amount of the particular Security to be redeemed,
(4) that on the Redemption Date the Redemption Price will
become due and payable upon each such Security to be redeemed and, if
applicable, that interest thereon will cease to accrue on and after
said date,
(5) the place or places where each such Security is to be
surrendered for payment of the Redemption Price, and
(6) that the redemption is for a sinking fund, if such is the
case.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company and shall be irrevocable.
Section 1105 Deposit of Redemption Price.
Prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1003) an amount of
money sufficient to pay the Redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date) accrued interest on, all the Securities
which are to be redeemed on that date.
Section 1106 Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security shall
be paid by the Company at the Redemption Price, together with accrued interest
to the Redemption Date; provided, however, that, unless otherwise specified as
contemplated by Section 301, installments of interest whose Stated Maturity is
on or prior to the Redemption Date will be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at the
close of business on the relevant Record Dates according to their terms and the
provisions of Section 307.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and any premium shall, until
paid, bear interest from the Redemption Date at the rate prescribed therefor in
the Security.
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Section 1107 Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered
at a Place of Payment therefor (with, if the Company or the Trustee so requires,
due endorsement by, or a written instrument of transfer in form satisfactory to
the Company and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Company shall execute, and the Trustee
shall authenticate and deliver to the Holder of such Security without service
charge, a new Security or Securities of the same series and of like tenor, of
any authorized denomination as requested by such Holder, in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Security so surrendered.
ARTICLE TWELVE
SINKING FUNDS
Section 1201 Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Securities of any series except as otherwise specified as
contemplated by Section 301 for such Securities.
The minimum amount of any sinking fund payment provided for by the
terms of any Securities is herein referred to as a "mandatory sinking fund
payment", and any payment in excess of such minimum amount provided for by the
terms of such Securities is herein referred to as an "optional sinking fund
payment". If provided for by the terms of any Securities, the cash amount of any
sinking fund payment may be subject to reduction as provided in Section 1202.
Each sinking fund payment shall be applied to the redemption of Securities as
provided for by the terms of such Securities.
Section 1202 Satisfaction of Sinking Fund Payments with Securities.
The Company (1) may deliver Outstanding Securities of a series (other
than any previously called for redemption) and (2) may apply as a credit
Securities of a series which have been redeemed either at the election of the
Company pursuant to the terms of such Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking fund
payment with respect to any Securities of such series required to be made
pursuant to the terms of such Securities as and to the extent provided for by
the terms of such Securities; provided that the Securities to be so credited
have not been previously so credited. The Securities to be so credited shall be
received and credited for such purpose by the Trustee at the Redemption Price,
as specified in the Securities so to be redeemed, for redemption through
operation of the sinking fund and the amount of such sinking fund payment shall
be reduced accordingly.
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Section 1203 Redemption of Securities for Sinking Fund.
Not less than 45 days prior to each sinking fund payment date for any
Securities, the Company will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing sinking fund payment for such
Securities pursuant to the terms of such Securities, the portion thereof, if
any, which is to be satisfied by payment of cash and the portion thereof, if
any, which is to be satisfied by delivering and crediting Securities pursuant to
Section 1202 and will also deliver to the Trustee any Securities to be so
delivered. Not less than 45 days prior to each such sinking fund payment date,
the Trustee shall select the Securities to be redeemed upon such sinking fund
payment date in the manner specified in Section 1103 and cause notice of the
redemption thereof to be given in the name of and at the expense of the Company
in the manner provided in Section 1104. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
DEFEASANCE AND COVENANT DEFEASANCE
Section 1301 Company's Option to Effect Defeasance or Covenant Defeasance.
The Company may elect, at its option at any time, to have Section 1302
or Section 1303 applied to any Securities or any series of Securities, as the
case may be, designated pursuant to Section 301 as being defeasible pursuant to
such Section 1302 or 1303, in accordance with any applicable requirements
provided pursuant to Section 301 and upon compliance with the conditions set
forth below in this Article. Any such election shall be evidenced by a Board
Resolution or in another manner specified as contemplated by Section 301 for
such Securities.
Section 1302 Defeasance and Discharge.
