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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT PURSUANT
TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): June 14, 2002
KENNAMETAL INC.
(Exact name of registrant as specified in its charter)
Commission file number 1-5318
Pennsylvania 25-0900168
(State or other jurisdiction (I.R.S. Employer
of incorporation) Identification No.)
World Headquarters
1600 Technology Way
P.O. Box 231
Latrobe, Pennsylvania 15650-0231
(Address of registrant's principal executive offices)
Registrant's telephone number, including area code: (724) 539-5000
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ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
The following exhibits are filed herewith and incorporated by
reference into Registration Statement No. 333-40809 pertaining to
certain debt securities of the Registrant.
Exhibit
Number Description
- ------- -----------
1 Underwriting Agreement, dated as of June 14, 2002, by and between the
Registrant, Goldman, Sachs & Co., J.P. Morgan Securities Inc. and
Lehman Brothers Inc., as representatives of the several Underwriters
named in Schedule I thereto, relating to the issuance and sale of
$300,000,000 aggregate principal amount of the Company's 7.20% Senior
Notes due 2012
4.1 Indenture, dated as of June 19, 2002, by and between the Registrant
and Bank One Trust Company, N.A., as Trustee
4.2 First Supplemental Indenture, dated as of June 19, 2002, by and
between the Registrant and Bank One Trust Company, N.A., as Trustee
4.3 Form of 7.20% Senior Notes due 2012
5 Opinion of Buchanan Ingersoll Professional Corporation
12.1 Computation of ratio of earnings to fixed charges
12.2 Computation of pro-forma ratio of earnings to fixed charges
23 Consent of Buchanan Ingersoll Professional Corporation
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
KENNAMETAL INC.
Date: June 20, 2002 By: /s/ TIMOTHY A. HIBBARD
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Timothy A. Hibbard
Corporate Controller
and Chief Accounting Officer
EXHIBIT INDEX
Number Description Method of Filing
- ------ ----------- ----------------
1 Underwriting Agreement, dated as of June 14, 2002 Filed herewith
4.1 Indenture, dated as of June 19, 2002, by and
between the Registrant and Bank One Trust Company,
N.A., as Trustee Filed herewith
4.2 First Supplemental Indenture, dated as of June 19,
2002, by and between the Registrant and Bank One
Trust Company, N.A. as Trustee Filed herewith
4.3 Form of 7.20% Senior Notes due 2012 Filed herewith
5 Opinion of Buchanan Ingersoll Professional
Corporation Filed herewith
12.1 Computation of ratio of earnings to fixed charges Filed herewith
12.2 Computation of pro-forma ratio of earnings to
fixed charges Filed herewith
23 Consent of Buchanan Ingersoll Corporation Included in
Exhibit 5
Exhibit 1
Conformed Copy
KENNAMETAL INC.
7.20% Senior Notes due 2012
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UNDERWRITING AGREEMENT
June 14, 2002
Goldman, Sachs & Co.,
J.P. Morgan Securities Inc.
Lehman Brothers Inc.
As representatives of the several Underwriters
named in Schedule I hereto,
c/o Goldman, Sachs & Co.
85 Broad Street,
New York, New York 10004
Ladies and Gentlemen:
Kennametal Inc., a Pennsylvania corporation (the "Company"), proposes,
subject to the terms and conditions stated herein, to issue and sell to the
Underwriters named in Schedule I hereto (the "Underwriters") an aggregate of
$300,000,000 principal amount of the Notes of the Company, specified above (the
"Securities").
1. The Company represents and warrants to, and agrees with, each of the
Underwriters that:
(a) A registration statement on Form S-3 (File No. 333-40809) (the
"Initial Registration Statement") in respect of the Securities has been
filed with the Securities and Exchange Commission (the "Commission"); the
Initial Registration Statement and any post-effective amendment thereto,
each in the form heretofore delivered to Goldman, Sachs & Co., J.P. Morgan
Securities Inc. and Lehman Brothers Inc. (the "Representatives"), and,
excluding exhibits thereto but including all documents incorporated by
reference in the prospectus contained therein, to the Representatives for
each of the other Underwriters, have been declared effective by the
Commission in such form; other than a registration statement, if any,
increasing the size of the offering (a "Rule 462(b) Registration
Statement"), filed pursuant to Rule 462(b) under the Securities Act of
1933, as amended (the "Act"), which became effective upon filing, no other
document with respect to the Initial Registration Statement or document
incorporated by reference therein has heretofore been filed with the
Commission (other than prospectuses relating to the Securities filed
pursuant to Rule 424(b) of the rules and regulations of the Commission
under the Act, each in the form heretofore delivered to the
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Representatives); and no stop order suspending the effectiveness of the
Initial Registration Statement, any post-effective amendment thereto or the
Rule 462(b) Registration Statement, if any, has been issued and no
proceeding for that purpose has been initiated or threatened by the
Commission (any preliminary prospectus relating to the Securities included
in the Initial Registration Statement, filed with the Commission pursuant
to Rule 424(a) of the rules and regulations of the Commission under the Act
or otherwise filed with the Commission prior to the date hereof, is
hereinafter called a "Preliminary Prospectus"; the various parts of the
Initial Registration Statement, any post-effective amendment thereto and
the Rule 462(b) Registration Statement, if any, including all exhibits
thereto and including (i) the information contained in the form of final
prospectus relating to the securities filed or to be filed with the
Commission pursuant to Rule 424(b) under the Act in accordance with Section
5(a) hereof and (ii) the documents incorporated by reference in the
prospectus contained in the Initial Registration Statement at the time such
part of the Initial Registration Statement became effective but excluding
Form T-1, each as amended at the time such part of the Initial Registration
Statement became effective or such part of the Rule 462(b) Registration
Statement, if any, became or hereafter becomes effective, are hereinafter
collectively called the "Registration Statement"; such final prospectus
relating to the Securities, in the form first filed pursuant to Rule 424(b)
under the Act, is hereinafter called the "Prospectus"; any reference herein
to any Preliminary Prospectus or the Prospectus shall be deemed to refer to
and include the documents incorporated by reference therein pursuant to
Item 12 of Form S-3 under the Act, as of the date of such Preliminary
Prospectus or Prospectus, as the case may be; any reference to any
amendment or supplement to any Preliminary Prospectus or the Prospectus
shall be deemed to refer to and include any documents filed after the date
of such Preliminary Prospectus or Prospectus, as the case may be, under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
incorporated by reference in such Preliminary Prospectus or Prospectus, as
the case may be; and any reference to any amendment to the Registration
Statement shall be deemed to refer to and include any annual report of the
Company filed pursuant to Sections 13(a) or 15(d) of the Exchange Act after
the effective date of the Initial Registration Statement that is
incorporated by reference in the Registration Statement;
(b) No order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission, and each Preliminary
Prospectus, at the time of filing thereof, conformed in all material
respects to the requirements of the Act and the Trust Indenture Act of
1939, as amended (the "Trust Indenture Act"), and the rules and regulations
of the Commission thereunder, and did not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by an Underwriter through
the Representatives expressly for use therein;
(c) The documents incorporated by reference in the Prospectus, when
they became effective or were filed with the Commission, as the case may
be, conformed in all material respects to the requirements of the Act or
the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder, and none of such documents contained an untrue
statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading; and any further documents so filed
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and incorporated by reference in the Prospectus or any further amendment or
supplement thereto, when such documents become effective or are filed with
the Commission, as the case may be, will conform in all material respects
to the requirements of the Act or the Exchange Act, as applicable, and the
rules and regulations of the Commission thereunder and will not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading; provided, however, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by an
Underwriter through the Representatives expressly for use therein;
(d) The Registration Statement and the Prospectus conform, and any
further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of
the Act and the Trust Indenture Act and the rules and regulations of the
Commission thereunder and do not and will not, as of the applicable
effective date as to the Registration Statement and any amendment thereto
and as of the applicable filing date as to the Prospectus and any amendment
or supplement thereto, contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading; provided, however, that this
representation and warranty shall not apply to any statements or omissions
made in reliance upon and in conformity with information furnished in
writing to the Company by an Underwriter through the Representatives
expressly for use therein;
(e) Neither the Company nor any of its subsidiaries has sustained
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus any material loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree, otherwise than as set forth
or contemplated in the Prospectus; and, since the respective dates as of
which information is given in the Registration Statement and the
Prospectus, there has not been any change in the capital stock, except for
purchases of securities under any employee benefit plan, or long-term debt
of the Company or any of its subsidiaries or any material adverse change,
or any development involving a prospective material adverse change, in or
affecting the general affairs, management, financial position,
shareholders' equity or results of operations of the Company and its
subsidiaries, taken as a whole, otherwise than as set forth or contemplated
in the Prospectus;
(f) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the jurisdiction of its
incorporation, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus;
(g) Each "significant subsidiary" of the Company (as such term is
defined in Rule 1-02 of Regulation S-X) has been duly incorporated and is
validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, with power and authority (corporate and
other) to own its properties and conduct its business as described in the
Prospectus;
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(h) The Company has an authorized capitalization as set forth in the
Prospectus, and all of the issued shares of capital stock of the Company
have been duly and validly authorized and issued and are fully paid and
non-assessable;
(i) The Securities have been duly authorized and, when issued and
delivered pursuant to this Agreement, will have been duly executed,
authenticated, issued and delivered and will constitute valid and legally
binding obligations of the Company entitled to the benefits provided by the
indenture to be dated as of June 19, 2002, as supplemented by the
supplemental indenture to be dated as of June 19, 2002 (the "Indenture")
between the Company and Bank One Trust Company, N.A., as Trustee (the
"Trustee"), under which they are to be issued, which is substantially in
the form filed as an exhibit to the Registration Statement; the Indenture
has been duly authorized and duly qualified under the Trust Indenture Act
and, when executed and delivered by the Company and the Trustee, will
constitute a valid and legally binding instrument, enforceable in
accordance with its terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general applicability relating
to or affecting creditors' rights and to general equity principles; and the
Securities and the Indenture will conform to the descriptions thereof in
the Prospectus;
(j) The issue and sale of the Securities and the compliance by the
Company with all of the provisions of the Securities, the Indenture and
this Agreement and the consummation of the transactions herein and therein
contemplated will not, in any material respect, conflict with or result in
a breach or violation of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which the Company is a party or by which
the Company is bound or to which any of the property or assets of the
Company is subject, nor will such action result in any violation of the
provisions of the Amended and Restated Articles of Incorporation or By-laws
of the Company or any statute or any order, rule or regulation of any court
or governmental agency or body having jurisdiction over the Company or any
of its properties; and no consent, approval, authorization, order,
registration or qualification of or with any such court or governmental
agency or body is required for the issue and sale of the Securities or the
consummation by the Company of the transactions contemplated by this
Agreement, the Indenture, except the registration under the Act of the
Securities, such as have been obtained under the Trust Indenture Act and
such consents, approvals, authorizations, registrations or qualifications
as may be required under state securities or Blue Sky laws in connection
with the purchase and distribution of the Securities by the Underwriters;
(k) Neither the Company nor any of its subsidiaries is in violation of
its Articles of Incorporation or By-laws or in default in the performance
or observance of any material obligation, agreement, covenant or condition
contained in any indenture, mortgage, deed of trust, loan agreement, lease
or other agreement or instrument to which it is a party or by which it or
any of its properties may be bound;
(l) The statements set forth in the Prospectus under the captions
"Description of the Notes" and "Description of Debt Securities", insofar as
they purport to constitute a summary of the terms of the Securities and
under the caption "Plan of Distribution" insofar as it purports to describe
the provisions of the laws and documents referred to therein, are accurate,
complete and fair;
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(m) Other than as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which the Company or any of its
subsidiaries is a party or of which any property of the Company or any of
its subsidiaries, taken as a whole is the subject which, if determined
adversely to the Company or any of its subsidiaries, would individually or
in the aggregate have a material adverse effect on the current or future
consolidated financial position, shareholders' equity or results of
operations of the Company and its subsidiaries, taken as a whole; and, to
the best of the Company's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others;
(n) The Company and its subsidiaries own or possess, or can acquire on
reasonable terms, adequate patents, patent rights, licenses, inventions,
copyrights, know-how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or
procedures), trademarks, service marks, trade names or other intellectual
property (collectively, "Intellectual Property") necessary to carry on the
business now operated by them, and neither the Company nor any of its
subsidiaries has received any notice or is otherwise aware of any
infringement of or conflict with asserted rights of others with respect to
any Intellectual Property or of any facts or circumstances which would
render any Intellectual Property invalid or inadequate to protect the
interest of the Company or any of its subsidiaries therein, and which
infringement or conflict (if the subject of any unfavorable decision,
ruling or finding) or invalidity or inadequacy, singly or in the aggregate,
would result in a material adverse change, or any development involving a
prospective material adverse change in or affecting the general affairs,
management, financial position, shareholders' equity or results of
operations of the Company and its subsidiaries, taken as a whole;
(o) Other than as set forth in the Prospectus and except as would not,
singly or in the aggregate, result in a material adverse change, or any
development involving a prospective material adverse change in or affecting
the general affairs, management, financial position, shareholders' equity
or results of operations of the Company and its subsidiaries, taken as a
whole (A) neither the Company nor any of its subsidiaries is in violation
of any federal, state, local or foreign statute, law, rule, regulation,
ordinance, code, policy or rule of common law or any judicial or
administrative interpretation thereof, including any judicial or
administrative order, consent, decree or judgment, relating to pollution or
protection of human health, the environment (including, without limitation,
ambient air, surface water, groundwater, land surface or subsurface strata)
or wildlife, including, without limitation, laws and regulations relating
to the release or threatened release of chemicals, pollutants,
contaminants, wastes, toxic substances, hazardous substances, petroleum or
petroleum products (collectively, "Hazardous Materials") or to the
manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of Hazardous Materials (collectively, "Environmental
Laws"), (B) the Company and its subsidiaries have all permits,
authorizations and approvals required under any applicable Environmental
Laws and are each in compliance with their requirements, (C) there are no
pending or threatened administrative, regulatory, or judicial actions,
suits, demands, demand letters, claims, liens, notices of noncompliance or
violations, investigations or proceedings relating to any Environmental
Laws against the Company or any of its subsidiaries and (D) there are no
events or circumstances that might reasonably be expected to form the basis
of an order for clean-up or remediation, or an action, suit or proceeding
by any private party or governmental body or agency, against or affecting
the Company or any of its subsidiaries relating to Hazardous Materials or
any Environmental Laws;
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(p) The Company is not and, after giving effect to the offering and
sale of the Securities, will not be an "investment company", as such term
is defined in the Investment Company Act of 1940, as amended (the
"Investment Company Act");
(q) The financial statements included in the Registration Statement
and the Prospectus present fairly in all material respects the financial
position of the Company and its consolidated subsidiaries as of the dates
shown and their results of operations and cash flows for the periods shown,
and, except as otherwise disclosed in the Prospectus, such financial
statements have been prepared in conformity with the generally accepted
accounting principles in the United States applied on a consistent basis;
the schedules included in each Registration Statement present fairly the
information required to be stated therein; and
(r) Arthur Anderson LLP, at the time it issues its report with respect
to the Company's audited financial statements contained in or incorporated
by reference in the Company's Form 10-K for the fiscal year ended June 30,
2001 was, and PricewaterhouseCoopers LLP, each of which have certified
certain financial statements of the Company and its subsidiaries, are each
independent public accountants as required by the Act and the rules and
regulations of the Commission thereunder.
2. Subject to the terms and conditions herein set forth, the Company agrees
to issue and sell to each of the Underwriters, and each of the Underwriters
agrees, severally and not jointly, to purchase from the Company, at a purchase
price of 98.379% of the principal amount thereof, plus accrued interest, if any,
from June 19, 2002 to the Time of Delivery hereunder, the principal amount of
Securities set forth opposite the name of such Underwriter in Schedule I hereto.
3. Upon the authorization by the Representatives of the release of the
Securities, the several Underwriters propose to offer the Securities for sale
upon the terms and conditions set forth in the Prospectus. The Company shall not
be obligated to deliver the Securities except upon payment for all of the
Securities to be purchased as provided herein.
4. (a) The Securities to be purchased by each Underwriter hereunder, in
definitive form, and in such authorized denominations and registered in
such names as the Representatives may request upon at least forty-eight
hours' prior notice to the Company, shall be delivered by or on behalf of
the Company to the Representatives, through the facilities of The
Depository Trust Company ("DTC"), for the account of such Underwriter,
against payment by or on behalf of such Underwriter of the purchase price
therefor by wire transfer of Federal (same-day) funds to the account
specified by the Company to the Representatives at least forty-eight hours
in advance. The Company will cause the certificates representing the
Securities to be made available for checking and packaging at least
twenty-four hours prior to the Time of Delivery (as defined below) at the
office of DTC or its designated custodian (the "Designated Office"). The
Securities to be purchased by each Underwriter hereunder will be
represented by one or more definitive global Securities in book-entry form
which will be deposited by or on behalf of the Company with DTC or its
designated custodian. The Company will deliver the Securities to the
Representatives, for the account of each Underwriter, against payment by or
on behalf of such Underwriter of the purchase price therefor by wire
transfer of Federal (same-day) funds to the account specified by the
Company to the Representatives at least forty-eight hours in advance, by
causing DTC to credit the Securities to the account of the Representatives
at DTC. The Company will cause the certificates representing the Securities
to be made available to the Representatives for checking at least
twenty-four hours prior to the Time of Delivery (as defined
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below) at the Designated Office. The time and date of such delivery and
payment shall be 9:30 a.m., New York City time, on June 19, 2002 or such
other time and date as the Representatives and the Company may agree upon
in writing. Such time and date are herein called the "Time of Delivery".
(b) The documents to be delivered at the Time of Delivery by or on
behalf of the parties hereto pursuant to Section 7 hereof, including the
cross-receipt for the Securities and any additional documents reasonably
requested by the Underwriters pursuant to Section 7(j) hereof, will be
delivered at the offices of Simpson Thacher & Bartlett, 425 Lexington
Avenue, New York, New York 10017 (the "Closing Location"), and the
Securities will be delivered at the Designated Office, all at the Time of
Delivery. A meeting will be held at the Closing Location at 3:00 p.m., New
York City time, on the New York Business Day next preceding the Time of
Delivery, at which meeting the final drafts of the documents to be
delivered pursuant to the preceding sentence will be available for review
by the parties hereto. For the purposes of this Section 4, "New York
Business Day" shall mean each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in New York City
are generally authorized or obligated by law or executive order to close.
5. The Company agrees with each of the Underwriters:
(a) To prepare the Prospectus in a form approved by the
Representatives and to file such Prospectus pursuant to Rule 424(b) under
the Act not later than the Commission's close of business on the second
business day following the execution and delivery of this Agreement, or, if
applicable, such earlier time as may be required by Rule 424(b) under the
Act; to make no further amendment or any supplement to the Registration
Statement or Prospectus prior to the Time of Delivery which shall be
disapproved by the Representatives promptly after reasonable notice
thereof; to advise the Representatives, promptly after it receives notice
thereof, of the time when any amendment to the Registration Statement has
been filed or becomes effective or any supplement to the Prospectus or any
amended Prospectus has been filed and to furnish the Representatives with
copies thereof; to file promptly all reports and any definitive proxy or
information statements required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange
Act subsequent to the date of the Prospectus and for so long as the
delivery of a prospectus is required in connection with the offering or
sale of the Securities; to advise the Representatives, promptly after it
receives notice thereof, of the issuance by the Commission of any stop
order or of any order preventing or suspending the use of any Preliminary
Prospectus or Prospectus, of the suspension of the qualification of the
Securities for offering or sale in any jurisdiction, of the initiation or
threatening of any proceeding for any such purpose, or of any request by
the Commission for the amending or supplementing of the Registration
Statement or Prospectus or for additional information; and, in the event of
the issuance of any stop order or of any order preventing or suspending the
use of any Preliminary Prospectus or Prospectus or suspending any such
qualification, to promptly use its best efforts to obtain the withdrawal of
such order;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify the Securities for
offering and sale under the securities laws of such jurisdictions as the
Representatives may request and to comply with such laws so as to permit
the continuance of sales and dealings therein in such jurisdictions for as
long as may be necessary to complete the distribution of the Securities,
provided that in connection therewith the Company shall not be required to
qualify as a foreign corporation or to file a general consent to service of
process in any jurisdiction;
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(c) Prior to 12:00 Noon, New York City time, on the New York Business
Day next succeeding the date of this Agreement and from time to time, to
furnish the Underwriters with written and electronic copies of the
Prospectus in New York City in such quantities as the Representatives may
reasonably request, and, if the delivery of a prospectus is required at any
time in connection with the offering or sale of the Securities and if at
such time any event shall have occurred as a result of which the Prospectus
as then amended or supplemented would include an untrue statement of a
material fact or omit to state any material fact necessary in order to make
the statements therein, in light of the circumstances under which they were
made when such Prospectus is delivered, not misleading, or, if for any
other reason it shall be necessary during such same period to amend or
supplement the Prospectus or to file under the Exchange Act any document
incorporated by reference in the Prospectus in order to comply with the
Act, the Exchange Act or the Trust Indenture Act, to notify the
Representatives and upon their request to file such document and to prepare
and furnish without charge to each Underwriter and to any dealer in
securities as many written and electronic copies as the Representatives may
from time to time reasonably request of an amended Prospectus or a
supplement to the Prospectus which will correct such statement or omission
or effect such compliance;
(d) To make generally available to its securityholders as soon as
practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c)
under the Act), an earning statement of the Company and its subsidiaries
(which need not be audited) complying with Section 11(a) of the Act and the
rules and regulations thereunder (including, at the option of the Company,
Rule 158);
(e) During the period beginning from the date hereof and continuing to
and including the later of the Time of Delivery and such earlier time as
the Representatives may notify the Company, not to offer, sell, contract to
sell, pledge, grant any option to purchase, make any short sale or
otherwise dispose of, except as provided hereunder, any securities of the
Company that are substantially similar to the Securities, without the prior
written consent of the Representatives;
(f) If the Company elects to rely upon Rule 462(b), the Company shall
file a Rule 462(b) Registration Statement with the Commission in compliance
with Rule 462(b) by 10:00 P.M., Washington, D.C. time, on the date of this
Agreement, and the Company shall at the time of filing either pay to the
Commission the filing fee for the Rule 462(b) Registration Statement or
give irrevocable instructions for the payment of such fee pursuant to Rule
111(b) under the Act.
6. The Company covenants and agrees with the several Underwriters that the
Company will pay or cause to be paid the following: (i) the fees, disbursements
and expenses of the Company's counsel and accountants in connection with the
registration of the Securities under the Act and all other expenses in
connection with the preparation, printing and filing of the Registration
Statement, any Preliminary Prospectus and the Prospectus and amendments and
supplements thereto and the mailing and delivering of copies thereof to the
Underwriters and dealers; (ii) the cost of printing or producing any Agreement
among Underwriters, this Agreement, the Indenture, the Blue Sky and Legal
Investment Memoranda, closing documents (including any compilations thereof) and
any other documents in connection with the offering, purchase, sale and delivery
of the Securities; (iii) all expenses in connection with the qualification of
the Securities for offering and sale under state securities laws as provided in
Section 5(b) hereof, including the fees and disbursements of counsel for the
Underwriters in connection with such qualification and in connection with the
Blue Sky and legal investment surveys; (iv) any fees charged by securities
rating services for rating the Securities;
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(v) the filing fees incident to, and the fees and disbursements of counsel for
the Underwriters in connection with, any required review by the National
Association of Securities Dealers, Inc. of the terms of the sale of the
Securities; (vi) the cost of preparing the Securities; (vii) the fees and
expenses of the Trustee and any agent of the Trustee and the fees and
disbursements of counsel for the Trustee in connection with the Indenture and
the Securities; and (viii) all other costs and expenses incident to the
performance of its obligations hereunder which are not otherwise specifically
provided for in this Section. It is understood, however, that, except as
provided in this Section, and Sections 8 and 11 hereof, the Underwriters will
pay all of their own costs and expenses, including the fees of their counsel,
transfer taxes on resale of any of the Securities by them, and any advertising
expenses connected with any offers they may make.
