-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Q33neFDj7XhigFzJluMvCFQfmAYGbhFOySgu1Jrns9nx7xg9epsz2tD50Xvc4y3a V3YrMyNTNhE8Nzbw78iM7w== 0000893750-02-000315.txt : 20020517 0000893750-02-000315.hdr.sgml : 20020517 20020517165426 ACCESSION NUMBER: 0000893750-02-000315 CONFORMED SUBMISSION TYPE: S-3 PUBLIC DOCUMENT COUNT: 11 FILED AS OF DATE: 20020517 FILER: COMPANY DATA: COMPANY CONFORMED NAME: INGERSOLL RAND CO CENTRAL INDEX KEY: 0000050485 STANDARD INDUSTRIAL CLASSIFICATION: GENERAL INDUSTRIAL MACHINERY & EQUIPMENT [3560] IRS NUMBER: 135156640 STATE OF INCORPORATION: NJ FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-3 SEC ACT: 1933 Act SEC FILE NUMBER: 333-88582 FILM NUMBER: 02656531 BUSINESS ADDRESS: STREET 1: 200 CHESTNUT RIDGE RD STREET 2: PO BOX 8738 CITY: WOODCLIFF LAKE STATE: NJ ZIP: 07677 BUSINESS PHONE: 2015730123 MAIL ADDRESS: STREET 1: 200 CHESTNUT RIDGE ROAD CITY: WOODCLIFF LAKE STATE: NJ ZIP: 07677 S-3 1 forms_3.txt REGISTRATION STATEMENT As Filed with the Securities and Exchange Commission on May 17, 2002 Registration No. 333- U.S. SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ----------------------- FORM S-3 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
Ingersoll-Rand Company Limited Bermuda N/A Ingersoll-Rand Company New Jersey 13-5156640 (Exact Name of Registrant (State or Other Jurisdiction of as Specified in its Charter) Incorporation or Organization) (I.R.S. Employer Identification Number) Ingersoll-Rand Company Limited Clarendon House 2 Church Street Hamilton, HM 11 Bermuda (441) 295-2838 Patricia Nachtigal, Esq. Senior Vice President and General Counsel, Ingersoll-Rand Company Ingersoll-Rand Company 200 Chestnut Ridge Road 200 Chestnut Ridge Road Woodcliff Lake, New Jersey 07677 Woodcliff Lake, New Jersey 07677 (201) 573-0123 (201) 573-0123 (Address, Including Zip Code, and Telephone Number, (Name, Address, Including Zip Code, and Telephone Including Area Code, of Registrant's Principal Executive Offices) Number, Including Area Code, of Agent for Service)
-------------------------------------- Copy to: John B. Tehan, Esq. Simpson Thacher & Bartlett 425 Lexington Avenue New York, New York 10017 (212) 455-2000 -------------------------------------- Approximate date of commencement of proposed sale of the securities to the public: From time to time after this registration statement becomes effective. If the only securities being registered on this form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. / / If any of the securities being registered on this form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities being offered only in connection with dividend or interest reinvestment plans, please check the following box. /x/ If this form is filed to register additional securities for an offering pursuant to Rule 426(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. / / If this form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. / / If the delivery of the prospectus is expected to be made pursuant to Rule 434, please check the following box. / / CALCULATION OF REGISTRATION FEE
- ------------------------------------------------------------------------------------------------------------------------------------ Proposed Maximum Proposed Maximum Title of Each Class Amount to be Offering Price Aggregate Amount of of Securities to be Registered Registered (1)(2) Per Unit (3) Offering Price Registration Fee (6) ------------------------------ ----------------- ------------ -------------- -------------------- Debt securities of Ingersoll-Rand Company Limited........... Guarantees of Ingersoll-Rand Company (4).................... Preference shares of Ingersoll-Rand Company Limited......... Depositary shares of Ingersoll-Rand Company Limited......... Class A common shares of Ingersoll-Rand Company Limited (5). Share purchase contracts of Ingersoll-Rand Company Limited.. $1,800,000,000 100% $1,800,000,000 $165,600 Share purchase units of Ingersoll-Rand Company Limited...... Warrants.................................................... - -------------------- (1) Such indeterminate number or amount of debt securities, warrants, preference shares, depositary shares, common shares, share purchase contracts and share purchase units of Ingersoll-Rand Company Limited as may from time to time be issued at indeterminate prices and the related guarantees of debt securities by Ingersoll-Rand Company. (2) Such amount in U.S. Dollars or the equivalent thereof in foreign currencies as shall result in an aggregate initial offering price for all securities of $1,800,000,000. In addition, this Registration Statement includes a presently indeterminate number of securities that may be issuable from time to time upon conversion or exchange of the securities being registered hereunder. (3) Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(c) and exclusive of accrued interest and dividends, if any. (4) No separate consideration will be received for any guarantee of debt securities. (5) Includes Series A Preference Share Purchase Rights. (6) Pursuant to Rule 457(p) under the Securities Act of 1933, as amended, the registrant hereby offsets against the $165,600 filing fee required in connection with this registration statement (a) $3,590 in filing fees paid in connection with the Registration Statement on Form S-3, Registration Statement No. 333-50902, filed by Ingersoll-Rand Company, a wholly owned subsidiary of the Ingersoll-Rand Company Limited, and Ingersoll-Rand Financing II and Ingersoll-Rand Financing III, Delaware business trusts all of the common securities of which are owned indirectly by Ingersoll-Rand Company Limited, on November 29, 2000, (b) $101,129 in filing fees paid in connection with the Registration Statement on Form S-3, Registration Statement No. 333-58490, filed by Ingersoll-Rand Company and Ingersoll-Rand Financing I, a Delaware business trust all of the common securities of which are owned indirectly by Ingersoll-Rand Company Limited, on April 6, 2001, and (c) $60,881 in filing fees paid in connection with the Registration Statement on Form S-3, Registration Statement No. 333-66624, filed by Ingersoll-Rand Company, Ingersoll-Rand Financing II and Ingersoll-Rand Financing III on August 2, 2001.
The Registrants hereby amend this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrants shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933, as amended, or until the Registration Statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine. =============================================================================== The information in this prospectus is not complete and may be changed. We may not sell these securities until the Registration Statement filed with the Securities and Exchange Commission is effective. This Prospectus is not an offer to sell these securities and it is not soliciting an offer to buy these securities in any state where the offer or sale is not permitted. SUBJECT TO COMPLETION, DATED MAY 17, 2002 PROSPECTUS [LOGO] $1,800,000,000 Ingersoll-Rand Company Limited Debt Securities Preference Shares Depositary Shares Class A Common Shares Share Purchase Contracts Share Purchase Units Warrants -------------------- Ingersoll-Rand Company Guarantees of Debt Securities -------------------- We will provide the specific terms of these securities in supplements to this prospectus. We can only use this prospectus to offer and sell any specific security by also including a prospectus supplement for that security. You should read this prospectus and the prospectus supplements carefully before you invest. See "Risk Factors Relating to the Reorganization" beginning on page 6 to read about risks relating to our corporate reorganization as a Bermuda company, which was completed on December 31, 2001, that you should consider before you invest in any of our securities. These securities have not been approved or disapproved by the SEC or any state securities commission, nor have these organizations determined that this prospectus is accurate or complete. Any representation to the contrary is a criminal offense. , 2002 Table of Contents Available Information.........................................................3 Incorporation of Certain Documents by Reference...............................3 About Us......................................................................4 About Ingersoll-Rand Company..................................................5 Risk Factors Relating to the Reorganization...................................6 Ratio of Earnings to Fixed Charges............................................9 Use of Proceeds...............................................................9 Description of the Debt Securities...........................................10 Description of Securities Warrants...........................................20 Description of Authorized Share Capital......................................21 Description of Depositary Shares.............................................31 Description of Share Purchase Contracts and Share Purchase Units.............34 Certain Tax Considerations...................................................35 Plan of Distribution.........................................................44 Legal Matters................................................................44 Experts......................................................................44 Cautionary Statement Regarding Forward-Looking Statements....................45 Service of Process and Enforcement of Liabilities............................46 ------------------- We have not authorized anyone to tell you anything about us or the securities covered by this prospectus except what is included or incorporated in this prospectus or any accompanying prospectus supplement. Do not assume that there has been no change in our affairs since the date of this prospectus. Finally, even though you may have this prospectus or any accompanying prospectus supplement, we are not making any offer or encouraging your interest in any securities if it is not legal and proper for us to do so. As used in this prospectus and any prospectus supplement, "we", "our" and "us" generally means Ingersoll-Rand Company Limited, together with its consolidated subsidiaries unless the context otherwise requires. However, in the descriptions of the securities offered in this prospectus, "we", "our" and "us" means Ingersoll-Rand Company Limited and not any of its subsidiaries. 2 Available Information This prospectus is part of a registration statement on Form S-3 relating to the securities covered by this prospectus. The prospectus does not include all of the information in the registration statement. You should refer to the registration statement and its exhibits for further information about us and the securities. We, Ingersoll-Rand Company Limited, are, and prior to our corporate reorganization, Ingersoll-Rand Company, a New Jersey corporation ("IR-New Jersey"), was, subject to the Securities Exchange Act of 1934, and we will, and prior to the Reorganization, IR-New Jersey did, file reports and other information with the SEC as required by the Securities Exchange Act of 1934. You can inspect and copy our reports and filings at prescribed rates by contacting the SEC's public reference room at Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further information on the public reference room. You can also get copies of these materials from the SEC's web site (http://www.sec.gov), or view them at the offices of the New York Stock Exchange, 20 Broad Street, New York, NY 10005. Incorporation of Certain Documents by Reference The following documents filed by us are incorporated by reference in this prospectus: o Annual Report on Form 10-K for the fiscal year ended December 31, 2001; and o Quarterly Report on Form 10-Q for the quarterly period ended March 31, 2002. All future filings that we make under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act until we sell all of the securities we are offering are deemed incorporated into and part of this prospectus once filed. Any statement in this prospectus, in any prospectus supplement, or in any document incorporated by reference that is different from any statement contained in any later-filed document should be regarded as changed by that later statement. Once so changed, the earlier statement is no longer considered part of this prospectus or any prospectus supplement. If you ask us by phone or in writing, we will give you a copy of any of the materials incorporated (other than exhibits, unless the exhibits are themselves specifically incorporated). Please make your request to R.G. Heller, Secretary, Ingersoll-Rand Company, P.O. Box 8738, Woodcliff Lake, New Jersey 07677, telephone (201) 573-0123. 3 About Us General We are a leading provider of security and safety, climate control, industrial solutions and infrastructure products. In each of these markets, we offer a diverse product portfolio that includes well-recognized industrial and commercial brands. SECURITY AND SAFETY--We market architectural hardware and access-control products and services for residential, commercial and institutional buildings. Led by the familiar Schlage brand, products include locks and locksets, door closers, exit devices, steel doors and frames, power-operated doors, architectural columns and biometric and electronic access control technologies. CLIMATE CONTROL--We offer a wide range of temperature-control products for protecting food and other perishables. Products include: Thermo King transport temperature control units for truck trailers, small trucks, seagoing containers and air conditioning for buses; and Hussmann refrigerated display cases for supermarkets, delicatessens and other commercial and institutional refrigeration applications. INDUSTRIAL SOLUTIONS--We have a diverse group of businesses offering products and services to enhance industrial efficiency. These products and services include: Ingersoll-Rand air compressors and components for compressed-air systems, tools and material handling equipment, and fluid handling products; Torrington bearings, components and motion-control technologies; and Dresser-Rand turbo compressors, reciprocating compressors and steam turbines. INFRASTRUCTURE--We are a major supplier of products and services for all types of construction projects and industrial and commercial development, including Bobcat compact equipment, Club Car golf cars and utility vehicles, and Ingersoll-Rand road pavers, compactors, portable-power products and drilling equipment. We have approximately 130 manufacturing locations, roughly 40% of which are outside North America. Approximately 37% of our revenues are derived from outside the United States and due to our diverse businesses, no end market represents more than 15% of our revenues. Over the past five years we have pursued an aggressive acquisition and divestiture program focused on: building and maintaining leadership in our four major global markets; enhancing revenue growth and profitability; and reducing the effect of economic cycles on our financial performance. IR-New Jersey, our predecessor issuer, was organized in 1905 under the laws of the State of New Jersey as a consolidation of Ingersoll-Sergeant Drill Company and the Rand Drill Company, whose businesses were established in the early 1870s. Over the years, additional products which have been developed internally or obtained through acquisition have supplemented the original business. On December 31, 2001, IR-New Jersey completed a corporate reorganization pursuant to which it became an indirect, wholly owned subsidiary of us, a Bermuda company. See "--Reorganization as a Bermuda Company." Our principal executive office is located at Clarendon House, 2 Church Street, Hamilton, HM11 Bermuda, telephone (441) 295-2838. Reorganization as a Bermuda Company On December 31, 2001, IR-New Jersey was effectively reorganized as Ingersoll-Rand Company Limited, a Bermuda company (the "Reorganization"). We believe that our Reorganization as a Bermuda company will enable us to realize a variety of potential, financial and strategic benefits, including to: o help enhance business growth; 4 o create a more favorable corporate structure for expansion of our current business; o improve expected cash flow for use in investing in the development of higher-growth product lines and higher-growth businesses; o improve expected cash flow for use in reducing the amount of our debt; o reduce our worldwide effective tax rate; o enable us to implement our business strategy more effectively; and o expand our investor base as our shares may become more attractive to non-U.S. investors. To consummate the Reorganization, IR Merger Corporation, a New Jersey corporation, merged into IR-New Jersey, with IR-New Jersey as the surviving company. Upon the merger, IR-New Jersey became a wholly owned, indirect subsidiary of ours, and the outstanding shares of IR-New Jersey common stock were automatically cancelled in exchange for the issue of our Class A common shares. In addition, as part of the Reorganization, IR-New Jersey and certain of its subsidiaries transferred shares of certain existing subsidiaries and issued certain debt to us in exchange for 135,250,003 shares of our Class B common shares, such amount of shares being subject to adjustment based on the results of final valuation of the transferred subsidiaries. The number of Class B common shares issued had an aggregate value equal to the fair market value of the shares of the subsidiaries transferred and the amount of debt issued to us based on the market value of IR-New Jersey common stock at the effective time of the merger. Prior to the Reorganization, neither we nor IR-Merger Corporation had any significant assets or capitalization or engaged in any business or other activities other than in connection with formation and the merger and related reorganization transactions. We and our subsidiaries, including IR-New Jersey, conduct the same business that IR-New Jersey and its subsidiaries conducted prior to the Reorganization. All of IR-New Jersey's existing debt remained at the IR-New Jersey level. Upon consummation of the reorganization on December 31, 2001, on an unconsolidated basis and excluding debt to affiliates, IR-New Jersey had $3.1 billion of indebtedness, of which we guarantee $2.8 billion. The Reorganization will expose us and you to some risks. For a discussion of risk factors associated with the Reorganization that you should consider before investing in any of our securities, please see the discussion under "Risk Factors Relating to the Reorganization". In addition, we cannot assure you that the anticipated benefits of the Reorganization will be realized. About Ingersoll-Rand Company Following the Reorganization, IR-New Jersey became our primary U.S. operating subsidiary, and, as such, conducts operations in the same businesses, primarily in the United States, as those described above under "About Us". The principal executive offices of IR-New Jersey are located at 200 Chestnut Ridge Road, Woodcliff Lake, New Jersey 07677, telephone (201) 573-0123. 5 Risk Factors Relating to the Reorganization The risk factors described in this section relate only to the Reorganization and may not be the only risk factors that you should consider before investing in our securities. For each offering of securities made using this prospectus, we will include additional risk factors, if appropriate, in the prospectus supplement relating to that issuance of securities. The Reorganization and related transfers of assets could result in a taxable gain. In connection with the Reorganization, IR-New Jersey and certain of its subsidiaries transferred shares of certain of existing subsidiaries, which we refer to as the transferred shares, and issued certain debt to us in exchange for which we issued our Class B common shares to IR-New Jersey and those subsidiaries. There is a possibility of U.S. withholding tax if the Internal Revenue Service successfully disputes the value of the transferred shares. Therefore, while we believe that IR-New Jersey (and we) will not incur significant U.S. federal income or withholding taxes as a result of the transfer of the transferred shares, our projections will not be binding on the Internal Revenue Service. We cannot assure you that our anticipated tax costs with respect to the transferred shares will be borne out, that the Internal Revenue Service will not contest our determination, or that the Internal Revenue Service will not succeed in any such contest. Certain of our shareholders may be subject to additional tax if we or any of our non-U.S. subsidiaries are considered a "controlled foreign corporation" or "CFC" under current U.S. tax laws. A non-U.S. corporation (a "foreign corporation"), such as us, will constitute a "controlled foreign corporation" or "CFC" for U.S. federal income tax purposes if U.S. shareholders owning (directly, indirectly, or constructively) 10% or more of the foreign corporation's total combined voting power collectively own (directly, indirectly, or constructively) more than 50% of the total combined voting power or total value of the foreign corporation's shares. Following the merger and as of December 31, 2001, IR-New Jersey, through its ownership of the non-voting Class B common shares, owned approximately 45% of the total value of our shares. As a consequence, any Class A common shareholder who is considered to own 10% of the voting power in us could cause our foreign subsidiaries or (if the Internal Revenue Service successfully takes the position that the Class B common shares held by IR-New Jersey in us are voting shares) us, ourselves, to be treated as a CFC. If we or any of our foreign subsidiaries are treated as a CFC, this status should have no adverse effect on any of our shareholders who do not own (directly, indirectly, or constructively) 10% or more of the total combined voting power of all classes of our shares or the shares of any of our foreign subsidiaries. If, however, we or any of our foreign subsidiaries are treated as a CFC for an uninterrupted period of 30 days or more during any taxable year, any U.S. shareholder who owns (directly, indirectly, or constructively) 10% or more of the total combined voting power of all classes of our shares or all classes of the shares of the subsidiary on any day during the taxable year and who directly or indirectly owns any shares in the corporation on the last day of such year in which it is a CFC will have to include in its gross income for U.S. federal income tax purposes its pro rata share of the corporation's "subpart F income" relating to the period during which the corporation is a CFC. In addition, the gain on the sale of our shares, if treated as a CFC, realized by such a shareholder would be treated as ordinary income to the extent of the shareholder's proportionate share of our and our CFC subsidiaries' undistributed earnings and profits accumulated during the shareholder's holding period of the shares while we are a CFC. If the U.S. shareholder is a corporation, however, it may be eligible to credit against its U.S. tax liability with respect to these potential inclusions foreign taxes paid on the earnings and profits associated with the included income. A disposition of shares by a U.S. shareholder may result in termination of our CFC status or the CFC status of our foreign subsidiaries. See "Certain Tax Considerations--United States Federal Income Tax Considerations--Common Shares, Preference Shares and Depositary Shares--Controlled Foreign Corporations". 