Upon the Company's exercise of its option (if any) to have this Section
applied to any Securities or any series of Securities, as the case may be, the
Company shall be deemed to have been discharged from its obligations with
respect to such Securities as provided in this Section on and after the date the
conditions set forth in Section 1304 are satisfied (hereinafter called
"Defeasance"). For this purpose, such Defeasance means that the Company shall be
deemed to have paid and discharged the entire indebtedness represented by such
Securities and to have satisfied all its other obligations under such Securities
and this Indenture insofar as such Securities are concerned (and the Trustee, at
the expense of the Company, shall execute proper instruments acknowledging the
same), subject to the following which shall survive until otherwise terminated
or discharged hereunder: (1) the rights of Holders of such Securities to
receive, solely from the trust fund described in Section 1304 and as more fully
set forth in such Section, payments in respect of the principal of and any
premium and interest on such Securities when payments are due, (2) the Company's
obligations with respect to such Securities under Sections 304, 305, 306, 1002
and 1003, (3) the rights, powers, trusts, duties and immunities of
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the Trustee hereunder and (4) this Article. Subject to compliance with this
Article, the Company may exercise its option (if any) to have this Section
applied to any Securities notwithstanding the prior exercise of its option (if
any) to have Section 1303 applied to such Securities.
Section 1303 Covenant Defeasance.
Upon the Company's exercise of its option (if any) to have this Section
applied to any Securities or any series of Securities, as the case may be, (1)
the Company shall be released from its obligations under Section 801(3),
Sections 1005 through 1009, inclusive, and any covenants provided pursuant to
Section 301(16), 901(2) or 901(7) for the benefit of the Holders of such
Securities and (2) the occurrence of any event specified in Sections 501(4)
(with respect to any of Section 801(3), Sections 1005 through 1009, inclusive,
and any such covenants provided pursuant to Section 301(16), 901(2) or 901(7)),
and 501(7) shall be deemed not to be or result in an Event of Default, in each
case with respect to such Securities as provided in this Section on and after
the date the conditions set forth in Section 1304 are satisfied (hereinafter
called "Covenant Defeasance"). For this purpose, such Covenant Defeasance means
that, with respect to such Securities, the Company may omit to comply with and
shall have no liability in respect of any term, condition or limitation set
forth in any such specified Section (to the extent so specified in the case of
Section 501(4)), whether directly or indirectly by reason of any reference
elsewhere herein to any such Section or by reason of any reference in any such
Section to any other provision herein or in any other document, but the
remainder of this Indenture and such Securities shall be unaffected thereby.
Section 1304 Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to the application of Section
1302 or Section 1303 to any Securities or any series of Securities, as the case
may be:
(1) The Company shall irrevocably have deposited or caused to
be deposited with the Trustee (or another trustee which satisfies the
requirements contemplated by Section 609 and agrees to comply with the
provisions of this Article applicable to it) as trust funds in trust
for the purpose of making the following payments, specifically pledged
as security for, and dedicated solely to, the benefits of the Holders
of such Securities, (A) money in an amount, or (B) U.S. Government
Obligations which through the scheduled payment of principal and
interest in respect thereof in accordance with their terms will
provide, not later than one day before the due date of any payment,
money in an amount, or (C) a combination thereof, in each case
sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge, and which shall
be applied by the Trustee (or any such other qualifying trustee) to pay
and discharge, the principal of and any premium and interest on such
Securities on the respective Stated Maturities, in accordance with the
terms of this Indenture and such Securities. As used herein, "U.S.
Government Obligation" means (x) any security which is (i) a direct
obligation of the United States of America for the payment of which the
full faith and
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credit of the United States of America is pledged or (ii) an obligation
of a Person controlled or supervised by and acting as an agency or
instrumentality of the United States of America the payment of which is
unconditionally guaranteed as a full faith and credit obligation by the
United States of America, which, in either case (i) or (ii), is not
callable or redeemable at the option of the issuer thereof, and (y) any
depositary receipt issued by a bank (as defined in Section 3(a)(2) of
the Securities Act) as custodian with respect to any U.S. Government
Obligation which is specified in Clause (x) above and held by such bank
for the account of the holder of such depositary receipt, or with
respect to any specific payment of principal of or interest on any U.S.