7. The obligations of the Underwriters hereunder shall be subject, in the
discretion of the Representatives, to the condition that all representations and
warranties and other statements of the Company herein are, at and as of the Time
of Delivery, true and correct, the condition that the Company shall have
performed all of its obligations hereunder theretofore to be performed, and the
following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant
to Rule 424(b) within the applicable time period prescribed for such filing
by the rules and regulations under the Act and in accordance with Section
5(a) hereof; if the Company has elected to rely upon Rule 462(b), the Rule
462(b) Registration Statement shall have become effective by 10:00 P.M.,
Washington, D.C. time, on the date of this Agreement; no stop order
suspending the effectiveness of the Registration Statement or any part
thereof shall have been issued and no proceeding for that purpose shall
have been initiated or threatened by the Commission; and all requests for
additional information on the part of the Commission shall have been
complied with to the Representatives' reasonable satisfaction;
(b) Simpson Thacher & Bartlett, counsel for the Underwriters, shall
have furnished to the Representatives such written opinion or opinions (a
draft of each such opinion is attached as Annex II(a) hereto), dated the
Time of Delivery, with respect to the matters covered in paragraphs (i),
(v), (vi), (xii) and (xiii) of subsection (c) below as well as such other
related matters as the Representatives may reasonably request, and such
counsel shall have received such papers and information as they may
reasonably request to enable them to pass upon such matters;
(c) Buchanan Ingersoll Professional Corporation, counsel for the
Company, shall have furnished to the Representatives their written opinion
(a draft of such opinion is attached as Annex II(b) hereto), dated the Time
of Delivery, in form and substance satisfactory to the Representatives, to
the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, with corporate power and authority
to own its properties and conduct its business as described in the
Prospectus;
(ii) Each "significant subsidiary" of the Company (as such term
is defined in Rule 1-02 of Regulation S-X) organized under the laws of
any jurisdiction within the United States has been duly incorporated
and is validly existing as a corporation in good standing under the
laws of the jurisdiction of its incorporation, with corporate power
and authority to own its properties and conduct its business as
described in the Prospectus:
10
(iii) To the best of such counsel's knowledge and other than as
set forth in the Prospectus, there are no legal or governmental
proceedings pending to which the Company or any of its subsidiaries is
a party or of which any property of the Company or any of its
subsidiaries is the subject which, if determined adversely to the
Company or any of its subsidiaries, would individually or in the
aggregate have a material adverse effect on the current or future
consolidated financial position, shareholders' equity or results of
operations of the Company and its subsidiaries, taken as a whole; and,
to the best of such counsel's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or threatened
by others;
(iv) This Agreement has been duly authorized, executed and
delivered by the Company;
(v) The Securities have been duly authorized, executed,
authenticated, issued and delivered and constitute valid and legally
binding obligations of the Company entitled to the benefits provided
by the Indenture; and the Securities and the Indenture conform to the
descriptions thereof in the Prospectus;
(vi) The Indenture has been duly authorized, executed and
delivered by the parties thereto and constitutes a valid and legally
binding instrument, enforceable in accordance with its terms, subject,
as to enforcement, to bankruptcy, insolvency, reorganization and other
laws of general applicability relating to or affecting creditors'
rights and to general equity principles; and the Indenture has been
duly qualified under the Trust Indenture Act;
(vii) The issue and sale of the Securities and the compliance by
the Company with all of the provisions of the Securities, the
Indenture and this Agreement and the consummation of the transactions
herein and therein contemplated will not in any material respect
conflict with or result in a breach or violation of any of the terms
or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument known to such counsel to which the Company is a party or by
which the Company is bound or to which any of the property or assets
of the Company is subject, nor will such actions result in any
violation of the provisions of the Amended and Restated Articles of
Incorporation or By-laws of the Company or any statute or any order,
rule or regulation of any court or governmental agency or body having
jurisdiction over the Company or any of its properties;
(viii) No consent, approval, authorization, order, registration
or qualification of or with any such court or governmental agency or
body is required for the issue and sale of the Securities or the
consummation by the Company of the transactions contemplated by this
Agreement or the Indenture, except such as have been obtained under
the Act and the Trust Indenture Act and such consents, approvals,
authorizations, orders, registrations or qualifications as may be
required under state securities or Blue Sky laws in connection with
the purchase and distribution of the Securities by the Underwriters;
(ix) To the best of such counsel's knowledge after due inquiry,
neither the Company nor any of its significant subsidiaries organized
under the laws of any jurisdiction within the United States is in
violation of its Articles of Incorporation or By-laws or, to the best
of our knowledge, in default in the performance or observance of any
material obligation, agreement, covenant
11
or condition contained in any contract, indenture, mortgage, deed of
trust, loan agreement, note, lease or other agreement or instrument to
which it is a party or by which it or any of its properties may be
bound;
(x) The statements set forth in the Prospectus under the captions
"Description of the Notes" and "Description of the Debt Securities",
insofar as they purport to constitute a summary of the terms of the
Securities and under the caption "Plan of Distribution", insofar as it
purports to describe the provisions of the laws and documents referred
to therein, are accurate, complete and fair;
(xi) The Company is not an "investment company", as such term is
defined in the Investment Company Act;
(xii) The documents incorporated by reference in the Prospectus
or any further amendment or supplement thereto made by the Company
prior to the Time of Delivery (other than the financial statements and
related schedules therein, as to which such counsel need express no
opinion), when they became effective or were filed with the
Commission, as the case may be, complied as to form in all material
respects with the requirements of the Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission
thereunder; and they have no reason to believe that any of such
documents, when such documents became effective or were so filed, as
the case may be, contained, in the case of a registration statement
which became effective under the Act, an untrue statement of a
material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading, or, in the case of other documents which were filed under
the Act or the Exchange Act with the Commission, an untrue statement
of a material fact or omitted to state a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made when such documents were so
filed, not misleading; and
(xiii) The Registration Statement and the Prospectus and any
further amendments and supplements thereto made by the Company prior
to the Time of Delivery (other than the financial statements and
related schedules therein, as to which such counsel need express no
opinion) comply as to form in all material respects with the
requirements of the Act and the Trust Indenture Act and the rules and
regulations thereunder; although they do not assume any responsibility
for the accuracy, completeness or fairness of the statements contained
in the Registration Statement or the Prospectus, except for those
referred to in the opinion in subsection (x) of this Section 7(c),
they have no reason to believe that, as of its effective date, the
Registration Statement or any further amendment thereto made by the
Company prior to the Time of Delivery (other than the financial
statements and related schedules therein, as to which such counsel
need express no opinion) contained an untrue statement of a material
fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading or that, as
of its date, the Prospectus or any further amendment or supplement
thereto made by the Company prior to the Time of Delivery (other than
the financial statements and related schedules therein, as to which
such counsel need express no opinion) contained an untrue statement of
a material fact or omitted to state a material fact necessary to make
the statements therein, in the light of the circumstances under which
they were made, not misleading or that, as of the Time of Delivery,
either the Registration Statement or the Prospectus or any further
amendment or supplement thereto
12
made by the Company prior to the Time of Delivery (other than the
financial statements and related schedules therein, as to which such
counsel need express no opinion) contains an untrue statement of a
material fact or omits to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; and they do not know of any amendment to
the Registration Statement required to be filed or of any contracts or
other documents of a character required to be filed as an exhibit to
the Registration Statement or required to be incorporated by reference
into the Prospectus or required to be described in the Registration
Statement or the Prospectus which are not filed or incorporated by
reference or described as required;
(d) CMS Hasche Sigle, German counsel for the Company, shall have
furnished to the Representatives their written opinion (a draft of such
opinion is attached as Annex III(c) hereto), dated such Time of Delivery,
in form and substance satisfactory to the Representatives, to the effect
that:
(i) KENNAMETAL HERTEL Aktiengesellschaft has been incorporated
and is validly existing as a joint stock corporation in good standing
under German laws and has the corporate power and authority to own,
lease and operate its properties and to conduct its business as
described in the Prospectus as amended or supplemented; and
(ii) Other than as set forth in the Prospectus, to the best of
such counsel's knowledge, there are no legal or governmental
proceedings pending to which KENNAMETAL HERTEL Aktiengesellschaft or
any of its subsidiaries is a party or to which any property of
KENNAMETAL HERTEL or any of its subsidiaries is the subject which
reasonably would be expected, individually or in the aggregate, to
have a material adverse effect on the general affairs, management,
financial position, shareholders' equity or results of operations of
the Company and its subsidiaries, taken as a whole.
(e) On the date of the Prospectus at a time prior to the execution of
this Agreement, at 9:30 a.m., New York City time, on the effective date of
any post-effective amendment to the Registration Statement filed subsequent
to the date of this Agreement and also at the Time of Delivery,
PricewaterhouseCoopers LLP shall have furnished to the Representatives a
letter or letters, dated the respective dates of delivery thereof, in form
and substance satisfactory to the Representatives, to the effect set forth
in Annex I hereto (the executed copy of the letter delivered prior to the
execution of this Agreement is attached as Annex I(a) hereto and a draft of
the form of letter to be delivered on the effective date of any
post-effective amendment to the Registration Statement and as of each Time
of Delivery is attached as Annex I(b) hereto);
(f) On the date of the Prospectus at a time prior to the execution of
this Agreement, at 9:30 a.m., New York City time, on the effective date of
any post-effective amendment to the Registration Statement filed subsequent
to the date of this Agreement and also at the Time of Delivery, Nick
Grasberger, Vice President and Chief Financial Officer of the Company and
Timothy A. Hibbard, Corporate Controller and Chief Accounting Officer of
the Company, having specific knowledge of the Company's and its
subsidiaries' financial matters, shall have furnished to the
Representatives a letter, dated the respective dates of delivery thereof,
in form and substance satisfactory to the Representatives, to the effect
set forth in Annex II hereto (the executed copy of the letter delivered
prior to the execution of this Agreement is attached as Annex II(a) hereto
and a draft of the form of letter to be delivered on the effective date of
any post-effective amendment to the Registration Statement and as of each
Time of Delivery is attached as Annex II(b) hereto);
13
(g) (i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus any loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree, otherwise than as set forth
or contemplated in the Prospectus, and (ii) since the respective dates as
of which information is given in the Prospectus there shall not have been
any change in the capital stock or long-term debt of the Company or any of
its subsidiaries or any change, or any development involving a prospective
change, in or affecting the general affairs, management, financial
position, shareholders' equity or results of operations of the Company and
its subsidiaries, taken as a whole, otherwise than as set forth or
contemplated in the Prospectus, the effect of which, in any such case
described in clause (i) or (ii), is in the judgment of the Representatives
so material and adverse as to make it impracticable or inadvisable to
proceed with the public offering or the delivery of the Securities on the
terms and in the manner contemplated in the Prospectus;
(g) On or after the date hereof (i) no downgrading shall have occurred
in the rating accorded the Company's debt securities or preferred stock by
any "nationally recognized statistical rating organization", as that term
is defined by the Commission for purposes of Rule 436(g)(2) under the Act,
and (ii) no such organization shall have publicly announced that it has
under surveillance or review, with possible negative implications, its
rating of any of the Company's debt securities or preferred stock;
(h) On or after the date hereof there shall not have occurred any of
the following: (i) a suspension or material limitation in trading in
securities generally on The New York Stock Exchange; (ii) a suspension or
material limitation in trading in the Company's securities on The New York
Stock Exchange; (iii) a general moratorium on commercial banking activities
declared by either Federal or New York State authorities or a material
disruption in commercial banking or securities settlement or clearance
services in the United States; (iv) the outbreak or escalation of
hostilities involving the United States or the declaration by the United
States of a national emergency or war or (v) the occurrence of any other
calamity or crisis or any change in financial, political or economic
conditions in the United States or elsewhere, if the effect of any such
event specified in clause (iv) or (v) in the judgment of the
Representatives makes it impracticable or inadvisable to proceed with the
public offering or the delivery of the Securities on the terms and in the
manner contemplated in the Prospectus;
(i) The Company shall have complied with the provisions of Section
5(c) hereof with respect to the furnishing of prospectuses on the New York
Business Day next succeeding the date of this Agreement; and
(j) The Company shall have furnished or caused to be furnished to the
Representatives at the Time of Delivery certificates of officers of the
Company reasonably satisfactory to the Representatives as to the accuracy
of the representations and warranties of the Company herein at and as of
such Time of Delivery, as to the performance by the Company of all of its
obligations hereunder to be performed at or prior to such Time of Delivery,
as to the matters set forth in subsections (a) and (f) of this Section and
as to such other matters as the Representatives may reasonably request.
8. (a) The Company will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several, to
which such Underwriter may become subject,
14
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon
an untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, any preliminary prospectus
supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Securities, or any
amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not
misleading, and will reimburse each Underwriter for any legal or other
expenses reasonably incurred by such Underwriter in connection with
investigating or defending any such action or claim as such expenses are
incurred; provided, however, that the Company shall not be liable in any
such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in any Preliminary
Prospectus, any preliminary prospectus supplement, the Registration
Statement, the Prospectus as amended or supplemented and any other
prospectus relating to the Securities, or any such amendment or supplement
in reliance upon and in conformity with written information furnished to
the Company by any Underwriter through the Representatives expressly for
use therein.
(b) Each Underwriter will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the Company may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon an untrue statement or alleged untrue statement of a material
fact contained in any Preliminary Prospectus, any preliminary prospectus
supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Securities, or any
amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged
omission was made in any Preliminary Prospectus, any preliminary prospectus
supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Securities, or any
such amendment or supplement in reliance upon and in conformity with
written information furnished to the Company by such Underwriter through
the Representatives expressly for use therein; and will reimburse the
Company for any legal or other expenses reasonably incurred by the Company
in connection with investigating or defending any such action or claim as
such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection
(a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under such subsection, notify the
indemnifying party in writing of the commencement thereof; but the omission
so to notify the indemnifying party shall not relieve it from any liability
which it may have to any indemnified party otherwise than under such
subsection. In case any such action shall be brought against any
indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, jointly with any
other indemnifying party similarly notified, to assume the defense thereof,
with counsel satisfactory to such indemnified party (who shall not, except
with the consent of the indemnified party, be counsel to the indemnifying
party), and, after notice from the indemnifying party to such indemnified
party of its election so to assume the defense thereof, the indemnifying
party shall not be liable to such indemnified party under such subsection
for any legal expenses of other counsel or any other expenses, in each case
subsequently incurred by such indemnified party, in connection with the
defense thereof other than reasonable
15
costs of investigation. No indemnifying party shall, without the written
consent of the indemnified party, effect the settlement or compromise of,
or consent to the entry of any judgment with respect to, any pending or
threatened action or claim in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified party
is an actual or potential party to such action or claim) unless such
settlement, compromise or judgment (i) includes an unconditional release of
the indemnified party from all liability arising out of such action or
claim and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act, by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or
liabilities (or actions in respect thereof) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the
one hand and the Underwriters on the other from the offering of the
Securities. If, however, the allocation provided by the immediately
preceding sentence is not permitted by applicable law or if the indemnified
party failed to give the notice required under subsection (c) above, then
each indemnifying party shall contribute to such amount paid or payable by
such indemnified party in such proportion as is appropriate to reflect not
only such relative benefits but also the relative fault of the Company on
the one hand and the Underwriters on the other in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Company on
the one hand and the Underwriters on the other shall be deemed to be in the
same proportion as the total net proceeds from the offering (before
deducting expenses) received by the Company bear to the total underwriting
discounts and commissions received by the Underwriters, in each case as set
forth in the table on the cover page of the Prospectus. The relative fault
shall be determined by reference to, among other things, whether the untrue
or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Company on the one hand or the Underwriters on the other and the parties'
relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Company and the
Underwriters agree that it would not be just and equitable if contribution
pursuant to this subsection (d) were determined by pro rata allocation
(even if the Underwriters were treated as one entity for such purpose) or
by any other method of allocation which does not take account of the
equitable considerations referred to above in this subsection (d). The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to
above in this subsection (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at
which the Securities underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Act) shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation. The Underwriters' obligations in this
subsection (d) to contribute are several in proportion to their respective
underwriting obligations and not joint.
16
(e) The obligations of the Company under this Section 8 shall be in
addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who
controls any Underwriter within the meaning of the Act; and the obligations
of the Underwriters under this Section 8 shall be in addition to any
liability which the respective Underwriters may otherwise have and shall
extend, upon the same terms and conditions, to each officer and director of
the Company and to each person, if any, who controls the Company within the
meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to purchase the
Securities which it has agreed to purchase hereunder, the Representatives
may in their discretion arrange for themselves or another party or other
parties to purchase such Securities on the terms contained herein. If
within thirty-six hours after such default by any Underwriter the
Representatives do not arrange for the purchase of such Securities, then
the Company shall be entitled to a further period of thirty-six hours
within which to procure another party or other parties satisfactory to the
Representatives to purchase such Securities on such terms. In the event
that, within the respective prescribed periods, the Representatives notify
the Company that they have so arranged for the purchase of such Securities,
or the Company notifies the Representatives that it has so arranged for the
purchase of such Securities, the Representatives or the Company shall have
the right to postpone the Time of Delivery for a period of not more than
seven days, in order to effect whatever changes may thereby be made
necessary in the Registration Statement or the Prospectus, or in any other
documents or arrangements, and the Company agrees to file promptly any
amendments to the Registration Statement or the Prospectus which in the
Representatives' opinion may thereby be made necessary. The term
"Underwriter" as used in this Agreement shall include any person
substituted under this Section with like effect as if such person had
originally been a party to this Agreement with respect to such Securities.
(b) If, after giving effect to any arrangements for the purchase of
the Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of such Securities which remains unpurchased
does not exceed one-eleventh of the aggregate principal amount of all the
Securities, then the Company shall have the right to require each
non-defaulting Underwriter to purchase the principal amount of Securities
which such Underwriter agreed to purchase hereunder and, in addition, to
require each non-defaulting Underwriter to purchase its pro rata share
(based on the principal amount of Securities which such Underwriter agreed
to purchase hereunder) of the Securities of such defaulting Underwriter or
Underwriters for which such arrangements have not been made; but nothing
herein shall relieve a defaulting Underwriter from liability for its
default.
(c) If, after giving effect to any arrangements for the purchase of
the Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of Securities which remains unpurchased exceeds
one-eleventh of the aggregate principal amount of all the Securities, or if
the Company shall not exercise the right described in subsection (b) above
to require non-defaulting Underwriters to purchase Securities of a
defaulting Underwriter or Underwriters, then this Agreement shall thereupon
terminate, without liability on the part of any non-defaulting Underwriter
or the Company, except for the expenses to be borne by the Company and the
Underwriters as provided in Section 6 hereof and the indemnity and
contribution agreements in Section 8 hereof; but nothing herein shall
relieve a defaulting Underwriter from liability for its default.
17
10. The respective indemnities, agreements, representations, warranties and
other statements of the Company and the several Underwriters, as set forth in
this Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person of any Underwriter, or the Company,
or any officer or director or controlling person of the Company, and shall
survive delivery of and payment for the Securities.
11. If this Agreement shall be terminated pursuant to Section 9 hereof, the
Company shall not then be under any liability to any Underwriter except as
provided in Sections 6 and 8 hereof; but, if for any other reason, the
Securities are not delivered by or on behalf of the Company as provided herein,
the Company will reimburse the Underwriters through the Representatives for all
out-of-pocket expenses approved in writing by the Representatives, including
fees and disbursements of counsel, reasonably incurred by the Underwriters in
making preparations for the purchase, sale and delivery of the Securities, but
the Company shall then be under no further liability to any Underwriter except
as provided in Sections 6 and 8 hereof.(8)
12. In all dealings hereunder, the Representatives shall act on behalf of
each of the Underwriters, and the parties hereto shall be entitled to act and
rely upon any statement, request, notice or agreement on behalf of any
Underwriter made or given by the Representatives jointly or by Goldman, Sachs &
Co. on behalf of you as the Representatives.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to the Representatives in care of Goldman, Sachs & Co.,
85 Broad Street, New York, New York 10004, Attention: Registration Department;
and if to the Company shall be delivered or sent by mail, telex or facsimile
transmission to the address of the Company set forth in the Registration
Statement, Attention: General Counsel, with a copy to Buchanan Ingersoll
Professional Corporation, One Oxford Centre, 301 Grant Street, Pittsburgh, PA,
15219, Attention: Lewis U. Davis, Jr., telecopy: 412-562-1041; provided,
however, that any notice to an Underwriter pursuant to Section 8(c) hereof shall
be delivered or sent by mail, telex or facsimile transmission to such
Underwriter at its address set forth in its Underwriters' Questionnaire, or
telex constituting such Questionnaire, which address will be supplied to the
Company by the Representatives upon request. Any such statements, requests,
notices or agreements shall take effect upon receipt thereof.
13. This Agreement shall be binding upon, and inure solely to the benefit
of, the Underwriters, the Company and, to the extent provided in Sections 8 and
10 hereof, the officers and directors of the Company and each person who
controls the Company or any Underwriter, and their respective heirs, executors,
administrators, successors and assigns, and no other person shall acquire or
have any right under or by virtue of this Agreement. No purchaser of any of the
Securities from any Underwriter shall be deemed a successor or assign by reason
merely of such purchase.
14. Time shall be of the essence of this Agreement. As used herein, the
term "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
15. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK.
18
16. This Agreement may be executed by any one or more of the parties hereto
in any number of counterparts, each of which shall be deemed to be an original,
but all such respective counterparts shall together constitute one and the same
instrument.
17. The Company is authorized, subject to applicable law, to disclose any
and all aspects of this potential transaction that are necessary to support any
U.S. federal income tax benefits expected to be claimed with respect to such
transaction, and all materials of any kind (including tax opinions and other tax
analyses) related to those benefits, without the Underwriters imposing any
limitation of any kind.
19
If the foregoing is in accordance with your understanding, please sign and
return to us eight counterparts hereof, and upon the acceptance hereof by you,
on behalf of each of the Underwriters, this letter and such acceptance hereof
shall constitute a binding agreement between each of the Underwriters and the
Company. It is understood that your acceptance of this letter on behalf of each
of the Underwriters is pursuant to the authority set forth in a form of
Agreement among Underwriters, the form of which shall be submitted to the
Company for examination upon request, but without warranty on your part as to
the authority of the signers thereof.
Very truly yours,
Kennametal Inc.
By: /s/ James E. Morrison
-----------------------------------
Name: James E. Morrison
Title: Vice President and Treasurer
Accepted as of the date hereof:
Goldman, Sachs & Co.
J.P. Morgan Securities Inc.
Lehman Brothers Inc.
Banc One Capital Markets, Inc.
Fleet Securities, Inc.
PNC Capital Markets, Inc.
Tokyo-Mitsubishi International plc
NatCity Investments, Inc.
Comerica Securities
The Royal Bank of Scotland plc
By: /s/ Goldman, Sachs & Co.
---------------------------------
(Goldman, Sachs & Co.)
On behalf of each of the Underwriters
SCHEDULE I
Principal
Amount of
Securities
to be
Underwriter Purchased
----------- ---------
Goldman, Sachs & Co.............................................. $ 90,000,000
J.P. Morgan Securities Inc....................................... 90,000,000
Lehman Brothers Inc.............................................. 18,750,000
Banc One Capital Markets, Inc. .................................. 18,750,000
Fleet Securities, Inc. .......................................... 18,750,000
PNC Capital Markets, Inc. ....................................... 18,750,000
Tokyo-Mitsubishi International plc............................... 18,750,000
NatCity Investments, Inc. ....................................... 12,750,000
Comerica Securities.............................................. 6,750,000
The Royal Bank of Scotland plc................................... 6,750,000
Total.......................................... ------------
$300,000,000
============
ANNEX I
Auditor's Comfort Letter
ANNEX II
Management Comfort Letter
F-1
Exhibit 4.1
==================================
KENNAMETAL INC.,
AS ISSUER
TO
BANK ONE TRUST COMPANY, N.A.,
AS TRUSTEE
==============
INDENTURE
Dated as of June 19, 2002
==============
==================================
TABLE OF CONTENTS
PAGE
ARTICLE 1
DEFINITIONS AND OTHER
PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions...............................................................................1
Act......................................................................................................2
Affiliate................................................................................................2
Authenticating Agent.....................................................................................2
Bankruptcy Law...........................................................................................2
Board of Directors.......................................................................................2
Board Resolution.........................................................................................2
Business Day.............................................................................................2
Capitalized Lease Obligation.............................................................................2
Capital Stock............................................................................................2
Commission...............................................................................................3
Common Depositary........................................................................................3
Company..................................................................................................3
Company Request..........................................................................................3
Company Order............................................................................................3
Corporate Trust Office...................................................................................3
Covenant Defeasance......................................................................................3
Currency Agreement.......................................................................................3
Custodian................................................................................................3
Default..................................................................................................3
Defaulted Interest.......................................................................................3
Defeasance...............................................................................................3
Dollars..................................................................................................3
Event of Default.........................................................................................3
Exchange Act.............................................................................................3
GAAP.....................................................................................................4
Holder...................................................................................................4
Security holder..........................................................................................4
Indebtedness.............................................................................................4
Indenture................................................................................................4
Interest.................................................................................................4
Interest Payment Date....................................................................................4
Interest Swap Obligations................................................................................4
Lien.....................................................................................................5
Maturity.................................................................................................5
Officer..................................................................................................5
Officer's Certificate....................................................................................5
i
Opinion of Counsel.......................................................................................5
Original Issue Discount Security.........................................................................5
Outstanding..............................................................................................5
Paying Agent.............................................................................................6
Person...................................................................................................6
Place of Payment.........................................................................................6
Redemption Date..........................................................................................6
Redemption Price.........................................................................................6
Registered Security......................................................................................6
Regular Record Date......................................................................................6
Responsible Officer......................................................................................6
Securities...............................................................................................6
Security Register........................................................................................6
Security Registrar.......................................................................................6
Significant Subsidiary...................................................................................6
Special Record Date......................................................................................7
Stated Maturity..........................................................................................7
Subsidiary...............................................................................................7
Trust Indenture Act......................................................................................7
Trustee..................................................................................................7
U.S. Depositary..........................................................................................7
U.S. Government Obligations..............................................................................7
Vice President...........................................................................................8
SECTION 102. Compliance Certificates and Opinions......................................................8
SECTION 103. Form of Documents Delivered to Trustee....................................................8
SECTION 104. Acts of Holders...........................................................................9
SECTION 105. Notices, Etc., to Trustee and Company....................................................10
SECTION 106. Notice to Holders; Waiver................................................................11
SECTION 107. Conflict with Trust Indenture Act........................................................11
SECTION 108. Effect of Headings and Table of Contents.................................................11
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
SECTION 114. No Recourse Against Others...............................................................13
ARTICLE 2
SECURITY FORMS
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 Trustee's Certificate of Authentication..........................................19
SECTION 205. Securities in Global Form................................................................20
ii
SECTION 206. CUSIP Number.............................................................................20
SECTION 207. Form of Legend for the Securities in Global Form.........................................21
ARTICLE 3
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series.....................................................21
SECTION 302. Denominations............................................................................24
SECTION 303. Execution, Authentication, Delivery and Dating...........................................24
SECTION 304. Temporary Securities.....................................................................26
SECTION 305. Registration, Registration of Transfer and Exchange......................................27
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.........................................28
SECTION 307. Payment of Interest; Interest Rights Preserved...........................................29
SECTION 308. Persons Deemed Owners....................................................................31
SECTION 309. Cancellation.............................................................................31
SECTION 310. Computation of Interest..................................................................32
ARTICLE 4
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture..................................................32
SECTION 402. Application of Trust Money...............................................................33
ARTICLE 5
REMEDIES
SECTION 501. Events of Default........................................................................33
SECTION 502. Acceleration of Maturity; Rescission and Annulment.......................................35
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee..........................36
SECTION 504. Trustee May File Proofs of Claim.........................................................37
SECTION 505. Trustee May Enforce Claims Without Possession of Securities..............................38
SECTION 506. Application of Money Collected...........................................................38
SECTION 507. Limitation on Suits......................................................................38
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium and
Interest...................................................................39
SECTION 509. Restoration of Rights and Remedies.......................................................39
SECTION 510. Rights and Remedies Cumulative...........................................................40
SECTION 511. Delay or Omission Not Waiver.............................................................40
SECTION 512. Control by Holders.......................................................................40
SECTION 513. Waiver of Past Defaults..................................................................40
SECTION 514. Undertaking for Costs....................................................................41
iii
ARTICLE 6
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities of the Trustee.......................................41
SECTION 602. Notice of Defaults.......................................................................42
SECTION 603. Certain Rights of Trustee................................................................42
SECTION 604. Not Responsible for Recitals or Issuance of Securities...................................43
SECTION 605. May Hold Securities......................................................................43
SECTION 606. Money Held in Trust......................................................................44
SECTION 607. Compensation and Reimbursement...........................................................44
SECTION 608. Disqualification; Conflicting Interests..................................................45
SECTION 609. Corporate Trustee Required; Eligibility..................................................45
SECTION 610. Resignation and Removal; Appointment of Successor........................................45
SECTION 611. Acceptance of Appointment by Successor or Additional Trustees............................47
SECTION 612. Merger, Conversion, Consolidation or Succession to Business..............................49
SECTION 613. Preferential Collection of Claims Against Company........................................49
SECTION 614. Appointment of Authenticating Agent......................................................49
ARTICLE 7
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders................................51
SECTION 702. Preservation of Information; Communications to Holders...................................51
SECTION 703. Reports by Trustee.......................................................................52
SECTION 704. Reports by Company.......................................................................53
ARTICLE 8
CONSOLIDATION, MERGER, LEASE, SALE OR TRANSFER
SECTION 801. When Company May Merge, Etc..............................................................53
SECTION 802. Opinion of Counsel.......................................................................54
SECTION 803. Successor Corporation Substituted........................................................54
ARTICLE 9
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders.......................................54
SECTION 902. Supplemental Indentures with Consent of Holders..........................................56
SECTION 903. Execution of Supplemental Indentures.....................................................57
SECTION 904. Effect of Supplemental Indentures........................................................57
SECTION 905. Conformity with Trust Indenture Act......................................................57
SECTION 906. Reference in Securities to Supplemental Indentures.......................................57
iv
ARTICLE 10
COVENANTS
SECTION 1001. Payments of Securities..................................................................58
SECTION 1002. Maintenance of Office or Agency.........................................................58
SECTION 1003. Corporate Existence.....................................................................58
SECTION 1004. Payment of Taxes and Other Claims.......................................................59
SECTION 1005. Compliance Certificates.................................................................59
SECTION 1006. Commission Reports......................................................................59
SECTION 1007. Waiver of Stay, Extension or Usury Laws.................................................60
SECTION 1008. Money for Securities Payments to Be Held in Trust.......................................60
ARTICLE 11
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article................................................................61
SECTION 1102. Election to Redeem; Notice to Trustee...................................................61
SECTION 1103. Selection by Trustee of Securities to Be Redeemed.......................................62
SECTION 1104. Notice of Redemption....................................................................62
SECTION 1105. Deposit of Redemption Price.............................................................63
SECTION 1106. Securities Payable on Redemption Date...................................................63
SECTION 1107. Securities Redeemed in Part.............................................................64
ARTICLE 12
SINKING FUNDS
SECTION 1201. Applicability of Article................................................................64
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities...................................64
SECTION 1203. Redemption of Securities for Sinking Fund...............................................65
ARTICLE 13
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1301. Applicability of Article; Company's Option to Effect Defeasance
or Covenant Defeasance....................................................65
SECTION 1302. Defeasance and Discharge................................................................65
SECTION 1303. Covenant Defeasance.....................................................................66
SECTION 1304. Conditions to Defeasance or Covenant Defeasance.........................................66
SECTION 1305. Deposited Money and Government Obligations To Be Held In Trust..........................68
v
ARTICLE 14
MISCELLANEOUS
SECTION 1401. Miscellaneous...........................................................................69
vi
KENNAMETAL INC.