6 The Internal Revenue Service and non-U.S. taxing authorities may not agree with our tax treatment of various items relating to the Reorganization. We believe that the Reorganization will help enhance our business growth and cash flow and reduce our worldwide effective tax rate. However, we cannot give any assurance as to the amount of taxes we will pay as a result of or after the Reorganization. The amount of taxes we will pay will depend in part on our treatment by the taxing authorities in the jurisdictions in which we operate. We may become subject to U.S. corporate income tax, which would reduce our net income. Prior to the Reorganization, IR-New Jersey was subject to U.S. corporate income tax on its worldwide income. After the Reorganization, the earnings of IR-New Jersey and its U.S. subsidiaries continue to be subject to U.S. corporate income tax. We believe that after the Reorganization our non-U.S. operations will generally not be subject to U.S. tax other than withholding taxes. However, if the Internal Revenue Service successfully contends that we or any of our non-U.S. affiliates are engaged in a trade or business in the U.S., we or that non-U.S. affiliate would, subject to possible income tax treaty exemptions, be required to pay U.S. corporate income tax and/or branch profits tax on income that is effectively connected with such trade or business. Tax law changes could adversely affect us and our subsidiaries. Changes in tax laws, treaties or regulations or the interpretation or enforcement thereof could adversely affect the tax consequences of the Reorganization to us and our subsidiaries. In this connection, bills have been introduced in the United States Congress which, if enacted, could substantially reduce or eliminate the tax benefits resulting from the Reorganization. The Treasury Department has recently announced that it intends to study transactions similar to the Reorganization. Scrutiny of such transactions may lead to changes in the tax laws, tax treaties or tax regulations, with prospective or retroactive effect, which could substantially reduce or eliminate the tax benefits resulting from the Reorganization. In addition, if the Internal Revenue Service or other taxing authorities do not agree with our assessment of the effects of such laws, treaties and regulations, this could substantially reduce or eliminate the tax benefits resulting from the Reorganization. Anti-takeover provisions in our bye-laws and our shareholder rights plan mirror certain anti-takeover provisions that were in effect with respect to IR-New Jersey prior to the Reorganization. Provisions in our bye-laws and shareholder rights plan, which mirror certain provisions that were in IR-New Jersey's certificate of incorporation, by-laws and shareholder rights plan and certain provisions of the New Jersey Business Corporation Act (the "NJBCA"), could discourage unsolicited takeover bids from third parties or the removal of incumbent management. As a result, it may be less likely that you will receive premium prices for your shares in an unsolicited takeover by another party. These provisions include: o a staggered board of directors; o the possible dilution of a potential acquiror's interest in us as a result of the operation of our shareholder rights plan; and o a requirement that 80% of all shareholders approve a business combination with any interested shareholder (generally, a 10% or greater shareholder) if a majority of our board of directors has not previously approved the transaction. Similar to the authority of IR-New Jersey's board of directors prior to the Reorganization, our board of directors also may issue preference shares and determine their rights and qualifications. The issuance of preference shares may delay, defer or prevent a merger (referred to under Bermuda law as an "amalgamation"), tender offer or proxy contest involving us. This may cause the market price of our Class A common shares to significantly decrease. See "Description of Authorized Share Capital--Preference Shares", "--Voting Requirements--Greater Voting Requirements", "--Directors" and "--Shareholder Rights Plan". 7 The enforcement of judgments in shareholder suits against us may be more difficult than it would have been to enforce shareholder suits against IR-New Jersey. We are a Bermuda company. We have been advised by our Bermuda counsel, Conyers Dill & Pearman, that a judgment for the payment of money rendered by a court in the United States based on civil liability would not be automatically enforceable in Bermuda. We have also been advised by Conyers Dill & Pearman that with respect to a final and conclusive judgment obtained in a court of competent jurisdiction in the United States under which a sum of money is payable (other than a sum of money payable in respect of multiple damages, taxes or other charges of a like nature or in respect of a fine or other penalty), a Bermuda court would be expected to enforce a judgment based thereon, provided that (a) such courts had proper jurisdiction over the parties subject to such judgment, (b) such courts did not contravene the rules of natural justice of Bermuda, (c) such judgment was not obtained by fraud, (d) the enforcement of the judgment would not be contrary to the public policy of Bermuda, (e) no new admissible evidence relevant to the action is submitted prior to the rendering of the judgment by the courts of Bermuda and (f) there is due compliance with the correct procedures under the laws of Bermuda. As a result, it may be difficult for a holder of our securities to effect service of process within the United States or to enforce judgments obtained against us in U.S. courts. We will irrevocably agree that we may be served with process with respect to actions based on offers and sales of securities made in the United States by having Ingersoll-Rand Company, 200 Chestnut Ridge Road, Woodcliff Lake, New Jersey 07677, be our U.S. agent appointed for that purpose. A Bermuda court may impose civil liability on us or our directors or officers in a suit brought in the Supreme Court of Bermuda against us or such persons with respect to a violation of U.S. federal securities laws, provided that the facts surrounding such violation would constitute or give rise to a cause of action under Bermuda law. 8 Ratio of Earnings to Fixed Charges The following table sets forth our ratio of earnings to fixed charges for the three month period ended March 31, 2002. We have not included our ratio of earnings to fixed charges for the years in the five year period ended December 31, 2001 because we did not conduct business during any of those periods. The following table also sets forth IR-New Jersey's ratio of earnings to fixed charges, prior to the Reorganization, for each of the years in the five year period ended December 31, 2001. We are the successor to IR-New Jersey following the Reorganization. The Reorganization was accounted for as a reorganization of entities under common control, and accordingly it did not result in any changes to consolidated amounts of assets, liabilities and shareholders' equity. We do not presently have (and IR-New Jersey did not have) any preference shares outstanding during the five year period ended December 31, 2001. For the purpose of computing the ratios of earnings to fixed charges, earnings consist of earnings from continuing operations before income taxes and fixed charges, excluding our or IR-New Jersey's, as the case may be, proportionate share in the undistributed earnings (losses) of less than fifty-percent-owned affiliates (accounted for using the equity method), minority interests and capitalized interest. Fixed charges consist of interest (including capitalized interest), equity-linked securities charges, amortization of debt discount and expense and that portion (one-third) of rental expense deemed to be representative of an interest factor included therein.
Three Month Period Ended March 31, Years Ended December 31, ------------ -------------------------------------------------- 2002 2001 2000 1999 1998 1997 ---- ---- ---- ---- ---- ---- Ratio of earnings to fixed charges 2.38 1.83 3.44 4.28 3.59 4.44
Use of Proceeds We plan to add the proceeds we receive from sales of securities to our general funds and to use them for general corporate purposes. These could include capital expenditures, repayment or purchase of our already issued long-term debt, investment in subsidiaries, additions to working capital, repayment of short-term commercial paper notes or other short term debt, acquisitions and other business opportunities. 9 Description of the Debt Securities The following description of debt securities sets forth certain general terms and provisions of debt securities. The particular terms of the debt securities offered will be described in the prospectus supplement relating to the securities. We may issue debt securities either separately, or together with, or upon the conversion of or in exchange for, other securities. The debt securities may be: o senior unsecured obligations issued in one or more series under a senior indenture to be entered into between us and Wells Fargo Bank Minnesota, N.A., as trustee; or o subordinated unsecured obligations issued in one or more series under a subordinated indenture to be entered into between us and Wells Fargo Bank Minnesota, N.A., as trustee. The trustee for each series of debt securities will be Wells Fargo Bank Minnesota, N.A., unless otherwise specified in the applicable prospectus supplement. The following description only summarizes the terms of the indentures and the debt securities. For more information you should read the indentures. In addition, the following description is qualified in all respects by reference to the actual text of the indentures and the forms of the debt securities. General The indentures do not limit the amount of debt securities which we may issue and provide that debt securities may be issued thereunder from time to time in one or more series up to the aggregate principal amount which we may authorize from time to time. You should review the prospectus supplement for the following terms of the debt securities being offered: o the designation, aggregate principal amount and authorized denominations of the debt securities; o the purchase price of the debt securities; o the date or dates on which the debt securities will mature; o the rate or rates per annum, if any (which may be fixed or variable), at which the debt securities will bear interest or the method by which such rate or rates will be determined; o the dates on which the interest will be payable and the record dates for payment of interest, if any; o the coin or currency in which payment of the principal of (and premium, if any) or interest, if any, on the debt securities will be payable; o the terms of any mandatory or optional redemption (including any sinking fund) or any obligation of us to repurchase the debt securities; o whether the debt securities are to be issued in whole or in part in the form of one or more temporary or permanent global debt securities and, if so, the identity of the depositary, if any, for such note or notes; o whether the debt securities will be senior debt securities or subordinated debt securities; o the terms, if any, upon which such debt securities may be convertible into or exchangeable for other securities; o whether the debt securities will be guaranteed by IR-New Jersey as described under "--Guarantee" below; o any special tax implications of the debt securities; 10 o any addition to or change or deletion of any event of default or any covenant specified in the applicable indenture; and o any other additional provisions or specific terms which may be applicable to that series of debt securities. Unless otherwise indicated in the prospectus supplement, the debt securities will be issued only in fully registered form without coupons in denominations of $1,000 or multiples of $1,000. The debt securities may be issued as discounted debt securities (bearing no interest or interest at a rate which at the time of issuance is below market rates) to be sold at a substantial discount below their stated principal amount. Federal income tax consequences and other special considerations applicable to any of these discounted debt securities will be described in the applicable prospectus supplement. Ranking of Debt Securities The senior debt securities will be unsecured unsubordinated obligations and will rank equally in right of payment with all of our existing and future unsecured and unsubordinated indebtedness. The subordinated debt securities will be unsecured subordinated obligations and will be subordinated in right of payment to all of our existing and future senior indebtedness (as defined in the related prospectus supplement), including the senior debt securities. See "--Subordination of Subordinated Debt Securities." Because the debt securities will not be secured, they will be effectively subordinated to our existing and future secured indebtedness to the extent of the value of the collateral securing that indebtedness. We currently conduct substantially all of our operations through our subsidiaries and our subsidiaries generate substantially all of our operating income and cash flow. As a result, distributions and advances from our subsidiaries are the principal source of funds necessary to meet our debt service obligations. Contractual provisions or laws, as well as our subsidiaries' financial and operating requirements, may limit our ability to obtain cash from our subsidiaries that we require to pay our debt service obligations, including cash payments on the debt securities. In addition, because we are a holding company, holders of our debt securities will have a junior position to the claims of creditors of our non-guarantor subsidiaries on their assets and earnings. The prospectus supplement relating to a series of debt securities will state whether those debt securities will be guaranteed by IR-New Jersey. For a description of that guarantee, see "--Guarantee". Guarantee If the applicable prospectus supplement relating to a series of senior debt securities provides that those senior debt securities will have the benefit of the guarantee by IR-New Jersey, payment of the principal, premium, if any, and interest on those senior debt securities will be unconditionally guaranteed on an unsecured, unsubordinated basis by IR-New Jersey. The guarantee of senior debt securities will rank equally in right of payment with all of the unsecured and unsubordinated indebtedness of IR-New Jersey. If the applicable prospectus supplement relating to a series of subordinated debt securities provides that those subordinated debt securities will have the benefit of the guarantee by IR-New Jersey, payment of the principal, premium, if any, and interest on those subordinated debt securities will be unconditionally guaranteed on an unsecured, subordinated basis by IR-New Jersey. The guarantee of the subordinated debt securities will be subordinated in right of payment to all of IR-New Jersey's existing and future senior indebtedness (as defined in the related prospectus supplement), including any guarantee of the senior debt securities, to the same extent and in the same manner as the subordinated debt securities are subordinated to our senior indebtedness (as defined in the related prospectus supplement). See "--Subordination of Subordinated Debt Securities." The obligations of IR-New Jersey under the guarantee will be limited as necessary to prevent the guarantee from constituting a fraudulent conveyance or fraudulent transfer under applicable law. 11 Conversion and Exchange The terms, if any, on which debt securities of any series are convertible into or exchangeable for common shares, preference shares or other debt securities will be set forth in the related prospectus supplement. The terms may include provisions for conversion or exchange, either mandatory, at the option of the holders or at our option. Registration of Transfer and Exchange Subject to the terms of the applicable indenture and the limitations applicable to global securities, debt securities may be transferred or exchanged at the corporate trust office of the trustee or at any other office or agency maintained by us for that purpose. No service charge will be made for any registration of transfer or exchange of the debt securities, but we may require a payment by the holder to cover any tax or other governmental charge. We will not be required to register the transfer of or exchange debt securities of any series: o during a period beginning at the opening of business 15 days before the day of mailing of a notice of redemption of securities of that series selected for redemption; or o selected for redemption in whole or in part, except the unredeemed portion of any debt security being redeemed in part. Payment Unless otherwise indicated in the applicable prospectus supplement, principal, interest and any premium on the debt securities will be paid at the place or places that we will designate for such purposes. However, at our option, we may make interest payments by check mailed to persons in whose names our debt securities are registered. Unless otherwise indicated in the applicable prospectus supplement, payment of interest on a debt security which is payable and is punctually paid or duly provided for on any interest payment date will be made to the person in whose name that debt security is registered at the close of business on the regular record date for that interest payment. We will pay the principal of and any premium on registered debt securities only against surrender of those debt securities. Global Notes The debt securities of a series may be issued in whole or in part in the form of one or more global notes that will be deposited with or on behalf of a depositary located in the United States identified in the prospectus supplement relating to the applicable series. The specific terms of the depositary arrangement with respect to any debt securities of a series will be described in the prospectus supplement relating to the series. We anticipate that the following provisions will apply to all depositary arrangements. Unless otherwise specified in an applicable prospectus supplement, debt securities which are to be represented by a global note to be deposited with or on behalf of a depositary will be represented by a global note registered in the name of such depositary or its nominee. Upon the issuance of a global note in registered form, the depositary for the global note will credit, on its book-entry registration and transfer system, the principal amounts of the debt securities represented by the global note to the accounts of institutions that have accounts with the depositary or its nominee ("participants"). The accounts to be credited shall be designated by the underwriters or agents of the debt securities or by us, if the debt securities are offered and sold directly by us. Ownership of beneficial interests in the global notes will be limited to participants or persons that may hold interests through participants. Ownership of beneficial interests by participants in the global notes will be shown on, and the transfer of that ownership interest will be effected only through, records maintained by the depositary or its nominee for the global notes. Ownership of beneficial interests in global notes by persons that hold the beneficial interests through participants will be shown on, and the transfer of that ownership interest within such participant will be effected only through, records maintained by the participant. 