Government Obligation which is so specified and held, 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 depositary
receipt from any amount received by the custodian in respect of the
U.S. Government Obligation or the specific payment of principal or
interest evidenced by such depositary receipt.
(2) In the event of an election to have Section 1302 apply to
any Securities or any series of Securities, as the case may be, the
Company shall have delivered to the Trustee an Opinion of Counsel
stating that (A) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling or (B) since the
date of this Indenture, there has been a change in the applicable
Federal income tax law, in either case (A) or (B) to the effect that,
and based thereon such opinion shall confirm that, the Holders of such
Securities will not recognize gain or loss for Federal income tax
purposes as a result of the deposit, Defeasance and discharge to be
effected with respect to such Securities and will be subject to Federal
income tax on the same amount, in the same manner and at the same times
as would be the case if such deposit, Defeasance and discharge were not
to occur.
(3) In the event of an election to have Section 1303 apply to
any Securities or any series of Securities, as the case may be, the
Company shall have delivered to the Trustee an Opinion of Counsel to
the effect that the Holders of such Securities will not recognize gain
or loss for Federal income tax purposes as a result of the deposit and
Covenant Defeasance to be effected with respect to such Securities and
will be subject to Federal income tax on the same amount, in the same
manner and at the same times as would be the case if such deposit and
Covenant Defeasance were not to occur.
(4) The Company shall have delivered to the Trustee an
Officers' Certificate to the effect that neither such Securities nor
any other Securities of the same series, if then listed on any
securities exchange, will be delisted as a result of such deposit.
(5) No event which is, or after notice or lapse of time or
both would become, an Event of Default with respect to such Securities
or any other Securities shall have occurred and be continuing at the
time of such deposit or, with regard to any such event specified in
Sections 501(5) and (6), at any time on or prior to the 90th day after
the date of such deposit (it being understood that this condition shall
not be deemed satisfied until after such 90th day).
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(6) Such Defeasance or Covenant Defeasance shall not cause the
Trustee to have a conflicting interest within the meaning of the Trust
Indenture Act (assuming all Securities are in default within the
meaning of such Act).
(7) Such Defeasance or Covenant Defeasance shall not result in
a breach or violation of, or constitute a default under, any other
agreement or instrument to which the Company is a party or by which it
is bound.
(8) Such Defeasance or Covenant Defeasance shall not result in
the trust arising from such deposit constituting an investment company
within the meaning of the Investment Company Act unless such trust
shall be registered under such Act or exempt from registration
thereunder.
(9) The Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent with respect to such Defeasance or Covenant
Defeasance have been complied with.
Section 1305 Deposited Money and U.S. Government Obligations to Be Held in
Trust; Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 1003, all
money and U.S. Government Obligations (including the proceeds thereof) deposited
with the Trustee or other qualifying trustee (solely for purposes of this
Section and Section 1306, the Trustee and any such other trustee are referred to
collectively as the "Trustee") pursuant to Section 1304 in respect of any
Securities shall be held in trust and applied by the Trustee, in accordance with
the provisions of such Securities and this Indenture, to the payment, either
directly or through any such Paying Agent (including the Company acting as its
own Paying Agent) as the Trustee may determine, to the Holders of such
Securities, of all sums due and to become due thereon in respect of principal
and any premium and interest, but money so held in trust need not be segregated
from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 1304 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is for
the account of the Holders of Outstanding Securities.
Anything in this Article to the contrary notwithstanding, the Trustee
shall deliver or pay to the Company from time to time upon Company Request any
money or U.S. Government Obligations held by it as provided in Section 1304 with
respect to any Securities which, in the opinion of a nationally recognized firm
of independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof which would then
be required to be deposited to effect the Defeasance or Covenant Defeasance, as
the case may be, with respect to such Securities.
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Section 1306 Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money in
accordance with this Article with respect to any Securities by reason of any
order or judgment of any court or governmental authority enjoining, restraining
or otherwise prohibiting such application, then the obligations under this
Indenture and such Securities from which the Company has been discharged or
released pursuant to Section 1302 or 1303 shall be revived and reinstated as
though no deposit had occurred pursuant to this Article with respect to such
Securities, until such time as the Trustee or Paying Agent is permitted to apply
all money held in trust pursuant to Section 1305 with respect to such Securities
in accordance with this Article; provided, however, that if the Company makes
any payment of principal of or any premium or interest on any such Security
following such reinstatement of its obligations, the Company shall be subrogated
to the rights (if any) of the Holders of such Securities to receive such payment
from the money so held in trust.