RECONCILIATION AND TIE BETWEEN TRUST
INDENTURE ACT OF 1939, AS AMENDED,
AND INDENTURE, DATED AS OF JUNE 19, 2002
Trust Indenture Act Indenture
Section Section
310(a)(1) ............................................................. 609
(a)(2) ............................................................. 609
(a)(3) ............................................................. Not Applicable
(a)(4) ............................................................. Not Applicable
(b) ............................................................. 608, 610
311(a) ............................................................. 613
(b) ............................................................. 613
312(a) ............................................................. 701, 702(a)
(b) ............................................................. 702(b)
(c) ............................................................. 702(c)
313(a) ............................................................. 703(a)
(b) ............................................................. Not Applicable
(c) ............................................................. 703(a), 703(b)
(d) ............................................................. 703(b)
(314)(a) ............................................................. 704
(b) ............................................................. Not Applicable
(c)(1) ............................................................. 102
(c)(2) ............................................................. 102
(c)(3) ............................................................. Not Applicable
(d) ............................................................. Not Applicable
(e) ............................................................. 102
(315)(a) ............................................................. 601(a)
(b) ............................................................. 602
(c) ............................................................. 601(b)
(d) ............................................................. 601(c)
(d)(1) ............................................................. 601(a), 601(c)
(d)(2) ............................................................. 601(c)
(d)(3) ............................................................. 601(c)
(e) ............................................................. 514
316(a)(1)(A) ............................................................. 512
(a)(1)(B) ............................................................. 502, 513
(a)(2) ............................................................. Not Applicable
(b) ............................................................. 508
317(a)(1) ............................................................. 503
(a)(2) ............................................................. 504
(b) ............................................................. 1009
318(a) ............................................................. 107
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of this Indenture.
Indenture, dated as of June 19, 2002, between KENNAMETAL INC.,
a corporation duly organized and existing under the laws of the Commonwealth of
Pennsylvania (herein called the "COMPANY"), having its principal office at 1600
Technology Way, Latrobe, Pennsylvania 15650-0231 and BANK ONE TRUST COMPANY,
N.A., a national banking association, as Trustee (herein called the "TRUSTEE").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein called the
"SECURITIES"), to be issued in one or more series as in this Indenture provided.
All things necessary to make this Indenture a valid agreement
of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Securities by the Holders thereof, it is mutually covenanted and agreed, for
the equal and proportionate benefit of all Holders of the Securities or of any
series thereof, as follows:
ARTICLE 1
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
GAAP;
(4) the word "Including" (and with the correlative
meaning "Include") means including, without limiting
the generality of, any description following such
term; and
2
(5) the words "Herein," "Hereof" and "Hereunder" and
other words of similar import refer to this Indenture
as a whole and not to any particular Article, Section
or other subdivision.
Certain terms, used principally in Article Six, are defined in
that Article.
"ACT," when used with respect to any Holder, has the meaning
specified in Section 104.
"AFFILIATE" means another Person directly or indirectly
controlling or controlled by or under direct or indirect common control with
such first Person. For the purposes of this definition, "control" (including,
with correlative meanings, the terms "controlling," "controlled by" and "under
common control with"), as applied to any Person, means the possession, directly
or indirectly, of the power to direct or cause the direction of the management
and policies of that Person, whether through the ownership of voting securities
or by contract or otherwise.
"AUTHENTICATING AGENT" means any Person authorized by the
Trustee to act on behalf of the Trustee to authenticate Securities.
"BANKRUPTCY LAW" means Title 11, U.S. Code or any similar
federal or state law for the relief of debtors.
"BOARD OF DIRECTORS" means the board of directors of the
Company; provided, however, that when the context refers to actions or
resolutions of the Board of Directors, then the term "Board of Directors" shall
also mean any duly authorized committee of the Board of Directors of the Company
or Officer authorized to act with respect to any particular matter to exercise
the power of the Board of Directors of the Company.
"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 regulation to close.
"CAPITALIZED LEASE OBLIGATION" means an obligation that is
required to be classified and accounted for as a capitalized lease for financial
reporting purposes in accordance with generally accepted accounting principles,
and the amount of Indebtedness represented by such obligation shall be the
capitalized amount of such obligation determined in accordance with such
principles; and the Stated Maturity thereof shall be the date of the last
payment of rent or any other amount due under such lease prior to the first date
upon which such lease may be terminated by the lessee without payment of a
penalty.
"CAPITAL STOCK" of any Person shall mean any and all shares,
interests, participations or other equivalents of or interests in (however
designated) equity of such Person, including any preferred stock, but excluding
any debt securities convertible into such equity.
3
"COMMISSION" means the Securities and Exchange Commission, as
from time to time constituted, created under the Exchange Act, or, if at any
time after the execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
"COMMON DEPOSITARY" has the meaning specified in Section 304.
"COMPANY" means the Person named as the "Company" in the first
paragraph of this Indenture until a successor corporation shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"COMPANY" shall mean such successor corporation.
"COMPANY REQUEST" or "COMPANY ORDER" means a written request
or order signed in the name of the Company by its Chairman of the Board, its
President or a Vice President, and by its Treasurer, an Assistant Treasurer, its
Controller, an Assistant Controller, its Secretary or an Assistant Secretary,
and delivered to the Trustee.
"CORPORATE TRUST OFFICE" means the corporate trust office of
the Trustee at which, at any particular time, its corporate trust business shall
be administered, which office at the date hereof is located at 100 East Broad
Street, Mail Suite 0H1-0181, Columbus, Ohio 43215, Attention: Corporate Trust
Services Division, except for purposes of Section 1002 such term shall mean the
office or agency of the Trustee in the Borough of Manhattan, the City of New
York, which office at the date hereof is located at 55 Water Street, 1st Floor,
Jeanette Park Entrance, New York, New York 10041.
"COVENANT DEFEASANCE" has the meaning specified in Section
1303.
"CURRENCY AGREEMENT" shall mean any foreign exchange contract,
currency swap agreement or other similar agreement or arrangement designed to
protect such Person or any of its Restricted Subsidiaries against fluctuations
in currency values.
"CUSTODIAN" means any receiver, trustee, assignee, liquidator,
sequestrator or similar official under any Bankruptcy Law.
"DEFAULT" means any event which is, or after notice or passage
of time or both would be, an Event of Default.
"DEFAULTED INTEREST" has the meaning specified in Section 307.
"DEFEASANCE" has the meaning specified in Section 1302.
"DOLLARS" and "$" means lawful money of the United States of
America.
"EVENT OF DEFAULT" has the meaning specified in Section 501.
"EXCHANGE ACT" means the Securities and Exchange Act of 1934,
as amended from time to time, and the rules and regulations promulgated
thereunder.
4
"GAAP" means such accounting principles that are generally
accepted in the United States of America as of the date of any computation
required hereunder.
"HOLDER" or "SECURITY HOLDER" means a Person in whose name a
Security is registered in the Security Register.
"INDEBTEDNESS" means, with respect to any Person, at any date,
any of the following, without duplication, (i) any liability, contingent or
otherwise, of such Person (A) for borrowed money (whether or not the recourse of
the lender is to the whole of the assets of such Person or only to a portion
thereof), (B) evidenced by a note, bond, debenture or similar instrument or (C)
for the payment of money relating to a Capitalized Lease Obligation or other
obligation (whether issued or assumed) relating to the deferred purchase price
of property; (ii) all conditional sale obligations and all obligations under any
title retention agreement (even if the rights and remedies of the seller under
such agreement in the event of default are limited to repossession or sale of
such property), but excluding trade accounts payable arising in the ordinary
course of business; (iii) all obligations for the reimbursement of any obligor
on any letter of credit, banker's acceptance or similar credit transaction other
than entered into in the ordinary course of business; (iv) all indebtedness of
others secured by (or for which the holder of such indebtedness has an existing
right, contingent or otherwise, to be secured by) any Lien on any asset or
property (including, without limitation, leasehold interests and any other
tangible or intangible property) of such Person, whether or not such
indebtedness is assumed by such Person or is not otherwise such Person's legal
liability; provided, that if the obligations so secured have not been assumed in
full by such Person or are otherwise not such Person's legal liability in full,
the amount of such indebtedness for the purposes of this definition shall be
limited to the lesser of the amount of such indebtedness secured by such Lien or
the fair market value of the assets of the property securing such Lien; (v) all
indebtedness of others (including all interest and dividends on any Indebtedness
or preferred stock of any other Person) for the payment of which is guaranteed,
directly or indirectly, by such Person or that is otherwise its legal liability
or which such Person has agreed to purchase or repurchase or in respect of which
such person has agreed contingently to supply or advance funds; and (vi)
obligations in respect of Currency Agreements and Interest Swap Obligations.
"INDENTURE" means this instrument as originally executed or as
it may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof
and shall include the terms of particular series of Securities established as
contemplated by Section 301.
"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.
"INTEREST SWAP OBLIGATIONS" shall mean the obligations of any
Person pursuant to any interest rate swap agreement, interest rate collar
agreement or other similar agreement or arrangement designed to protect such
Person or any of its Subsidiaries against fluctuations in interest rates.
5
"LIEN" shall mean any mortgage, pledge, security interest,
encumbrance, lien, charge or adverse claim affecting title or resulting in an
encumbrance against real or personal property or a security interest of any kind
(including, without limitation, any conditional sale or other title retention
agreement or lease in the nature thereof other than a lease which is not a
Capitalized Lease Obligation.)
"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.
"OFFICER" means the Chairman of the Board, the Vice Chairman
of the Board, the President, the Executive Vice President, any Vice President,
the Treasurer, any Assistant Treasurer, the Controller, the Secretary or any
Assistant Secretary of the Company.
"OFFICER'S CERTIFICATE" means a certificate signed by an
Officer and delivered to the Trustee.
"OPINION OF COUNSEL" means a written opinion of counsel, who
may be an employee of or counsel for the Company, and who shall be reasonably
acceptable to the Trustee.
"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 or
Securities of any series, means, as of the date of determination, all such
Securities theretofore authenticated and delivered under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or delivered to the Trustee
for cancellation; (ii) Securities, or portions thereof, for whose payment or
redemption money in the necessary amount has been theretofore deposited with the
Trustee or any Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as its own Paying
Agent) for the Holders of such Securities; provided that, if such Securities are
to be redeemed, notice of such redemption has been duly given pursuant to this
Indenture or provision therefor satisfactory to the Trustee has been made; (iii)
Securities which have been paid pursuant to Section 306 or in exchange for or in
lieu of which other Securities have been authenticated and delivered pursuant to
this Indenture, other than any such Securities in respect of which there shall
have been presented to the Trustee proof satisfactory to it that such Securities
are held by a bona fide purchaser in whose hands such Securities are valid
obligations of the Company; and (iv) Securities which have been defeased
pursuant to Section 1302; provided, however, that in determining whether the
Holders of the requisite principal amount of the Outstanding Securities have
given any request, demand, authorization, direction, notice, consent or waiver
hereunder, (a) the principal amount of an Original Issue Discount Security that
shall be deemed to be Outstanding for such purposes shall be that portion of the
principal amount thereof that could be declared to be due and payable upon the
occurrence of an Event of Default and the continuation thereof pursuant to the
terms of such Original Issue Discount Security as of the date of such
determination and (b) Securities owned by the Company or any other obligor
upon the Securities or any Affiliate of the Company or of such other obligor
6
shall be disregarded and deemed not to be Outstanding, except that, in
determining whether the Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only
Securities which the Trustee knows to be so owned shall be so disregarded.
Securities so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Securities and that the pledgee
is not the Company or any other obligor upon the Securities or any Affiliate of
the Company or of such other obligor.
"PAYING AGENT" means any Person authorized by the Company to
pay the principal of (and premium, if any) or interest on any Securities on
behalf of the Company. The Company may act as Paying Agent with respect to any
Securities issued hereunder.
"PERSON" means any individual, corporation, partnership,
limited partnership, joint venture, association, joint-stock company, trust,
unincorporated organization, government or any agency or political subdivision
thereof, or any other entity.
"PLACE OF PAYMENT," when used with respect to the Securities
of any series, means the place or places where the principal of (and premium, if
any) and interest on the Securities of that series are payable as specified as
contemplated by Section 301.
"REDEMPTION DATE," when used with respect to any Security of
any series 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 of
any series to be redeemed, means the price at which it is to be redeemed
pursuant to this Indenture.
"REGISTERED SECURITY" means any Security issued hereunder and
registered in the Security Register.
"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.
"RESPONSIBLE OFFICER," when used with respect to the Trustee,
means any officer of the Trustee assigned to administer corporate trust matters
and also means, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of his or her knowledge of and
familiarity with the particular subject.
"SECURITIES" has the meaning stated in the first recital of
this Indenture and more particularly means any Securities authenticated and
delivered under this Indenture.
"SECURITY REGISTER" and "SECURITY REGISTRAR" have the
respective meanings specified in Section 305.
"SIGNIFICANT SUBSIDIARY" means a Subsidiary or Subsidiaries of
the Company possessing assets (including the assets of its own Subsidiaries but
without regard to the Company or any other Subsidiary) having a book value, in
the aggregate, equal to not less than 10% of the book value of the aggregate
assets of the Company and its Subsidiaries calculated on a consolidated basis.
7
"SPECIAL RECORD DATE" for the payment of any Defaulted
Interest means a date fixed by the Trustee pursuant to Section 307.
"STATED MATURITY," when used with respect to any Security or
any installment of principal thereof or interest thereon, means the date
specified in such Security as the fixed date on which the principal of such
Security or such installment of principal or interest is due and payable.
"SUBSIDIARY" of any Person means (i) any Person of which more
than 50% of the total voting power of shares of capital stock entitled (without
regard to the occurrence of any contingency) to vote in the election of
directors, managers or trustees thereof is at the time owned or controlled,
directly or indirectly, by any Person or one or more of the Restricted
Subsidiaries of that Person or a combination thereof, and (ii) any partnership,
joint venture or other Person in which such Person or one or more of the
Restricted Subsidiaries of that Person or a combination thereof has the power to
control by contract or otherwise the board of directors or equivalent governing
body or otherwise controls such entity.
"TRUST INDENTURE ACT" means the Trust Indenture Act of 1939,
as amended, as in force at the date as of which this Indenture was executed;
provided, however, that in the event that such Act is amended after such date,
"Trust Indenture Act" means 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. DEPOSITARY" means, with respect to the Securities of any
series issuable or issued in whole or in part in the form of one or more
permanent global Securities, the Person designated as U.S. Depositary by the
Company pursuant to Section 301, which must be a clearing agency registered
under the Exchange Act until a successor U.S. Depositary shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter "U.S.
Depositary" shall mean or include each Person who is then a U.S. Depositary
hereunder, and if at any time there is more than one such Person, "U.S.
Depositary" shall mean the U.S. Depositary with respect to the Securities of
that series.
"U.S. GOVERNMENT OBLIGATIONS" means securities which are (i)
direct obligations of the United States of America for the payment of which its
full faith and credit is pledged or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America the timely payment of which is unconditionally guaranteed by the full
faith and credit of the United States of America which, in either case, are not
callable or redeemable at the option of the issuer thereof or otherwise subject
to prepayment, and shall also
8
include a depository receipt issued by a New York Clearing House bank or trust
company as custodian with respect to any such U.S. Government Obligation or a
specific payment or interest on or principal of any such U.S. Government
Obligation held by such custodian for the account of the holder of a depository
receipt, provided that (except as required by law) such custodian is not
authorized to make any deduction from the amount payable to the holder of such
depository receipt or from any amount held by the custodian in respect of the
U.S. Government Obligation or the specific payment of interest on or principal
of the U.S. Government Obligation evidenced by such depository receipt.
"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, other than an action
permitted by Sections 205 and 704 hereof, the Company shall furnish to the
Trustee an Officer's Certificate stating that all conditions precedent, if any,
provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with, except
that in the case of any such application or request as to which the furnishing
of such documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate or
opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(a) a statement that each individual signing
such certificate or opinion has read such
covenant or condition and the definitions
herein relating thereto;
(b) 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;
(c) 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
(d) 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
9
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 may be based, insofar
as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such Officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an Officer or Officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
SECTION 104. ACTS OF HOLDERS.
(a) Any request, demand, authorization,
direction, notice, consent, waiver or other
action provided by this Indenture to be
given or taken by Holders may be embodied in
and evidenced by one or more instruments of
substantially similar tenor signed by such
Holders in person or by agents duly
appointed in writing; and, except as herein
otherwise expressly provided, such action
shall become effective when such instrument
or instruments are delivered to the Trustee
and, where it is hereby expressly required,
to the Company. Such instrument or
instruments (and the action embodied therein
and evidenced thereby) are herein sometimes
referred to as the "ACT" of the Holders
signing such instrument or instruments.
Proof of execution of any such instrument or
of a writing appointing any such agent shall
be sufficient for any purpose of this
Indenture and (subject to Section 601)
conclusive in favor of the Trustee and the
Company, if made in the manner provided in
this Section.
(b) The fact and date of the execution by any
Person of any such instrument or writing may
be proved by the affidavit of a witness of
such execution or by a certificate of a
notary public or other officer authorized by
law to take acknowledgments of deeds,
certifying that the individual signing such
instrument or writing acknowledged to him
the execution thereof. Where such execution
is by a signer acting in a capacity other
than his individual capacity, such
certificate or affidavit shall also
constitute sufficient proof of his
authority. The fact and date of the
execution of any
10
such instrument or writing, or the authority
of the Person executing the same, may also
be proved in any other manner which the
Trustee deems sufficient.
(c) The ownership of Registered Securities shall
be proved by the Security Register.
(d) Any request, demand, authorization,
direction, notice, consent, waiver or other
Act of the Holder of any Security shall bind
every future Holder of the same Security and
the Holder of every Security issued upon the
registration of transfer thereof or in
exchange therefor or in lieu thereof in
respect of anything done, omitted or
suffered to be done by the Trustee or the
Company in reliance thereon, whether or not
notation of such action is made upon such
Security.
(e) If the Company shall solicit from the
Holders any request, demand, authorization,
direction, notice, consent, waiver or other
Act, the Company may, at its option, by or
pursuant to a Board Resolution, fix in
advance a record date for the determination
of Holders entitled to give such request,
demand, authorization, direction, notice,
consent, waiver or other Act, but the
Company shall have no obligation to do so.
If such a record date is fixed, such
request, demand, authorization, direction,
notice, consent, waiver or other Act may be
given before or after such record date, but
only the Holders of record at the close of
business on such record date shall be deemed
to be Holders for the purposes of
determining whether Holders of the requisite
proportion of Outstanding Securities have
authorized or agreed or consented to such
request, demand, authorization, direction,
notice, consent, waiver or other Act, and
for that purpose the Outstanding Securities
shall be computed as of such record date;
provided that no such authorization,
agreement or consent by the Holders on such
record date shall be deemed effective unless
it shall become effective pursuant to the
provisions of this Indenture not later than
six months after the record date.
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,
(a) 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 and
received by the Trustee at its Corporate
Trust Office, Attention: Corporate Trust
Administration, or
11
(b) 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 Indenture, attention:
Secretary, or at any other address
previously furnished in writing to the
Trustee by the Company.
SECTION 106. NOTICE TO HOLDERS; WAIVER.
Where this Indenture or any Security provides for notice to
Holders of any event, such notice shall be deemed sufficiently given (unless
otherwise herein or in such Security expressly provided) if in writing and
mailed, first-class postage prepaid, to each Holder affected by such event, at
his address as it appears in the Security Register, not later than the latest
date, and not earlier than the earliest date, prescribed for the giving of such
notice. In any case where notice to Holders is given by mail, neither the
failure to mail such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice with respect to
other Holders or the validity of the proceedings to which such notice relates.
Where this Indenture or any Security 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.
Any request, demand, authorization, direction, notice, consent
or waiver required or permitted under this Indenture shall be in the English
language, except that any published notice may be in an official language of the
country of publication.
SECTION 107. CONFLICT WITH TRUST INDENTURE ACT.
If any provision hereof limits, qualifies or conflicts with
another provision hereof which is required to be included in this Indenture by
any of the provisions of the Trust Indenture Act, such required provision shall
control. If any provision of this Indenture modifies or excludes any provision
of the Trust Indenture Act that may be so modified or excluded, the latter
provision shall be deemed to apply to this Indenture as so modified or shall be
excluded, as the case may be.
SECTION 108. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and the Table of
Contents are for convenience only and shall not affect the construction hereof.
12
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 and the Holders, any benefit or any legal or equitable
right, remedy or claim under this Indenture.
SECTION 112. GOVERNING LAW.
This Indenture and the Securities shall be governed by and
construed in accordance with the laws (other than the choice of law provisions)
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) 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 or on such other day as may be set out in the Officer's
Certificate pursuant to Section 301 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.
13
SECTION 114. NO RECOURSE AGAINST OTHERS.
A director, officer, employee or stockholder, as such, of the
Company shall not have any liability for any obligations of the Company under
the Securities or this Indenture or for any claim based on, in respect of or by
reason of such obligations or their creation. Each Security holder, by accepting
a Security, waives and releases all such liability. Such waivers and releases
are part of the consideration for the issuance of the Securities.
ARTICLE 2
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 as may, consistently herewith, be determined by the
Officers executing such Securities, as evidenced by their execution of the
Securities. 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 Trustee's certificates of authentication shall be in
substantially the form set forth in this Article.
The definitive Securities shall be photocopied, 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.
(If the Security is an Original Issue Discount Security,
insert--FOR PURPOSES OF SECTION 1272 OF THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED (THE "CODE"), THE AMOUNT OF ORIGINAL ISSUE DISCOUNT (AS DEFINED IN
SECTION 1273(a)(1) OF THE CODE AND TREASURY REGULATION SECTION 1.1273-l(a) WITH
RESPECT TO THIS SECURITY IS , THE ISSUE PRICE (AS DEFINED IN TREASURY
REGULATION SECTION 1.1273-2) OF THIS SECURITY IS , THE ISSUE DATE (AS
DEFINED IN SECTION 1275(a)(2) OF THE CODE AND TREASURY REGULATION SECTION
1.1273-2) OF THIS SECURITY IS AND THE YIELD TO MATURITY OF THIS
SECURITY IS ).
Kennametal Inc.
14
No. ___________ ($)_____________
Kennametal Inc., a corporation duly organized and existing
under the laws of the Commonwealth of Pennsylvania (herein called the "Company,"
which term includes any successor corporation under the Indenture hereinafter
referred to), for value received, hereby promises to pay to , or
registered assigns, the principal sum of $ on . (If the Security
is to bear interest prior to Maturity, insert --, and to pay interest thereon
from _______________ or from the most recent Interest Payment Date to which
interest has been paid or duly provided for, (semi-annually) (quarterly)
(monthly) in arrears on and in each year, commencing, at the rate of
% per annum, until the principal hereof is paid or made available for
payment (If applicable insert --, and (to the extent that the payment of such
interest shall be legally enforceable) at the rate of % per annum on any
overdue principal and premium and on any overdue installment of interest). The
interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date will, as provided in such Indenture, be paid to the Person in whose
name this Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest, which shall be
the of (whether or not a Business Day), as the case maybe, next
preceding such Interest Payment Date. Any such interest not so punctually paid
or duly provided for will forthwith cease to be payable to the Holder on such
Regular Record Date and may either be paid to the Person in whose name this
Security (or one or more Predecessor Securities) is registered at the close of
business on a Special Record Date for the payment of such Defaulted Interest to
be fixed by the Trustee, notice whereof shall be given to Holders of Securities
of this series not less than 10 days prior to such Special Record Date, or be
paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Securities of this series
may be listed, and upon such notice as may be required by such exchange, all as
more fully provided in said Indenture.)
(If the Security is not to bear interest prior to Maturity,
insert--The principal of this Security shall not bear interest except in the
case of a default in payment of principal upon acceleration, upon redemption or
at Stated Maturity and in such case the overdue principal of this Security shall
bear interest at the rate of % per annum (to the extent that the payment
of such interest shall be legally enforceable), which shall accrue from the date
of such default in payment to the date payment of such principal has been made
or duly provided for. Interest on any overdue principal shall be payable on
demand. Any such interest on any overdue principal that is not so paid on demand
shall bear interest at the rate of % per annum (to the extent that the
payment of such interest shall be legally enforceable), which shall accrue from
the date of such demand for payment to the date payment of such interest has
been made or duly provided for, and such interest shall also be payable on
demand.)
Payment of the principal of, and premium, if any, and (if
applicable, insert--any such) interest on this Security will be made at the
office or agency of the Company maintained for that purpose in , in
Dollars (if applicable, insert--; provided, however, that at the option of the
Company payment of interest may be made by check mailed to the address of the
Person entitled thereto as such address shall appear in the Security Register).
15
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.
Kennametal Inc.
By:
------------------------------------
Attest:
- --------------------------
(SEAL)
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 ________ __, 200___ (herein
called the "Indenture"), between the Company and Bank One Trust Company, N.A.
(herein called the "Trustee," which term includes any successor trustee under
the Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the Company, the Trustee and the
Holders of the Securities and of the terms upon which the Securities are, and
are to be, authenticated and delivered. This Security is one of the series
designated on the face hereof (limited in aggregate principal amount to $ ).
(If applicable, insert--The Securities of this series are
subject to redemption upon not less than 30 nor more than 45 days' notice by
first class mail, (if applicable, insert-- (1) on in any year commencing with
the year ____ and ending with the year through operation of the sinking
fund for this series at a Redemption Price equal to 100% of the principal
amount, and (2)) at any time (on or after ,), as a whole or in part, at
the election of the Company, at the following Redemption Prices (expressed as
percentages of the principal amount):
If redeemed (on or before , %, and if redeemed)
during the 12-month period beginning of the years indicated,
Year Redemption Price Year Redemption Price
and thereafter at a Redemption Price equal to _______ of the principal amount,
together in the case of any such redemption (if applicable, insert -- (whether
through operation of the sinking
16
fund or otherwise)) with accrued and unpaid interest to the Redemption Date, but
interest installments whose Stated Maturity is on or prior to such Redemption
Date will be payable to the Holders of such Securities, or one or more
Predecessor Securities, of record at the close of business on the relevant
Record Dates referred to on the face hereof, all as provided in the Indenture.)
(If applicable, insert -- The Securities of this series are
subject to redemption upon not less than 30 nor more than 45 days' notice by
first class 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 (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 a 12-month period beginning of the years indicated,
Redemption Price for Redemption Price for
Redemption Through Redemption Otherwise
Operation of the Than Through Operation Year
Sinking Fund of the Sinking Fund
and thereafter at a Redemption Price equal to % of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued and unpaid interest to the Redemption
Date, but interest installments whose Stated Maturity is on or prior to such
Redemption Date will be payable to the Holders of such Securities, or one or
more Predecessor Securities, of record at the close of business on the relevant
Record Dates referred to on the face hereof, all as provided in the Indenture.)
(Notwithstanding the foregoing, the Company may not, prior to
redeem any Securities of this series as contemplated by (clause (2) of)
the preceding paragraph as a part of, or in anticipation of, any refunding
operation by the application, directly or indirectly, of moneys borrowed having
an interest cost to the Company (calculated in accordance with generally
accepted financial practice) of less than % per annum.)
(The sinking fund for this series provides for the redemption
on in each year beginning with the year and ending with the year
of (not less than) $ (("mandatory sinking fund") and not more than $
aggregate principal amount of Securities of this series.) (Securities of this
series acquired or redeemed by the Company otherwise than through (mandatory)
sinking fund payments may be credited against subsequent (mandatory) sinking
fund payments otherwise required to be made--in the (inverse) order in which
they become due.)
(In the event of redemption of this Security in part only a
new Security or Securities of this series for the unredeemed portion hereof will
be issued in the name of the Holder hereof upon the cancellation hereof.)