12 So long as the depositary for a global note in registered form, or its nominee, is the registered owner of the global note, the depositary or the nominee, as the case may be, will be considered the sole owner or holder of the debt securities represented by the global note for all purposes under the applicable indenture governing the debt securities. Except as described below, owners of beneficial interests in the global notes will not be entitled to have debt securities of the series represented by the global notes registered in their names, will not receive or be entitled to receive physical delivery of debt securities of the series in definitive form and will not be considered the owners or holders thereof under the applicable indenture. Payment of principal of, premium, if any, and any interest on debt securities registered in the name of or held by a depositary or its nominee will be made to the depositary or its nominee, as the case may be, as the registered owner or the holder of the global note representing the debt securities. We will not, nor will IR-New Jersey, the trustee, any paying agent or the security registrar for the debt securities have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests in a global note for the debt securities or for maintaining, supervising or reviewing any records relating to the beneficial ownership interests. We expect that the depositary for debt securities of a series, upon receipt of any payment of principal, premium or interest in respect of a permanent global note, will credit immediately participants' accounts with payments in amounts proportionate to their respective beneficial interests in the principal amount of the global note as shown on the records of the depositary. We also expect that payments by participants to owners of beneficial interests in the global note held through the participants will be governed by customary practices, as is now the case with securities held for the accounts of customers in bearer form or registered in "street name", and will be the responsibility of the participants. A global note may not be transferred except as a whole by the depositary for the global note to a nominee of the depositary or by a nominee of the depositary to the depositary or another nominee of the depositary or by the depositary or any nominee to a successor of the depositary or a nominee of the successor. If a depositary for debt securities of a series is at any time unwilling or unable to continue as a depositary and a successor depositary is not appointed by us within ninety days, we will issue debt securities in definitive registered form in exchange for the global note or notes representing the debt securities. In addition, we may at any time and in our sole discretion determine not to have any debt securities in registered form represented by one or more global notes and, in that event, we will issue debt securities in definitive form in exchange for the global note or notes representing the debt securities. Certain Covenants of the Debt Securities Senior Debt Securities. The senior debt securities will include the following covenants: Limitation on Liens. Unless otherwise indicated in the prospectus supplement relating to a series of senior debt securities, we will not, and will not permit any restricted subsidiary to, create, assume or guarantee any indebtedness for money borrowed, secured by any mortgage, lien, pledge, charge or other security interest or encumbrance of any kind (hereinafter referred to as a "mortgage" or "mortgages") on any principal property of ours or a restricted subsidiary or on any shares or funded indebtedness of a restricted subsidiary (whether such principal property, shares or funded indebtedness are now owned or hereafter acquired) without, in any such case, effectively providing concurrently with the creation, assumption or guaranteeing of such indebtedness that the senior debt securities (together, if we shall so determine, with any other indebtedness then or thereafter existing, created, assumed or guaranteed by us or such restricted subsidiary ranking equally with the senior debt securities) shall be secured equally and ratably with or prior to such indebtedness. The senior indenture excludes, however, from the foregoing any indebtedness secured by a mortgage (including any extension, renewal or replacement of any mortgage hereinafter specified or any indebtedness secured thereby, without increase of the principal of such indebtedness): o on property, shares or funded indebtedness of any corporation existing at the time such corporation becomes a restricted subsidiary; 13 o on property existing at the time of acquisition of such property, or to secure indebtedness incurred for the purpose of financing the purchase price of such property or improvements or construction thereon which indebtedness is incurred prior to or within 180 days after the later of such acquisition, completion of such construction or the commencement of commercial operation of such property; o on property, shares or funded indebtedness of a corporation existing at the time such corporation is merged into or consolidated with us or a restricted subsidiary, or at the time of a sale, lease or other disposition of the properties of a corporation as an entirety or substantially as an entirety to us or a restricted subsidiary; o on property of a restricted subsidiary to secure indebtedness of such restricted subsidiary to us or another restricted subsidiary; o on our property or property of a restricted subsidiary in favor of the United States or any State thereof or Bermuda, or any department, agency or instrumentality or political subdivision of the United States or any State thereof or Bermuda, to secure partial, progress, advance or other payments pursuant to any contract or statute or to secure any indebtedness incurred for the purpose of financing all or any part of the purchase price or the cost of constructing or improving the property subject to such mortgage; or o existing at the date of the senior indenture. Limitation on Sale and Leaseback Transactions. Unless otherwise indicated in the prospectus supplement relating to a series of senior debt securities, sale and leaseback transactions (which are defined in the senior indenture to exclude leases expiring within three years of making, leases between us and a restricted subsidiary or between restricted subsidiaries and any lease of part of a principal property, which has been sold, for use in connection with the winding up or termination of the business conducted on such principal property) by us or any restricted subsidiary of any principal property are prohibited, unless (a) we would be entitled to incur indebtedness secured by a mortgage on such principal property (see "Limitations on Liens" above) or (b) an amount equal to the fair value of the principal property so leased (as determined by our board of directors) is applied within 180 days to the retirement (otherwise than by payment at maturity or pursuant to mandatory sinking funds) of our senior debt securities or funded indebtedness of any restricted subsidiary on a parity with the senior debt securities or to purchase, improve or construct principal properties. Exempted Indebtedness. Notwithstanding the limitations on mortgages and sale and leaseback transactions described above, we or any restricted subsidiary may, in addition to amounts permitted under such restrictions, create, assume or guarantee secured indebtedness or enter into sale and leaseback transactions which would otherwise be prohibited, provided that at the time of such event, and after giving effect thereto, the sum of such outstanding secured indebtedness plus the attributable debt in respect of such sale and leaseback transactions (other than sale and leaseback transactions entered into prior to the date of the senior indenture and sale and leaseback transactions whose proceeds have been applied in accordance with clause (b) under "Limitation on Sale and Leaseback Transactions") does not exceed 10% of our and our consolidated subsidiaries shareholders' equity. "Attributable debt" means, as of any particular time, the then present value of the total net amount of rent required to be paid under such leases during the remaining terms thereof (excluding any renewal term unless the renewal is at the option of the lessor), computed by discounting from the actual respective due dates to such date such total net amount of rent at the actual interest factor included in such rent, or, if such interest factor is not readily determinable, at the rate per annum borne by the initial series of debt securities issued under the senior indenture, except that if no interest is payable in respect of the initial series of debt securities issued under the senior indenture or if such rate is not fixed, then at the rate of 8-3/8% per annum. "Our and our consolidated shareholders' equity" means the share capital, share premium, contributed surplus and retained earnings of us and our consolidated subsidiaries, excluding the cost of our shares held by our affiliates, all as determined in accordance with U.S. generally accepted accounting principles. Restrictions Upon Merger and Sales of Assets. Upon any consolidation, amalgamation or merger of us with or into any other corporation or any sale, conveyance or lease of all or substantially all of our property to any other corporation, the corporation (if other than us) formed by such consolidation or amalgamation, or into which we shall have been merged, or the corporation which shall have acquired or leased such property (which corporation shall be a solvent corporation organized under the laws of the United States or a State thereof or the District of Columbia or Bermuda) shall expressly assume the due and punctual payment of the principal of and premium, if any, and interest, if 14 any, on all of the senior debt securities. We will not consolidate, amalgamate or merge, or make any such sale, lease or other disposition, and will not permit any other corporation to merge into us, unless immediately after giving effect thereto, we or such successor corporation, as the case may be, will not be in default under the senior indenture. If, upon any such consolidation, amalgamation, merger, sale, conveyance or lease, or upon any consolidation, amalgamation or merger of any restricted subsidiary, or upon the sale, conveyance or lease of all or substantially all the property of any restricted subsidiary to any other corporation, any principal property or any shares or funded indebtedness of any restricted subsidiary would become subject to any mortgage, we will secure the due and punctual payment of the principal of, premium, if any, and interest, if any, on the senior debt securities (together with, if we shall so determine, any other indebtedness of or guarantee by us or such restricted subsidiary ranking equally with the senior debt securities) by a mortgage, the lien of which will rank prior to the lien of such mortgage of such other corporation on all assets owned by us or such restricted subsidiary. If the senior debt securities are guaranteed by IR-New Jersey, then upon any consolidation or merger of IR-New Jersey with or into any other corporation or any sale, conveyance or lease of all or substantially all of IR-New Jersey's property to any other corporation, the corporation (if other than IR-New Jersey) formed by such consolidation, or into which IR-New Jersey shall have been merged, or the corporation which shall have acquired or leased such property (which corporation shall be a solvent corporation organized under the laws of the United States or a State thereof or the District of Columbia) shall expressly assume the guarantee of the senior debt securities. If the senior debt securities are guaranteed by IR-New Jersey, IR-New Jersey will not consolidate or merge, or make any such sale, lease or other disposition, and will not permit any other corporation to merge into it, unless immediately after giving effect thereto, IR-New Jersey or such successor corporation, as the case may be, will not be in default under the senior indenture or the guarantee. Notwithstanding the foregoing, IR-New Jersey may consolidate or merge with or sell, convey or lease substantially all of its assets to us without limitation. Certain Definitions. The term "principal property" means any manufacturing plant or other manufacturing facility of ours or any restricted subsidiary, which plant or facility is located within the United States, except any such plant or facility which the board of directors by resolution declares is not of material importance to the total business conducted by us and our restricted subsidiaries. The term "funded indebtedness" means indebtedness created, assumed or guaranteed by a person for money borrowed which matures by its terms, or is renewable by the borrower to a date, more than one year after the date of its original creation, assumption or guarantee. The term "restricted subsidiary" means any subsidiary which owns a principal property excluding, however, any corporation the greater part of the operating assets of which are located or the principal business of which is carried on outside the United States. The term "subsidiary" means any corporation of which at least a majority of the outstanding stock having voting power under ordinary circumstances to elect a majority of the board of directors of the corporation shall at the time be owned by us or by us and one or more subsidiaries or by one or more subsidiaries. Subordinated Debt Securities. The subordinated debt securities will include those covenants which may be set forth in the prospectus supplement to which such debt securities relate, including the following: Restrictions Upon Merger and Sales of Assets. Upon any consolidation, amalgamation or merger of us with or into any other corporation or any sale, conveyance or lease of all or substantially all of our property to any other corporation, the corporation (if other than us) formed by such consolidation or amalgamation, or into which we shall have been merged, or the corporation which shall have acquired or leased such property (which corporation shall be a solvent corporation organized under the laws of the United States or a State thereof or the District of Columbia or Bermuda) shall expressly assume the due and punctual payment of the principal of and premium, if any, and interest, if any, on all of the subordinated debt securities. We will not consolidate, amalgamate or merge, or make any such sale, lease or other disposition, and will not permit any other corporation to merge into us, unless immediately after giving effect thereto, we or such successor corporation, as the case may be, will not be in default under the subordinated indenture. 15 If the subordinated debt securities are guaranteed by IR-New Jersey, then upon any consolidation or merger of IR-New Jersey with or into any other corporation or any sale, conveyance or lease of all or substantially all of IR-New Jersey's property to any other corporation, the corporation (if other than IR-New Jersey) formed by such consolidation, or into which IR-New Jersey shall have been merged, or the corporation which shall have acquired or leased such property (which corporation shall be a solvent corporation organized under the laws of the United States or a State thereof or the District of Columbia) shall expressly assume the guarantee of the subordinated debt securities. If the subordinated debt securities are guaranteed by IR-New Jersey, IR-New Jersey will not consolidate or merge, or make any such sale, lease or other disposition, and will not permit any other corporation to merge into it, unless immediately after giving effect thereto, IR-New Jersey or such successor corporation, as the case may be, will not be in default under the subordinated indenture or the guarantee. Notwithstanding the foregoing, IR-New Jersey may consolidate or merge with or sell, convey or lease substantially all of its assets to us without limitation. Events of Default As to each series of debt securities, an event of default is defined in each indenture as being: o default in payment of any interest or any sinking fund payment on such series which continues for 30 days (subject to the deferral of any interest payment in the case of an extension period); o default in payment of any principal or premium, if any, on such series; o default after written notice in performance of any other covenant in such indenture (other than a covenant included solely for the benefit of debt securities of another series) which continues for 90 days; o certain events in bankruptcy, insolvency or reorganization relating to us or, if the debt securities of that series are guaranteed by IR-New Jersey, certain events in bankruptcy, insolvency or reorganization relating to IR-New Jersey; or o other events of default specified in or pursuant to a board resolution or in a supplemental indenture. Each indenture provides that the trustee may withhold notice to the holders of debt securities of such series of any default (except in payment of principal, interest, if any, or premium, if any, on such series or in payment of any sinking fund installment on such series) if the trustee considers it in the interest of such holders to do so. In case an event of default (other than a default resulting from bankruptcy, insolvency or reorganization) shall occur and be continuing with respect to the debt securities of any series, the trustee or the holders of not less than 25% in aggregate principal amount of the debt securities then outstanding of that series may declare the principal of the debt securities of such series (or, if the debt securities of that series were issued as discounted debt securities, such portion of the principal as may be specified in the terms of that series) to be due and payable. If an event of default results from bankruptcy, insolvency or reorganization, the principal amount of all the debt securities of a series (or, if the debt securities of that series were issued as discounted debt securities, such portion of the principal as may be specified in the terms of that series) will automatically become due and payable. Any event of default with respect to the debt securities of any series (except defaults in payment of principal or premium, if any, or interest, if any, on the debt securities of such series or a default in respect of a covenant or provision that cannot be modified without the consent of the holder of each outstanding security of such series) may be waived by the holders of at least a majority in aggregate principal amount of the debt securities of that series then outstanding. Subject to the provisions of each indenture relating to the duties of the trustee in case an event of default shall occur and be continuing, the trustee is under no obligation to exercise any of the rights or powers under such indenture at the request, order or direction of any of the holders of debt securities, unless such holders shall have offered to the trustee reasonable security or indemnity. Subject to such provisions for the indemnification of the trustee and certain limitations contained in each indenture, the holders of a majority in principal amount of the debt securities of any series then outstanding 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 debt securities of such series. We are required annually to deliver to the trustee an officers' certificate 16 stating whether or not the signers have knowledge of any default in performance by us of the covenants described above. Discharge The applicable indenture with respect to the debt securities of any series may be discharged (with the exception of specified provisions as provided in the indentures) when either: o all debt securities, with the exceptions provided for in the applicable indenture, of that series have been delivered to the trustee for cancellation; or o all debt securities of that series not theretofore delivered to the trustee for cancellation have (1) become due and payable, (2) will become due and payable at their stated maturity within one year, or (3) are to be called for redemption within one year; and we have deposited or caused to be deposited with the trustee in trust an amount of (a) money, or (b) in the case of clauses (2) and (3), (A) U.S. government obligations which through the payment of interest and principal in respect thereof in accordance with their terms will provide not later than one day before the stated maturity or redemption date, as the case may be, money in an amount or (B) a combination of money or U.S. government obligations as provided in (A) above, in each case sufficient to pay and discharge the entire indebtedness on such debt securities not theretofore delivered to the trustee for cancellation, for principal, premium, if any, and interest, if any, to the date of such deposit in the case of debt securities which have become due and payable or to the stated maturity or redemption date, as the case may be. Defeasance Both indentures provide that we may discharge the entire indebtedness of all outstanding debt securities of a series and the provisions of the indenture as they relate to such debt securities will no longer be in effect (with the exception of specified provisions as provided in the indentures) if we deposit or cause to deposited with the trustee, in trust, money, or U.S. government obligations, or a combination thereof, which, through the payment of interest thereon and principal thereof in accordance with their terms, will provide money, in an amount sufficient to pay all the principal (including any mandatory sinking fund payments, if any) of, and interest, if any, or premium, if any, on the debt securities of such series on the dates such payments are due in accordance with the terms of such debt securities to their stated maturities or to and including a redemption date which has been irrevocably designated by us for redemption of such debt securities. To exercise any such option, we are required to meet specified conditions, including delivering to the trustee an opinion of counsel to the effect that we have received from, or there has been published by, the Internal Revenue Service a ruling to the effect that holders of the debt securities will not recognize income, gain or loss for federal income tax purposes as a result of such deposit, defeasance or discharge. Both indentures provide that we, at our option, need not comply with certain restrictive covenants of such indenture as to any series of debt securities (in the case of senior debt securities as described above under "--Certain Covenants of the Debt Securities--Limitation on Liens", "--Limitation on Sale and Leaseback Transactions" and the second paragraph of "--Restrictions Upon Merger and Sales of Assets"), upon the deposit with the trustee, in trust, of money, or U.S. government obligations, or a combination thereof, which, through the payment of interest thereon and principal thereof in accordance with their terms, will provide money, in an amount sufficient to pay all the principal (including any mandatory sinking fund payments, if any) of, and interest, if any, or premium, if any, on the debt securities of such series on the dates such payments are due in accordance with the terms of such debt securities to their stated maturities or to and including a redemption date which has been irrevocably designated by us for redemption of such debt securities. To exercise any such option, we are required to meet specified conditions, including delivering to the trustee an opinion of counsel to the effect that the deposit and related defeasance would not cause the holders of the debt securities to recognize income, gain or loss for federal income tax purposes. Modification of the Indentures Each indenture contains provisions permitting us and the trustee, with the consent of the holders of not less than a majority in principal amount of the outstanding debt securities of all series affected by such modification 17 (voting as one class), to modify such indenture or the rights of the holders of the debt securities, except that no such modification shall, without the consent of the holder of each debt security so affected: o change the maturity of any debt security, or reduce the rate or extend the time of payment of interest thereon, or reduce the principal amount thereof (including, in