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This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
DOVER CORPORATION
By:
-------------------------------------
Attest:
- ------------------------------
[ ]
By:
-------------------------------------
Attest:
- ------------------------------
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STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the ______ day of ________, ____, before me personally came
________________ , to me known, who, being by me duly sworn, did depose and say
that she/he is __________________ of Dover Corporation, one of the corporations
described in and which executed the foregoing instrument; that she/he knows the
seal of said corporation; that the seal affixed to said instrument is such
corporate seal; that it was so affixed by authority of the Board of Directors of
said corporation; and that she/he signed his name thereto by like authority.
__________________________________________
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the ______ day of _________, ____, before me personally came
__________________ , to me known, who, being by me duly sworn, did depose and
say that she/he is ___________________ of _________________________________,
one of the corporations described in and which executed the foregoing
instrument; that she/he knows the seal of said corporation; that the seal
affixed to said instrument is such corporate seal; that it was so affixed by
authority of the Board of Directors of said corporation; and that she/he signed
his name thereto by like authority.
_________________________________________
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1
Exhibit 5
---------
[Letterhead of Dover Corporation]
October 4, 2000
Dover Corporation
280 Park Avenue
New York, NY 10017
Re: Form S-3 Registration Statement
for $1,000,000,000 Aggregate
Offering Price of Debt Securities
----------------------------------
Ladies and Gentlemen:
I am Vice President, General Counsel and Secretary of Dover
Corporation, a Delaware corporation (the "Company"), and, as such, am generally
familiar with its affairs, records, documents and obligations. I am rendering my
opinion in connection with the preparation and filing with the Securities and
Exchange Commission (the "Commission") under the Securities Act of 1933, as
amended (the "Securities Act"), of the registration statement on Form S-3 (the
"Registration Statement") relating to the registration by the Company of up to
$1,000,000,000 aggregate offering price of debt securities (the "Debt
Securities"). The Debt Securities are to be issued in one or more series
pursuant to an indenture (the "Indenture") to be entered into by the Company and
a trustee (the "Trustee").
I have been provided with a draft prospectus (the "Prospectus") which
is part of the Registration Statement. The Prospectus provides that it will be
supplemented in the future by one or more supplements to the Prospectus (each, a
"Prospectus Supplement"). I have examined the Registration Statement, the
Prospectus, the form of Indenture and the originals or certified, photostatic or
facsimile copies of such records and other documents as I have deemed relevant
and necessary as the basis for the opinions set forth below. In such
examination, I have assumed the legal capacity of all natural persons, the
genuineness of all signatures, the authenticity of all documents submitted to me
as originals, the conformity to original documents of all documents submitted to
me as certified, photostatic or facsimile copies and the authenticity of the
originals of such copies.
Based upon my examination described above, and subject to the
assumptions and qualifications stated herein, I am of the opinion that, (a) when
the Debt Securities of any series have been established in accordance with the
terms of the Indenture and approved by the Special Committee of the Board of
Directors of the Company in accordance with resolutions authorizing the issuance
and delivery of the Debt Securities, duly authenticated by the Trustee and duly
executed and delivered on behalf of the Company against payment therefor in
accordance with the terms and provisions of the Indenture and as contemplated by
the Registration Statement, the Prospectus and the related Prospectus
Supplement(s), and (b) when the Registration Statement and any required
post-effective amendments thereto have all become effective under the Securities
Act, and (c) assuming that the terms of the Debt Securities as executed and
delivered are as described in the Registration Statement, the Prospectus and the
related Prospectus Supplement(s), and (d) assuming that the Debt Securities as
executed and delivered do not violate any law applicable to the Company or
result in a default under or breach of any agreement or instrument binding upon
the Company, and (e) assuming that the Debt Securities as executed and delivered
comply with all requirements and restrictions, if any, applicable to the
Company, whether imposed by any court or governmental or regulatory body having
jurisdiction over the Company, the Debt Securities of such series will
constitute legal, valid and binding obligations of the Company, enforceable
against the Company in accordance with the terms of such Debt Securities.