17
(If the Security is not an Original Issue Discount Security,
insert -- If any Event of Default with respect to Securities of this series
shall occur and be continuing, the principal of the Securities of this series
may be declared due and payable in the manner and with the effect provided in
the Indenture.) (If the Security is an Original Issue Discount Security, insert
- -- If an Event of Default with respect to Securities of this series shall occur
and be continuing, an amount of principal of the Securities of this series may
be declared due and payable in the manner and with the effect provided in the
Indenture. Such amount shall be equal -- insert formula for determining the
amount.) Upon payment (i) of the amount of principal so declared due and payable
and (ii) of interest on any overdue principal and overdue interest (in each case
to the extent that the payment of such interest shall be legally enforceable),
all of the Company's obligations in respect of the payment of the principal of
and interest, if any, on the Securities of this series shall terminate.
This Security is a senior unsecured obligation of the Company
and will rank pari passu in right of payment with all other senior unsecured
obligations of the Company.
This Security is subject to Defeasance as described in the
Indenture.
The Indenture may be modified by the Company and the Trustee
without consent of any Holder with respect to certain matters as described in
the Indenture. In addition, 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 a majority 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 bind such Holder and all future Holders of this
Security and of any Security issued upon the registration of transfer hereof or
in exchange hereof or in lieu hereof, whether or not notation of such consent or
waiver is made upon this Security.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of, and
premium, if any, and interest on this Security at the times, place and rate, and
in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Security is registrable in
the Security Register, upon surrender of this Security for registration of
transfer at the office or agency of the Company in any place where the principal
of (and premium, if any) and interest on this Security are payable, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed by the
Holder hereof or his attorney duly authorized in writing, and thereupon one or
more new Securities of this series, of authorized denominations and for the same
Stated Maturity and aggregate principal amount, will be issued to the designated
transferee or transferees.
18
The Securities of this series are issuable only in registered
form without coupons in denominations of ($1,000) and any integral multiple
thereof. As provided in the Indenture and subject to certain limitations therein
set forth, Securities of this series are exchangeable for a like aggregate
principal amount of Securities of this series of a different authorized
denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the owner
hereof for all purposes, whether or not this Security be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
The Indenture imposes certain limitations on the ability of
the Company to, among other things, merge or consolidate with any other Person
or sell, assign, transfer or lease all or substantially all of its properties or
assets (If other covenants are applicable pursuant to the provisions of Section
301, insert here). All such covenants and limitations are subject to a number of
important qualifications and exceptions. The Company must report periodically to
the Trustee on compliance with the covenants in the Indenture.
A director, officer, employee or stockholder, as such, of the
Company shall not have any liability for any obligations of the Company under
this Security or the Indenture or for any claim based on, in respect of or by
reason of, such obligations or their creation. Each Holder, by accepting a
Security, waives and releases all such liability. The waiver and release are
part of the consideration for the issuance of this Security.
(If applicable, insert -- Pursuant to a recommendation
promulgated by the Committee on Uniform Security Identification Procedures
("CUSIP"), the Company has caused CUSIP numbers to be printed on the Securities
of this series as a convenience to the Holders of the Securities of this series.
No representation is made as to the correctness or accuracy of such numbers as
printed on the Securities of this series and reliance may be placed only on the
other identification numbers printed hereon.)
All capitalized terms used in this Security without definition
which are defined in the Indenture shall have the meanings assigned to them in
the Indenture.
19
ASSIGNMENT FORM
To assign this Security, fill in the form below: (I) or (we)
assign and transfer this Security to
______________________________________________________
(Insert assignee's social security or tax I.D. number)
______________________________________________________
______________________________________________________
______________________________________________________
______________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint _______________________________________________________
agent to transfer this Security on the books of the Company. The agent may
substitute another to act for him.
Dated: Your Signature:
--------------------- ----------------------------------
(Sign exactly as your name
appears on the other side
of this Security)
Signature Guaranty:
-----------------------------------------------------
(Signatures must be guaranteed by an "eligible guarantor
institution" meeting the requirements of the Transfer
Agent, which requirements will include membership or
participation in STAMP or such other "signature
guarantee program" as may be determined by the
Transfer Agent in addition to, or in substitution
for, STAMP all in accordance with the Exchange Act.)
Social Security Number or Taxpayer Identification Number:
----------------------
SECTION 204. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
Dated:
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This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
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as Trustee
By:
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Authorized Signatory
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SECTION 205. SECURITIES IN GLOBAL FORM.
If Securities of a series are issuable in global form, as
contemplated by Section 301, then, notwithstanding the provisions of Section
302, any such Security shall represent such of the Outstanding Securities of
such series as shall be specified therein and may provide that it shall
represent the aggregate amount of Outstanding Securities from time to time
endorsed thereon and that the aggregate amount of Outstanding Securities
represented thereby may from time to time be reduced to reflect exchanges. Any
endorsement of a Security in global form to reflect the amount, or any increase
or decrease in the amount, of Outstanding Securities represented thereby shall
be made in such manner and upon instructions given by such Person or Persons as
shall be specified therein or in the Company Order to be delivered to the
Trustee pursuant to Section 303 or Section 304. Subject to the provisions of
Section 303 and, if applicable, Section 304, the Trustee shall deliver and
redeliver any Security in permanent global form in the manner and upon
instructions given by the Person or Persons specified therein or in the
applicable Company Order. If a Company Order pursuant to Section 303 or 304 has
been, or simultaneously is, delivered, any instructions by the Company with
respect to endorsement or delivery or redelivery of a Security in global form
shall be in writing but need not comply with Section 102 and need not be
accompanied by an Opinion of Counsel.
The provisions of Section 309 shall apply to any Security
represented by a Security in global form if such Security was never issued and
sold by the Company and the Company delivers to the Trustee the Security in
global form together with written instructions (which need not comply with
Section 102 and need not be accompanied by an Opinion of Counsel) with regard to
the reduction in the principal amount of Securities represented thereby.
Notwithstanding the provisions of Sections 201 and 307, unless
otherwise specified as contemplated by Section 301, payment of principal of,
premium, if any, and interest on any Security in permanent global form shall be
made to the Person or Persons specified therein.
Notwithstanding the provisions of Section 308 and except as
provided in the preceding paragraph, the Company, the Trustee and any agent of
the Company and the Trustee shall treat a Person as the Holder of such principal
amount of Outstanding Securities represented by a permanent global Security as
shall be specified in a written statement of the Holder of such permanent global
Security.
SECTION 206. CUSIP NUMBER.
The Company in issuing Securities of any series may use a
"CUSIP" number, and, if so, the Trustee may use the CUSIP number in notices of
redemption or exchange as a convenience to Holders of such series; provided,
that any such notice may state that no representation is made as to the
correctness or accuracy of the CUSIP number printed on the notice or on the
Securities of such series, and that reliance may be placed only on the other
identification numbers printed on the Securities, and any such redemption shall
not be affected by any defect in or omission of such numbers. The Company will
promptly notify the Trustee of any change in the CUSIP number of any series of
Securities.
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SECTION 207. FORM OF LEGEND FOR THE SECURITIES IN GLOBAL FORM.
Any Security in global form authenticated and delivered
hereunder shall bear a legend in substantially the following form:
"This Security is in global form within the meaning of the
Indenture hereinafter referred to and is registered in the name of a
Common Depositary or a U.S. Depositary. Unless and until it is
exchanged in whole or in part for Securities in certificated form, this
Security may not be transferred except as a whole by the Common
Depositary or a U.S. Depositary or by a nominee of the Common
Depositary or a nominee of the U.S. Depositary as the case may be."
ARTICLE 3
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 from time to time in one or more
series. There shall be established in or pursuant to a Board Resolution, and set
forth in an Officer's Certificate, or established in one or more indentures
supplemental hereto, prior to the issuance of Securities of any series:
(1) the title of the Securities of the series (which
shall distinguish the Securities of the series from
all other Securities);
(2) any limit upon the aggregate principal amount of the
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 Sections 304, 305, 306, 906 or 1107);
(3) whether any Securities of the series are to be
issuable in permanent global form with or without
coupons and, if so, (i) whether beneficial owners of
interests in any such permanent global security may
exchange such interests for Securities of such series
and of like tenor of any authorized form and
denomination and the circumstances under which any
such exchanges may occur, if other than in the manner
provided in Section 305, and (ii) the name of the
Common Depositary (as defined in Section 304) or the
U.S. Depositary, as the case may be, with respect to
any global security;
(4) the date or dates on which the principal of the
Securities of the series is payable;
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(5) the rate or rates at which the Securities of the
series shall bear interest (including reset rates, if
any, and the method by which such rate will be
determined), if any, the date or dates from which
such interest shall accrue, the Interest Payment
Dates on which such interest shall be payable and the
Regular Record Date for the interest payable on any
Interest Payment Date and, if applicable to such
series of Securities, the basis points and United
States Treasury rate(s) and any other rates or other
methods to be used in calculating the reset rate;
(6) the place or places where the principal of (and
premium, if any) and interest on Securities of the
series shall be payable and where the Company will
maintain an office or agency where Securities may be
presented for registration of transfer or exchange
and the place or places where notices and demands to
or upon the Company in respect of Securities and the
Indenture may be made;
(7) the right of the Company, if any, to defer any
payment of principal of, premium, or interest on the
Securities of the series, and the maximum length of
any such deferral period which shall not exceed the
Stated Maturity for the final installment of
principal on the Securities of such series;
(8) the period or periods within which, the price or
prices at which the currency or currency units and
the terms and conditions upon which Securities of the
series may be redeemed, in whole or in part, at the
option of the Company, pursuant to any sinking fund
or otherwise;
(9) the obligation, if any, of the Company to redeem or
purchase Securities of the series pursuant to any
sinking fund or analogous provisions or at the option
of a Holder thereof and the period or periods within
which, the price or prices at which, the currency or
currency units and the terms and conditions upon
which Securities of the series shall be redeemed or
purchased, in whole or in part, pursuant to such
obligation, and, where applicable, the obligation of
the Company to select the Securities to be redeemed;
(10) if other than denominations of $1,000 and any
integral multiple thereof, the denominations in which
Securities of the series shall be issuable;
(11) if other than the principal amount thereof, the
portion of the principal amount of Securities of the
series which shall be payable upon declaration of
acceleration of the Maturity thereof pursuant to
Section 502;
(12) any additions, modifications or deletions in the
Events of Default with respect to Securities of the
series, if any, other than those set forth herein;
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(13) if either or both of Section 1302 and Section 1303
shall be inapplicable to the Securities of the series
(provided that if no such inapplicability shall be
specified, then both Section 1302 and Section 1303
shall be applicable to the Securities of the series);
(14) if other than U.S. dollars, the currency or
currencies or units based on or related to currencies
in which the Securities of such series shall be
denominated and in which payments or principal of,
and any premium and interest on, such Securities
shall or may by payable;
(15) additions, modifications or deletions of the
Company's covenants with respect to Securities of the
series, if any, other than those set forth herein;
(16) any index or indices used to determine the amount of
payments of principal of any premium, if any, on such
securities and the manner in which such amounts will
be determined;
(17) if other than the Trustee, the identity of the
Registrar and any Paying Agent;
(18) the appointment of a Person as a Trustee which meets
the requirements of Section 609 with respect to
Securities of the series;
(19) the terms and conditions of any obligation or right
of the Company or a Holder to exchange or convert
Securities into other securities;
(20) any other terms of the series (which terms shall not
be inconsistent with the provisions of this
Indenture).
All Securities of any one series shall be substantially
identical except as to denomination and except as may otherwise be provided in
or pursuant to such Board Resolution and set forth in such Officer's Certificate
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
Officer's Certificate setting forth, or providing the manner for determining,
the terms of the Securities of such series.
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SECTION 302. DENOMINATIONS.
The Securities of each series shall be issuable in registered
form without coupons in such denominations as shall be specified as contemplated
by Section 301. In the absence of any such provisions with respect to the
Securities of any series, the Securities of such series shall be issuable in
denominations of $1,000 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. The seal of the Company
may be in the form of a facsimile thereof and may be impressed, affixed,
imprinted or otherwise reproduced on the Securities. Typographical and other
minor errors or defects in any such reproduction of the seal or any such
signature shall not affect the validity or enforceability of any security that
has been duly authenticated and delivered by the Trustee.
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 make such
Securities available for delivery. If the form or terms of the Securities of the
series have been established in or pursuant to one or more Board Resolutions as
permitted by Sections 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
Sections 315(a) through (d) of the Trust Indenture Act) shall be fully protected
in relying upon, an Opinion of Counsel stating,
(a) if the form of such Securities has been
established by or pursuant to Board
Resolution as permitted by Section 201, that
such form has been established in conformity
with the provisions of this Indenture;
(b) if the terms of such Securities have been
established by or pursuant to Board
Resolution as permitted by Section 301, that
such terms have been established in
conformity with the provisions of this
Indenture;
(c) that such Securities, when authenticated and
delivered by the Trustee and issued by the
Company in the manner and subject to any
conditions specified in such Opinion of
Counsel, will
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constitute valid and legally binding
obligations of the Company, enforceable in
accordance with their terms, except to the
extent enforceability may be limited by
applicable bankruptcy, insolvency,
reorganization, moratorium and other similar
laws affecting the enforcement of creditors'
rights generally and by the effect of
general principles of equity (regardless of
whether enforceability is considered in a
proceeding in equity or at law); and
(d) that no consent, approval, authorization,
order, registration or qualification of or
with any court or any governmental agency or
body having jurisdiction over the Company is
required for the execution and delivery of
such Securities by the Company, except such
as have been obtained (except that no
opinion need be expressed as to state
securities or Blue Sky laws).
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, or in the written
opinion of counsel to the Trustee (which counsel may be an employee of the
Trustee) such authentication may not lawfully be made or would involve the
Trustee in personal liability.
Notwithstanding the provisions of Section 301 and of the
immediately 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
Officer's Certificate otherwise required pursuant to Section 301 or the Company
Order and Opinion of Counsel otherwise required pursuant to the immediately
preceding paragraph at or prior to the time of 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.
If the Company shall establish pursuant to Section 301 that
the Securities of a series are to be issued in the form of one or more global
Securities, then the Company shall execute and the Trustee shall, in accordance
with this Section and the Company Order with respect to the authentication and
delivery of such series, authenticate and deliver one or more global Securities
that (i) shall be in an aggregate amount equal to the aggregate principal amount
specified in such Company Order, (ii) shall be registered in the name of the
Common Depositary or U.S. Depositary, as the case may be, therefor or its
nominee, and (iii) shall be made available for delivery by the Trustee to such
depositary or pursuant to such depositary's instruction.
Each depositary designated pursuant to Section 301 must, at
the time of its designation and at all times while it serves as depositary, be a
clearing agency registered under the Exchange Act and any other applicable
statute or regulation.
Unless otherwise provided for in the form of security, each
security shall be dated the date of its authentication.
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No security shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on such
security a certificate of authentication substantially in the form provided for
herein executed by the Trustee by manual signature, and such certificate upon
any security shall be conclusive evidence, and the only evidence, that such
security has been duly authenticated and delivered hereunder and is entitled to
the benefits of this Indenture.
SECTION 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 make available for delivery, 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.
In the case of Securities of any series, such temporary
Securities may be in global form, representing all or a portion of the
Outstanding Securities of such series.
Except in the case of temporary Securities in global form
(which shall be exchanged in accordance with the provisions of Section 305), 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 make
available for delivery in exchange therefor a like principal amount of
definitive Securities of the same series of authorized denominations and of like
tenor. Until so exchanged, the temporary Securities of any series shall in all
respects be entitled to the same benefits under this Indenture as definitive
Securities of such series.
If temporary Securities of any series are issued in global
form, any such temporary global Security shall, unless otherwise provided
therein, be delivered to the office of a depositary or common depositary (the
"COMMON DEPOSITARY") for credit to the respective accounts of the beneficial
owners of such Securities (or to such other accounts as they may direct).
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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 registration of transfers of
Securities. The Trustee is hereby appointed "Security Registrar" for the purpose
of registering Securities and transfers of Securities as herein provided.
Upon surrender for registration of transfer of any security of
any series at the office or agency of the Company in Place of Payment for that
series, the Company shall execute, and the Trustee shall authenticate and make
available for delivery, in the name of the designated transferee or transferees,
one or more new Securities of the same series, of any authorized denominations
and of a like aggregate principal amount and Stated Maturity.
At the option of the Holder, Securities of any series may be
exchanged for other Securities of the same series, of any authorized
denominations and of a like aggregate principal amount and Stated Maturity, 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 make available for delivery, the Securities
which the Holder making the exchange is entitled to receive.
Notwithstanding the foregoing, except as otherwise specified
as contemplated by Section 301, any permanent global security shall be
exchangeable only as provided in this paragraph. If the beneficial owners of
interests in a permanent global security are entitled to exchange such interests
for Securities of such series and of like tenor and principal amount of another
authorized form and denomination, as specified and as subject to the conditions
contemplated by Section 301, then without unnecessary delay but in any event not
later than the earliest date on which such interests may be so exchanged, the
Company shall deliver to the Trustee definitive Securities of that series in
aggregate principal amount equal to the principal amount of such permanent
global security, executed by the Company. On or after the earliest date on which
such interests may be so exchanged, such permanent global Securities shall be
surrendered from time to time by the Common Depositary or the U.S. Depositary,
as the case may be, and in accordance with instructions given to the Trustee and
the Common Depositary or the U.S. Depositary, as the case may be (which
instructions shall be in writing but need not comply with Section 102 or be
accompanied by an Opinion of Counsel), as shall be specified in the Company
Order with respect thereto to the Trustee, as the Company's agent for such
purpose, to be exchanged, in whole or in part, for definitive Securities of the
same series without charge. The Trustee shall authenticate and make available
for delivery, in exchange for each portion of such surrendered permanent global
security, a like aggregate principal amount of definitive Securities of the same
series of authorized denominations and of like tenor as the portion of such
permanent global security to be exchanged which shall be in the form of the
Securities of such series; provided, however, that no such exchanges may occur
during a period beginning at the opening of business 15 days before the day of
the mailing of a notice of redemption of Securities of that series selected for
redemption under Section 1103 and ending at the close of business on the day of
such mailing. Promptly following any such exchange in part,
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such permanent global Security shall be returned by the Trustee to the Common
Depositary or the U.S. Depositary, as the case may be, or such other Common
Depositary or U.S. Depositary referred to above in accordance with the written
instructions of the Company referred to above. If a Security in the form
specified for such series is issued in exchange for any portion of a permanent
global Security after the close of business at the office or agency where such
exchange occurs on (i) any Regular Record Date and before the opening of
business at such office or agency on the relevant Interest Payment Date, or (ii)
any Special Record Date and before the opening of business at such office or
agency on the related proposed date for payment of interest or Defaulted
Interest, as the case may be, such interest or Defaulted Interest will not be
payable on such Interest Payment Date or proposed date for payment, as the case
may be, in respect of such security in the form specified for such series, but
will be payable on such Interest Payment Date or proposed date for payment, as
the case may be, only to the Person to whom interest in respect of such portion
of such permanent global Security is payable in accordance with the provisions
of this Indenture.
All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligation, 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.
Unless otherwise provided in the Securities to be transferred
or exchanged, no service charge shall be made for any registration of transfer
or exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of Securities, other
than exchanges pursuant to Section 304, 906 or 1107 not involving any transfer.
The Company shall not be required (i) to issue, register the
transfer of or exchange Securities of any series during a period beginning at
the opening of business 15 days before the day of the mailing of a notice of
redemption of Securities of that series selected for redemption under Section
1103 and ending at the close of business on the day of such mailing, or (ii) to
register the transfer of or exchange any security so selected for redemption in
whole or in part, except the unredeemed portion of any security being redeemed
in part.
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.
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If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any Security
and (ii) such security or indemnity as may be required by them to save each of
them and any agent of either of them harmless, then, in the absence of notice to
the Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and upon its request the Trustee shall
authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
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.
Interest on any Security which is payable, and is punctually
paid or duly provided for, on any Interest Payment Date shall be paid at the
Place of Payment 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, except that at the option of the Company payment
may be made (i) except in the case of a global Security by check mailed to the
address of the Person entitled thereto as such address appears in the Securities
Registrar or (ii) by transfer to an account maintained by the Person entitled
thereto as specified in the Securities Registrar provided that proper transfer
instructions have been received by the Regular Record Date.
Any interest on any Security of any series which is payable,
but is not punctually paid or duly provided for, on any Interest Payment Date
(herein called "Defaulted Interest") shall forthwith cease to be payable to the
Holder on the relevant Regular Record Date by virtue of having been such Holder,
and such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any
Defaulted Interest to the Persons in whose names the
Securities of such series (or their respective
30
Predecessor Securities) are registered at the close
of business on a Special Record Date for the payment
of such Defaulted Interest, which shall be fixed in
the following manner. The Company shall notify the
Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each Security of such
series and the date of the proposed payment, and at
the same time the Company shall deposit with the
Trustee an amount of money equal to the aggregate
amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to
the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the
Persons entitled to such Defaulted Interest as in
this Section 307 provided. Thereupon the Trustee
shall fix a Special Record Date for the payment of
such Defaulted Interest which shall be not more than
15 days and not less than 10 days prior to the date
of the proposed payment and not less than 10 days
after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify
the Company of such Special Record Date and, in the
name and at the expense of the Company, shall cause
notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor to be
mailed, first-class postage prepaid, to each Holder
of Securities of such series at his address as it
appears in the Security Register, not less than 10
days prior to such Special Record Date. Notice of the
proposed payment of such Defaulted Interest and the
Special Record Date therefor having been so mailed,
such Defaulted Interest shall be paid to the Persons
in whose names the Securities of such series (or
their respective Predecessor Securities) are
registered at the close of business on such Special
Record Date and shall no longer be payable pursuant
to the following Clause (2).
(2) The Company may make payment of any Defaulted
Interest on the Securities of any series in any other
lawful manner not inconsistent with the requirements
of any securities exchange on which such Securities
may be listed, and upon such notice as may be
required by such exchange, if, after notice given by
the Company to the Trustee of the proposed payment
pursuant to this Section 307, 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.
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SECTION 308. PERSONS DEEMED OWNERS.
Prior to due presentment of a Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name such Security is registered as the owner of
such Security for the purpose of receiving payment of principal of (and premium,
if any) and (subject to Section 307) interest on such Security and for all other
purposes whatsoever, whether or not such Security be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
None of the Company, the Trustee or any agent of the Company
or the Trustee shall have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership interest
of a Security in global form, or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interest. Notwithstanding the
foregoing, with respect to any Security in global form, nothing herein shall
prevent the Company or the Trustee or any agent of the Company or the Trustee
from giving effect to any written certification, proxy or other authorization
furnished by any U.S. Depositary or Common Depositary (or its nominee), as a
Holder, with respect to such Security in global form or impair, as between such
U.S. Depositary or Common Depositary and owners of beneficial interests in such
Security in global form, the operation of customary practices governing the
exercise of the right of such U.S. Depositary or Common Depositary (or its
nominee) as holder of such Security in global form.
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 cancelled by it. The Company may at any
time deliver to the Trustee for cancellation any Securities previously
authenticated and delivered hereunder which the Company may have acquired in any
manner whatsoever, and all Securities so delivered shall be promptly cancelled
by the Trustee. No Securities shall be authenticated in lieu of or in exchange
for any Securities cancelled as provided in this Section, except as expressly
permitted by this Indenture. All cancelled Securities shall be held by the
Trustee and may be destroyed (and, if so destroyed, certification of their
destruction shall be delivered to the Company upon its request, unless, by a
Company Order, the Company shall direct that cancelled Securities be returned to
it).
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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 consisting of twelve 30-day months.
ARTICLE 4
SATISFACTION AND DISCHARGE
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall cease to be of further effect (except as
to any surviving rights of registration of transfer or exchange of Securities
herein expressly provided for or in the form of Security for such series), when
the Trustee, upon Company Request and 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 1009) have been
delivered to the Trustee for cancellation;
or
(B) all such Securities not theretofore
delivered to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at
their Stated Maturity within one
year, or
(iii) are to be called for redemption
within one year under arrangements
satisfactory to the Trustee for the
giving of notice of redemption by
the Trustee in the name, and at the
expense, of the Company,
and the Company, in the case of (i),
(ii) or (iii) above, has deposited
with the Trustee as trust funds in
trust for the purpose an amount
sufficient to pay and discharge the
entire indebtedness on such
Securities not theretofore delivered
to the Trustee for cancellation, for
principal (and premium, if any) and
interest to the date of such deposit
(in
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the case of Securities which have
become due and payable) or 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 Officer's
Certificate and an Opinion of Counsel, each stating
that all conditions precedent provided for herein
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 Company 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 1009 shall survive.
SECTION 402. APPLICATION OF TRUST MONEY.
Subject to the provisions of the last paragraph of Section
1009, all money deposited with the Trustee pursuant to Section 401 shall be held
in trust and applied by it, in accordance with the provisions of the Securities
and this Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and interest for whose payment such money has been deposited with or
received by the Trustee.
ARTICLE 5
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 to be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(1) the Company defaults in the payment of interest on
any Security of that series when such interest
becomes due and payable and the default continues for
a period of 30 days; provided, however, that if the
Company is permitted by the terms of the Securities
of the applicable series to defer the payment in
question, the date on which such payment is due and
payable shall be the date on which the Company is
required to make payment following such deferral, if
such deferral has been elected pursuant to the terms
of the Securities; or
34
(2) the Company defaults in the payment of the principal
of (or premium, if any, on) any Security of that
series when the same becomes due and payable at
Maturity, upon redemption (including redemptions
under Article 11), or otherwise; provided, however,
that if the Company is permitted by the terms of the
Securities of the applicable series to defer the
payment in question, the date on which such payment
is due and payable shall be the date on which the
Company is required to make payment following such
deferral, if such deferral has been elected pursuant
to the terms of the Securities; or
(3) the Company fails to observe or perform in any
material respect any of its other covenants,
warranties or agreements in the Securities of that
series or this Indenture (other than a covenant,
agreement 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 the
failure to observe or perform continues for the
period and after the notice specified in the last
paragraph of this Section; or
(4) any event of default, as defined in any other
indenture, mortgage, or instrument under which there
may be issued, or by which there may be secured or
evidenced, any Indebtedness of the Company (whether
such Indebtedness now exists or shall hereafter be
created or incurred) shall occur and shall consist of
default in the payment of such Indebtedness at the
maturity thereof (after giving effect to any
applicable grace period) or shall result in
Indebtedness becoming or being declared due and
payable prior to the date on which it would otherwise
become due and payable, and such default in payment
is not cured or such acceleration shall not be
rescinded or annulled within 30 days after written
notice to the Company from the Trustee or to the
Company and to the Trustee from the Holders of at
least 25% in aggregate principal amount of the
Securities of that series at the time outstanding;
provided that it shall not be an Event of Default if
the principal amount of Indebtedness (other than
Indebtedness represented by Securities issued
pursuant to this Indenture) which is not paid at
maturity or the maturity of which is accelerated is
less than or equal to $25 million provided further
that if, prior to a declaration of acceleration of
the maturity of the Securities of that series or the
entry of judgment in favor of the Trustee in a suit
pursuant to Section 503, such default shall be
remedied or cured by the Company or waived by the
holders of such Indebtedness, then the Event of
Default hereunder by reason thereof shall be deemed
likewise to have been thereupon remedied, cured or
waived without further action upon the part of either
the Trustee or any of the Holders of the Securities
of that series, and provided further, that, subject
to Sections 601 and 602, the Trustee shall not be
charged with knowledge of any such default unless
written notice of such default shall have been given
to the Trustee by the Company, by a holder or an
agent of a holder
35
of any such Indebtedness, by the trustee then acting
under any indenture or other instrument under which
such default shall have occurred, or by the Holders
of at least five percent in aggregate principal
amount of the Securities of that series at the time
Outstanding; or
(5) the Company pursuant to or within the meaning of any
Bankruptcy Law (A) commences a voluntary case or
proceeding under any Bankruptcy Law with respect to
itself, (B) consents to the entry of a judgment,
decree or order for relief against it in an
involuntary case or proceeding under any Bankruptcy
Law, (C) consents to or acquiesces in the institution
of bankruptcy or insolvency proceedings against it,
(D) applies for, consents to or acquiesces in the
appointment of or taking possession by a Custodian of
the Company or for any material part of its property,
(E) makes a general assignment for the benefit of its
creditors or (F) takes any corporate action in
furtherance of or to facilitate, conditionally or
otherwise, any of the foregoing; or
(6) (i) a court of competent jurisdiction enters a
judgment, decree or order for relief in respect of
the Company in an involuntary case or proceeding
under any Bankruptcy Law which shall (A) approve as
properly filed a petition seeking reorganization,
arrangement, adjustment or composition in respect of
the Company, (B) appoint a Custodian of the Company
or for any material part of its property, or (C)
order the winding-up or liquidation of its affairs,
and such judgment, decree or order shall remain
unstayed and in effect for a period of 60 consecutive
days; or (ii) any bankruptcy or insolvency petition
or application is filed, or any bankruptcy or
insolvency proceeding is commenced against the
Company and such petition, application or proceeding
is not dismissed within 60 days; or (iii) a warrant
of attachment is issued against any material portion
of the property of the Company which is not released
within 60 days of service; or
(7) any other Event of Default provided with respect to
Securities of that series.