the case of a discounted debt security, the amount payable thereon in the event of acceleration) or any redemption premium thereon, or change the place or medium of payment of such debt security, or impair the right of any holder to institute suit for payment thereof, or, if the debt securities are guaranteed by IR-New Jersey, release IR-New Jersey from any of its obligations under the guarantee otherwise than in accordance with the terms of the applicable indenture; or o reduce the percentage of debt securities, the consent of the holders of which is required for any such modification or for certain waivers under such indenture. Each indenture contains provisions permitting us and the trustee, without the consent of any holders, to modify the indenture for any of the following purposes: o to evidence the succession of another corporation to us or IR-New Jersey and the assumption by any such successor of our covenants in the applicable indenture and the debt securities or IR-New Jersey's covenants in the applicable indenture and the guarantee; o to add to our or IR-New Jersey's covenants for the benefit of the holders of all or any series of debt securities or to surrender any right or power conferred upon us or IR-New Jersey in the applicable indenture; o to add any additional events of defaults; o to add or change any provisions of the applicable indenture to such extent as may be necessary to permit or facilitate the issuance of debt securities in bearer form; o to change or eliminate any provision of the applicable indenture, provided that any such change or elimination shall become effective only when there is no debt security outstanding of any series created prior to such modification which is entitled to the benefit of such provision; o to establish the form or terms of any debt securities of any series as permitted by the applicable indenture; o in the case of the senior debt securities, to secure those debt securities; o to evidence and provide for the acceptance of appointment under the applicable indenture by a successor trustee with respect to the debt securities of one or more series and to add or change any of the provisions of the indenture as shall be necessary to provide for or facilitate the administration of the trusts under the applicable indenture by more than one trustee; o to evidence and provide for the acceptance of appointment of a trustee other than Wells Fargo Bank Minnesota, N.A. as trustee for a series of debt securities and to add or change any of the provisions of the applicable indenture as shall be necessary to provide for or facilitate the administration of the trusts under the applicable indenture by more than one trustee; o to provide for any rights of the holder of debt securities of any series to require the repurchase of debt securities of such series from us; o to continue its qualification under the Trust Indenture Act of 1939 or as may be necessary or desirable in accordance with amendments to that Act; o to cure any ambiguity, to correct or supplement any provision of the indenture which may be inconsistent with any other provision of the indenture, or to make any other provisions with respect to matters or questions arising under the indenture, provided such action shall not adversely affect the interests of the holders of debt securities of any series in any material respect; or o for any other reason specified in the applicable prospectus supplement. 18 Subordination of Subordinated Debt Securities The payment of the principal of, premium, if any, and interest, if any, on the subordinated debt securities will be subordinated, to the extent and in the manner set forth in the subordinated indenture, and as may be further described in the applicable prospectus supplement, in right of payment to the prior payment in full in cash or cash equivalents of all senior indebtedness which may at any time and from time to time be outstanding. Similarly, if the subordinated debt securities are guaranteed by IR-New Jersey, the guarantees of the subordinated debt securities will be subordinated, to the extent and in the manner set forth in the subordinated indenture, and as may be further described in the applicable prospectus supplement, to obligations in respect of all senior indebtedness of IR-New Jersey to the same extent as the subordinated debt securities are subordinated to our senior indebtedness. Unless otherwise provided in the applicable prospectus supplement with respect to an issue of subordinated debt securities, in the event of any insolvency or bankruptcy case or proceeding, or any receivership, liquidation, reorganization or other similar case or proceeding in connection therewith, relating to our assets, or any liquidation, dissolution or other winding-up, whether voluntary or involuntary, or any assignment for the benefit of creditors or other marshalling of our assets or liabilities, all senior indebtedness must be paid in full or such payment must be provided for before any payment or distribution (excluding the distribution of certain permitted equity or subordinated securities) is made on account of the principal, premium, if any, sinking fund, if any, or interest, if any, on any subordinated debt securities. In addition, the applicable prospectus supplement may provide that no payment on account of the subordinated debt securities offered thereby shall be made during the continuance of certain defaults with respect to our senior indebtedness or certain of our designated senior indebtedness. In the event that, notwithstanding the foregoing, any payment or distribution of our assets (excluding the distribution of certain permitted equity or subordinated securities) is received by the subordinated trustee or the holders of any of the subordinated debt securities, under the circumstances described above and before all senior indebtedness is paid in full, such payment or distribution will be paid over to the holders of such senior indebtedness or on their behalf for application to the payment of all such senior indebtedness remaining unpaid until all such senior indebtedness has been paid in full or such payment provided for, after giving effect to any concurrent payment or distribution to the holders of such senior indebtedness. By reason of this subordination, in the event of a distribution of assets upon insolvency, certain of our and IR-New Jersey's general creditors may recover more, ratably, than holders of the subordinated debt securities. If this prospectus is being delivered in connection with the offering of a series of subordinated debt securities, the accompanying prospectus supplement or the information incorporated by reference will set forth the definitions of senior indebtedness and designated senior indebtedness applicable to that series, any payment blockage provisions and the approximate amount of such senior indebtedness with respect to us and, if the subordinated debt securities are guaranteed by IR-New Jersey, IR-New Jersey, outstanding as of a recent date. Concerning the Trustee The Company may from time to time maintain lines of credit and have other customary banking relationships with each trustee and its affiliated banks. Governing Law The indentures, the debt securities and the guarantee will be governed by, and construed in accordance with, the law of the State of New York. 19 Description of Securities Warrants General We may issue warrants to purchase our securities or rights (including rights to receive payment in cash or securities based on the value, rate or price of one or more specified commodities, currencies or indices) or securities of other issuers or any combination of the foregoing. Warrants may be issued independently or together with any securities and may be attached to or separate from such securities. Each series of warrants will be issued under a separate warrant agreement to be entered into between us and a warrant agent we select. You should review the applicable prospectus supplement for the specific terms of any warrants that may be offered, including: o the title of the warrants; o the aggregate number of the warrants; o the price or prices at which the warrants will be issued; o the currency or currencies, including composite currencies, in which the price of the warrants may be payable; o our securities or rights (including rights to receive payment in cash or securities based on the value, rate or price of one or more specified commodities, currencies or indices) or securities of other issuers or any combination of the foregoing purchasable upon exercise of such warrants; o the price at which and the currency or currencies, including composite currencies, in which the securities purchasable upon exercise of the warrants may be purchased; o the date on which the right to exercise the warrants will commence and the date on which that right will expire; o if applicable, the minimum or maximum amount of the warrants that may be exercised at any one time; o if applicable, the designation and terms of the securities with which the warrants are issued and the number of warrants issued with each such security; o if applicable, the date on and after which the warrants and the related securities will be separately transferable; o information with respect to book-entry procedures, if any; o if applicable, a discussion of certain United States federal income tax considerations; and o any other terms of the warrants, including terms, procedures and limitations relating to the exchange and exercise of the warrants. 20 Description of Authorized Share Capital The following description of our authorized share capital summarizes certain provisions of our memorandum of association, our amended and restated bye-laws, the rights agreement, between us and The Bank of New York, as rights agent, and the Companies Act 1981 of Bermuda (the "Companies Act"), and is subject to and is qualified in its entirety by reference to such documents and provisions. Under Bermuda law, shareholders are referred to as members, although we refer to them as shareholders in this description for ease of reference. General Our authorized share capital is US$1,175,010,000, consisting of (1) 1,175,000,000 common shares, par value US$1.00 per share, which common shares consist of (a) 600,000,000 Class A common shares and (b) 575,000,000 Class B common shares, and (2) 10,000,000 preference shares, par value US$0.001 per share, which preference shares consist of 600,000 Series A preference shares and such other series of preference shares as may be designated from time to time with the respective rights and restrictions determined by the board of directors. At April 30, 2002, 168,972,893 Class A common shares were issued and outstanding and 135,250,003 Class B common shares were issued and held by our subsidiaries. We also had outstanding, as of such date, 168,972,893 Series A preference share purchase rights. No preference shares are currently issued or outstanding. Pursuant to this prospectus, we may issue Class A common shares or preference shares. Class A Common Shares Dividends. Subject to any rights and restrictions of any other class or series of preference shares, the board of directors, in its discretion, may from time to time declare dividends and other distributions on the issued Class A common shares and Class B common shares and authorize payment of such dividends and other distributions. Such dividends or other distributions may be in cash, shares of other companies or other property out of assets or funds legally available therefor. If at any time a dividend or other distribution in cash, shares or other property is declared or paid on Class A common shares, a like dividend or other distribution in kind and amount shall also be declared and paid on Class B common shares. Liquidation, Dissolution and Winding Up. Upon the liquidation, dissolution or winding up of our company, whether voluntary or involuntary, after full amounts that holders of any other issued shares ranking senior to the common shares as to distribution on liquidation, dissolution or winding up are entitled to receive have been paid or set aside for the payment thereof, the holders of our Class A common shares and our Class B common shares are entitled to receive, pro rata, any and all of our remaining assets available for distribution to the holders of common shares. The liquidator may deduct from the amount payable in respect of those common shares any liabilities the holder has to or with us. The assets received by the holders of our common shares in a liquidation, dissolution or winding up may consist in whole or in part of property. That property is not required to be of the same kind for all shareholders. Voting. Each holder of our Class A common shares will be entitled to one vote per Class A common share held, subject to any required preference share class votes, and directors will be elected in accordance with the procedures described below. The Class A common shares will vote together as one class with the holders of our Class B common shares and our preference shares on any matter for which holders of our Class B common shares are entitled to vote under the Companies Act and on any matter which the holders of preference shares are entitled to vote under the Companies Act or the applicable series of preference shares. Except as otherwise specifically provided in our bye-laws or in the Companies Act, any action to be taken by the shareholders at any general meeting at which a quorum is in attendance shall be decided by the affirmative vote of a majority of the votes cast at the general meeting. Two or more persons present in person and representing in person or by proxy a majority of the shares entitled to vote shall constitute a quorum at a general meeting of shareholders. 21 Generally, the holders of our Class B common shares will not be entitled to vote. However, under the Companies Act, each of our shares carries the right to vote in respect of an amalgamation or merger, whether or not it otherwise carries the right to vote. We and IR-New Jersey have entered into a voting agreement which provides that in those limited instances where our Class B common shares have the right to vote, IR-New Jersey or any of our other subsidiaries holding our Class B common shares shall vote (or abstain from voting) the shares in the same proportion as the holders of our Class A common shares. Subject to the interested shareholder provisions described below in "Voting Requirements--Greater Voting Requirements," shareholders holding a majority of the shares voting at a general meeting (including our Class B common shares voting as a class with our Class A common shares), and each class or series of shares present and voting at a general meeting, and entitled to vote as a class or series, is required to approve an amalgamation or merger. Cumulative voting in the election of directors is permitted under our bye-laws. As such, at all elections of directors, each holder of our Class A common shares will be entitled to as many votes as shall equal the number of votes that the holder would be entitled to cast at a general meeting, multiplied by the number of directors to be elected. A holder may cast all such votes for a single director, or may distribute them among two or more of the nominated directors as the holder may see fit. For more information on the election of directors, see "--Directors". Redemption, Repurchase and Conversion. Class A common shares will not be convertible into shares of any other class or series or be subject to redemption either by us or the holders of Class A common shares, provided, however, that subject to compliance with Bermuda law, we may repurchase shares for cancellation with the consent of the holder of such shares. Class B common shares will be convertible by the holder thereof into Class A common shares on a one-for-one basis in the following circumstances: o to satisfy our obligations or any of our subsidiaries or affiliated companies to issue Class A common shares with regard to the issuance of shares under any of our share or deferred compensation plans or the share or deferred compensation plans of any of our subsidiaries or affiliated companies; or o as consideration for any acquisition of shares or assets of a third party. See "--Restrictions on Transfer." In addition, and subject to the Companies Act, holders of Class B common shares will have the right at any time following the issuance thereof upon notice to us to require us to purchase for cancellation any or all of the Class B common shares for cash at the per share fair market value of the Class A common shares as of the date of such notice. The purchased Class B common shares will then be cancelled by us. The fair market value per share of the Class A common shares, as of any date, means the average of the high and low sales prices of a share of the Class A common shares as reported on the New York Stock Exchange composite tape on the applicable date. If no sales of Class A common shares were made on the New York Stock Exchange on that date, the average of the high and low prices as reported on the composite tape for the most recent preceding day on which sales of the Class A common shares were made will be the fair market value. Payment will be made within 180 calendar days of the date of the notice and will include interest at the prime rate of JPMorgan Chase Bank or its successor from the date of the notice until the date of payment. Restrictions on Transfer. Class A common shares are not subject to restrictions on transfer, other than as required to comply with applicable Bermuda law and U.S. and other securities laws. Class B common shares may only be held by IR-New Jersey and other of our wholly-owned subsidiaries, and as such, may not be transferred out of the Ingersoll-Rand Company Limited consolidated group prior to being converted to Class A common shares as described above under "-- Redemption, Repurchase and Conversion." Our bye-laws provide that in the event Class B common shares are transferred to any person or entity other than our wholly-owned, direct or indirect, subsidiary, the shares so transferred will convert automatically into Class A common shares on a one-for-one basis subject to adjustment for share divisions or other recapitalization events. Any 22 transfer of Class A common shares following conversion from Class B common shares will only be made in accordance with the applicable securities laws and rules of the New York Stock Exchange, including those rules relating to required shareholder approvals. Subject to the Companies Act, any shareholder may transfer any or all of the holder's shares by an instrument of transfer in a usual common form or in another form which the board of directors or our agent may approve. The board of directors may also decline to register any transfer unless: o it is accompanied by a duly executed instrument of transfer and by the certificate in respect of the shares to which it relates, if a certificate has been issued by us in respect of the shares to be transferred, and by such other evidence as the board of directors may reasonably require to show the right of the transferor to make the transfer; and o all applicable consents, authorizations and permissions of any governmental body or agency in Bermuda have been obtained. Preemptive Rights. Holders of our common shares shall have no preemptive or preferential rights to subscribe to or purchase any of our securities. Compulsory Acquisition of Shares Held by Minority Holders. An acquiring party is generally able to compulsorily acquire the common shares of minority shareholders in one of the following ways: o By a procedure under Section 99 of the Companies Act known as a "scheme of arrangement". A scheme of arrangement is a compromise or agreement made between us and our creditors or shareholders, which is made by obtaining (1) the consent for the arrangement of the holders of the Class A common shares and Class B common shares by a majority in number representing 75% in value of the shares voting at such meeting at which a quorum is present in person or by proxy and (2) the consent of the Bermuda Court. A scheme of arrangement is binding on all of our members or creditors. o By a procedure under Section 102 of the Companies Act for the compulsory acquisition of the shares of shareholders who dissent from a scheme or contract which involves the transfer of shares in us to another company. Where such a scheme or contract is approved by the holders of 90% in value of the shares to be transferred, the transferee company can, within 2 months of such approval, serve notice requiring those shareholders who dissent to transfer their shares to the transferee company. If no application is made by a dissenting shareholder to the Bermuda court within one month of receiving such notice, the dissenting shareholder is obliged to transfer his shares to the transferee on the terms of the scheme or contract. There are additional requirements which the transferee company has to satisfy in the event that it already holds more than 10% in value of the shares in us when proposing the scheme or contract. o By a procedure under Section 103 of the Companies Act, under which the holders of not less than 95% of the shares or a class of shares in us may give notice to the remaining shareholders or shareholders of the relevant class that they wish compulsorily to acquire their shares, on the terms set out in the notice. The shareholders receiving the notice can either accept it, or apply to the Bermuda court within one month of receiving such notice for the court to appraise the value of their shares. The shareholder who gave the notice to acquire has the option either to proceed to acquire the shares at the price fixed by the court, or to discontinue the purchase. If the procedures under Section 99 of the Companies Act are followed correctly, the rights of the holders of the Class A common shares and Class B common shares could be compulsorily varied or modified. If the procedures under Sections 102 or 103 are followed correctly, holders of the Class A common shares and Class B common shares could be compelled to sell their shares under the terms of the scheme or contract proposed or at the fair value of such shares as determined by the Bermuda court. Liability for Further Calls or Assessments; No Sinking Fund. Our outstanding Class A common shares are duly and validly issued, fully paid and non-assessable. Our common shares have no sinking fund provisions. 