2
The foregoing opinion is limited to the federal securities laws of the
United States, the General Corporation Law of the State of Delaware and the laws
of the State of New York. The foregoing opinion is also subject to (i)
bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and
other similar laws now or hereafter in effect relating to or affecting the
rights and remedies of creditors; (ii) general principles of equity, including
concepts of materiality, reasonableness, conscionability, good faith and fair
dealing. In addition, I express no opinion with respect to whether acceleration
of Debt Securities may affect the collectibility of any portion of the stated
principal amount thereof which might be determined to constitute unearned
interest thereon.
I assume for purposes of this opinion that, at the time of the issuance
of any Debt Securities, (i) the Indenture will have been duly executed and
delivered by the Company; (ii) the Trustee will be duly organized, validly
existing and in good standing under the laws of its jurisdiction of
organization; (iii) the Trustee will be duly qualified to engage in the
activities contemplated by the Indenture; (iv) the Indenture will have been duly
authorized, executed and delivered by the Trustee and will constitute a legal,
valid and binding obligation of the Trustee, enforceable against the Trustee in
accordance with its terms; (v) the Trustee will be in compliance, generally and
with respect to acting as Trustee under the Indenture, with all applicable laws
and regulations; and (vi) the Trustee will have the requisite legal power and
authority to perform its obligations under the Indenture.
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference of my name under the caption "Legal
Matters" in the Prospectus included therein. In giving this consent, I do not
thereby admit that I am within the category of persons whose consent is required
under Section 7 of the Securities Act or the Rules and Regulations of the
Commission promulgated thereunder.
Very truly yours,
/s/ Robert G. Kuhbach
---------------------
Robert G. Kuhbach
1
Exhibit 12
----------
DOVER CORPORATION
STATEMENT REGARDING COMPUTATION OF
RATIO OF EARNINGS TO FIXED CHARGES
(dollar amounts in thousands)
Year Ended Year Ended Year Ended Year Ended Year Ended Six Months
December December December 31, December 31, December 31, Ended June
31, 1995 31, 1996 1997 1998 1999 30, 2000
-------- -------- ---- ---- ---- --------
Earnings from continuing operations
before income taxes.............. $384,264 $502,109 $492,274 $488,646 $615,004 $388,405
Add Fixed Charges:
Interest Expense................. 39,585 41,663 46,163 60,746 53,401 41,438
Rent Expense (Interest Portion) 4,231 5,810 5,519 7,549 10,932 6,904
-------- -------- -------- -------- -------- --------
Total Fixed Charges................. $ 43,816 $ 47,473 $ 51,682 $ 68,295 64,333 48,342
-------- -------- -------- -------- -------- --------
Earnings as Adjusted................ $428,080 $549,582 $543,956 $556,941 $679,337 $436,747
======== ======== ======== ======== ======== ========
Ratio of Earnings to Fixed
Charges.......................... 9.8x 11.6x 10.5x 8.2x 10.6x 9.0x
We have computed these ratios by dividing earnings available for fixed charges
for each period by fixed charges for that period. We calculated earnings
available for fixed charges by adding pre-tax income and fixed charges. Fixed
charges are the sum of interest expense, including the amount we amortize for
debt financing costs, and our estimate of the amount of interest within our
rental expense. The ratios reflect the disposition of the Dover Elevator segment
of our business on January 5, 1999.
1
Exhibit 23.1
------------
Consent of Independent Accountants
----------------------------------
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-3 of our report dated February 4, 2000 relating to the
financial statements, which appears in the 1999 Annual Report to Shareholders,
which is incorporated by reference in Dover Corporation's Annual Report on Form
10-K for the year ended December 31, 1999. We also consent to the incorporation
by reference of our report dated February 4, 2000 relating to the financial
statement schedule, which appears in such Annual Report on Form 10-K. We also
consent to the reference to us under the heading "Experts" in such Registration
Statement.
PricewaterhouseCoopers LLP
New York, New York
October 4, 2000