A Default under clause (3) above is not an Event of Default
until the Trustee or the Holders of at least 25% in aggregate principal amount
of the Outstanding Securities of that series notify the Company of the Default
and the Company does not cure the Default within 90 days after receipt of the
notice. The notice must specify the Default, demand that it be remedied and
state that the notice is a "Notice of Default." When a Default under clause (3)
above is cured within such 90-day period, it ceases.
SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND
ANNULMENT.
If an Event of Default with respect to Securities of any
series (other than an Event of Default specified in clause (5) or (6) of Section
501) occurs and is continuing, the Trustee by notice in writing to the Company,
or the Holders of at least 25% in aggregate principal amount of
36
the Outstanding Securities of that series by notice in writing to the Company
and the Trustee, may declare the unpaid principal of and accrued interest to the
date of acceleration (or, if the Securities of that series are Original Issue
Discount Securities, such portion of the principal amount as may be specified in
the terms of that series) on all the Outstanding Securities of that series to be
due and payable immediately and, upon any such declaration, the Outstanding
Securities of that series (or specified principal amount) shall become and be
immediately due and payable.
If an Event of Default specified in clause (5) or (6) of
Section 501 occurs, all unpaid principal of and accrued interest on the
Outstanding Securities of that series (or specified principal amount) shall ipso
facto become and be immediately due and payable without any declaration or other
act on the part of the Trustee or any Holder of any Security of that series.
Upon payment of all such principal and interest, all of the
Company's obligations under the Securities of that series and (upon payment of
the Securities of all series) this Indenture shall terminate, except obligations
under Section 607.
The Holders of a majority in principal amount of the
Outstanding Securities of that series by notice to the Trustee may rescind an
acceleration and its consequences if (i) all existing Events of Default, other
than the nonpayment of the principal and interest of the Securities of that
series that has become due solely by such declaration of acceleration, have been
cured or waived, (ii) to the extent the payment of such interest is lawful,
interest on overdue installments of interest and overdue principal that has
become due otherwise than by such declaration of acceleration have been paid,
(iii) the rescission would not conflict with any judgment or decree of a court
of competent jurisdiction and (iv) all payments due to the Trustee and any
predecessor Trustee under Section 607 have been made.
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 of any series 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 of any series
at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to
it, for the benefit of the Holders of such
Securities, the whole amount then due and payable on
such Securities for principal (and premium, if any)
and interest and, to the extent that payment of such
interest shall be legally enforceable, interest on
any overdue principal (and premium, if any) and on
any overdue interest, at the rate or rates prescribed
therefor in such Securities, and, in addition
thereto, such further amount as shall be sufficient
to cover the reasonable costs and expenses of
collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee,
its agents and counsel.
37
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and
unpaid, may prosecute such proceeding to judgment or final decree and may
enforce the same against the Company or any other obligor upon such Securities
and collect the moneys adjudged or decreed to be payable in the manner provided
by law out of the property of the Company or any other obligor upon such
Securities, wherever situated.
If an Event of Default with respect to Securities of any
series occurs and is continuing, the Trustee may in its discretion proceed to
protect and enforce its rights and the rights of the Holders of Securities of
such series by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to secure any other proper remedy.
SECTION 504. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or
other judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of overdue principal or interest) shall be entitled
and empowered, by intervention in such proceeding or otherwise,
(i) to file and prove a claim for the whole
amount of principal (and premium, if any)
and interest owing and unpaid in respect of
the Securities and to file such other papers
or documents as may be necessary or
advisable in order to have the claims of the
Trustee (including any claim for the
reasonable compensation, expenses,
disbursements and advances of the Trustee,
its agent and counsel) and of the Holders
allowed in such judicial proceedings, and
(ii) to collect and receive any moneys or other
property payable or deliverable on any such
claims and to distribute the same; and any
custodian, receiver, assignee, trustee,
liquidator, sequestrator or other similar
official in any such judicial proceeding is
hereby authorized by each Holder to make
such payments to the Trustee and, in the
event that the Trustee shall consent to the
making of such payments directly to the
Holders, to pay to the Trustee any amount
due it for the reasonable compensation,
expenses,
38
disbursements and advances of the Trustee,
its agents and counsel, and any other
amounts due the Trustee under Section 607.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding.
SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF
SECURITIES.
All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without the possession
of any of the Securities or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall be brought in
its own name as trustee of an express trust, and any recovery of judgment shall,
after provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, 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 in
respect of the Securities of any series shall be applied in the following order,
at the date or dates fixed by the Trustee and, in case of the distribution of
such money on account of principal (or premium, if any) or interest, upon
presentation of the Securities in respect of which moneys have been collected
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 applicable to such series;
Second: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest on the Securities of
such series 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 of
such series for principal (and premium, if any) and interest,
respectively; and
Third: To the Company.
The Trustee may fix a record date and payment date for any
payment to Holders pursuant to this Section 506. At least fifteen (15) days
before such record date, the Trustee shall mail to each Holder and the Company a
notice that states the record date, the payment date and the amount to be paid.
39
SECTION 507. LIMITATION ON SUITS.
No Holder of any Security of any series shall have any right
to institute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless:
(1) such Holder has previously given written notice to
the Trustee of a continuing Event of Default with
respect to the Securities of that series;
(2) the Holders of not less than 25% in principal amount
of the Outstanding Securities of that series shall
have made written request to the Trustee to institute
proceedings in respect of such Event of Default in
its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and
liabilities to be incurred in compliance with such
request;
(4) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to
institute any such proceeding; and
(5) no direction inconsistent with such written request
has been given to the Trustee during such 60-day
period by the Holders of a majority in principal
amount of the Outstanding Securities of that series;
it being understood and intended that no one or more
of Holders of Securities of any series 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 Holders of Securities of the
affected series.
SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE
PRINCIPAL, PREMIUM AND INTEREST.
Notwithstanding any other provision in this Indenture, the
Holder of any Security shall have the right, which is absolute and
unconditional, to receive payment of the principal of (and premium, if any) and
(subject to Section 307) interest on such Security on the Stated Maturity or
Maturities expressed in such Security (or, in the case of redemption, on the
Redemption Date) and to institute suit for the enforcement of any such payment,
and such rights shall not be impaired without the consent of such Holder.
SECTION 509. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders
40
shall be restored severally and respectively to their former positions hereunder
and thereafter all rights and remedies of the Trustee and the Holders shall
continue as though no such proceeding has 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;
(2) the Trustee may take any other action deemed proper
by the Trustee which is not inconsistent with such
direction; and
(3) subject to Section 601, the Trustee need not take any
action which might involve the Trustee in personal
liability or be unduly prejudicial to the Holders not
joining therein.
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 by written notice to the Trustee on
behalf of the Holders of all the Securities of such series waive any Default or
Event of Default with respect to such series and its consequences, except a
Default or Event of Default
41
(1) in respect of the payment of the principal of (or
premium, if any) or interest on any Security of such
series, or
(2) in respect of a covenant or other 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 or Event of Default shall
cease to exist and shall be deemed to have been cured, for every purpose of this
Indenture and the Securities of such series; but no such waiver shall extend to
any subsequent or other Default or Event of Default or impair any right
consequent thereon.
SECTION 514. UNDERTAKING FOR COSTS.
All parties to this Indenture agree, and each Holder of any
Security by his acceptance thereof shall be deemed to have agreed, that any
court may in its discretion require, in any suit for the enforcement of any
right or remedy under this Indenture, or in any suit against the Trustee for any
action taken, suffered or omitted by it as Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of such suit, and that
such court may in its discretion assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in such suit, having due regard to
the merits and good faith of the claims or defenses made by such party litigant;
but the provisions of this Section shall not apply to any suit instituted by the
Company, to any suit instituted by the Trustee, to any suit instituted by any
Holder, or group of Holders, holding in the aggregate more than 10% in principal
amount of the Outstanding Securities of any series, or to any suit instituted by
any Holder for the enforcement of the payment of the principal of (or premium,
if any) or interest on any Security on or after the Stated Maturity or
Maturities expressed in such Security (or, in the case of redemption, on or
after the Redemption Date).
ARTICLE 6
THE TRUSTEE
SECTION 601. CERTAIN DUTIES AND RESPONSIBILITIES OF THE
TRUSTEE.
(a) Except during the continuance of an Event of
Default, the Trustee's duties and
responsibilities under this Indenture shall
be governed by Section 315(a) of the Trust
Indenture Act.
(b) In case an Event of Default has occurred and
is continuing, and is known to the Trustee,
the Trustee shall exercise the rights and
powers vested in it by this Indenture, and
shall use the same degree of care and skill
in their exercise, as a prudent man would
exercise or use under the circumstances in
the conduct of his own affairs.
(c) None of the provisions of Section 315(d) of
the Trust Indenture Act shall be excluded
from this Indenture.
42
SECTION 602. NOTICE OF DEFAULTS.
Within 30 days after the occurrence of any Default or Event of
Default with respect to the Securities of any series, the Trustee shall give to
all Holders of Securities of such series, as their names and addresses appear in
the Security Register, notice of such Default or Event of Default actually known
to a Responsible Officer of the Trustee, unless such Default or Event of Default
shall have been cured or waived; provided, however, that, except in the case of
a Default or Event of Default in the payment of the principal of (or premium, if
any) or interest on any Security of such series or in the payment of any sinking
fund installment with respect to Securities of such series, the Trustee shall be
protected in withholding such notice if and so long as the board of directors,
the executive committee or directors or Responsible Officers of the Trustee in
good faith determine that the withholding of such notice is in the interest of
the Holders of Securities of such series.
SECTION 603. CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of the Trust Indenture Act:
(a) the Trustee may rely and shall be protected
in acting or refraining from acting upon any
resolution, certificate, statement,
instrument, opinion, report, notice,
request, direction, consent, order, bond,
debenture, note, other evidence of
indebtedness or other paper or document
believed by it to be genuine and to have
been signed or presented by the proper party
or parties;
(b) any request or direction of the Company
mentioned herein shall be sufficiently
evidenced by a Company Request or Company
Order and any resolution of the Board of
Directors may be sufficiently evidenced by a
Board Resolution;
(c) whenever in the administration of this
Indenture the Trustee shall deem it
desirable that a matter be proved or
established prior to taking, suffering or
omitting any action hereunder, the Trustee
(unless other evidence be herein
specifically prescribed) may, in the absence
of bad faith on its part, rely upon an
Officer's Certificate;
(d) the Trustee may consult with counsel and the
written advice of such counsel or any
Opinion of Counsel shall be full and
complete authorization and protection in
respect of any action taken, suffered or
omitted by it hereunder in good faith and in
reliance thereon;
(e) the Trustee shall be under no obligation to
exercise any of the rights or powers vested
in it by this Indenture at the request or
direction of any of the Holders pursuant to
this Indenture, unless such Holders shall
have offered to the Trustee security or
43
indemnity to its reasonable satisfaction
against the costs, expenses and liabilities
which might be incurred by it in compliance
with such request or direction;
(f) prior to the occurrence of an Event of
Default with respect to the Securities of
any series and after the curing or waiving
of all such Events of Default which may have
occurred, 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, approval or other paper or document,
or the books and records of the Company,
unless requested in writing to do so by the
Holders of a majority in principal amount of
the Outstanding Securities of any series;
provided, however, that if the payment
within a reasonable time to the Trustee of
the costs, expenses or liabilities likely to
be incurred by it in the making of such
investigation is not, in the opinion of the
Trustee, reasonably assured to the Trustee
by the security afforded to it by the terms
of this Indenture, the Trustee may require
reasonable indemnity against such costs,
expenses or liabilities as a condition to so
proceeding; the reasonable expense of every
such investigation shall be paid by the
Company or, if paid by the Trustee, shall be
repaid by the Company upon demand;
(g) the Trustee may execute any of the trusts or
powers hereunder or perform any duties
hereunder either directly or by or through
agents or attorneys and the Trustee shall
not be responsible for any misconduct or
negligence on the part of any agent or
attorney appointed with due care by it
hereunder; and
(h) the Trustee shall not be required to expend
or risk its own funds or otherwise incur any
financial liability in the performance of
any of its duties hereunder, or in the
exercise of its rights or powers, if it
shall have reasonable grounds for believing
that repayment of such funds or adequate
indemnity against such risk or liability is
not reasonably assured to it.
SECTION 604. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF
SECURITIES.
The recitals herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and the Trustee or any Authenticating Agent assumes no
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.
44
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 (including
amounts held by the Trustee as Paying Agent) 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 upon in writing with the Company.
SECTION 607. COMPENSATION AND REIMBURSEMENT.
The Company agrees
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it
hereunder (which compensation shall not be limited by
any provision of law in regard to the compensation of
a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all
reasonable expenses, disbursements and advances
incurred or made by the Trustee in accordance with
any provision of this Indenture (including the
reasonable compensation and the expenses and
disbursements of its agents and counsel), except any
such expense, disbursement or advance as may be
attributable to its negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability, damage, claim or
expense, including taxes (other than taxes based upon
or determined or measured by the income of the
Trustee), incurred without gross 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.
When the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 501(5) or Section
501(6), the expenses (including the reasonable charges and expenses of its
counsel) and the compensation for the services are intended to constitute
expenses of administration under any applicable federal or state bankruptcy,
insolvency or other similar law.
The provisions of this Section 607 shall survive this
Indenture and the resignation or removal of any Trustee hereunder.
45
SECTION 608. DISQUALIFICATION; CONFLICTING INTERESTS.
The Trustee shall be disqualified only where such
disqualification is required by Section 310(b) of the Trust Indenture Act.
Nothing shall prevent the Trustee from filing with the Commission the
application referred to in the second to last paragraph of Section 310(b) of the
Trust Indenture Act.
SECTION 609. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee hereunder which shall be
eligible to act as Trustee under Section 310(a)(1) of the Trust Indenture Act
having a combined capital and surplus of at least $50,000,000 subject to
supervision or examination by federal or State authority. If such corporation
publishes reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the purposes
of this Section, the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. Neither the Company nor any Person directly or
indirectly controlling, controlled by, or under common control with the Company
may serve as Trustee. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, it shall resign immediately in
the manner and with the effect hereinafter specified in this Article.
SECTION 610. RESIGNATION AND REMOVAL; APPOINTMENT OF
SUCCESSOR.
(a) No resignation or removal of the Trustee and
no appointment of a successor Trustee
pursuant to this Article shall become
effective until the acceptance of
appointment by the successor Trustee in
accordance with the applicable requirements
of Section 611.
(b) The Trustee may resign at any time with
respect to the Securities of one or more
series by giving written notice thereof to
the Company. If the instrument of acceptance
by a successor Trustee required by Section
611 shall not have been delivered to the
Trustee within 30 days after the giving of
such notice of resignation, the resigning
Trustee may petition any court of competent
jurisdiction for the appointment of a
successor Trustee with respect to the
Securities of such series.
(c) The Trustee may be removed at any time with
respect to the Securities of any series by
Act of the Holders of a majority in
principal amount of the Outstanding
Securities of such series, delivered to the
Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply
with Section 310(b) of the Trust
Indenture Act after written request
therefor by the
46
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 here for by the Company or
by any such Holder of a Security
who has been a bona fide Holder of
a Security for at least six months;
or
(3) the Trustee shall become incapable
of acting or shall be adjudged a
bankrupt or insolvent or a receiver
of the Trustee or of its property
shall be appointed or any public
officer shall take charge or
control of the Trustee or of its
property or affairs for the purpose
of rehabilitation, conservation or
liquidation;
then, in any such case, (i) the
Company by a Board Resolution may
remove the Trustee with respect to
all Securities, or (ii) subject to
Section 315(e) of the Trust
Indenture Act, any Holder who has
been a bona fide Holder of a
security for at least six months
may, on behalf of himself and all
others similarly situated, petition
any court of competent jurisdiction
for the removal of the Trustee with
respect to all Securities and the
appointment of a successor Trustee
or Trustees.
(e) If the Trustee shall resign, be removed or
become incapable of acting, or if a vacancy
shall occur in the office of Trustee for any
cause, with respect to the Securities of one
or more series, the Company, by a Board
Resolution, shall promptly appoint a
successor Trustee or Trustees with respect
to the Securities of that or those series
(it being understood that any such successor
Trustee may be appointed with respect to the
Securities of one or more or all of such
series and that at any time there shall be
only one Trustee with respect to the
Securities of any particular series) and
shall comply with the applicable
requirements of Section 611. If, within one
year after such resignation, removal or
incapability, or the occurrence of such
vacancy, a successor Trustee with respect to
the Securities of any series shall be
appointed by Act of the Holders of a
majority in principal amount of the
Outstanding Securities of such series
delivered to the Company and the retiring
Trustee, the successor Trustee so appointed
shall, forthwith upon its acceptance of such
appointment in accordance with the
applicable requirements of Section 611,
become the successor Trustee with respect to
the Securities of such series and to that
extent supersede the successor Trustee
appointed by the Company with respect to
such Securities. If no successor Trustee
with
47
respect to the Securities of any series
shall have been so appointed by the Company
or the Holders and accepted appointment in
the manner required by Section 611, any
Holder who has been a bona fide Holder of a
security of such series for at least six
months may, on behalf of himself and all
others similarly situated, petition any
court of competent jurisdiction for the
appointment of a successor Trustee with
respect to the Securities of such series.
(f) The Company shall give notice of each
resignation and each removal of the Trustee
with respect to the Securities of any series
and each appointment of a successor Trustee
with respect to the Securities of any series
by mailing written notice of such event by
first-class mail, postage prepaid, to all
Holders of Securities of such series as
their names and addresses appear in the
security Register. Each notice shall include
the name of the successor Trustee with
respect to the Securities of such series and
the address of its Corporate Trust Office.
SECTION 611. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR OR
ADDITIONAL TRUSTEES.
(a) In case of the appointment hereunder of a
successor Trustee with respect to all
Securities, every such successor Trustee so
appointed shall execute, acknowledge and
deliver to the Company and to the retiring
Trustee an instrument accepting such
appointment, and thereupon the resignation
or removal of the retiring Trustee shall
become effective and such successor Trustee,
without any further act, deed or conveyance,
shall become vested with all the rights,
powers, trusts and duties of the retiring
Trustee; but, on the request of the Company
or the successor Trustee, such retiring
Trustee shall, upon payment of its charges,
execute and deliver an instrument
transferring to such successor Trustee all
the rights, powers and trusts of the
retiring Trustee and shall duly assign,
transfer and deliver to such successor
Trustee all property and money held by such
retiring Trustee hereunder.
(b) In case of the appointment hereunder of a
Trustee or a successor with respect to the
Securities of one or more (but not all)
series, the Company, any retiring Trustee
and each Trustee or a successor Trustee with
respect to the Securities of one or more
series shall execute and deliver an
indenture supplemental hereto wherein each
Trustee or a 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 Trustee or a successor Trustee
all the rights, powers, trusts and duties of
any retiring Trustee with respect to the
Securities of that or those series to which
the appointment of such Trustee or a
successor Trustee
48
relates, (2) if any 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 any retiring Trustee with respect
to the Securities of that or those series as
to which any retiring Trustee is not
retiring shall continue to be vested in any
retiring Trustee, and (3) shall add to or
change any of the provisions of this
Indenture as shall be necessary to provide
for or facilitate the administration of the
trusts hereunder by more than one Trustee,
it being understood that nothing herein or
in such supplemental Indenture shall
constitute such Trustees co-trustees of the
same trust and that each such Trustee shall
be trustee of a trust or trusts hereunder
separate and apart from any trust or trusts
hereunder administered by any other such
Trustee; and upon the execution and delivery
of such supplemental indenture the
resignation or removal of the retiring
Trustee shall become effective to the extent
provided therein and each such Trustee or a
successor Trustee, without any further act,
deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of
any retiring Trustee with respect to the
Securities of that or those series to which
the appointment of such Trustee or a
successor Trustee relates; but, on request
of the Company or any Trustee or a successor
Trustee, any such retiring Trustee shall
duly assign, transfer and deliver to such
Trustee or a successor Trustee all property
and money held by any such retiring Trustee
hereunder with respect to the Securities of
that or those series to which the
appointment of any such Trustee or successor
Trustee relates.
(c) Upon request of any such successor Trustee,
the Company shall execute any and all
instruments for more fully and certainly
vesting in and confirming to such successor
Trustee all such rights, powers and trusts
referred to in paragraph (a) or (b) of this
Section, as the case may be.
(d) No successor Trustee shall accept its
appointment unless at the time of such
acceptance such successor Trustee shall be
qualified and eligible under the Trust
Indenture Act.
49
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.
The Trustee shall comply with Section 311(a) of the Trust
Indenture Act, excluding any creditor relationship listed in Section 311(b) of
the Trust Indenture Act. A Trustee who has resigned or been removed shall be
subject to Section 311(a) of the Trust Indenture Act to the extent indicated
therein.
SECTION 614. APPOINTMENT OF AUTHENTICATING AGENT.
At any time when any of the Securities remain Outstanding 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, and
subject to the direction of, the Trustee to authenticate Securities of such
series issued 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 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 $5,000,000 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
50
or consolidation to which such Authenticating Agent shall be a party, or any
corporation succeeding to the corporate agency or corporate trust business of an
Authenticating Agent, shall continue to be an Authenticating Agent, provided
such corporation shall be otherwise eligible under this Section, without the
execution or filing of any paper or any further act on the part of the Trustee
or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving
written notice thereof to the Trustee and to the Company. The Trustee may at any
time terminate the agency of an Authenticating Agent by giving written notice
thereof to such Authenticating Agent and to the Company. Upon receiving such a
notice of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall mail written notice of
such appointment by first-class mail, postage prepaid, to all Holders of
Securities of the series with respect to which such Authenticating Agent will
serve, as their names and addresses appear in the security Register. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Company agrees to pay to each Authenticating Agent from
time to time reasonable compensation for its services under this Section.
If an appointment with respect to one or more series is made
pursuant to this Section, the Securities of such series may have endorsed
thereon, in lieu of the Trustee's certificate of authentication, an alternate
certificate of authentication in the following form:
Form of Authenticating Agent's
Certificate of Authentication
Dated:
-----------------------------
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 Signatory
51
ARTICLE 7
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF
HOLDERS.
The Company will furnish or cause to be furnished to the
Trustee:
(a) semi-annually, not later than January 1 and
July 1 in each year, a list, in such form as
the Trustee may reasonably require, of the
names and addresses of the Holders as of the
preceding December 15 or June 15, as the
case may be; and
(b) at such other times as the Trustee may
request in writing, within 30 days after the
receipt by the Company of any such request,
a list of similar form and content as of a
date not more than 15 days prior to the time
such list is furnished;
provided, however, that so long as the
Trustee is the Security Registrar, no such
list shall be required to be furnished.
SECTION 702. PRESERVATION OF INFORMATION; COMMUNICATIONS TO
HOLDERS.
(a) The Trustee shall preserve, in as current a
form as is reasonably practicable, the names
and addresses of Holders contained in the
most recent list furnished to the Trustee as
provided in Section 701 and the names and
addresses of Holders received by the Trustee
in its capacity as Security Registrar. The
Trustee may destroy any list furnished to it
as provided in Section 701 upon receipt of a
new list so furnished.
(b) If three or more Holders (herein referred to
as "applicants") apply in writing to the
Trustee, and furnish to the Trustee
reasonable proof that each such applicant
has owned a Security for a period of at
least six months preceding the date of such
application, and such application states
that the applicants desire to communicate
with other Holders with respect to their
rights under this Indenture or under the
Securities and is accompanied by a copy of
the form of proxy or other communication
which such applicants propose to transmit
then the Trustee shall, within five Business
Days after the receipt of such application,
at its election, either
(i) afford such applicants access to
the information preserved at the
time by the Trustee in accordance
with Section 702(a); or
(ii) inform such applicants as to the
approximate number of Holders whose
names and addresses appear in the
52
information preserved at the time
by the Trustee in accordance with
Section 702(a), and as to the
approximate cost of mailing to such
Holders the form of proxy or other
communication, if any, specified in
such application.
If the Trustee shall elect not to afford such applicants
access to such information, the Trustee shall, upon the written request of such
applicants, mail to each Holder whose name and address appears in the
information preserved at the time by the Trustee in accordance with Section
702(a) a copy of the form of proxy or other communication which is specified in
such request, with reasonable promptness after a tender to the Trustee of the
material to be mailed and of payment, or provision for the payment, of the
reasonable expenses of mailing, unless within five days after such tender the
Trustee shall mail to such applicants and file with the Commission, together
with a copy of the material to be mailed, a written statement to the effect
that, in the opinion of the Trustee, such mailing would be contrary to the best
interest of the Holders or would be in violation of applicable law. Such written
statement shall specify the basis of such opinion. If the Commission, after
opportunity for a hearing upon the objections specified in the written statement
so filed, shall enter an order refusing to sustain any of such objections or if,
after the entry of an order sustaining one or more of such objections, the
Commission shall find, after notice and opportunity for hearing, that all
objections so sustained have been met and shall enter an order so declaring, the
Trustee shall mail copies of such material to all such Holders with reasonable
promptness after the entry of such order and the renewal of such tender;
otherwise the Trustee shall be relieved of any obligation or duty to such
applicants respecting their application.
(c) Every Holder of Securities, by receiving and
holding the same, agrees with the Company
and the Trustee that neither the Company nor
the Trustee nor any agent of either of them
shall be held accountable by reason of the
disclosure of any such information as to the
names and addresses of the Holders in
accordance with Section 702(b), regardless
of the source from which such information
was derived, and that the Trustee shall not
be held accountable by reason of mailing any
material pursuant to a request made under
Section 702(b).
SECTION 703. REPORTS BY TRUSTEE.
(a) Within 60 days after May 15 of each year
commencing with the year 2003, the Trustee
shall transmit by mail to all Holders of
Securities as provided in Section 313(c) of
the Trust Indenture Act, a brief report
dated as of May 15, if required by and in
compliance with Section 313(a) of the Trust
Indenture Act.
(b) A copy of each such report shall, at the
time of such transmission to Holders, be
filed by the Trustee with each stock
exchange upon which 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.
53
SECTION 704. REPORTS BY COMPANY.