23 Transfer Agent. The registrar and transfer agent for the Class A common shares is The Bank of New York. Listing. Our Class A common shares are listed on the New York Stock Exchange under the trading symbol "IR". Preference Shares Our bye-laws provide for preference shares which may be issued, from time to time, in one or more series with certain rights and limitations as may be fixed by our board of directors. We have no present plan to issue any preference shares other than in accordance with our rights plan. However, our board of directors, without shareholder approval, may issue preference shares that could adversely affect the voting power of holders of the common shares. Issuance of preference shares could be utilized, under certain circumstances, in an attempt to prevent a takeover of us. The following description sets forth certain general terms and provisions of the preference shares to which a prospectus supplement may relate. Certain terms of a series of the preference shares offered by a prospectus supplement will be described in such prospectus supplement. If so indicated in the prospectus supplement and if permitted by our memorandum of association and bye-laws, the terms of any such series may differ from the terms set forth below. The following description of the preference shares summarizes certain provisions of our bye-laws, and is subject to and qualified in its entirety by reference to our bye-laws, and the board of directors resolution designating the rights, which will be filed with the SEC promptly after any offering of such series of preference shares. The following description, together with any description of the terms of a series of preference shares set forth in the related prospectus supplement, summarizes all of the material terms of such series of preference shares. General. The board of directors may from time to time authorize the issuance of preference shares in one or more series of preference shares, and in the resolution or resolutions providing for the issuance of such shares, the board of directors is expressly authorized to fix for each such series: o the distinctive designation of such series and the number of shares which shall constitute such series, which number may be increased (except as otherwise provided by the board or directors in creating such series) or decreased (but not below the number of shares thereof then in issue) from time to time by resolution of the board of directors; o the rate of dividends payable on shares of such series, whether or not and upon what conditions dividends on shares of such series shall be cumulative and, if cumulative, the date or dates from which dividends shall accumulate; o the terms, if any, on which shares of such series may be redeemed, including without limitation, the redemption price or prices for such series, which may consist of a redemption price or scale of redemption prices applicable only to redemption in connection with a sinking fund (which term as used herein shall include any fund or requirement for the periodic purchase or redemption of shares), and the same or a different redemption price or scale of redemption prices applicable to any other redemption; o the terms and amount of any sinking fund provided for the purchase or redemption of shares of such series; o the amount or amounts which shall be paid to the holders of shares of such series in case of liquidation, dissolution or winding up of us, whether voluntary or involuntary; o the terms, if any, upon which the holders of shares of such series may convert shares thereof into shares of any other class or classes or of any one or more series of the same class or of another class or classes; o the voting rights, full or limited, if any, of the shares of such series; and whether or not and under what conditions the shares of such series (alone or together with the shares of one or more other series having similar provisions) shall be entitled to vote separately as a single class, for the 24 election of one or more of our additional directors in case of dividend arrearages or other specified events, or upon other matters; o whether or not the holders of shares of such series shall have any preemptive or preferential rights to subscribe to or purchase shares of any class or series, now or hereafter authorized, or any securities convertible into, or warrants or other evidences of optional rights to purchase or subscribe to, shares of any class or series, now or hereafter authorized; o whether or not the issuance of additional shares of such series, or of any shares of any other series, shall be subject to restrictions as to issuance, or as to the preferences, rights and qualifications of any such other series; and o such other rights, preferences and limitations as may be permitted to be fixed by our board of directors under the laws of Bermuda as in effect at the time of the creation of such series. Subject to these bye-laws and except to the extent otherwise provided for in a series of preference shares in its designation, the preference shares, irrespective of series, shall be of equal rank and be identical in all respects. The board of directors is authorized to change the designations, rights, preferences and limitations of any series of preference shares theretofore established, no shares of which have been issued. Dividends. The holders of preference shares shall be entitled to receive, when, as and if declared by the board of directors out of funds legally available for the payment of dividends, cumulative dividends in cash at the annual rate for each particular series theretofore fixed by the board of directors, payable in respect of each series on the date or dates which shall be fixed by the board of directors with respect to each particular series. If at any time there are two or more series of preference shares outstanding, any dividend paid upon preference shares in an amount less than all dividends accrued and unpaid on all outstanding preference shares shall be paid ratably among all series of preference shares in proportion to the full amount of dividends accrued and unpaid on each such series. So long as any preference share is outstanding, no dividend shall be paid or declared, nor any distribution made, on the common shares or any of our other shares ranking junior to the preference shares in the payment of dividends (other than a dividend payable in shares of junior rank), nor shall any shares of common shares or any other shares of junior rank be acquired for consideration by us or by any subsidiary except in exchange for shares of junior rank unless: o full dividends on the preference shares for all past dividend periods shall have been paid or shall have been declared and a sufficient sum set apart for the payment thereof; and o all of our obligations, if any, with respect to the redemption or purchase of shares of preference shares in accordance with the requirements of any sinking fund have been met. Subject to the foregoing provisions, such dividends (payable in cash, shares or otherwise) as may be determined from time to time by the board of directors may be declared and paid on the common shares or any other shares of junior rank out of our remaining funds legally available for the payment of dividends; and the preference shares shall not be entitled to participate in any such dividends, whether payable in cash, shares or otherwise. Redemption. If so provided by the board of directors, we may, at the option of the board of directors, or in accordance with the requirements of any sinking fund for the preference shares or any series thereof, redeem the whole or any part of the preference shares at any time outstanding, or the whole or any part of any series thereof, at such time or times and from time to time and at such redemption price or prices as may be fixed by the board of directors pursuant to the memorandum of association and bye-laws, together in each case with an amount equal to all unpaid dividends accrued thereon to the date fixed for such redemption, and otherwise upon the terms and conditions fixed by the board of directors for any such redemption; provided, however, that no optional redemption of less than all of the preference shares shall take place unless: 25 o full dividends on the preference shares for all past dividend periods shall have been paid or declared and a sufficient sum set apart for the payment thereof; and o all of our obligations, if any, with respect to the redemption or purchase of preference shares in accordance with the requirements of any sinking fund have been met. If at any time there are two or more series of preference shares outstanding, any amount expended in purchasing or redeeming shares of preference shares pursuant to the provisions of sinking funds therefore which is less than the amount then required to be so expended under all such funds shall be expended ratably among all series of preference shares in proportion to the full amount of expenditures of such funds then required in respect of each such series. Voting Requirements Majority Voting Requirements. Subject to the provisions described below under "--Greater Voting Requirements" and except as otherwise expressly provided in our memorandum of association, bye-laws, the Companies Act, or as may otherwise be required by law, action to be taken by the shareholders at any general meeting at which a quorum is in attendance shall be decided by the affirmative vote of a majority of the votes cast at the general meeting (including Class B common shares voting as a class with Class A common shares in those circumstances where the Class B common shares are entitled to vote). As a result, in the case of each of: o a plan of amalgamation, merger or consolidation; o a dissolution of us; o an amendment to the memorandum of association or our bye-laws (amendments to our bye-laws also require a resolution of our board of directors); and o a sale, lease, exchange or other disposition of all, or substantially all, of our assets, any such action shall be approved upon receiving the affirmative vote of a majority of the votes cast by the holders of our shares entitled to vote therein, and, in addition, if any class or series is entitled to vote thereon as a class, the affirmative vote of a majority of the votes cast in each class vote. Such voting requirements shall be subject to such greater requirements as are provided in the Companies Act for specific amendments or as may be provided in the memorandum of association or bye-laws. We and IR-New Jersey have entered into a voting agreement which provides that in those limited circumstances where our Class B common shares have the right to vote, IR-New Jersey or any other of our subsidiaries holding our Class B common shares shall vote (or abstain from voting) the shares in same proportion as the holders of our Class A common shares. See "--Class A Common Shares--Voting". Greater Voting Requirements. As provided in our bye-laws, the affirmative vote of the holders of 80% of the shares then in issue of all classes of shares entitled to vote considered for purposes of this provision as one class, is required for us to engage in any "business combination" with any interested shareholder (generally, a 10% or greater shareholder), provided that the above vote requirement does not apply to: o any business combination with an interested shareholder that has been approved by the board of directors; or o any agreement for the amalgamation, merger or consolidation of any of our subsidiaries with us or with another of our subsidiaries if (1) the relevant bye-law provisions will not be changed or otherwise affected by or by virtue of the amalgamation, merger or consolidation and (2) the holders of greater than 50% of the voting power of us or the subsidiary, as appropriate, immediately prior to the amalgamation, merger or consolidation continue to hold greater than 50% of the voting power of the amalgamated company immediately following the amalgamation, merger or consolidation. 26 Our bye-laws provide that "business combination" means: o any amalgamation, merger or consolidation of us or one of our subsidiaries with an interested shareholder or with any person that is, or would be after such amalgamation, merger or consolidation, an affiliate or associate of an interested shareholder; o any transfer or other disposition to or with an interested shareholder or any affiliate or associate of an interested shareholder of all or any material part of the assets of us or one of our subsidiaries; and o any issuance or transfer of our shares upon conversion of or in exchange for the securities or assets of any interested shareholder, or with any company that is, or would be after such merger or consolidation, an affiliate or associate of an interested shareholder. Subject to the interested shareholder provisions described above, shareholders holding a majority of the shares voting at a general meeting (including Class B common shares voting as a class with Class A common shares), and each class or series of shares present and voting at a general meeting, and entitled to vote as a class or series, is required to approve an amalgamation or merger. In addition, greater voting requirements also apply to certain interested director transactions. Under the Companies Act, except for certain limited circumstances, the consent of the holders of 90% of the shares then in issue of all classes of shares entitled to vote, is required for us to make a loan to or enter into any guarantee or provide security in respect of any loan made to any person who is a director (or certain related persons or companies) of our company (or of our holding company, if there is one). In addition, a director who has an interest in any material contract or proposed material contract (or in any person that is a party to the contract) with us or any of our subsidiaries and who fails to disclose the interest shall be deemed not to be acting honestly and in good faith. Subject to the terms of any other class of shares in issue, any action required or permitted to be taken by the holders of our common shares must be taken at a duly called annual or special general meeting of shareholders unless taken by written consent of all holders of common shares required or permitted to take such action. Under our bye-laws, a special general meeting may be called by the chairman of the board of directors, the president, a majority of the board of directors, or upon the request of shareholders holding at least 10% of our shares as provided in the Companies Act. Our bye-laws provide that any matter to be voted upon at a meeting called by shareholders requires the affirmative vote of at least 66 2/3% of the shares entitled to vote. Changes to Rights of a Class or Series. Any rights attached to any class or series of our shares, unless otherwise provided by the terms of that class or series, may be varied only with the consent in writing of the holders of 75% of that class or series or by a resolution passed at a separate general meeting of holders of the shares of that class or series. Each holder of shares of the class or series present will have one vote for each share of the class or series held to the extent such class or series has voting rights. Outstanding shares will not be deemed to be varied by the creation or issue of shares that rank in any respect prior to or equivalent with those shares. Directors Our bye-laws provide that the board of directors will consist of not less than three nor more than twenty persons, with the exact number in that range to be set from time to time by the board of directors. Accordingly, the board of directors, and not the shareholders, has the authority to determine the number of directors within the stated range and could delay any shareholder from obtaining majority representation on the board of directors by enlarging the board of directors and filling the new vacancies with its own nominees. Directors are also divided into three classes, with each class to consist, as nearly as possible, of one-third of the total number of directors. A staggered board makes it more difficult to replace a majority or all of the board of directors. If the number of directors is changed, any increase or decrease will be apportioned among the classes so as to maintain each class as nearly equal as possible. No reduction shall have the effect of shortening the term of any incumbent director. 27 Except for two classes of directors that shall initially hold terms expiring at the annual general meetings in 2002 and 2003, respectively, the term of office of each class shall be until the third annual general meeting following a director's election and until the election and qualification of a director's successor. Any vacancy among directors of any class, including a vacancy that results from an increase in the number of directors within the range stated in the bye-laws, may be filled by a vote of the majority of remaining directors, regardless of class, provided that a quorum is present, but any such director so elected shall hold office only until the next succeeding annual meeting of shareholders and until his successor shall have been elected and qualified. Directors may be removed without cause only upon the affirmative vote of the holders of at least 80% of the shares entitled to vote for the election of directors. Directors may be removed for cause upon the affirmative vote of 66 2/3% of the shares entitled to vote for the election of directors. Except as otherwise provided in our bye-laws, the shareholders may remove a director at any special general meeting provided that the notice of any such meeting convened for the purpose of removing a director shall contain a statement of the intention to do so and be served on that director not less than 14 days before the meeting, and at such meeting such director shall be entitled to be heard on the motion for such director's removal. A vacancy on the board of directors created by the removal of a director at a special general meeting convened and held in accordance with our bye-laws may be filled by the shareholders at the meeting at which such director is removed and, in the absence of such election or appointment, the board of directors may fill the vacancy. Shareholder Rights Plan Our board of directors has adopted a shareholder rights plan. Issuance of Rights. In connection with the Reorganization, the shareholder rights plan provided for the issuance of one right (a "right") to purchase one one-thousandth of a Series A preference share for a purchase price of $200 for each Class A common share in issue as of the effective time of the Reorganization (the "record date"). Evidence of Rights. Under the shareholder rights plan, until the earlier to occur of (1) 10 days following a public announcement that a person or group of affiliated or associated persons (an "acquiring person") has acquired beneficial ownership of 15% or more of the shares in issue of our Class A common shares or (2) 10 business days (or such later date as may be determined by action of our board of directors prior to such time as any person or group of affiliated persons becomes an acquiring person) following the commencement of, or announcement of an intention to make, a tender offer or exchange offer the consummation of which would result in the beneficial ownership by a person or group of 15% or more of the shares in issue of our Class A common shares (the earlier of such dates being called the "distribution date"), the rights will be evidenced, with respect to any of our Class A common share certificates in issue as of the record date, by such Class A common share certificates together with a summary of the rights. The shareholder rights plan provides that, until the distribution date (or earlier redemption or expiration of the rights), the rights will be transferred with and only with Class A common shares. Until the distribution date (or earlier redemption or expiration of the rights), new Class A common share certificates issued after the record date upon transfer or new issuances of Class A common shares will contain a notation incorporating the shareholder rights plan by reference. Until the distribution date (or earlier redemption or expiration of the rights), the surrender for transfer of any certificates for Class A common shares in issue as of the record date, even without such notation or a copy of the summary of rights, will also constitute the transfer of the rights associated with Class A common shares represented by such certificate. As soon as practicable following the distribution date, separate certificates evidencing the rights will be mailed to holders of record of the Class A common shares as of the close of business on the distribution date and such separate certificates alone will evidence the rights. Duration of Rights. The rights are not exercisable until the distribution date. The rights will expire on December 22, 2008, unless this date is extended or unless the rights are earlier redeemed or exchanged by us, in each case as described below. Adjustments. The purchase price payable, and the number of Series A preference shares or other securities or property issuable, upon exercise of the rights are subject to adjustment from time to time to prevent dilution (1) in the event of a share dividend on, or a subdivision, combination or reclassification of, the Series A preference shares, (2) upon the grant to holders of the Series A preference shares of certain rights or warrants to subscribe for or 28 purchase Series A preference shares at a price, or securities convertible into Series A preference shares, with a conversion price less than the then-current market price of the Series A preference shares or (3) upon the distribution to holders of the Series A preference shares of evidences of indebtedness or assets (excluding regular periodic cash dividends or dividends payable in Series A preference shares) or of subscription rights or warrants (other than those referred to above). The number of rights in issue is also subject to adjustment in the event of a share division of our Class A common shares or a share dividend on our Class A common shares payable in our Class A common shares or subdivisions, consolidations or combinations of our Class A common shares occurring, in any such case, prior to the distribution date. Series A Preference Shares. Series A preference shares purchasable upon exercise of the rights will not be redeemable. Each Series A preference share will be entitled, when, as and if declared, to a