The Company shall:
(1) file with the Trustee, within 30 days after the
Company is required to file the same with the
Commission, copies of the annual reports and of the
information, documents and other reports (or copies
of such portions of any of the foregoing as the
Commission may from time to time by rules and
regulations prescribe) which the Company may be
required to file with the Commission pursuant to
Section 13 or Section 15(d) of the Exchange Act; or,
if the Company is not required to file information,
documents or reports pursuant to either of said
Sections, then it shall file with the Trustee and the
Commission, in accordance with rules and regulations
prescribed from time to time by the Commission, such
of the supplementary and periodic information,
documents and reports which may be required pursuant
to Section 13 of the Exchange Act in respect of a
security listed and registered on a national
securities exchange as may be prescribed from time to
time in such rules and regulations;
(2) file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from
time to time by the Commission, such additional
information, documents and reports with respect to
compliance by the Company with the conditions and
covenants of this Indenture as may be required from
time to time by such rules and regulations;
(3) furnish to the Trustee, on or before May 1 of each
year, a brief certificate from the principal
executive officer, principal financial officer or
principal accounting officer as to his or her
knowledge of the Company's compliance with all
conditions and covenants under this Indenture. For
purposes of this paragraph, such compliance shall be
determined without regard to any period of grace or
requirement of notice provided under this Indenture.
Such certificate need not comply with Section 102.
ARTICLE 8
CONSOLIDATION, MERGER, LEASE, SALE OR TRANSFER
SECTION 801. WHEN COMPANY MAY MERGE, ETC.
The Company shall not consolidate, or merge with or into any
other corporation (whether or not the Company shall be the surviving
corporation), or sell, assign, transfer or lease or otherwise dispose of all or
substantially all of its properties and assets as an entirety or substantially
as an entirety to any Person or group of affiliated Persons, in one transaction
or a series of related transactions, unless:
(1) either the Company shall be the continuing Person or
the Person (if other than the Company) formed by such
consolidation or with which or into
54
which the Company is merged or the Person (or group
of affiliated Persons) to which all or substantially
all the properties and assets of the Company as an
entirety or substantially as an entirety are sold,
assigned, transferred or leased shall be a
corporation, partnership or trust or other entity
organized and existing under the laws of the United
States of America or any State thereof or the
District of Columbia and shall expressly assume, by
an indenture supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the
Trustee, all the obligations of the Company under the
Securities and this Indenture; and
(2) immediately before and after giving effect to such
transaction or series of related transactions, no
Event of Default, and no Default, and no event which,
after notice or lapse of time or both, would become
and Event of Default, shall have occurred and be
continuing.
SECTION 802. OPINION OF COUNSEL.
The Company shall deliver to the Trustee prior to the proposed
transaction(s) covered by Section 801 an Officer's Certificate and an Opinion of
Counsel stating that the transaction(s) and such supplemental indenture comply
with this Indenture and that all conditions precedent to the consummation of the
transaction(s) under this Indenture have been met.
SECTION 803. SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation by the Company with or merger by the
Company into an other corporation or any lease, sale, assignment, or transfer of
all or substantially all of the property and assets of the Company in accordance
with Section 801, the successor corporation formed by such consolidation or into
which the Company is merged or the successor corporation or affiliated group of
corporations to which such lease, sale, assignment, or transfer 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
corporation or corporations had been named as the Company herein, and
thereafter, except in the case of a lease, the predecessor corporation or
corporations shall be relieved of all obligations and covenants under this
Indenture and the Securities and in the event of such conveyance or transfer,
except in the case of a lease, any such predecessor corporation may be dissolved
and liquidated.
ARTICLE 9
SUPPLEMENTAL INDENTURES
SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF
HOLDERS.
Without notice to or the consent of any Holders of a series of
Securities, 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:
55
(1) to evidence the succession of another corporation to
the Company and the assumption by any such successor
of the covenants of the Company herein and in the
Securities; or
(2) to add to the covenants of the Company for the
benefit of the Holders of all or any series of
Securities (and if such covenants are to be for the
benefit of less than all series of Securities,
stating that such covenants are expressly being
included solely for the benefit of series) or to
surrender any right or power herein conferred upon
the Company; or
(3) to add any additional Events of Default with respect
to all or any series of Securities; or
(4) to add or change any of the provisions of this
Indenture to such extent as shall be necessary to
permit or facilitate the issuance of Securities in
bearer form, registrable or not registrable as to
principal, and with or without interest coupons; or
(5) to change or eliminate any of the provisions of this
Indenture, provided that any such change or
elimination shall become effective only when there is
no Security Outstanding of any series created prior
to the execution of such supplemental Indenture which
is entitled to the benefit of such provision; or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any
series as permitted by Sections 201 and 301; or
(8) to evidence and provide for the acceptance of
appointment hereunder by a Trustee or a successor
Trustee with respect to the Securities of one or more
series and to add to or change any of the provisions
of this Indenture as shall be necessary to provide
for or facilitate the administration of the trusts
hereunder by more than one Trustee, pursuant to the
requirements of Section 611(b); or
(9) to cure any ambiguity, defect or inconsistency or to
correct or supplement any provision herein which may
be inconsistent with any other provision herein; or
(10) to make any change that does not materially adversely
affect the interests of the Holders of Securities of
such series; or
(11) to qualify, or maintain the qualification of the
Indenture under the Trust Indenture Act.
Upon request of the Company, accompanied by a Board Resolution
authorizing the execution of any such supplemental indenture, and upon receipt
by the Trustee of the
56
documents described in (and subject to the last sentence of) Section 903, the
Trustee shall join with the Company in the execution of any supplemental
indenture authorized or permitted by the terms of this Indenture.
SECTION 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
With the written consent of the Holders of 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
shall, subject to Section 903, enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders of Securities of such series
under this Indenture; provided, however, that no such supplemental indenture
shall, without the consent of the Holder of each Outstanding security affected
thereby,
(1) change the Stated Maturity of the principal of, or
any installment of principal of or interest on, any
security, or reduce the principal amount thereof or
the rate of interest thereon or any premium payable
upon the redemption thereof or extend the time for
payment thereof, or reduce the amount of the
principal of an Original Issue Discount security that
would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to
Section 502, or change any Place of Payment where, or
the coin or currency in which, any security or any
premium or the interest thereon is payable, or impair
the right to institute suit for the enforcement of
any such payment on or after the Stated Maturity
thereof (or, in the case of redemption, on or after
the Redemption Date);
(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 Defaults or Events of
Default hereunder and their consequences provided for
in this Indenture; or
(3) change the redemption provisions (including Article
Eleven) hereof in a manner adverse to such Holder; or
(4) modify any of the provisions of this Section or
Section 513, 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, or the deletion of this proviso, in
accordance with the requirements of Sections 611(b)
and 901(8).
57
A supplemental indenture which changes or eliminates any
covenant or other provisions 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.
The Trustee shall sign any supplemental indenture authorized
pursuant to this Article, subject to the last sentence of this Section 903. 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 Officer's
Certificate and 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 as then in effect.
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 authenticate and delivered by the
Trustee in exchange for Outstanding Securities of such series.
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ARTICLE 10
COVENANTS
SECTION 1001. PAYMENTS OF SECURITIES.
With respect to each series of Securities, the Company will
duly and punctually pay the principal of (and premium, if any) and interest on
such Securities in accordance with their terms and this Indenture, and will duly
comply with all the other terms, agreements and conditions contained in, or made
in the Indenture for the benefit of, the Securities of such series.
SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY.
The Company will maintain an office or agency in each Place of
Payment where Securities may be surrendered for registration of transfer or
exchange or for presentation for payment, where notices and demands to or upon
the Company in respect of the Securities and this Indenture may be served. The
Company will give prompt written notice to the Trustee of the location, and any
change in 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 address of the Trustee as set forth in
Section 105 hereof.
The Company may also from time to time designate one or more
other offices or agencies where the Securities may be presented or surrendered
for any or all such purposes and may from time to time rescind such
designations. 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.
Unless otherwise set forth in, or pursuant to, a Board
Resolution or indenture supplemental hereto with respect to a series of
Securities, the Company hereby initially designates the Corporate Trust Office
as such office of the Company.
SECTION 1003. CORPORATE EXISTENCE.
Subject to Article 8 hereof, the Company will do or cause to
be done all things necessary to preserve and keep in full force and effect its
corporate existence and that of each of its Subsidiaries and the rights (charter
and statutory) of the Company and its Subsidiaries; provided, however, that (a)
the Company shall not be required to preserve any such right, license or
franchise or the corporate existence of any of its Subsidiaries if the Board of
Directors, or the board of directors of the Subsidiary concerned, as the case
may be, shall determine that the preservation thereof is no longer desirable in
the conduct of the business of the Company or any of its Subsidiaries and that
the loss thereof is not materially disadvantageous to the Holders, and (b)
nothing herein contained shall prevent any Subsidiary of the Company from
liquidating or dissolving, or merging into, or consolidating with the Company
(provided that the Company shall be the continuing or surviving corporation) or
with any one or more Subsidiaries if the Board of Directors or the board of
directors of the Subsidiary concerned, as the case may be, shall so determine.
59
SECTION 1004. 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 material 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 material to the Company and its Subsidiaries taken as a whole, and
(2) all lawful claims for labor, materials and supplies which, if unpaid, might
by law become a material lien upon the property of the Company or any Subsidiary
material to the Company and its Subsidiaries taken as a whole; 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 and for which adequate provision has been made.
SECTION 1005. COMPLIANCE CERTIFICATES.
(a) The Company shall deliver to the Trustee,
within 10 days after the occurrence thereof,
notice of any acceleration which with the
giving of notice and the lapse of time would
be an Event of Default within the meaning of
Section 501(4) hereof.
(b) The Company shall deliver to the Trustee
forthwith upon becoming aware of a Default
or Event of Default (but in no event later
than 10 days after the occurrence of each
Default or Event of Default that is
continuing), an Officer's Certificate
setting forth the details of such Default or
Event of Default and the action that the
Company proposes to take with respect
thereto and the specific section or sections
of this Indenture in connection with which
such Default or Event of Default has
occurred.
SECTION 1006. COMMISSION REPORTS.
(a) So long as the Securities remain
outstanding, the Company shall cause its
annual report to shareholders and any other
financial reports furnished by it to
shareholders generally, to be mailed to the
Holders at their addresses appearing in the
register of Securities maintained by the
Security Registrar in each case at the time
of such mailing or furnishing to
shareholders. If the Company is not required
to furnish annual reports to its
shareholders pursuant to the Exchange Act,
the Company shall cause its financial
statements, including any notes thereto and,
with respect to annual reports, an auditors'
report by an accounting firm of established
national reputation and a "Management's
Discussion and Analysis of Financial
Condition and Results of Operations," to be
so filed with the Trustee and mailed to the
Holders within 90 days after the end of each
of the Company's fiscal years and within 45
days after the end of each of the first
three quarters of each fiscal year.
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(b) The Company shall provide the Trustee with a
sufficient number of copies of all reports
and other documents and information that the
Company may be required to deliver to the
Holders under this Section 1006.
SECTION 1007. WAIVER OF STAY, EXTENSION OR USURY 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, and will actively resist any and all efforts to be compelled
to take the benefit or advantage of, any stay or extension law or any usury law
or other law, which would prohibit or forgive the Company from paying all or any
portion of the principal of and/or interest on the Securities as contemplated
herein, wherever enacted, now or at any time hereafter in force, or which may
affect the covenants or the performance of this Indenture; and (to the extent
that it may lawfully do so) the Company 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.
SECTION 1008. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN
TRUST.
If the Company shall at any time act as its own Paying Agent
with respect to any series of Securities, it will, on or before each due date of
the principal of (and premium, if any) or interest on any of the Securities of
that series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal (and premium, if any) or interest
so becoming due until such sums shall be paid to such Persons or otherwise
disposed of as herein provided and will promptly notify the Trustee of its
action or failure so to act.
Whenever the Company shall have one or more Paying Agents for
any series of Securities, it will, prior to each due date of the principal of
(and premium, if any) or interest on any Securities of that series, deposit with
a Paying Agent a sum sufficient to pay the principal (and premium, if any) or
interest so becoming due, such sum to be held in trust for the benefit of the
Persons entitled to such principal, premium or interest, and (unless such Paying
Agent is the Trustee) the Company will promptly notify the Trustee of its action
or failure to so 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:
(i) hold all sums held by it for the payment of
the principal of (and premium, if any) or
interest on Securities of that series in
trust for the benefit of the Persons
entitled thereto until such sums shall be
paid to such Persons or otherwise disposed
of as herein provided;
(ii) give the Trustee notice of any default by
the Company (or any other obligor upon the
Securities of that series) in the
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making of any payment of principal (and
premium, if any) or interest on the
Securities of that series; and
(iii) at any time during the continuance of any
such default, upon the written request of
the Trustee, forthwith pay to the Trustee
all sums so held in trust by such Paying
Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the principal of (and
premium, if any) or interest on any security of any series and remaining
unclaimed for two years after such principal (and premium, if any) or interest
has become due and payable shall be paid to the Company on Company Request, or
(if then held by the Company) shall be discharged from such trust; and the
Holder of such security shall thereafter, as an unsecured general creditor, look
only to the Company for payment thereof, and all liability of the Trustee or
such Paying Agent with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease; provided, however, that the
Trustee of 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 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.
ARTICLE 11
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 in whole or
in part (provided Securities issued in denominations larger than $50 may be
redeemed in part only in integral multiples of $50) and (except as otherwise
specified as contemplated by Section 301 for Securities of any series) in
accordance with this Article.
SECTION 1102. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem any Securities shall be
evidenced by a Board Resolution. In case of any redemption at the election of
the Company of less than all the Securities of any series, the Company shall, at
least 45 days prior to the Redemption Date fixed
62
by the Company (unless a shorter notice shall be satisfactory to the Trustee),
notify the Trustee of such Redemption Date and of the principal amount of
Securities of such series to be redeemed. In the case of any redemption of
Securities prior to the expiration of any restriction on such redemption
provided in the terms of such Securities or elsewhere in this Indenture, the
Company shall furnish the Trustee with an Officer's 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, the particular Securities to be redeemed shall be selected not more
than 90 days prior to the Redemption Date by the Trustee, from the Outstanding
Securities of such series not previously called for redemption, substantially
pro rata, by lot or by any other method as the Trustee considers fair and
appropriate and that complies with the requirements of the principal national
securities exchange, if any, on which such Securities are listed, and which may
provide for the selection for redemption of portions (equal to the lesser of the
minimum authorized denomination for Securities of that series or $50 per
Security, and any integral multiple thereof) of the principal amount of
Securities of such series of a denomination larger than the minimum authorized
denomination for Securities of that series; provided that in case the Securities
of such series have different terms and maturities, the Securities to be
redeemed shall be selected by the Company and the Company shall give notice
thereof to the Trustee.
The Trustee shall promptly notify the Company in writing of
the Securities selected for redemption and, in the case of any Securities
selected for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of the 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 this address
appearing in the security Register.
All notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) if less than all the Outstanding Securities of any
series are to be redeemed, the identification (and,
in the case of partial redemption, the principal
amounts) of the particular Securities to be redeemed;
63
(4) that on the Redemption Date, the Redemption Price
will become due and payable upon each such security
to be redeemed and, if applicable, that interest
thereon will cease to accrue on and after said date;
(5) the place or places where such Securities are to be
surrendered for payment of the Redemption Price;
(6) that the redemption is for a sinking fund, if such is
the case;
(7) the CUSIP number, if any, of the Securities to be
redeemed; and
(8) unless otherwise provided as to a particular series
of Securities, if at the time of publication or
mailing of any notice of redemption the Company shall
not have deposited with the Trustee or Paying Agent
and/or irrevocably directed the Trustee or Paying
Agent to apply, from money held by it available to be
used for the redemption of Securities, an amount in
cash sufficient to redeem all of the Securities
called for redemption, including accrued interest to
the Redemption Date, such notice shall state that it
is subject to the receipt of the redemption moneys by
the Trustee or Paying Agent before the Redemption
Date (unless such redemption is mandatory) and such
notice shall be of no effect unless such moneys are
so received before such date.
Notice of redemption of Securities to be redeemed at the
election of the Company shall be given by the Company or, at the Company's
request, by the Trustee in the name and at the expense of the Company.
SECTION 1105. DEPOSIT OF REDEMPTION PRICE.
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 10098) 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 installments of
interest whose Stated Maturity is on or prior to the Redemption Date shall be
payable to the Holders of such Securities, or one or more Predecessor
Securities, registered as such at the close of business on the relevant Regular
or Special Record Dates according to their terms and the provisions of Section
307.
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If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal (and premium, if any)
shall, until paid, bear interest from the Redemption Date at the rate prescribed
in the Security.
SECTION 1107. SECURITIES REDEEMED IN PART.
Any Security which is to be redeemed only in part shall be
surrendered at an office or agency of the Company 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 Stated Maturity, 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 12
SINKING FUNDS
SECTION 1201. APPLICABILITY OF ARTICLE.
The provisions of this Article shall be applicable to any
sinking fund for the retirement of Securities of a series, except as otherwise
specified as contemplated by Section 301 for Securities of such series.
The minimum amount of any sinking fund payment provided for by
the terms of Securities of any series is herein referred to as a "Mandatory
Sinking Fund Payment," and any payment in excess of such minimum amount provided
for by the terms of Securities of any series is herein referred to as an
"Optional Sinking Fund Payment." If provided for by the terms of Securities of
any series, the cash amount of any sinking fund payment may be subject to
redemption as provided in Section 1202. Each sinking fund payment shall be
applied to the redemption of Securities of any series as provided for by the
terms of Securities of such series.
SECTION 1202. SATISFACTION OF SINKING FUND PAYMENTS WITH
SECURITIES.
The Company (1) may deliver Securities of a series (other than
any Securities previously called for redemption) and (2) may apply as a credit
Securities of a series which have been (i) previously cancelled pursuant to
Section 309 or delivered for cancellation or (ii) 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
Mandatory Sinking Fund Payment with respect to the Securities of such series
required to be made pursuant to the terms of such Securities as provided for by
the terms of such series; provided that such Securities have not been previously
so credited. Such Securities shall be received and credited at the principal
amount for such purpose by the Trustee at the Redemption Price specified in such
Securities for
65
redemption through operation of the sinking fund and the amount of such
Mandatory Sinking Fund Payment shall be reduced accordingly.
SECTION 1203. REDEMPTION OF SECURITIES FOR SINKING FUND.
Not less than 45 days prior to each sinking fund payment date
for any series of Securities, the Company will deliver to the Trustee an
Officer's Certificate specifying the amount of the next ensuing sinking fund
payment for that series pursuant to the terms of that series, the portion
thereof, if any, which is to be satisfied by payment of cash and the portion
thereof, if any, which is to be satisfied by delivering and crediting Securities
of that series pursuant to Section 1202 and will also deliver to the Trustee any
Securities to be so delivered. Not less than 30 days before each such sinking
fund payment date the Trustee shall select the Securities to be redeemed upon
such sinking fund payment date in the manner specified in Section 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 13
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1301. APPLICABILITY OF ARTICLE; COMPANY'S OPTION TO
EFFECT DEFEASANCE OR COVENANT DEFEASANCE.
Unless pursuant to Section 301 provision is made for the
inapplicability of either or both of (a) Defeasance of the Securities of a
series under Section 1302 or (b) Covenant Defeasance of the Securities of a
series under Section 1303, then the provisions of such Section or Sections, as
the case may be, together with the other provisions of this Article, shall be
applicable to the Securities of such series, and the Company may at its option
by Board Resolution, at any time, with respect to the Securities of such series,
elect to have either Section 1302 (unless inapplicable) or Section 1303 (unless
inapplicable) be applied to the Outstanding Securities of such series upon
compliance with the applicable conditions set forth below in this Article.
SECTION 1302. DEFEASANCE AND DISCHARGE.
Upon the Company's exercise of the option provided in Section
1301 to defease the Outstanding Securities of a particular series, the Company
shall be discharged from its obligations with respect to the Outstanding
Securities of such series on the date the applicable conditions set forth in
Section 1304 are satisfied (hereinafter, "Defeasance"). Defeasance shall mean
that the Company shall be deemed to have paid and discharged the entire
indebtedness represented by the Outstanding Securities of such series 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); provided, however, that the following rights, obligations, powers,
trusts, duties and immunities shall survive until otherwise terminated or
discharged hereunder: (A) the rights of
66
Holders of Outstanding Securities of such series to receive, solely from the
trust fund provided for in Section 1304, payments in respect of the principal of
(and premium, if any) and interest on such Securities when such payments are
due, (B) the Company's obligations with respect to such Securities under
Sections 304, 305, 306, 1001, 1002 and 1008, (C) the rights, powers, trusts,
duties and immunities of the Trustee hereunder and (D) this Article. Subject to
compliance with this Article, the Company may exercise its option with respect
to Defeasance under this Section 1302 notwithstanding the prior exercise of its
option with respect to Covenant Defeasance under Section 1303 in regard to the
Securities of such series.
SECTION 1303. COVENANT DEFEASANCE.
Upon the Company's exercise of the option provided in Section
1301 to obtain a Covenant Defeasance with respect to the Outstanding Securities
of a particular series, the Company shall be released from its obligations under
this Indenture (except its obligations under Sections 304, 305, 306, 506, 509,
610, 1001, 1002, 1005, 1007 and 1008) with respect to the Outstanding Securities
of such series on and after the date the applicable conditions set forth in
Section 1304 are satisfied (hereinafter, "Covenant Defeasance"). Covenant
Defeasance shall mean that, with respect to the Outstanding Securities of such
series, the Company may omit to comply with and shall have no liability in
respect of any term, condition or limitation set forth in this Indenture (except
its obligations under Sections 304, 305, 306, 506, 509, 610, 1001, 1002, 1005,
1007 and 1008), whether directly or indirectly by reason of any reference
elsewhere herein or by reason of any reference to any other provision herein or
in any other document, and such omission to comply shall not constitute an Event
of Default under Section 501(4) with respect to Outstanding Securities of such
series, and the remainder of this Indenture and of the Securities of such series
shall be unaffected thereby.
SECTION 1304. CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE.
The following shall be the conditions to Defeasance under
Section 1302 and Covenant Defeasance under Section 1303 with respect to the
Outstanding Securities of a particular series:
(1) the Company shall irrevocably have deposited or
caused to be deposited (and in the case of Defeasance
such deposit shall have been made 121 days prior to
Defeasance with the Trustee (or another trustee
satisfying the requirements of Section 609 who shall
agree to comply with the provisions of this Article
applicable to it), under the terms of an irrevocable
trust agreement in form and substance reasonably
satisfactory to such Trustee, as trust funds in trust
for the purpose of making the following payments,
specifically pledged as security for, and dedicated
solely to, the benefit of the Holders of such
Securities, (A) Dollars 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 the due date of any payment, money in an
amount, or (C) a combination thereof, in each case
sufficient, after payment of all federal, state and
local taxes or other charges or assessments in
respect thereof payable by the Trustee, in the
opinion of a
67
nationally recognized firm of independent public
accountants expressed in a written certification
thereof delivered to the Trustee, to pay and
discharge, and which shall be applied by the Trustee
(or other qualifying trustee) to pay and discharge,
(i) the principal of (and premium, if any, on) and
each installment of principal of (and premium, if
any) and interest on the Outstanding Securities of
such series on the Stated Maturity of such principal
or installment of principal or interest and (ii) any
mandatory sinking fund payments or analogous payments
applicable to the Outstanding Securities of such
series on the day on which such payments are due and
payable in accordance with the terms of this
Indenture and of such Securities.
(2) No Default or Event of Default with respect to the
Securities of such series shall have occurred and be
continuing on the date of such deposit or shall occur
as a result of such deposit, and no Default or Event
of Default under clause (5) or (6) of Section 501
hereof shall occur and be continuing, at any time
during the period ending on the 31st day after the
date of such deposit (it being understood that this
condition shall not be deemed satisfied until the
expiration of such period).
(3) Such deposit, 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.
(4) In the case of an election with respect to Section
1302, the Company shall have delivered to the Trustee
either (A) a ruling directed to the Trustee received
from the Internal Revenue Service to the effect that
the Holders of the Outstanding Securities of such
series will not recognize income, gain or loss for
federal income tax purposes as a result of such
Defeasance and will be subject to federal income tax
on the same amounts, in the same manner and at the
same times as would have been the case if such
Defeasance had not occurred or (B) an Opinion of
Counsel, based on a ruling published by the Internal
Revenue Service or on a change in the applicable
federal income tax law since the date of this
Indenture, in either case to the effect that, and
based thereon such opinion shall confirm that, the
Holders of the Outstanding Securities of such series
will not recognize income, gain or loss for federal
income tax purposes as a result of such Defeasance
and will be subject to federal income tax on the same
amounts, in the same manner and at the same times as
would have been the case if such Defeasance had not
occurred.
(5) In the case of an election with respect to Section
1303, the Company shall have delivered to the Trustee
an Opinion of Counsel or a ruling directed to the
Trustee received from the Internal Revenue Service to
the effect that the Holders of the Outstanding
Securities of such series will not recognize income,
gain or loss for federal income tax purposes as a
result of such Covenant Defeasance and will be
subject to federal income tax on the
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same amounts, in the same manner and at the same
times as would have been the case if such Covenant
Defeasance had not occurred.
(6) Such Defeasance or Covenant Defeasance shall be
effected in compliance with any additional terms,
conditions or limitations which may be imposed on the
Company in connection therewith pursuant to Section
301.
(7) The Company shall have delivered to the Trustee an
Officer's Certificate and an Opinion of Counsel, each
stating that all conditions precedent provided for
relating to either the Defeasance under Section 1302
or the Covenant Defeasance under Section 1303 (as the
case may be) have been complied with.
SECTION 1305. DEPOSITED MONEY AND GOVERNMENT OBLIGATIONS TO BE
HELD IN TRUST.
Subject to the provisions of the last paragraph of Section
1009, all money and Government Obligations (including the proceeds thereof)
deposited with the Trustee (or other qualifying trustee--collectively for
purposes of this Section 1305, the "Trustee") pursuant to Section 1304 in
respect of the Outstanding Securities of a particular series shall be held in
trust and applied by the Trustee, in accordance with the provisions of such
Securities and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Holders of such Securities of all sums due and to
become due thereon in respect of principal (and premium, if any) and interest,
but such money need not be segregated from other funds except to the extent
required by law.
The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the 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 the Outstanding Securities of such
series.
Anything in this Article to the contrary notwithstanding, the
Trustee shall deliver to pay to the Company from time to time upon Company
Request any money or Government Obligations held by it as provided in Section
1304 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 for the purpose for which such money or Government Obligations were
deposited.
69
ARTICLE 14
MISCELLANEOUS
SECTION 1401. MISCELLANEOUS.
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.
[Signatures follow]
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed by their respective officers thereunto duly
authorized, as of the day and year first above written.
KENNAMETAL INC.,
as Issuer
By /s/ James E. Morrison
-----------------------------------------
Name: James E. Morrison
Title: Vice President and Treasurer
BANK ONE TRUST COMPANY, N.A.,
as Trustee
By /s/ Jeffery L. Eubank
-----------------------------------------
Name: Jeffery L. Eubank
Title: Authorized Officer
Exhibit 4.2
------------------------------------------------------------------
FIRST SUPPLEMENTAL INDENTURE
Dated as of June 19, 2002
between
KENNAMETAL INC.,
AS ISSUER
and
BANK ONE TRUST COMPANY, N.A.,
AS TRUSTEE
------------------------------------------------------------------
TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS........................................................1
SECTION 1.1. Definition of Terms...................................1
ARTICLE II GENERAL TERMS AND CONDITIONS OF THE NOTES.........................4
SECTION 2.1. Designation and Principal Amount......................4
SECTION 2.2. Maturity..............................................5
SECTION 2.3. Form and Payment......................................5
SECTION 2.4. Interest..............................................6
ARTICLE III REDEMPTION OF THE NOTES..........................................6
SECTION 3.1. Optional Redemption...................................6
SECTION 3.2. No Sinking Fund.......................................7
ARTICLE IV COVENANTS.........................................................7
SECTION 4.1. Amendments to Article 10 of the Indenture.............7
ARTICLE V CONSOLIDATION, MERGER, LEASE, SALE OR TRANSFER.....................8
SECTION 5.1. Amendments to Article 8 of the Indenture..............8
ARTICLE VI FORM OF NOTES.....................................................8
SECTION 6.1. Form of Notes.........................................8
ARTICLE VII ORIGINAL ISSUE OF NOTES..........................................9
SECTION 7.1. Original Issue of Notes...............................9
ARTICLE VIII MISCELLANEOUS...................................................9
SECTION 8.1. Ratification of Indenture.............................9
SECTION 8.2. Trustee Not Responsible for Recitals..................9
SECTION 8.3. Governing Law.........................................9
SECTION 8.4. Severability..........................................9
SECTION 8.5. Counterparts.........................................10
EXHIBITS
Exhibit A Form of Senior Notes
FIRST SUPPLEMENTAL INDENTURE, dated as of June 19, 2002 (the
"First Supplemental Indenture"), between KENNAMETAL INC., a corporation duly
organized and existing under the laws of the Commonwealth of Pennsylvania (the
"Company"), and Bank One Trust Company, N.A., a national banking association, as
trustee (the "Trustee").
WHEREAS, the Company executed and delivered the indenture
dated as of June 19, 2002 (the "Base Indenture"), to the Trustee to provide for
the future issuance of the Company's unsecured debentures, notes or other
evidence of indebtedness (the "Securities"), to be issued from time to time in
one or more series as determined by the Company under the Base Indenture;
WHEREAS, pursuant to the terms of the Base Indenture, the
Company desires to provide for the establishment of a new series of its
Securities to be known as its 7.20% Senior Notes due 2012 (the "Notes"), the
form and substance of such Notes and the terms, provisions and conditions
thereof to be set forth as provided in the Base Indenture and this First
Supplemental Indenture (together, the "Indenture"); and
WHEREAS, the Company has requested that the Trustee execute
and deliver this First Supplemental Indenture and all requirements necessary to
make this First Supplemental Indenture a valid instrument in accordance with its
terms, and to make the Notes, when executed by the Company and authenticated and
delivered by the Trustee, the valid obligations of the Company, and all acts and
things necessary have been done and performed to make this First Supplemental
Indenture enforceable in accordance with its terms, and the execution and
delivery of this First Supplemental Indenture has been duly authorized in all
respects.
NOW THEREFORE, in consideration of the purchase and acceptance
of the Notes by the Holders thereof, and for the purpose of setting forth, as
provided in the Indenture, the form and substance of the Notes and the terms,
provisions and conditions thereof, the Company covenants and agrees with the
Trustee as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Definition of Terms.
Unless the context otherwise requires:
(a) a term defined in the Base Indenture has the same meaning
when used in this First Supplemental Indenture;
(b) a term defined anywhere in this First Supplemental
Indenture has the same meaning throughout;
(c) a term defined in both the Base Indenture and in this
First Supplemental Indenture shall have the meaning set forth in this First
Supplemental Indenture;
2
(d) the singular includes the plural and vice versa;
(e) headings are for convenience of reference only and do not
affect interpretation; and
(f) the following terms have the meanings given to them in
this Section 1.1(f):
"Capitalized Lease Obligation" means an obligation that is
required to be classified and accounted for as a capitalized lease for
financial reporting purposes in accordance with GAAP, and the amount of
Indebtedness represented by such obligation shall be the capitalized
amount of such obligation determined in accordance with such
principles.
"Comparable Treasury Issue" means the United States Treasury
security selected by the Independent Investment Banker as having a
maturity comparable to the remaining term of the Notes to be redeemed
that would be used, at the time of selection and in accordance with
customary market practice, in pricing new issues of corporate debt
securities of comparable maturity to the remaining term of the Notes.
"Comparable Treasury Price" means, with respect to any
Redemption Date: (i) the average of the bid and asked prices for the
Comparable Treasury Issue (expressed as a percentage of its principal
amount) on the third Business Day preceding the Redemption Date, as set
forth in the daily statistical release (or any successor release)
published by the Federal Reserve Bank of New York and designated
"Composite 3:30 p.m. Quotations for U.S. Government Securities," or
(ii) if such release (or any successor release) is not published or
does not contain such prices on such Business Day, (A) the average of
the Reference Treasury Dealer Quotations for such Redemption Date,
after excluding the highest and lowest of such Reference Treasury
Dealer Quotations, or (B) if the Trustee obtains fewer than three such
Reference Treasury Dealer Quotations, the average of all such Reference
Treasury Dealer Quotations so received.
"Consolidated Net Worth" means the excess of assets over
liabilities of the Company and its consolidated subsidiaries, plus
minority interest, as determined from time to time in accordance with
GAAP.
"Consolidated Tangible Assets" means, on the date of any
determination, total assets less goodwill and other intangibles of the
Company and its consolidated subsidiaries, in each case as set forth on
the most recently available consolidated balance sheet of the Company
and its consolidated subsidiaries in accordance with GAAP.
"GAAP" means generally accepted accounting principles in the
United States of America as in effect as of the date of this First
Supplemental Indenture, including those set forth in the opinions and
pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such
other statements by such other entity as approved by a significant
segment of the accounting profession. All ratios and
3
computations based on GAAP contained in the Indenture will be computed
in conformity with GAAP.
"Independent Investment Banker" means one of the Reference
Treasury Dealers appointed by the Company.
"Issue Date" shall mean the first date on which a Note is
authenticated by the Trustee pursuant to this First Supplemental
Indenture.
"Permitted Liens" shall mean, with respect to any Person: (i)
Liens existing on the Issue Date; (ii) Liens on property or assets of,
or any shares of stock of or secured debt of, any corporation existing
at the time such corporation becomes a Restricted Subsidiary of the
Company or any of its Restricted Subsidiaries or at the time such
corporation is merged into the Company or any of its Restricted
Subsidiaries; (iii) Liens in favor of the Company or any of its
Restricted Subsidiaries; (iv) Liens in favor of governmental bodies to
secure progress or advance payments; (v) Liens securing industrial
revenue or pollution control bonds; (vi) Liens on Property to secure
Indebtedness incurred for the purpose of (a) financing all or any part
of the purchase price of such Property incurred prior to, at the time
of, or within 180 days after, the acquisition of such Property or (b)
financing all or any part of the cost of construction, improvement,
development or expansion of any such Property; (vii) statutory liens or
landlords', carriers', warehouseman's, mechanics', suppliers',
materialmen's, repairmen's or other like Liens arising in the ordinary
course of business and with respect to amounts not yet delinquent or
being contested in good faith by appropriate proceedings, if a reserve
or other appropriate provisions, if any, as shall be required in
conformity with GAAP shall have been made therefor; (viii) Liens
incurred in connection with any accounts receivable programs up to an
aggregate of $125 million; (ix) Liens on current assets of the Company
or its Restricted Subsidiaries securing Indebtedness of the Company or
its Restricted Subsidiaries and Liens in connection with Sale and
Leaseback Transactions; provided that at the time of the incurrence of
such Indebtedness or the entering into of such Sale and Leaseback
Transaction, the aggregate amount of Indebtedness (other than
Indebtedness secured by Liens described in clauses (i) through (viii)
above) of the Company and its Restricted Subsidiaries secured by Liens
does not exceed 10% of Consolidated Tangible Assets; and (x) any
extensions, substitutions, replacements or renewals in whole or in part
of a Lien (an "existing Lien") enumerated in clauses (i) through (ix)
above; provided that the Lien may not extend beyond (A) the Property or
Indebtedness subject to the existing Lien and (B) improvements and
construction on such Property and the Indebtedness secured by the Lien
may not exceed the Indebtedness secured at the time by the existing
Lien.
"Principal Property" means any manufacturing plant or
warehouse owned or leased by the Company or any Subsidiary, the gross
book value of which exceeds four percent of Consolidated Net Worth,
other than manufacturing plants and warehouses which the Board of
Directors by resolution declares, together with all other plants and
warehouses previously so declared, is not of material importance to the
total business conducted by the Company and its Restricted Subsidiaries
as an entirety.
4
"Property" of any Person means all types of real, personal,
tangible, intangible or mixed property owned by such Person whether or
not included in the most recent consolidated balance sheet of the
Company and its consolidated subsidiaries under GAAP.
"Reference Treasury Dealer" means each of Goldman, Sachs & Co.
and J.P. Morgan Securities Inc. and their respective successors;
provided, however, that if any of the foregoing shall cease to be a
primary U.S. government securities dealer in New York City (a "Primary
Treasury Dealer"), the Company shall substitute therefor another
Primary Treasury Dealer.
"Reference Treasury Dealer Quotations" means, with respect to
each Reference Treasury Dealer and any Redemption Date, the average, as
determined by the Trustee, of the bid and asked prices for the
Comparable Treasury Issue (expressed in each case as a percentage of
its principal amount) quoted in writing to the Trustee by such
Reference Treasury Dealer at 5:00 p.m. (New York City time) on the
third Business Day preceding such Redemption Date.
"Restricted Subsidiary" shall mean any Subsidiary of the
Company that is not an Unrestricted Subsidiary.
"Unrestricted Subsidiary" means (1) any Subsidiary not
organized under the laws of a state of the United States or the
District of Columbia and any Subsidiary of such Subsidiary which is not
organized under the laws of a state of the United States or the
District of Columbia and (2) any Subsidiaries that at the time of
determination shall be designated an Unrestricted Subsidiary by the
Board of Directors and any Subsidiary of such Subsidiary. The Board of
Directors may designate any Subsidiaries (including any newly-acquired
or newly-formed Subsidiary) organized under the laws of a state of the
United States or of the District of Columbia to be an Unrestricted
Subsidiary unless such Subsidiary owns any capital stock of, or owns or
holds any Property of, the Company or any other Restricted Subsidiary,
provided, however, that the Subsidiary to be so designated has total
assets of $35,000,000 or less.
"Treasury Rate" means, with respect to any Redemption Date,
the rate per annum equal to the semi-annual equivalent yield to
maturity of the Comparable Treasury Issue, assuming a price for the
Comparable Treasury Issue (expressed as a percentage of its principal
amount) equal to the Comparable Treasury Price for that Redemption
Date.
ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE NOTES
SECTION 2.1. Designation and Principal Amount.
The Notes are hereby authorized and are designated the 7.20%
Senior Notes due 2012, unlimited in aggregate principal amount. The Notes issued
on the date hereof pursuant to
5
the terms of this Indenture will be in an aggregate principal amount of
$300,000,000, which amount shall be set forth in the written order of the
Company for the authentication and delivery of the Notes pursuant to Section 303
of the Base Indenture. In addition, the Company may issue, from time to time in
accordance with the provisions of this Indenture, additional Notes ranking
equally and ratably with the Notes issued hereunder in all respects (or in all
respects except for the payment of interest following the Issue Date of such
further Notes), so that such further Notes shall be consolidated and form a
single series with the Notes and shall be governed by the terms of this
Indenture.
SECTION 2.2. Maturity.
The principal amount of the Notes will be payable on June 15,
2012.
SECTION 2.3. Form and Payment.
The Notes will be issued as global notes, in fully registered
book-entry form without coupons in denominations of $1,000 and integral
multiples thereof.
Principal, premium, if any, and/or interest, if any, on the
global notes representing the Notes will be made to The Depository Trust Company
(the "Depositary").
The global notes representing the Notes will be deposited
with, or on behalf of, the Depositary and will be registered in the name of the
Depositary or a nominee of the Depositary. No global note may be transferred
except as a whole by a nominee of the Depositary to the Depositary or to another
nominee of the Depositary, or by the Depositary or such nominee to a successor
of the Depositary or a nominee of such successor.
So long as the Depositary or its nominee is the registered
owner of a global note, the Depositary or its nominee, as the case may be, will
be the sole Holder of the Notes represented thereby for all purposes under the
Indenture. Except as otherwise provided herein, each actual purchaser of each
Note represented by a global note ("Beneficial Owner") will not be entitled to
receive physical delivery of certificated Notes and will not be considered the
holders thereof for any purpose under the Indenture, and no global note
representing the Notes shall be exchangeable or transferable. Accordingly, each
Beneficial Owner must rely on the procedures of the Depositary and, if such
Beneficial Owner is not a participant, on the procedures of the participant
through which such Beneficial Owner owns its interest in order to exercise any
rights of a Holder under such global note or the Indenture.
The global notes representing the Notes will be exchangeable
for certificated Notes of like tenor and terms and of differing authorized
denominations aggregating a like principal amount, only if (i) the Depositary
notifies the Company that it is unwilling or unable to continue as Depositary
for the global debt securities, (ii) the Depositary ceases to be a clearing
agency registered under the Exchange Act and a successor to the Depository is
not appointed by the Company within 90 days, (iii) the Company in its sole
discretion determines that the global notes shall be exchangeable for
certificated Notes and notifies the Trustee of such determination or (iv) there
shall have occurred and be continuing an Event of Default under the Indenture
with
6
respect to the Notes. Upon any such exchange, the certificated Notes shall be
registered in the names of the Beneficial Owners of the global notes
representing the Notes, which names shall be provided by the Depositary's
relevant participants (as identified by the Depositary) to the Trustee. In such
event the Company will execute, and subject to Section 303 of the Indenture, the
Trustee, upon receipt of an Officer's Certificate evidencing such determination
by the Company, will authenticate and deliver the Notes in definitive registered
form without coupons, in authorized denominations, and in an aggregate principal
amount equal to the principal amount of the global notes in exchange for such
global notes. Upon the exchange of the global notes for such Notes in definitive
registered form without coupons, in authorized denominations, the global notes
shall be cancelled by the Trustee. Such Notes in definitive registered form
issued in exchange for the global notes shall be registered in such names and in
such authorized denominations as the Depositary, pursuant to instructions from
its direct or indirect participants or otherwise, shall instruct the Trustee.
The Trustee shall deliver such Notes to the Depositary for delivery to the
Persons in whose names such Notes are so registered.
SECTION 2.4. Interest.
The Notes shall bear interest at a rate equal to 7.20% per
annum. Interest on the Notes shall accrue from June 19, 2002, or from the most
recent interest payment date to which interest has been paid or duly provided
upon for the Notes, as the case may be. Interest on the Notes shall be payable
semi-annually in arrears on June 15 and December 15, commencing December 15,
2002 (each an "Interest Payment Date"), to the persons in whose names the Notes
are registered at the close of business on June 1 and December 1, as the case
may be, preceding such Interest Payment Date.
ARTICLE III
REDEMPTION OF THE NOTES
SECTION 3.1. Optional Redemption.
The Notes will be redeemable, in whole or in part, at the
option of the Company at any time, upon not less than 30 nor more than 60 days'
notice, at a Redemption Price equal to the greater of (i) 100% of the principal
amount of the Notes, or (ii) as determined by the Independent Investment Banker,
the sum of the present values of the remaining scheduled payments of principal
and interest on the Notes to be redeemed (not including the portion of any such
payments of interest accrued as of the Redemption Date), discounted to the
Redemption Date in accordance with customary market practice on a semi-annual
basis (assuming a 360-day year consisting of twelve 30-day months) at the
Treasury Rate plus 40 basis points, plus, in each case, accrued and unpaid
interest thereon to the Redemption Date. Unless the Company defaults in payment
of the Redemption Price, on and after the Redemption Date, interest will cease
to accrue on the Notes, or portions thereof called for redemption.
If less than all of the Notes are to be redeemed, the Trustee
will select the Notes to be redeemed by such method as the Trustee shall deem
fair and appropriate. The Trustee may select for redemption Notes and portions
of the Notes in amounts of whole multiples of $1,000.
7
SECTION 3.2. No Sinking Fund.
The Notes are not entitled to the benefit of any sinking fund.
ARTICLE IV
COVENANTS
SECTION 4.1. Amendments to Article 10 of the Base Indenture.
Article 10 of the Base Indenture is hereby amended in respect
of the Notes and only in respect of the Notes by adding Sections 1009, 1010 and
1011 as follows:
SECTION 1009. LIMITATION ON LIENS.
The Company will not, and will not permit any of its
Restricted Subsidiaries to, create, incur or otherwise cause
to exist or become effective any Liens of any kind upon any
asset now owned or hereafter acquired unless all payments due
under the Indenture and the Notes are secured on an equal and
ratable basis with the obligations so secured until such time
as such obligations are no longer secured by a Lien, except
for Permitted Liens.
SECTION 1010. LIMITATION ON SALE AND LEASEBACK
TRANSACTIONS.
Neither the Company nor any Restricted Subsidiary
will enter into any sale and leaseback transaction with
respect to any Principal Property (except for temporary leases
of a term, including renewals, not exceeding five years)
unless either (a) the Company or such Restricted Subsidiary
would be entitled, pursuant to the provisions of the
Indenture, to incur Indebtedness secured by a Lien on the
property to be leased without equally and ratably securing the
Notes, or (b) the Company within 180 days after the effective
date of such transaction applies to the voluntary retirement
of its funded debt an amount equal to the value of such
transaction, defined as the greater of the net proceeds of the
sale of the property leased in such transaction or the fair
value, in the opinion of the Board of Directors, of the leased
property at the time such transaction was entered into.
SECTION 1011. WAIVER OF CERTAIN COVENANTS.
Compliance with Sections 1009 and 1010 may not be
waived by the Trustee unless the Holders of at least a
majority in aggregate principal amount of the Notes
Outstanding consent to such waiver; provided, however, that
the Company need not comply with Sections 1009 and 1010 in the
event it elects to comply with Section 1302 or Section 1303 of
this Indenture.
8
ARTICLE V
CONSOLIDATION, MERGER, LEASE, SALE OR TRANSFER
SECTION 5.1. Amendments to Article 8 of the Base Indenture.
Article 8 of the Base Indenture is hereby amended in respect
of the Notes and only in respect of the Notes by deleting Section 801 in its
entirety and replacing it with Section 801 as follows:
SECTION 801. WHEN COMPANY MAY MERGE, ETC.
The Company shall not consolidate or merge with or
into, or sell, lease, convey or otherwise dispose of all or
substantially all of its assets or assign any of its
obligations under this Indenture or under the First
Supplemental Indenture, dated as of June 19, 2002 (the "First
Supplemental Indenture") to another entity unless:
(1) the entity formed by or surviving any such
consolidation or merger (if other than the Company), or to
which such sale, lease, conveyance or other disposition shall
have been made (the "Surviving Entity"), is a corporation
organized and existing under the laws of the United States,
any state thereof, or the District of Columbia;
(2) the Surviving Entity expressly assumes by
supplemental indenture all of the obligations of the Company
under the Notes (as defined in the First Supplemental
Indenture), this Indenture and the First Supplemental
Indenture; and
(3) immediately after giving effect to such
transaction, no Default or Event of Default shall have
occurred and be continuing.
ARTICLE VI
FORM OF NOTES
SECTION 6.1. Form of Notes.
The Notes and the Trustee's Certificates of Authentication to
be endorsed thereon are to be substantially in the form of Exhibit A, which form
is hereby incorporated in and made a part of this First Supplemental Indenture.
The terms and provisions contained in the Notes shall
constitute, and are hereby expressly made, a part of this First Supplemental
Indenture, and the Company and the Trustee, by their execution and delivery of
this First Supplemental Indenture, expressly agree to such terms and provisions
and to be bound thereby.
9
ARTICLE VII
ORIGINAL ISSUE OF Notes
SECTION 7.1. Original Issue of Notes.
Notes in the aggregate principal amount of $300,000,000 may,
upon execution of this First Supplemental Indenture, be executed by the Company
and delivered to the Trustee for authentication, and the Trustee shall thereupon
authenticate and deliver said Notes to or upon Company Order.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.1. Ratification of Indenture.
The Base Indenture as supplemented by this First Supplemental
Indenture, is in all respects ratified and confirmed, and this First
Supplemental Indenture shall be deemed part of the Indenture in the manner and
to the extent herein and therein provided.
SECTION 8.2. Trustee Not Responsible for Recitals.
The recitals herein contained are made by the Company and not
by the Trustee, and the Trustee assumes no responsibility for the correctness
thereof. The Trustee makes no representation as to the validity or sufficiency
of this First Supplemental Indenture.
SECTION 8.3. Governing Law.
This First Supplemental Indenture and each Note shall be
deemed to be a contract made under the laws of the State of New York, and the
rights and duties of the parties hereunder and thereunder shall be governed by,
and construed in accordance with, the law of the State of New York.
SECTION 8.4. Severability.
In case any one or more of the provisions contained in this
First Supplemental Indenture or in the Notes shall for any reason be held
invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions shall not in any way be affected or impaired thereby, it being
intended that all of the provisions of this First Supplemental Indenture or of
the Notes shall be construed as if such invalid or illegal or unenforceable
provision had never been contained herein or therein.
10
SECTION 8.5. Counterparts.
This First Supplemental Indenture may be executed in any
number of counterparts each of which shall be an original; but such counterparts
shall together constitute but one and the same instrument.
[remainder of the page left intentionally blank]
11
IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed, and their respective corporate seals
to be affixed and attested, on the date or dates indicated in the
acknowledgments and as of the day and year first above written.
KENNAMETAL INC., as Issuer
By /s/ James E. Morrison
--------------------------------
Name: James E. Morrison
Title: Vice President and Treasurer
BANK ONE TRUST COMPANY, N.A.,
as Trustee
By /s/ Jeffery L. Eubank
------------------------------
Name: Jeffery L. Eubank
Title: Authorized Officer
EXHIBIT A
(FORM OF SENIOR NOTES)
This Note is a Global Note within the meaning of the Indenture
hereinafter referred to and is registered in the name of the Depositary or a
nominee of the Depositary. This Note is exchangeable for Notes registered in the
name of a person other than the Depositary or its nominee only in the limited
circumstances described in the Indenture, and no transfer of this Note (other
than a transfer of this Note as a whole by the Depositary to a nominee of the
Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary) may be registered except in limited circumstances.
Unless this Note is presented by an authorized representative
of The Depository Trust Company, a New York corporation (55 Water Street, New
York, New York), to the issuer or its agent for registration of transfer,
exchange or payment, and any Note issued is registered in the name of Cede & Co.
or in such other name as is requested by an authorized representative of The
Depository Trust Company (and any payment is made to Cede & Co. or such other
entity as is requested by an authorized representative of The Depository Trust
Company), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co.,
has an interest herein.
FORM OF SENIOR NOTES A-1
KENNAMETAL INC.
___% Senior Notes due 2012
No. __________________ $_______________
CUSIP No: ____________________
KENNAMETAL INC., a corporation duly organized and existing
under the laws of the Commonwealth of Pennsylvania (the "Company", which term
includes any successor corporation under the Indenture hereinafter referred to),
for value received, hereby promises to pay to Cede & Co., or registered assigns,
the principal sum of ________________________ dollars ($___________) on _______,
2012 (such date is hereinafter referred to as the "Maturity Date"), and to pay
interest on said principal sum from __________, 20__, or from the most recent
interest payment date (each such date, an "Interest Payment Date") to which
interest has been paid or duly provided for, semi-annually in arrears on _______
and _______ of each year, commencing on _______, 20__, at the rate of ___% per
annum until the principal hereof shall have become due and payable. The interest
so payable, and punctually paid or duly provided for, on any Interest Payment
Date will, as provided in the Indenture, be paid to the Person in whose name
this Note (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 close
of business on the _______ or _______, (whether or not a Business Day), as the
case may be, preceding such Interest Payment Date. Any such interest not
punctually paid or duly provided for shall forthwith cease to be payable to the
registered Holders on such regular record date and may be paid to the Person in
whose name this Note (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 the
registered Holders of this series of Notes not less than 10 days prior to such
Special Record Date, or may be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the Notes
of this series may be listed, and upon such notice as may be required by such
exchange, all as more fully provided in the Indenture. The principal of, and
premium, if any, and the interest on this Note shall be payable at the office or
agency of the Trustee maintained for that purpose in the Borough of Manhattan,
The City of New York, in any coin or currency of the United States of America
that at the time of payment is legal tender for payment of public and private
debts; provided, however, that payment of interest may be made at the option of
the Company by check mailed to the registered Holder at such address as shall
appear in the Security Register.
The indebtedness evidenced by this Note is, to the extent
provided in the Indenture, senior and unsecured and will rank in right of
payment on parity with all other senior unsecured obligations of the Company.
Each Holder of this Note by accepting the same, (a) agrees to and shall be bound
by such provisions and (b) appoints the Trustee his or her attorney-in-fact for
any and all such purposes.
This Note shall not be entitled to any benefit under the
Indenture hereinafter referred to, be valid or become obligatory for any purpose
until the Certificate of Authentication hereon shall have been signed by or on
behalf of the Trustee.
The provisions of this Note are continued on the reverse side
hereof and such continued provisions shall for all purposes have the same effect
as though fully set forth at this place.
FORM OF SENIOR NOTES A-2
IN WITNESS WHEREOF, the Company has caused this instrument to
be executed.
Dated: ____________, 20__
KENNAMETAL INC.
By:______________________________
Name:
Title:
Attest:
By:______________________________
Name:
Title:
FORM OF SENIOR NOTES A-4
CERTIFICATE OF AUTHENTICATION
This is one of the Notes of the series of Notes described in
the within-mentioned Indenture.
Dated:___________________________
BANK ONE TRUST COMPANY, N.A., as Trustee
By______________________________
Authorized Signatory
FORM OF SENIOR NOTES A-5
(REVERSE OF NOTE)
KENNAMETAL INC.
___% Senior Notes due 2012
This Note is one of a duly authorized series of Securities of
the Company (herein sometimes referred to as the "Securities") specified in the
Indenture (as defined below), all issued or to be issued in one or more series
under and pursuant to an Indenture dated as of June 19, 2002 (the "Base
Indenture"), duly executed and delivered between the Company and Bank One Trust
Company, N.A., as Trustee (the "Trustee"), as supplemented by a First
Supplemental Indenture, dated June 19, 2002 (the Base Indenture as so
supplemented, the "Indenture"), to which Indenture and all indentures
supplemental thereto reference is hereby made for a description of the rights,
limitations of rights, obligations, duties and immunities thereunder of the
Trustee, the Company and the Holders of the Securities and of the terms upon
which the Securities are, and are to be, authenticated and delivered. By the
terms of the Indenture, the Securities are issuable in series that may vary as
to amount, date of maturity, rate of interest and in other respects as provided
in the Indenture.
The Notes are not entitled to the benefit of any sinking fund.
The Notes will be redeemable, in whole or in part, at the
option of the Company at any time, upon not less than 30 nor more than 60 days'
notice, at a Redemption Price equal to the greater of (i) 100% of the principal
amount of the Notes, or (ii) as determined by the Independent Investment Banker,
the sum of the present values of the remaining scheduled payments of principal
and interest on the Notes to be redeemed (not including the portion of any such
payments of interest accrued as of the Redemption Date) discounted to the
Redemption Date in accordance with customary market practice on a semi-annual
basis (assuming a 360-day year consisting of twelve 30-day months) at the
Treasury Rate plus __ basis points, plus, in each case, accrued and unpaid
interest thereon to the Redemption Date. Unless the Company defaults in payment
of the Redemption Price, on and after the Redemption Date, interest will cease
to accrue on the Notes or portions thereof called for redemption.
"Comparable Treasury Issue" means the United States Treasury
security selected by the Independent Investment Banker as having a maturity
comparable to the remaining term of the Notes to be redeemed that would be used,
at the time of selection and in accordance with customary market practice, in
pricing new issues of corporate debt securities of comparable maturity to the
remaining term of the Notes.
"Comparable Treasury Price" means, with respect to any
Redemption Date: (i) the average of the bid and asked prices for the Comparable
Treasury Issue (expressed as a percentage of its principal amount) on the third
Business Day preceding the Redemption Date, as set forth in the daily
statistical release (or any successor release) published by the Federal Reserve
Bank of New York and designated "Composite 3:30 p.m. Quotations for U.S.
Government Securities," or (ii) if such release (or any successor release) is
not published or does not contain such prices on such Business Day, (A) the
average of the Reference Treasury Dealer Quotations for such Redemption Date,
after excluding the highest and lowest of such Reference Treasury Dealer
FORM OF SENIOR NOTES A-6
Quotations, or (B) if the Trustee obtains fewer than three such Reference
Treasury Dealer Quotations, the average of all such Reference Treasury Dealer
Quotations so received.
"Independent Investment Banker" means one of the Reference
Treasury Dealers appointed by the Company.