minimum preferential quarterly dividend payment of US$1.00 per share but will be entitled to an aggregate dividend of 1000 times the dividend declared per Class A common share. In the event of liquidation, the holders of the Series A preference shares will be entitled to a minimum preferential liquidation payment of US$100 per share (plus any accrued but unpaid dividends) and will be entitled to an aggregate payment of 1000 times the payment made per Class A common share. Each Series A preference share will have 1000 votes, voting together with Class A common shares. Finally, in the event of any amalgamation, merger, consolidation or other transaction in which our Class A common shares are converted or exchanged, each Series A preference share will be entitled to receive 1000 times the amount received per Class A common share. These rights are protected by customary antidilution provisions. Because of the nature of the Series A preference shares' dividend, liquidation and voting rights, the value of the one one-thousandth interest in a Series A preference share purchasable upon exercise of each right should approximate the value of one Class A common share. Exercise of Rights. In the event that any person or group of affiliated or associated persons becomes an acquiring person, each holder of a right, other than rights beneficially owned by the acquiring person (which will thereupon become void), will thereafter have the right to receive upon exercise of a right at the then-current exercise price of the right, that number of Class A common shares having a market value of two times the exercise price of the right. In the event that, after a person or group has become an acquiring person, we are acquired in an amalgamation, merger or other business combination transaction or 50% or more of our consolidated assets or earning power are sold, proper provision will be made so that each holder of a right (other than rights beneficially owned by an acquiring person which will have become void) will thereafter have the right to receive, upon the exercise thereof at the then-current exercise price of the right, that number of common shares of the person with whom we have engaged in the foregoing transaction (or its parent), which number of shares at the time of such transaction will have a market value of two times the exercise price of the right. Exchange of Rights. At any time after any person or group becomes an acquiring person and prior to the acquisition by such person or group of 50% or more of the outstanding Class A common shares in issue or the occurrence of an event described in the prior paragraph, our board of directors may exchange the rights (other than rights owned by such person or group which will have become void), in whole or in part, at an exchange ratio of one Class A common share, or one one-thousandth of a Series A preference share (or of a share of a class or series of our preference shares having equivalent rights, preferences and privileges), per right (subject to adjustment). No Fractional Shares. With certain exceptions, no adjustment in the purchase price will be required until cumulative adjustments require an adjustment of at least 1% in such purchase price. No fractional Series A preference shares will be issued (other than fractions which are integral multiples of one one-thousandth of a Series A preference share, which may, at our election, be evidenced by depositary receipts) and in lieu thereof, an adjustment in cash will be made based on the market price of the Series A preference shares on the last trading day prior to the date of exercise. Redemption. At any time prior to the time an acquiring person becomes such, our board of directors may redeem the rights in whole, but not in part, at a price of US$.01 per right (the "redemption price"). The redemption 29 of the rights may be made effective at such time, on such basis and with such conditions as the board of directors in its sole discretion may establish. Immediately upon any redemption of the rights, the right to exercise the rights will terminate and the only right of the holders of rights will be to receive the redemption price. Amendment of Rights. The terms of the rights may be amended by our board of directors without the consent of the holders of the rights, including an amendment to lower the 15% threshold for an acquiring person described above to not less than the greater of (1) the sum of .001% and the largest percentage of the Class A common shares in issue then known to us to be beneficially owned by any person or group of affiliated or associated persons and (2) 10%, except that from and after such time as any person or group of affiliated or associated persons becomes an acquiring person no such amendment may adversely affect the interests of the holders of the rights. No Rights as a Shareholder. Until a right is exercised, the holder thereof, as such, will have no rights as a shareholder of us including, without limitation, the right to vote or to receive dividends. Certain Anti-Takeover Effects. The rights have certain anti-takeover effects. The rights will cause substantial dilution to a person or group that attempts to acquire us on terms not approved by our board of directors, except pursuant to an offer conditioned on a substantial number of rights being acquired. The rights should not interfere with any amalgamation, merger or other business combination approved by the board of directors since the rights may be redeemed by us at the redemption price prior to the time that a person or group has acquired beneficial ownership of 15% or more of the Class A common shares. Bringing Business Before an Annual Meeting Our bye-laws provide that at any annual general meeting, only such business shall be conducted as shall have been brought before the meeting by or at the direction of the board of directors, by any shareholder who complies with certain procedures set forth in the bye-laws or by any shareholder pursuant to the valid exercise of the power granted under the Companies Act. For business to be properly brought before an annual general meeting by a shareholder, the shareholder must have given timely notice thereof in proper written form to our secretary and satisfied all requirements under applicable rules promulgated by the Securities and Exchange Commission and by the New York Stock Exchange or any other exchange on which our securities are traded. To be timely for consideration at the annual general meeting, a shareholder's notice must be received by the secretary at our principal executive offices not later than the date which is 90 days in advance of the anniversary of the immediately preceding annual general meeting or, if the date of the annual general meeting occurs more than 30 days before, or 60 days after, the anniversary of such immediately preceding annual general meeting, not later than the seventh day after the date on which notice of such annual general meeting is given. 30 Description of Depositary Shares The description set forth below and in any prospectus supplement of certain provisions of any deposit agreement and any related depositary shares and depositary receipts summarizes the material terms of that deposit agreement and of the depositary shares and depositary receipts. This summary does not contain all of the information that you may find useful. For more information, please review the form of deposit agreement and form of depositary receipts relating to each series of the preference shares, which will be filed with the SEC promptly after the offering of that series of preference shares. General We may elect to have preference shares represented by depositary shares. The preference shares of any series underlying the depositary shares will be deposited under a separate deposit agreement between us and a bank or trust company we select. The prospectus supplement relating to a series of depositary shares will set forth the name and address of this preference share depositary. Subject to the terms of the deposit agreement, each owner of a depositary share will be entitled, proportionately, to all the rights, preferences and privileges of the preference share represented by such depositary share (including dividend, voting, redemption, conversion, exchange and liquidation rights). The depositary shares will be evidenced by depositary receipts issued pursuant to the deposit agreement, each of which will represent the applicable interest in a number of shares of a particular series of the preference shares described in the applicable prospectus supplement. A holder of depositary shares will be entitled to receive the preference shares (but only in whole preference shares) underlying those depositary shares. If the depositary receipts delivered by the holder evidence a number of depositary shares in excess of the whole number of preference shares to be withdrawn, the depositary will deliver to that holder at the same time a new depositary receipt for the excess number of depositary shares. Dividends and Other Distributions The preference share depositary will distribute all cash dividends or other cash distributions in respect of the preference shares to the record holders of depositary receipts in proportion, insofar as possible, to the number of depositary shares owned by those holders. If there is a distribution other than in cash in respect of the preference shares, the preference share depositary will distribute property received by it to the record holders of depositary receipts in proportion, insofar as possible, to the number of depositary shares owned by those holders, unless the preference share depositary determines that it is not feasible to make such a distribution. In that case, the preference share depositary may, with our approval, adopt any method that it deems equitable and practicable to effect the distribution, including a public or private sale of the property and distribution of the net proceeds from the sale to the holders. The amount distributed in any of the above cases will be reduced by any amount we or the preference share depositary are required to withhold on account of taxes. Conversion and Exchange If any preference share underlying the depositary shares is subject to provisions relating to its conversion or exchange as set forth in an applicable prospectus supplement, each record holder of depositary shares will have the right or obligation to convert or exchange those depositary shares pursuant to those provisions. Redemption of Depositary Shares Whenever we redeem a preference share held by the preference share depositary, the preference share depositary will redeem as of the same redemption date a proportionate number of depositary shares representing the 31 preference shares that were redeemed. The redemption price per depositary share will be equal to the aggregate redemption price payable with respect to the number of preference shares underlying the depositary shares. If fewer than all the depositary shares are to be redeemed, the depositary shares to be redeemed will be selected by lot or proportionately as we may determine. After the date fixed for redemption, the depositary shares called for redemption will no longer be deemed to be outstanding and all rights of the holders of the depositary shares will cease, except the right to receive the redemption price. Voting Upon receipt of notice of any meeting at which the holders of any preference shares underlying the depositary shares are entitled to vote, the preference share depositary will mail the information contained in the notice to the record holders of the depositary receipts. Each record holder of the depositary receipts on the record date (which will be the same date as the record date for the preference shares) may then instruct the preference share depositary as to the exercise of the voting rights pertaining to the number of preference shares underlying that holder's depositary shares. The preference share depositary will try to vote the number of preference shares underlying the depositary shares in accordance with the instructions, and we will agree to take all reasonable action which the preference share depositary deems necessary to enable the preference share depositary to do so. The preference share depositary will abstain from voting the preference shares to the extent that it does not receive specific written instructions from holders of depositary receipts representing the preference share. Record Date Whenever o any cash dividend or other cash distribution becomes payable, any distribution other than cash is made, or any rights, preferences or privileges are offered with respect to the preference shares; or o the preference share depositary receives notice of any meeting at which holders of preference shares are entitled to vote or of which holders of preference shares are entitled to notice, or of the mandatory conversion of or any election by us to call for the redemption of any preference share, the preference share depositary will in each instance fix a record date (which will be the same as the record date for the preferred shares) for the determination of the holders of depositary receipts: o who will be entitled to receive dividend, distribution, rights, preferences or privileges or the net proceeds of any sale; or o who will be entitled to give instructions for the exercise of voting rights at any such meeting or to receive notice of the meeting or the redemption or conversion, subject to the provisions of the deposit agreement. Amendment and Termination of the Deposit Agreement We and the preference share depositary may at any time agree to amend the form of depositary receipt and any provision of the deposit agreement. However, any amendment that materially and adversely alters the rights of holders of depositary shares will not be effective unless the amendment has been approved by the holders of at least a majority of the depositary shares then outstanding. The deposit agreement may be terminated by us or by the preference share depositary only if all outstanding shares have been redeemed or if a final distribution in respect of the underlying preference shares has been made to the holders of the depositary shares in connection with the liquidation, dissolution or winding up of us. 32 Charges of Preference Share Depositary We will pay all charges of the preference share depositary including charges in connection with the initial deposit of the preference shares, the initial issuance of the depositary receipts, the distribution of information to the holders of depositary receipts with respect to matters on which the preference share is entitled to vote, withdrawals of the preference share by the holders of depositary receipts or redemption or conversion of the preference share, except for taxes (including transfer taxes, if any) and other governmental charges and any other charges expressly provided in the deposit agreement to be at the expense of holders of depositary receipts or persons depositing preference shares. Miscellaneous Neither we nor the preference share depositary will be liable if either of us is prevented or delayed by law or any circumstance beyond our control in performing any obligations under the deposit agreement. The obligations of the preference share depositary under the deposit agreement are limited to performing its duties under the agreement without negligence or bad faith. Our obligations under the deposit agreement are limited to performing our duties in good faith. Neither we nor the preference share depositary is obligated to prosecute or defend any legal proceeding in respect of any depositary shares or preference shares unless satisfactory indemnity is furnished. We and the preference share depositary may rely on advice of or information from counsel, accountants or other persons that they believe to be competent and on documents that they believe to be genuine. The preference share depositary may resign at any time or be removed by us, effective upon the acceptance by its successor of its appointment. If we have not appointed a successor preference share depositary and the successor depositary has not accepted its appointment within 60 days after the preference share depositary delivered a resignation notice to us, the preference share depositary may terminate the deposit agreement. See "Amendment and Termination of the Deposit Agreement" above. 33 Description of Share Purchase Contracts and Share Purchase Units We may issue share purchase contracts representing contracts obligating holders to purchase from us and us to sell to the holders a specified number of common shares or preference shares at a future date or dates. The price per share of common share or preference share may be fixed at the time the share purchase contracts are issued or may be determined by reference to a specific formula set forth in the share purchase contracts. The share purchase contracts may be issued separately or as a part of units, often known as share purchase units, consisting of a share purchase contract and either o senior debt securities; o subordinated debt securities; or o debt obligations of third parties, including U.S. Treasury securities, securing the holder's obligations to purchase the common shares or preference shares under the share purchase contracts. The share purchase contracts may require us to make periodic payments to the holders of the share purchase units or vice versa, and such payments may be unsecured or prefunded on some basis. The share purchase contracts may require holders to secure their obligations in a specified manner and in certain circumstances we may deliver newly issued prepaid share purchase contracts, often known as prepaid securities, upon release to a holder of any collateral securing each holder's obligations under the original share purchase contract. The applicable prospectus supplement will describe the terms of any share purchase contracts or share purchase units and, if applicable, prepaid securities. The description in the prospectus supplement will not contain all of the information that you may find useful. For more information, you should review the share purchase contracts, the collateral arrangements and depositary arrangements, if applicable, relating to such share purchase contracts or share purchase units and, if applicable, the prepaid securities and the document pursuant to which the prepaid securities will be issued, which will be filed with the SEC promptly after the offering of such share purchase contracts or share purchase units and, if applicable, prepaid securities. 34 Certain Tax Considerations Bermuda Tax Considerations Under current law, no income or withholding taxes are imposed in Bermuda upon the issue, transfer or sale, or payments made in respect of the debt securities, common shares, preference shares, depositary shares or warrants of a Bermuda exempted company to persons non-resident in Bermuda. We have received from the Minister of Finance of Bermuda under the Exempted Undertakings Tax Protection Act of 1966 an undertaking that, in the event of there being enacted in Bermuda any legislation imposing any tax computed on profits or income, including any dividend or capital gains withholding tax, or computed on any capital assets, gain or appreciation or any tax in the nature of an estate or inheritance tax or duty, the imposition of such tax shall not be applicable to us or any of our operations, nor to our common shares nor to our obligations until March 28, 2016. This undertaking does not, however, prevent the application of Bermuda taxes to persons ordinarily resident in Bermuda. United States Federal Income Tax Considerations The following is a summary of certain United States federal income tax consequences, as of the date of this document, of the ownership of our debt securities, common shares, preference shares, depositary shares or warrants by beneficial owners that purchase the debt securities, shares or warrants in connection with their initial issuance, that hold the debt securities, shares or warrants as capital assets and that are "United States holders" under the Internal Revenue Code. Under the Internal Revenue Code, you are a "United States holder" if you are: o a citizen or resident of the United States; o a corporation or partnership created or organized in or under the laws of the United States or any political subdivision thereof; o an estate the income of which is subject to United States federal income taxation regardless of its source; o a trust if it (1) is subject to the primary supervision of a court within the United States and one or more United States holders have the authority to control all substantial decisions of the trust or (2) has a valid election in effect under applicable United States Treasury regulations to be treated as a United States holder. This summary is based on current law, which is subject to change, perhaps retroactively, is for general purposes only and should not be considered tax advice. This summary does not represent a detailed description of the United States federal income tax consequences to you in light of your particular circumstances. In addition, it does not present a description of the United States federal income tax consequences applicable to you if you are subject to special treatment under the United States federal income tax laws, including if you are: o a dealer in securities or currencies; o a trader in securities if you elect to use a mark-to-market method of accounting for your securities holdings; o a financial institution; o an insurance company; o a tax-exempt organization; o a person liable for alternative minimum tax; o a person holding debt securities, common shares, preference shares, depositary shares or warrants as part of a hedging, integrated or conversion transaction, constructive sale or straddle; 35 o a person owning, actually or constructively, 10% or more of our voting shares or 10% or more of the voting shares of any of our non-United States subsidiaries; o a United States holder whose "functional currency" is not the United States dollar; o a regulated investment company; or o a real estate investment trust. We cannot assure you that a later change in law will not alter significantly the tax considerations that we describe in this summary. The discussion below assumes that all debt securities issued hereunder will be classified as debt for United States federal income tax purposes, and holders should note that in the event of an alternative characterization, the tax consequences