"Reference Treasury Dealer" means each of Goldman, Sachs & Co.
and J.P. Morgan Securities Inc. and their respective successors; provided,
however, that if any of the foregoing shall cease to be a primary U.S.
government securities dealer in New York City (a "Primary Treasury Dealer"), the
Company shall substitute therefor another Primary Treasury Dealer.
"Reference Treasury Dealer Quotations" means, with respect to
each Reference Treasury Dealer and any Redemption Date, the average, as
determined by the Trustee, of the bid and asked prices for the Comparable
Treasury Issue (expressed in each case as a percentage of its principal amount)
quoted in writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m.
(New York City time) on the third Business Day preceding such Redemption Date.
"Treasury Rate" means, with respect to any Redemption Date,
the rate per annum equal to the semi-annual equivalent yield to maturity of the
Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue
(expressed as a percentage of its principal amount) equal to the Comparable
Treasury Price for that Redemption Date.
If less than all of the Notes of a series are to redeemed, the
Trustee will select the Notes to be redeemed by such method as the Trustee shall
deem fair and appropriate. The Trustee may select for redemption Notes and
portions of Notes in amounts of whole multiples of $1,000.
The Indenture contains provisions for defeasance of (a) the
entire indebtedness of this Note and (b) certain restrictive covenants upon
compliance by the Company with certain conditions set forth therein.
In case an Event of Default, shall have occurred and be
continuing, the principal of all of the Notes may be declared, and upon such
declaration shall become, due and payable, in the manner, with the effect and
subject to the conditions provided in the Indenture.
The Indenture contains provisions permitting the Company and
the Trustee, with the consent of the Holders of not less than a majority in
aggregate principal amount of the Notes of each series affected at the time
Outstanding, to execute supplemental indentures for the purpose of, among other
things, adding any provisions to or changing or eliminating any of the
provisions of the Indenture or of any supplemental indenture or of modifying the
rights of the Holders of the Notes; provided, however, that, among other things,
no such supplemental indenture shall (i) reduce the principal amount thereof, or
reduce the rate or extend the time of payment of interest thereon (subject to
the Company's right to defer such payments in the manner set forth herein), or
reduce any premium payable upon the redemption thereof, without the consent of
the Holder of each Note so affected, or (ii) reduce the aforesaid percentage of
Notes,
FORM OF SENIOR NOTES A-7
the Holders of which are required to consent to any such supplemental indenture,
without the consent of the Holders of each Note then Outstanding and affected
thereby. The Indenture also contains provisions permitting, among other things,
the Holders of a majority in aggregate principal amount of the Securities of any
series at the time Outstanding affected thereby, on behalf of all of the Holders
of all Securities of such series, to waive a Default or Event of Default with
respect to such series, and its consequences, except a Default or Event of
Default in the payment of the principal of or premium, if any, or interest on
any of the Securities of such series. Any such consent or waiver by the
registered Holder of this Note (unless revoked as provided in the Indenture)
shall be conclusive and binding upon such Holder and upon all future Holders and
owners of this Note and of any Note issued in exchange for or in place hereof
(whether by registration of transfer or otherwise), irrespective of whether or
not any notation of such consent or waiver is made upon this Note.
No reference herein to the Indenture and no provision of this
Note or of the Indenture shall alter or impair the obligation of the Company,
which is absolute and unconditional, to pay the principal of and premium, if
any, and interest on this Note at the times, place and at the rates and in the
money herein prescribed.
As provided in the Indenture and subject to certain
limitations therein set forth, this Note is transferable by the registered
Holder hereof on the Security Register of the Company, upon surrender of this
Note for registration of transfer at the office or agency of the Trustee in The
City of New York duly endorsed by, or accompanied by, a written instrument or
instruments of transfer in form satisfactory to the Company or the Trustee duly
executed by the registered Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Notes of authorized denominations and for
the same aggregate principal amount and series will be issued to the designated
transferee or transferees. No service charge will be made for any such transfer,
but the Company may require payment of a sum sufficient to cover any tax or
other governmental charge payable in relation thereto.
Prior to due presentment for registration of transfer of this
Note, the Company, the Trustee, any Paying Agent and the Security Registrar may
deem and treat the registered Holder hereof as the absolute owner hereof
(whether or not this Note shall be overdue and notwithstanding any notice of
ownership or writing hereon made by anyone other than the Security Registrar)
for the purpose of receiving payment of or on account of the principal hereof
and premium, if any, and interest due hereon and for all other purposes, and
neither the Company nor the Trustee nor any Paying Agent nor any Security
Registrar shall be affected by any notice to the contrary.
No recourse shall be had for the payment of the principal of
or the interest on this Note, or for any claim based hereon, or otherwise in
respect hereof, or based on or in respect of the Indenture, against any
incorporator, shareholder, officer or director, past, present or future, as
such, of the Company or of any predecessor or successor corporation, whether by
virtue of any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise, and such liability being, by the acceptance
hereof and as part of the consideration for the issuance hereof, expressly
waived and released.
FORM OF SENIOR NOTES A-8
The Indenture imposes certain limitations on the ability of
the Company to, among other things, merge or consolidate with any other Person,
sell, assign, transfer or lease all or substantially all of its properties or
assets or create or incur liens on certain of its property. All such covenants
and limitations are subject to a number of important qualifications and
exceptions. The Company must report periodically to the Trustee on compliance
with the covenants in the Indenture.
A director, officer, employee or stockholder, as such, of the
Company shall not have any liability for any obligations of the Company under
the Notes of this series or the Indenture or for any claim based on, in respect
of or by reason of, such obligations or their creation. Each Holder, by
accepting a Note, waives and releases all such liability. The waiver and release
are part of the consideration for the issuance of this Note.
Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures ("CUSIP"), the Company has caused
CUSIP numbers to be printed on the Notes. No representation is made as to the
correctness or accuracy of such numbers as printed on the Notes and reliance may
be placed only on the other identification numbers printed hereon.
The Notes of this series are issuable only in fully registered
book-entry form without coupons in denominations of $1,000 and any integral
multiple thereof. This Global Note is exchangeable for Notes in definitive form
only under certain limited circumstances set forth in the Indenture. As provided
in the Indenture and subject to certain limitations therein set forth, Notes of
this series so issued are exchangeable for a like aggregate principal amount of
Notes of this series of a different authorized denomination, as requested by the
Holder surrendering the same.
This Note shall be governed by and construed in accordance
with the law of the State of New York.
All terms used in this Note that are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
FORM OF SENIOR NOTES A-9
ASSIGNMENT
To assign this Security, fill in the form below: (I) or (we) assign and transfer
this Security to:
--------------------------------------------------------------
(Insert assignee's social security or tax I.D. number)
--------------------------------------------------------------
--------------------------------------------------------------
--------------------------------------------------------------
--------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint
--------------------------------------------------------
agent to transfer this Security on the books of the Company. The agent may
substitute another to act for him.
Dated: Your Signature:
------------------------ ------------------------------
(Sign exactly as your name
appears on the other side
of this Security)
Signature Guaranty:
-----------------------------------------------------------
(Signatures must be guaranteed by an "eligible guarantor
institution" meeting the requirements of the Transfer
Agent, which requirements will include membership or
participation in STAMP or such other "signature guarantee
program" as may be determined by the Transfer Agent in
addition to, or in substitution for, STAMP all in
accordance with the Exchange Act.)
Social Security Number or Taxpayer Identification Number: ______________________
Exhibit 4.3
This Note is a Global Note within the meaning of the Indenture
hereinafter referred to and is registered in the name of the Depositary or a
nominee of the Depositary. This Note is exchangeable for Notes registered in the
name of a person other than the Depositary or its nominee only in the limited
circumstances described in the Indenture, and no transfer of this Note (other
than a transfer of this Note as a whole by the Depositary to a nominee of the
Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary) may be registered except in limited circumstances.
Unless this Note is presented by an authorized representative
of The Depository Trust Company, a New York corporation (55 Water Street, New
York, New York), to the issuer or its agent for registration of transfer,
exchange or payment, and any Note issued is registered in the name of Cede & Co.
or in such other name as is requested by an authorized representative of The
Depository Trust Company (and any payment is made to Cede & Co. or such other
entity as is requested by an authorized representative of The Depository Trust
Company), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co.,
has an interest herein.
KENNAMETAL INC.
7.20% Senior Notes due 2012
No. 1 $300,000,000
CUSIP No. 489170 AB 6
KENNAMETAL INC., a corporation duly organized and existing
under the laws of the Commonwealth of Pennsylvania (the "Company", which term
includes any successor corporation under the Indenture hereinafter referred to),
for value received, hereby promises to pay to Cede & Co., or registered assigns,
the principal sum of Three Hundred Million Dollars ($300,000,000) on June 15,
2012 (such date is hereinafter referred to as the "Maturity Date"), and to pay
interest on said principal sum from June 19, 2002, or from the most recent
interest payment date (each such date, an "Interest Payment Date") to which
interest has been paid or duly provided for, semi-annually in arrears on June 15
and December 15 of each year, commencing on December 15, 2002, at the rate of
7.20% per annum until the principal hereof shall have become due and payable.
The interest so payable, and punctually paid or duly provided for, on any
Interest Payment Date will, as provided in the Indenture, be paid to the Person
in whose name this Note (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 close of business on the June 1 or December 1 (whether or not a Business
Day), as the case may be, preceding such Interest Payment Date. Any such
interest not punctually paid or duly provided for shall forthwith cease to be
payable to the registered Holders on such regular record date and may be paid to
the Person in whose name this Note (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 the registered Holders of this series of Notes not less than 10 days
prior to such Special Record Date, or may be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Notes of this series may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in the Indenture. The
principal of, and premium, if any, and the interest on this Note shall be
payable at the office or agency of the Trustee maintained for that purpose in
the Borough of Manhattan, The City of New York, in any coin or currency of the
United States of America that at the time of payment is legal tender for payment
of public and private debts; provided, however, that payment of interest may be
made at the option of the Company by check mailed to the registered Holder at
such address as shall appear in the Security Register.
The indebtedness evidenced by this Note is, to the extent
provided in the Indenture, senior and unsecured and will rank in right of
payment on parity with all other senior unsecured obligations of the Company.
Each Holder of this Note by accepting the same, (a) agrees to and shall be bound
by such provisions and (b) appoints the Trustee his or her attorney-in-fact for
any and all such purposes.
This Note shall not be entitled to any benefit under the
Indenture hereinafter referred to, be valid or become obligatory for any purpose
until the Certificate of Authentication hereon shall have been signed by or on
behalf of the Trustee.
The provisions of this Note are continued on the reverse side
hereof and such continued provisions shall for all purposes have the same effect
as though fully set forth at this place.
IN WITNESS WHEREOF, the Company has caused this instrument to
be executed.
Dated: June 19, 2002
KENNAMETAL INC.
By /s/ James E. Morrison
-------------------------------
Name: James E. Morrison
Title: Vice President and Treasurer
Attest:
By: /s/ David W. Greenfield
---------------------------------
Name: David W. Greenfield
Title: Vice President, Secretary
and General Counsel
[SEAL]
CERTIFICATE OF AUTHENTICATION
This is one of the Notes of the series of Notes described in
the within-mentioned Indenture.
Dated: June 19, 2002
Bank One Trust Company, N.A., as Trustee
By /s/ Jeffery L. Eubank
------------------------------------
Authorized Signatory
(REVERSE OF NOTE)
KENNAMETAL INC.
7.20% Senior Notes due 2012
This Note is one of a duly authorized series of Securities of
the Company (herein sometimes referred to as the "Securities") specified in the
Indenture (as defined below), all issued or to be issued in one or more series
under and pursuant to an Indenture dated as of June 19, 2002 (the "Base
Indenture"), duly executed and delivered between the Company and Bank One Trust
Company, N.A., as Trustee (the "Trustee"), as supplemented by a First
Supplemental Indenture, dated as of June 19, 2002 (the Base Indenture as so
supplemented, the "Indenture"), to which Indenture and all indentures
supplemental thereto reference is hereby made for a description of the rights,
limitations of rights, obligations, duties and immunities thereunder of the
Trustee, the Company and the Holders of the Securities and of the terms upon
which the Securities are, and are to be, authenticated and delivered. By the
terms of the Indenture, the Securities are issuable in series that may vary as
to amount, date of maturity, rate of interest and in other respects as provided
in the Indenture.
The Notes are not entitled to the benefit of any sinking fund.
The Notes will be redeemable, in whole or in part, at the
option of the Company at any time, upon not less than 30 nor more than 60 days'
notice, at a Redemption Price equal to the greater of (i) 100% of the principal
amount of the Notes, or (ii) as determined by the Independent Investment Banker,
the sum of the present values of the remaining scheduled payments of principal
and interest on the Notes to be redeemed (not including the portion of any such
payments of interest accrued as of the Redemption Date) discounted to the
Redemption Date in accordance with customary market practice on a semi-annual
basis (assuming a 360-day year consisting of twelve 30-day months) at the
Treasury Rate plus 40 basis points, plus, in each case, accrued and unpaid
interest thereon to the Redemption Date. Unless the Company defaults in payment
of the Redemption Price, on and after the Redemption Date, interest will cease
to accrue on the Notes or portions thereof called for redemption.
"Comparable Treasury Issue" means the United States Treasury
security selected by the Independent Investment Banker as having a maturity
comparable to the remaining term of the Notes to be redeemed that would be used,
at the time of selection and in accordance with customary market practice, in
pricing new issues of corporate debt securities of comparable maturity to the
remaining term of the Notes.
"Comparable Treasury Price" means, with respect to any
Redemption Date: (i) the average of the bid and asked prices for the Comparable
Treasury Issue (expressed as a percentage of its principal amount) on the third
Business Day preceding the Redemption Date, as set forth in the daily
statistical release (or any successor release) published by the Federal Reserve
Bank of New York and designated "Composite 3:30 p.m. Quotations for U.S.
Government Securities," or (ii) if such release (or any successor release) is
not published or does not contain such prices on such Business Day, (A) the
average of the Reference Treasury Dealer Quotations for such Redemption Date,
after excluding the highest and lowest of such Reference Treasury Dealer
Quotations, or (B) if the Trustee obtains fewer than three such Reference
Treasury Dealer Quotations, the average of all such Reference Treasury Dealer
Quotations so received.
"Independent Investment Banker" means one of the Reference
Treasury Dealers appointed by the Company.
"Reference Treasury Dealer" means each of Goldman, Sachs & Co.
and J.P. Morgan Securities Inc. and their respective successors; provided,
however, that if any of the foregoing shall cease to be a primary U.S.
government securities dealer in New York City (a "Primary Treasury Dealer"), the
Company shall substitute therefor another Primary Treasury Dealer.
"Reference Treasury Dealer Quotations" means, with respect to
each Reference Treasury Dealer and any Redemption Date, the average, as
determined by the Trustee, of the bid and asked prices for the Comparable
Treasury Issue (expressed in each case as a percentage of its principal amount)
quoted in writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m.
(New York City time) on the third Business Day preceding such Redemption Date.
"Treasury Rate" means, with respect to any Redemption Date,
the rate per annum equal to the semi-annual equivalent yield to maturity of the
Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue
(expressed as a percentage of its principal amount) equal to the Comparable
Treasury Price for that Redemption Date.
If less than all of the Notes of a series are to redeemed, the
Trustee will select the Notes to be redeemed by such method as the Trustee shall
deem fair and appropriate. The Trustee may select for redemption Notes and
portions of Notes in amounts of whole multiples of $1,000.
The Indenture contains provisions for defeasance of (a) the
entire indebtedness of this Note and (b) certain restrictive covenants upon
compliance by the Company with certain conditions set forth therein.
In case an Event of Default, shall have occurred and be
continuing, the principal of all of the Notes may be declared, and upon such
declaration shall become, due and payable, in the manner, with the effect and
subject to the conditions provided in the Indenture.
The Indenture contains provisions permitting the Company and
the Trustee, with the consent of the Holders of not less than a majority in
aggregate principal amount of the Notes of each series affected at the time
Outstanding, to execute supplemental indentures for the purpose of, among other
things, adding any provisions to or changing or eliminating any of the
provisions of the Indenture or of any supplemental indenture or of modifying the
rights of the Holders of the Notes; provided, however, that, among other things,
no such supplemental indenture shall (i) reduce the principal amount thereof, or
reduce the rate or extend the time of payment of interest thereon (subject to
the Company's right to defer such payments in the manner set forth herein), or
reduce any premium payable upon the redemption thereof, without the consent of
the Holder of each Note so affected, or (ii) reduce the aforesaid percentage of
Notes,
the Holders of which are required to consent to any such supplemental indenture,
without the consent of the Holders of each Note then Outstanding and affected
thereby. The Indenture also contains provisions permitting, among other things,
the Holders of a majority in aggregate principal amount of the Securities of any
series at the time Outstanding affected thereby, on behalf of all of the Holders
of all Securities of such series, to waive a Default or Event of Default with
respect to such series, and its consequences, except a Default or Event of
Default in the payment of the principal of or premium, if any, or interest on
any of the Securities of such series. Any such consent or waiver by the
registered Holder of this Note (unless revoked as provided in the Indenture)
shall be conclusive and binding upon such Holder and upon all future Holders and
owners of this Note and of any Note issued in exchange for or in place hereof
(whether by registration of transfer or otherwise), irrespective of whether or
not any notation of such consent or waiver is made upon this Note.
No reference herein to the Indenture and no provision of this
Note or of the Indenture shall alter or impair the obligation of the Company,
which is absolute and unconditional, to pay the principal of and premium, if
any, and interest on this Note at the times, place and at the rates and in the
money herein prescribed.
As provided in the Indenture and subject to certain
limitations therein set forth, this Note is transferable by the registered
Holder hereof on the Security Register of the Company, upon surrender of this
Note for registration of transfer at the office or agency of the Trustee in The
City of New York duly endorsed by, or accompanied by, a written instrument or
instruments of transfer in form satisfactory to the Company or the Trustee duly
executed by the registered Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Notes of authorized denominations and for
the same aggregate principal amount and series will be issued to the designated
transferee or transferees. No service charge will be made for any such transfer,
but the Company may require payment of a sum sufficient to cover any tax or
other governmental charge payable in relation thereto.
Prior to due presentment for registration of transfer of this
Note, the Company, the Trustee, any Paying Agent and the Security Registrar may
deem and treat the registered Holder hereof as the absolute owner hereof
(whether or not this Note shall be overdue and notwithstanding any notice of
ownership or writing hereon made by anyone other than the Security Registrar)
for the purpose of receiving payment of or on account of the principal hereof
and premium, if any, and interest due hereon and for all other purposes, and
neither the Company nor the Trustee nor any Paying Agent nor any Security
Registrar shall be affected by any notice to the contrary.
No recourse shall be had for the payment of the principal of
or the interest on this Note, or for any claim based hereon, or otherwise in
respect hereof, or based on or in respect of the Indenture, against any
incorporator, shareholder, officer or director, past, present or future, as
such, of the Company or of any predecessor or successor corporation, whether by
virtue of any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise, and such liability being, by the acceptance
hereof and as part of the consideration for the issuance hereof, expressly
waived and released.
The Indenture imposes certain limitations on the ability of
the Company to, among other things, merge or consolidate with any other Person,
sell, assign, transfer or lease all or substantially all of its properties or
assets or create or incur liens on certain of its property. All such covenants
and limitations are subject to a number of important qualifications and
exceptions. The Company must report periodically to the Trustee on compliance
with the covenants in the Indenture.
A director, officer, employee or stockholder, as such, of the
Company shall not have any liability for any obligations of the Company under
the Notes of this series or the Indenture or for any claim based on, in respect
of or by reason of, such obligations or their creation. Each Holder, by
accepting a Note, waives and releases all such liability. The waiver and release
are part of the consideration for the issuance of this Note.
Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures ("CUSIP"), the Company has caused
CUSIP numbers to be printed on the Notes. No representation is made as to the
correctness or accuracy of such numbers as printed on the Notes and reliance may
be placed only on the other identification numbers printed hereon.
The Notes of this series are issuable only in fully registered
book-entry form without coupons in denominations of $1,000 and any integral
multiple thereof. This Global Note is exchangeable for Notes in definitive form
only under certain limited circumstances set forth in the Indenture. As provided
in the Indenture and subject to certain limitations therein set forth, Notes of
this series so issued are exchangeable for a like aggregate principal amount of
Notes of this series of a different authorized denomination, as requested by the
Holder surrendering the same.
This Note shall be governed by and construed in accordance
with the law of the State of New York.
All terms used in this Note that are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
ASSIGNMENT
To assign this Security, fill in the form below: (I) or (we) assign and transfer
this Security to:
------------------------------------------------------
(Insert assignee's social security or tax I.D. number)
------------------------------------------------------
------------------------------------------------------
------------------------------------------------------
------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint
--------------------------------------------------------
as agent to transfer this Security on the books of the Company. The agent may
substitute another to act for him.
Dated: Your Signature:
------------------ --------------------------
(Sign exactly as your name
appears on the other side
of this Security)
Signature Guaranty:
------------------------------------------------------------
(Signatures must be guaranteed by an "eligible guarantor
institution" meeting the requirements of the Transfer
Agent, which requirements will include membership or
participation in STAMP or such other "signature guarantee
program" as may be determined by the Transfer Agent in
addition to, or in substitution for, STAMP all in
accordance with the Exchange Act.)
Social Security Number or Taxpayer Identification Number:
----------------------
Buchanan Ingersoll Professional Corporation
301 Grant Street
One Oxford Centre, 20th Floor
Pittsburgh, PA 15219
(412) 562-8800
Exhibit 5
June 14, 2002
Kennametal Inc.
World Headquarters
1600 Technology Way
P.O. Box 231
Latrobe, Pennsylvania 15650
Ladies and Gentlemen:
We have acted as counsel to Kennametal Inc., a Pennsylvania corporation
("Kennametal" or the "Company"), in connection with its registration statement
on Form S-3, as amended (File No. 333-40809) (the "Registration Statement"),
previously declared effective by the Securities and Exchange Commission (the
"Commission"), relating to the proposed public offering and sale by the Company
of its securities from time to time as set forth in the prospectus (the
"Prospectus") which forms a part of the Registration Statement, and as set forth
in one or more supplements to the Prospectus. This opinion letter is rendered in
connection with the issuance and sale of Senior Notes of the Company consisting
of $300,000,000 aggregate principal amount of 7.20% Senior Notes due 2012 (the
"Notes"), as described in the prospectus supplement dated June 14, 2002 (the
"Prospectus Supplement") and to be filed with the Commission under Rule
424(b)(5) of the Securities Act of 1933, as amended (the "Securities Act"),
pursuant to an underwriting agreement (the "Underwriting Agreement") between the
Company and Goldman, Sachs & Co., J.P. Morgan Securities Inc., Lehman Brothers
Inc. and the several underwriters named in Schedule I thereto (the
"Underwriters").
This opinion is being delivered in accordance with the requirements of Item
601(b)(5)(i) of Regulation S-K under the Securities Act.
In connection with this opinion, we have examined originals or copies,
certified or otherwise identified to our satisfaction, of such documents,
certificates or records as we have deemed necessary or appropriate as bases for
the opinions set forth herein. In our examination, we have assumed the legal
capacity of all natural persons, the genuineness of all signatures, the
authenticity of all documents submitted to us as originals, the conformity
June 14, 2002
Page - 2 -
to original documents of all documents submitted to us as certified or
photostatic copies and the authenticity of the originals of such copies.
Based on the foregoing, and subject to the other qualifications and
limitations set forth herein, we are of the opinion that the issuance and sale
of the Notes to the Underwriters has been duly authorized by all necessary
corporate actions of the Company and, following (i) issuance of the Notes
pursuant to the terms of the Underwriting Agreement, and (ii) the receipt by the
Company of the consideration for the Notes, the Notes will be duly executed,
authenticated, legally issued, delivered and will be binding obligations of the
Company.
This opinion letter has been prepared for your use in connection with the
sale of the Notes and speaks as of the date hereof. We assume no obligation to
advise you of any changes in the foregoing subsequent to the delivery of this
opinion.
In rendering the above opinions, we have assumed in all cases that the
Registration Statement has been declared effective by order of the Commission
and remains in effect. We hereby consent to the filing of this opinion as
Exhibit 5 to the Current Report on Form 8-K filed by the Company and to the
reference to this firm under the caption "Legal Matters" in the Prospectus and
Prospectus Supplement, each of which constitutes a part of the Registration
Statement. In giving such consent, we do not hereby admit that we are in the
category of persons whose consent is required under Section 7 of the Securities
Act or the rules and regulations of the Commission.
BUCHANAN INGERSOLL
PROFESSIONAL CORPORATION
By: /s/ Ronald Basso
--------------------------------
Ronald Basso
Exhibit 12.1
KENNAMETAL INC.
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
(UNAUDITED)
(IN THOUSANDS, EXCEPT RATIOS)
Nine Months
Ended
March 31, Year Ended June 30,
------------------------ -------------------------------------------------------------
2002 2001 2001 2000 1999 1998 1997
----------- ----------- ----------- ----------- ----------- ----------- -----------
Earnings:
Pretax Income $ 35,586 $ 76,278 $ 94,329 $ 100,411 $ 78,410 $ 130,576 $ 118,163
Add:
(Income) / loss from equity investees (498) (319) (455) (597) 127 248 (310)
Fixed charges 30,975 45,138 58,445 62,532 75,567 66,193 15,187
Amortization of capitalized interest 13 13 13 13 13 13 4
Distributed income of equity investees -- -- 39 -- -- -- --
----------- ----------- ----------- ----------- ----------- ----------- -----------
Sub-Total $ 66,076 $ 121,110 $ 152,371 $ 162,359 $ 154,117 $ 197,030 $ 133,044
Less: Interest capitalized -- -- -- -- -- 375 150
----------- ----------- ----------- ----------- ----------- ----------- -----------
Earnings $ 66,076 $ 121,110 $ 152,371 $ 162,359 $ 154,117 $ 196,655 $ 132,894
=========== =========== =========== =========== =========== =========== ===========
Fixed Charges:
Interest expense, net of capitalized
interest $ 25,076 $ 39,091 $ 50,381 $ 55,079 $ 68,594 $ 59,536 $ 10,393
Capitalized interest -- -- -- -- -- 375 150
Amortization of debt issuance costs 6 6 9 9 9 6 --
Portion of rent expense
representative of interest 5,893 6,041 8,055 7,444 6,964 6,276 4,644
----------- ----------- ----------- ----------- ----------- ----------- -----------
Fixed Charges $ 30,975 $ 45,138 $ 58,445 $ 62,532 $ 75,567 $ 66,193 $ 15,187
=========== =========== =========== =========== =========== =========== ===========
Ratio of Earnings to Fixed Charges 2.13 2.68 2.61 2.60 2.04 2.97 8.75
=========== =========== =========== =========== =========== =========== ===========
Exhibit 12.2
KENNAMETAL INC.
COMPUTATION OF PRO-FORMA RATIO OF EARNINGS TO FIXED CHARGES
(UNAUDITED)
(IN THOUSANDS, EXCEPT RATIOS)
NINE MONTHS YEAR
ENDED ENDED
MARCH 31, JUNE 30,
----------- ---------
2002 2001
---------- ---------
Earnings:
Pretax Income $ 32,244 $ 94,686
Add:
(Income) / loss from equity investees (498) (455)
Fixed charges 34,317 58,088
Amortization of capitalized interest 13 13
Distributed income of equity investees -- 39
--------- ---------
Sub-Total $ 66,076 $ 152,371
Less: Interest capitalized -- --
--------- ---------
Earnings $ 66,076 $ 152,371
========= =========
Fixed Charges:
Interest expense, net of capitalized
interest $ 28,418 $ 50,024
Capitalized interest -- --
Amortization of debt issuance costs 6 9
Portion of rent expense
representative of interest 5,893 8,055
--------- ---------
Fixed Charges $ 34,317 $ 58,088
========= =========
Ratio of Earnings to Fixed Charges 1.93 2.62
========= =========