would differ from those discussed below. If a partnership holds our debt securities, common shares, preference shares, depositary shares or warrants, the tax treatment of a partner will generally depend upon the status of the partner and the activities of the partnership. If you are a partner of a partnership holding our debt securities, common shares, preference shares, depositary shares or warrants, you should consult your tax advisor. You should consult your own tax advisor concerning the particular United States federal income tax consequences to you of the ownership and disposition of debt securities, common shares, preference shares, depositary shares or warrants, as well as the consequences to you arising under the laws of any other taxing jurisdiction. Debt Securities This summary is not intended to include all of the possible types of debt securities that we may issue under this prospectus, including, for example, short-term debt securities, floating rate debt securities, foreign currency debt securities, extendible, reset or renewable debt securities or securities providing for contingent payments. We will describe any additional United States federal income tax consequences resulting from a specific issuance of debt securities in the applicable prospectus supplement. Payment of Interest Except as provided below, interest on a debt security will generally be taxable to you as ordinary income at the time it is paid or accrued in accordance with your method of accounting for tax purposes. Original Issue Discount If you own debt securities issued with original issue discount, which we refer to as "OID", you will be subject to special tax accounting rules, as described in greater detail below. In that case, you should be aware that you generally must include OID in gross income in advance of the receipt of cash attributable to that income. However, you generally will not be required to include separately in income cash payments received on the debt securities, even if denominated as interest, to the extent those payments do not constitute qualified stated interest, as defined below. Notice will be given in the applicable prospectus supplement when we determine that a particular debt security will be an original issue discount debt security. A debt security with an issue price that is less than its "stated redemption price at maturity" (the sum of all payments to be made on the debt security other than "qualified stated interest") generally will be issued with OID if that difference is at least 0.25% of the stated redemption price at maturity multiplied by the number of complete years to maturity. The "issue price" of each debt security in a particular offering will be the first price at which a substantial amount of that particular offering is sold to the public. The term "qualified stated interest" means stated interest that is unconditionally payable in cash or in property, other than debt instruments of the issuer, and meets all of the following conditions: o it is payable at least once per year; 36 o it is payable over the entire term of the debt security; and o it is payable at a single fixed rate or, subject to certain conditions, based on one or more interest indices. We will give you notice in the applicable prospectus supplement when we determine that a particular debt security will bear interest that is not qualified stated interest. If you own a debt security issued with de minimis OID, i.e., discount that is not OID because it is less than 0.25% of the stated redemption price at maturity multiplied by the number of complete years to maturity, you generally must include the de minimis OID in income at the time payments, other than qualified stated interest, on the debt securities are made in proportion to the amount paid. Any amount of de minimis OID that you have included in income will be treated as capital gain. Certain of the debt securities may contain provisions permitting them to be redeemed prior to their stated maturity at our option and/or your option. Original issue discount debt securities containing those features may be subject to rules that differ from the general rules discussed herein. If you are considering the purchase of original issue discount debt securities with those features, you should carefully examine the applicable prospectus supplement and should consult your own tax advisors with respect to those features since the tax consequences to you with respect to OID will depend, in part, on the particular terms and features of the debt securities. If you own original issue discount debt securities with a maturity upon issuance of more than one year you generally must include OID in income in advance of the receipt of some or all of the related cash payments using the "constant yield method" described in the following paragraph. The amount of OID that you must include in income if you are the initial United States holder of an original issue discount debt security is the sum of the "daily portions" of OID with respect to the debt security for each day during the taxable year or portion of the taxable year in which you held that debt security ("accrued OID"). The daily portion is determined by allocating to each day in any "accrual period" a pro rata portion of the OID allocable to that accrual period. The "accrual period" for an original issue discount debt security may be of any length and may vary in length over the term of the debt security, provided that each accrual period is no longer than one year and each scheduled payment of principal or interest occurs on the first day or the final day of an accrual period. The amount of OID allocable to any accrual period is an amount equal to the excess, if any, of: o the debt security's adjusted issue price at the beginning of the accrual period times its yield to maturity, determined on the basis of compounding at the close of each accrual period and properly adjusted for the length of the accrual period, over o the aggregate of all qualified stated interest allocable to the accrual period. OID allocable to a final accrual period is the difference between the amount payable at maturity, other than a payment of qualified stated interest, and the adjusted issue price at the beginning of the final accrual period. The "adjusted issue price" of a debt security at the beginning of any accrual period is equal to its issue price increased by the accrued OID for each prior accrual period, determined without regard to the amortization of any acquisition or bond premium, as described below, and reduced by any payments made on the debt security (other than qualified stated interest) on or before the first day of the accrual period. Under these rules, you will have to include in income increasingly greater amounts of OID in successive accrual periods. We are required to provide information returns stating the amount of OID accrued on debt securities held of record by holders other than corporations and other exempt holders. You may elect to treat all interest on any debt security as OID and calculate the amount includible in gross income under the constant yield method described above. For purposes of this election, interest includes stated interest, acquisition discount, OID, de minimis OID, market discount, de minimis market discount and unstated interest, as adjusted by any amortizable bond premium or acquisition premium. You must make this election for the taxable year in which you acquired the debt security, and you may not revoke the election without the consent of the Internal Revenue Service. You should consult with your own tax advisors about this election. 37 Market Discount If you purchase a debt security, other than an original issue discount debt security, for an amount that is less than its stated redemption price at maturity, or, in the case of an original issue discount debt security, its adjusted issue price, the amount of the difference will be treated as "market discount" for United States federal income tax purposes, unless that difference is less than a specified de minimis amount. Under the market discount rules, you will be required to treat any payment, other than qualified stated interest, on, or any gain on the sale, exchange, retirement or other disposition of, a debt security as ordinary income to the extent of the market discount that you have not previously included in income and are treated as having accrued on the debt security at the time of its payment or disposition. In addition, you may be required to defer, until the maturity of the debt security or its earlier disposition in a taxable transaction, the deduction of all or a portion of the interest expense on any indebtedness attributable to the debt security. Any market discount will be considered to accrue ratably during the period from the date of acquisition to the maturity date of the debt security, unless you elect to accrue on a constant interest method. Your election to accrue market discount on a constant interest method is to be made for the taxable year in which you acquired the debt security, applies only to that debt security and may not be revoked without the consent of the Internal Revenue Service. You may elect to include market discount in income currently as it accrues, on either a ratable or constant interest method, in which case the rule described above regarding deferral of interest deductions will not apply. Your election to include market discount in income currently, once made, applies to all market discount obligations acquired by you on or after the first taxable year to which your election applies and may not be revoked without the consent of the Internal Revenue Service. You should consult your own tax advisor before making either election described in this paragraph. Acquisition Premium; Amortizable Bond Premium If you purchase an original issue discount debt security for an amount that is greater than its adjusted issue price but equal to or less than the sum of all amounts payable on the debt security after the purchase date other than payments of qualified stated interest, you will be considered to have purchased that debt security at an "acquisition premium." Under the acquisition premium rules, the amount of OID that you must include in gross income with respect to the debt security for any taxable year will be reduced by the portion of the acquisition premium properly allocable to that year. If you purchase a debt security, including an original issue discount debt security, for an amount in excess of the sum of all amounts payable on the debt security after the purchase date other than qualified stated interest, you will be considered to have purchased the debt security at a "premium" and, if it is an original issue discount debt security, you will not be required to include any OID in income. You generally may elect to amortize the premium over the remaining term of the debt security on a constant yield method as an offset to interest when includible in income under your regular accounting method. If you do not elect to amortize bond premium, that premium will decrease the gain or increase the loss you would otherwise recognize on disposition of the debt security. Your election to amortize premium on a constant yield method will also apply to all debt obligations held or subsequently acquired by you on or after the first day of the first taxable year to which the election applies. You may not revoke the election without the consent of the Internal Revenue Service. You should consult your own tax advisor before making this election. Sale, Exchange and Retirement of Debt Securities Your tax basis in a debt security will, in general, be your cost for that debt security, increased by OID, market discount or any discount with respect to a short-term debt security that you previously included in income, and reduced by any amortized premium and any cash payments on the debt security other than qualified stated interest. Upon the sale, exchange, retirement or other disposition of a debt security, you will recognize gain or loss equal to the difference between the amount you realize upon the sale, exchange, retirement or other disposition (less an amount equal to any accrued qualified stated interest previously includible in income, which will be treated as a payment of interest for federal income tax purposes), and the adjusted tax basis of the debt security. Except as described above with respect to market discount or with respect to contingent payment debt instruments, short term debt securities or foreign currency debt securities, which this summary does not generally discuss, that gain or loss 38 will be United States source capital gain or loss. Capital gains of individuals derived in respect of capital assets held for more than one year are eligible for reduced rates of taxation. The deductibility of capital losses is subject to limitations. Information Reporting and Backup Withholding In general, information reporting will apply to certain payments of principal, interest, OID and premium paid on debt securities and to the proceeds of sale of a debt security made to you (unless you are an exempt recipient such as a corporation). A backup withholding tax will apply to such payments if you fail to provide a taxpayer identification number, a certification of exempt status, or fail to report in full dividend and interest income. Any amounts withheld under the backup withholding rules will be allowed as a refund or a credit against your United States federal income tax liability, provided you furnish the required information to the Internal Revenue Service. Common Shares, Preference Shares and Depositary Shares The consequences of the purchase, ownership or disposition of our shares depend on a number of factors including: o the term of the shares; o any put or call or redemption provisions with respect to the shares; o any conversion or exchange features with respect to the shares; and o the price at which the shares are sold. You should carefully examine the applicable prospectus supplement regarding the material federal income tax consequences, if any of the holding and disposition of shares with such terms. In general for United States federal income tax purposes, United States holders of depositary shares will be treated as the owners of the underlying preference shares that are represented by such depositary shares. Deposits or withdrawals of preference shares by United States holders for depositary shares will not be subject to United States federal income tax. Taxation of Dividends Subject to the passive foreign investment company rules discussed below, the gross amount of distributions you receive on your common shares, preference shares or depositary shares, will generally be treated as dividend income to you if the distributions are made from our current and accumulated earnings and profits, calculated according to United States federal income tax principles. Such income will be includible in your gross income as ordinary income on the day you receive it. You will not be entitled to claim a dividends received deduction with respect to distributions you receive from us. To the extent that the amount of any distribution exceeds our current and accumulated earnings and profits for a taxable year, the distribution will first be treated as a tax-free return of capital, causing a reduction in your adjusted basis in the common shares, preference shares or depositary shares, thereby increasing the amount of gain, or decreasing the amount of loss, you will recognize on a subsequent disposition of the shares, and the balance in excess of adjusted basis will be taxed as capital gain recognized on a sale or exchange. If, for United States federal income tax purposes, we are classified as a "United States-owned foreign corporation", distributions made to you with respect to your common shares, preference shares or depositary shares that are taxable as dividends generally will be treated for United States foreign tax credit purposes as (1) foreign source "passive income" or, in the case of some holders, foreign source "financial services income" and (2) United States source income, in proportion to our earnings and profits in the year of such distribution allocable to foreign and United States sources, respectively. For this purpose, we will be treated as a United States-owned foreign 39 corporation so long as shares representing 50% or more of the voting power or value of our shares are owned, directly or indirectly, by United States holders and it is our belief that as of the date of this prospectus, United States holders own 50% or more of the voting power and value of our Class A common shares. Thus, it is anticipated that only a portion of the dividends received by a United States holder with respect to IR-Limited Class A common shares will be treated as foreign source income for purposes of calculating such holder's foreign tax credit limitation. Preference Shares Redemption Premium Under Section 305(c) of the Internal Revenue Code and the applicable regulations thereunder, if in certain circumstances the redemption price of the preference shares exceeds its issue price by more than a de minimis amount, the difference--which we refer to as "redemption premium"--will be taxable as a constructive distribution to you over time of additional preference shares. These constructive distributions would be treated first as a dividend to the extent of our current and accumulated earnings and profits and otherwise would be subject to the treatment described above for dividends not paid out of current and accumulated earnings and profits. If the preference shares provide for optional rights of redemption by us at prices in excess of the issue price, you could be required to recognize such excess if, based on all of the facts and circumstances, the optional redemptions are more likely than not to occur. Applicable regulations provide a "safe harbor" under which a right to redeem will not be treated as more likely than not to occur if (1) you are not related to us within the meaning of the regulations; (2) there are no plans, arrangements, or agreements that effectively require or are intended to compel us to redeem the shares and (3) exercise of the right to redeem would not reduce the yield of the shares, as determined under the regulations. Regardless of whether the optional redemptions are more likely than not to occur, constructive dividend treatment will not result if the redemption premium does not exceed a de minimis amount or is in the nature of a penalty for premature redemption. You should also consult the applicable prospectus supplement for information regarding any additional consequences under Section 305(c) in light of the particular terms of an issuance of preference shares. Disposition of the Common Shares, Preference Shares or Depositary Shares Subject to the passive foreign investment company rules and redemption rules discussed below, when you sell or otherwise dispose of your common shares, preference shares or depositary shares you will recognize capital gain or loss in an amount equal to the difference between the amount you realize for the shares and your adjusted tax basis in them. In general, your adjusted tax basis in the common shares will be your cost of obtaining the shares reduced by any previous distributions that are not characterized as dividends. In general, your adjusted tax basis in the preference shares or depositary shares will be your cost of obtaining those shares increased by any redemption premium previously included in income by you and reduced by any previous distributions that are not characterized as dividends. For foreign tax credit limitation purposes, such gain or loss will generally be treated as United States source. If you are an individual, and the shares being sold or otherwise disposed of are capital assets that you have held for more than one year, your gain recognized will be taxed at a maximum tax rate of 20%. Your ability to deduct capital losses is subject to limitations. A redemption of our common shares, preference shares or depositary shares by us may be treated, depending upon the circumstances, as a sale or a dividend. You should consult your tax advisor regarding the application of these rules to your particular circumstances. Passive Foreign Investment Company We do not believe that we are, for United States federal tax purposes, a passive foreign investment company (a "PFIC"), and expect to continue our operations in such a manner that we will not become a PFIC. If, however, we are or we become a PFIC, you could be subject to additional federal income taxes on gain recognized with respect to the common shares, preference shares or depositary shares and on certain distributions, plus an interest charge on certain taxes treated as having been deferred by you under the PFIC rules. You should consult your own tax advisors concerning the United States federal income tax consequences of holding our common shares, preference shares, depositary shares or warrants if we are considered a passive foreign investment company in any taxable year, including the advisability and availability of making certain elections that may alleviate the tax consequences referred to above. 40 Controlled Foreign Corporations For the purposes of this paragraph, we will refer to United States holders that own--or are deemed for United States federal income tax purposes to own, pursuant to complex attribution and constructive ownership rules--10% or more of our voting shares or the voting shares of any of our non-United States subsidiaries as "10% Shareholders". If 10% Shareholders own, in the aggregate, more than 50%, measured by voting power or value, of our shares or the shares of any of our non-United States subsidiaries, directly, indirectly, or by attribution, we or any such non-United States subsidiary would be a controlled foreign corporation (a "CFC"). IR-New Jersey, a United States corporation, owns through its ownership of the non-voting Class B common shares, approximately 45% of the total value of our shares. As a consequence, any Class A common shareholder who is considered to own 10% of the voting power in us could cause our foreign subsidiaries or (if the Internal Revenue Service successfully takes the position that the Class B common shares held by IR-New Jersey in us are voting shares) us, ourselves, to be treated as a CFC. We do not believe that for United States federal income tax purposes we or any of our foreign subsidiaries are CFCs, although there can be no assurance in this regard. However, if we or any of our foreign subsidiaries are or were characterized to become CFCs, then, for the period of time that the entity is a CFC, a portion of our undistributed income may be includible in the taxable income of our 10% Shareholders, and all or a portion of the gain recognized by such 10% Shareholders on the disposition of their shares, which could otherwise qualify for capital gains treatment, may be converted into ordinary dividend income. Information Reporting and Backup Withholding In general, unless you are an exempt recipient such as a corporation, information reporting will apply to dividends in respect of the common shares, preference shares or depositary shares or the proceeds received on the sale, exchange, or redemption of those common shares, preference shares, depositary shares or warrants paid to you within the United States and, in some cases, outside of the United States. Additionally, if you fail to provide your taxpayer identification number, or fail either to report in full dividend and interest income or to make certain certifications, you will be subject to backup withholding. Any amounts withheld under the backup withholding rules will be allowed as a refund or a credit against your United States federal income tax liability, provided you furnish the required information to the United States Internal Revenue Service. Warrants You will generally not recognize any gain or loss upon the exercise of warrants to purchase our common shares or preference shares except with respect to cash received in lieu of a fractional share of common shares or preference shares. You will have an initial tax basis in the common shares or preference shares received on exercise of the warrants equal to the sum of your tax basis in the warrants and the aggregate cash exercise price paid in respect of such exercise less any basis attributable to the receipt of fractional shares. Your holding period in the common shares or preference shares received on exercise of the warrants will commence on the date after the warrants are exercised. Subject to the passive foreign investment company rules discussed above, (1) if a warrant expires without being exercised, you will recognize a capital loss in an amount equal to your tax basis in the warrant and (2) upon the sale or exchange of a warrant, you will generally recognize a capital gain or loss equal to the difference, if any between the amount realized on such sale or exchange and your tax basis in such warrant. Under Section 305 of the Code, you may be deemed to have received a constructive distribution from us, which may result in the inclusion of ordinary dividend income, in the event of certain adjustments, or the failure to make certain adjustments, to the number of common shares or preference shares to be issued upon exercise of a warrant. If a decision is made to issue warrants exercisable into securities other than our common shares or preference shares, we will discuss the relevant income tax consequences in the applicable prospectus supplement. 41 Share Purchase Contracts and Share Purchase Units If a decision is made to issue share purchase contracts or share purchase units, we will discuss the relevant income tax consequences in the applicable prospectus supplement. Consequences to Non-United States Holders The following is a summary of certain United States federal income tax consequences that will apply to you if you are a non-United States holder of our debt securities, common shares, preference shares, depositary shares or warrants. United States Federal Income Tax Under current United States federal income tax law, interest payments or dividends received by a non-United States holder generally will be exempt from United States federal income tax. However, to receive this exemption you may be required to satisfy certain certification requirements to establish that you are a non-United States holder. You may still be subject to United States federal income tax on interest payments or dividends you receive if: o you are an insurance company carrying on a United States insurance business, within the meaning of the Code; or o you are engaged in a trade or business in the United States and interest, including OID, on the debt securities or dividends on common shares, preference shares or depositary shares, in each case, are effectively connected with the conduct of that trade or business. In addition, if you are a foreign corporation, you may be subject to a branch profits tax equal to 30% (or lower applicable treaty rate) of your earnings and profits for the taxable year, subject to adjustments. You will generally not be subject to United States federal income tax on the disposition of a debt security or common shares, preference shares, depositary shares or warrants unless: o the gain is effectively connected with your conduct of a trade or business in the United States; or o you are an individual who is present in the United States for 183 days or more in the taxable year of that disposition, and certain other conditions are met. Information Reporting and Backup Withholding In general, information reporting and backup withholding will not apply to payments of interest or dividends that we make to you although you may have to comply with certain certification requirements to establish that you are not a United States person. Payment of the proceeds from the disposition of debt securities, common shares, preference shares, depositary shares or warrants effected at a United States office of a broker generally will not be subject to information reporting or backup withholding if the payor or broker does not have actual knowledge or reason to know that you are a United States person, you comply with certain certification requirements to establish that you are not a United States person, and the sale does not have a connection with the United States as specified in U.S. Treasury Regulations. Payment of the proceeds from the disposition of debt securities, common shares, preference shares, depositary shares or warrants effected at foreign office of a broker generally will not be subject to information reporting or backup withholding provided that such broker is not for United States federal income tax purposes (1) a United States person, (2) a controlled foreign corporation, (3) a foreign person that derives 50% or more of its gross income for certain periods from the conduct of a trade or business in the United States, or (4) a foreign partnership in which one or more United States persons, in the aggregate, own more than 50% of the income or capital interests in the partnership or which is engaged in a trade or business in the United States. If you receive payments of such amounts outside the United States from a foreign office of any other broker, the payment will not be subject to 42 backup withholding tax, but will be subject to information reporting requirements unless (1) you are the beneficial owner and the broker has documentary evidence in its records that you are not a United States person and certain other conditions are met or (2) you otherwise establish an exemption, and provided that the broker does not have actual knowledge that you are a United States person. Any amounts withheld under the backup withholding rules will be allowed as a refund or a credit against your United States federal income tax liability provided the required information is furnished to the IRS. The foregoing discussion is intended only as a summary and does not purport to be a complete analysis or listing of all potential tax effects relevant to a decision whether to invest in our debt securities, common shares, preference shares, depositary shares or warrants. Potential investors are urged to consult their tax advisors concerning the United States federal, state and local, Bermuda, and other non-United States tax consequences of such investment to them. If a decision is made to issue share purchase contracts or share purchase units, we will discuss the relevant income tax consequences in the applicable prospectus supplement. 43 Plan of Distribution We may sell the securities offered in this prospectus in any of, or any combination of, the following ways: o directly to purchasers; o through agents; o through underwriters; and o through dealers. We or any of our agents may directly solicit offers to purchase these securities. The applicable prospectus supplement will name any agent, who may be deemed to be an underwriter as that term is defined in the Securities Act of 1933, involved in the offer or sale of the securities in respect of which this prospectus is delivered, and will set forth any commissions payable by us to that agent. Unless otherwise indicated in the prospectus supplement, any such agency will be acting in a best efforts basis for the period of its appointment (ordinarily five business days or less). Agents, dealers and underwriters may be customers of, engage in transactions with, or perform services for us in the ordinary course of business. If we utilize an underwriter or underwriters in the sale, we will execute an underwriting agreement with such underwriters at the time of sale to them and will set forth in the applicable prospectus supplement the names of the underwriters and the terms of the transaction. The underwriters will use the prospectus supplement to make releases of the securities in respect of which this prospectus is delivered to the public. If we utilize a dealer in the sale of the securities in respect of which this prospectus is delivered, we will sell the securities to the dealer, as principal. The dealer may then resell the securities to the public at varying prices to be determined by the dealer at the time of resale. The prospectus supplement will set forth the name of the dealer and the terms of the transaction. Agents, underwriters, and dealers may be entitled under the relevant agreements to indemnification by us against certain liabilities, including liabilities under the Securities Act of 1933. The applicable prospectus supplement will set forth the place and time of delivery for the securities in respect of which this prospectus is delivered. Legal Matters Certain U.S. legal matters in connection with the securities will be passed upon by Patricia Nachtigal, Esq., our Senior Vice President and General Counsel. Certain Bermuda legal matters in connection with the securities will be passed upon for us by our Bermuda counsel, Conyers Dill & Pearman. Experts The financial statements incorporated in this prospectus by reference to our Annual Report on Form 10-K for the year ended December 31, 2001 have been so incorporated in reliance on the report of PricewaterhouseCoopers LLP, independent accountants, given on the authority of said firm as experts in auditing and accounting. 44 Cautionary Statement Regarding Forward-Looking Statements This prospectus contains or incorporates by reference forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995 with respect to the Reorganization and our financial condition, results of operations and business. The Private Securities Litigation Reform Act of 1995 protects public companies from liability for forward-looking statements in private securities litigation if the forward-looking statement is identified and is accompanied by meaningful cautionary statements identifying important factors that could cause actual results to differ materially from the forward-looking statements. Forward-looking statements by their nature involve a degree of risk and uncertainty, including, but not limited to, the risks and uncertainties referred to in this prospectus or in the documents incorporated by reference. All statements regarding the expected benefits of the Reorganization are forward-looking statements. The forward-looking statements may include statements for the period following completion of the Reorganization. You can find many of these statements by looking for words such as "believes," "expects," "anticipates," "estimates," "continues," "may," "intends," "plans" or similar expressions in this prospectus or in the documents incorporated by reference. You should be aware that any forward-looking statements in this prospectus or the documents incorporated by reference in this prospectus only reflect current expectations and are not guarantees of performance. Actual results may differ materially from those expressed or implied by forward-looking statements. As you make your investment decision, please take into account that forward-looking statements speak only as of the date of this prospectus or, in the case of documents incorporated by reference, the date of any such document. We have identified factors that could cause actual plans or results to differ materially from those included in any forward-looking statements. These factors include, but are not limited to, the following: o an inability to realize expected benefits of the Reorganization within the anticipated time frame, or at all; o changes in tax laws, tax treaties or tax regulations or the interpretation or enforcement thereof, including taxing authorities not agreeing with our assessment of the effects of such laws, treaties and regulations; o an inability to execute our business strategy; o costs or difficulties related to the merger and related Reorganization transactions, which could be greater than expected; o changes in the rate of economic growth in the U.S. or in other major international economies; o significant changes in trade, monetary or fiscal policies worldwide, including changes in interest rates; o currency fluctuations between the U.S. dollar and other currencies; o demand for products and services; o distributor inventory levels; o performance issues with key suppliers or subcontractors; o failure to achieve our productivity targets; o costs and effects of unanticipated legal and administrative proceedings; and o competitive actions, such as unanticipated pricing actions or cost reduction strategies and entry into direct product line competition. 45 Service of Process and Enforcement of Liabilities We are a Bermuda company. We have been advised by our Bermuda counsel, Conyers Dill & Pearman, that a judgment for the payment of money rendered by a court in the U.S. based on civil liability would not be automatically enforceable in Bermuda. We have also been advised by Conyers Dill & Pearman that with respect to a final and conclusive judgment obtained in a court of competent jurisdiction in the U.S. under which a sum of money is payable (other than a sum of money payable in respect of multiple damages, taxes or other charges of a like nature or in respect of a fine or other penalty), a Bermuda court would be expected to enforce a judgment based thereon, provided that (a) such courts had proper jurisdiction over the parties subject to such judgment, (b) such courts did not contravene the rules of natural justice of Bermuda, (c) such judgment was not obtained by fraud, (d) the enforcement of the judgment would not be contrary to the public policy of Bermuda, (e) no new admissible evidence relevant to the action is submitted prior to the rendering of the judgment by the courts of Bermuda and (f) there is due compliance with the correct procedures under the laws of Bermuda. As a result, it may be difficult for a securityholder to effect service of process within the U.S. or to enforce judgments obtained against us in U.S. courts. We will irrevocably agree that we may be served with process with respect to actions based on offers and sales of securities made in the U.S. by having Ingersoll-Rand Company, 200 Chestnut Ridge Road, Woodcliff Lake, New Jersey 07677, be our U.S. agent appointed for that purpose. A Bermuda court may impose civil liability on us or our directors or officers in a suit brought in the Supreme Court of Bermuda against us or such persons with respect to a violation of U.S. federal securities laws, provided that the facts surrounding such violation would constitute or give rise to a cause of action under Bermuda law. 46 PART II INFORMATION NOT REQUIRED IN PROSPECTUS ITEM 14. Other Expenses of Issuance and Distribution The expenses in connection with the issuance and distribution of the securities being registered, other than underwriting discounts and commissions, are as follows: SEC registration fee.................................... $165,600 Printing and engraving expenses......................... 50,000 Accounting fees and expenses............................ 50,000 Legal fees and expenses................................. 100,000 Blue Sky fees and expenses.............................. 20,000 Trustee's expenses...................................... 10,000 Fees of rating agencies................................. 475,000 Miscellaneous........................................... 14,400 ---------- Total*........................................... $885,000 ========== ----------- * All of the above expenses are estimated except for the SEC filing fee. The Registrants have offset against the full amount of the $165,600 filing fee required in connection with this registration statement, filing fees paid in connection with prior registration statements as described in Note 6 to the Calculation of Registration Fee table in this registration statement. ITEM 15. Indemnification of Directors and Officers Section 98 of the Companies Act 1981 of Bermuda (the "Companies Act") provides generally that a Bermuda company may indemnify its directors and officers against any liability that by virtue of Bermuda law otherwise would be imposed on them, except in cases where such liability arises from fraud or dishonesty of which such director or officer may be guilty in relation to the company. Section 98 further provides that a Bermuda company may indemnify its directors and officers against any liability incurred by them in defending any proceedings, whether civil or criminal, in which a judgment is awarded in their favor or they are acquitted or in which they are acquitted or granted relief by the Supreme Court of Bermuda in certain proceedings arising under Section 281 of the Companies Act. Bye-law 26 of the Amended and Restated Bye-laws of Ingersoll-Rand Company Limited provides that Ingersoll-Rand Company Limited shall indemnify any current or former director or officer or any person serving or who has served at the request of Ingersoll-Rand Company Limited as a director, officer, partner, venturer, proprietor, trustee, employee, agent or similar functionary of another foreign or domestic corporation, general or limited partnership, firm, association, trust, estate, company (including a limited liability company) or other enterprise to the fullest extent permitted under Bermuda law. Ingersoll-Rand Company Limited may also indemnify any employee or agent of Ingersoll-Rand Company Limited to the fullest extent provided by Bermuda law. Bye-law 26 further provides that the right to indemnification thereunder is a contract right and gives claimants certain rights with respect to claims for indemnification not paid by Ingersoll-Rand Company Limited after 60 days following a written request. The indemnification provisions in Bye-law 26 are not exclusive of other rights to which a director or officer may be entitled. We have a liability insurance policy in effect that covers certain claims against any of our officers or directors by reason of certain breaches of duty, neglect, errors or omissions committed by such person in his or her capacity as an officer or director. This liability insurance policy also covers the officers and directors of IR-New Jersey. II-1 Article Seventh of the IR-New Jersey's Restated Certificate of Incorporation, as amended, provides that, to the fullest extent permitted by the laws of the State of New Jersey, directors and officers of IR-New Jersey shall not be personally liable to IR-New Jersey or its shareholders for damages for breach of any duty owed to IR-New Jersey or its shareholders, except that no such director or officer shall be relieved from liability for any breach of duty based upon an act or omission (i) in breach of such person's duty of loyalty to IR-New Jersey or its shareholders, (ii) not in good faith or involving a knowing violation of law or (iii) resulting in receipt by such person of an improper personal benefit. Article Seventh also provides that each person who was or is made a party or is threatened to be made a party to or is involved in any pending, threatened or completed civil, criminal, administrative or arbitrative action, suit or proceeding, by reason of his or her being or having been a director or officer of IR-New Jersey, or by reason of his or her being or having been a director, officer, trustee, employee or agent of any other corporation or of any partnership, joint venture, employee benefit plan or other entity or enterprise, serving as such at the request of IR-New Jersey, shall be indemnified and held harmless by IR-New Jersey to the fullest extent permitted by the New Jersey Business Corporation Act (the "NJBCA"), from and against all reasonable costs, disbursements and attorneys' fees, and all amounts paid or incurred in satisfaction of settlements, judgments, fines and penalties, incurred or suffered in connection with any such proceeding, and such indemnification shall continue as to a person who has ceased to be a director, officer, trustee, employee or agent and shall inure to the benefit of his or her heirs, executors, administrators and assigns; provided, however, that there shall be no indemnification with respect to any settlement of any proceeding unless IR-New Jersey has given its prior consent to such settlement or disposition. This right to indemnification includes the right to be paid by IR-New Jersey the expenses incurred in connection with any proceeding in advance of the final disposition of such proceeding as authorized by the Board of Directors; provided, however, that, if the NJBCA so requires, the payment of such expenses shall be made only upon receipt by IR-New Jersey of an undertaking to repay all amounts so advanced unless it shall ultimately be determined that such director or officer is entitled to be indemnified. Article Seventh also provides that the right to indemnification thereunder is a contract right and gives claimants certain rights with respect to claims for indemnification not paid by IR-New Jersey after 30 days following a written request. Finally, Article Seventh provides that the right to indemnification and advancement of expenses provided thereby shall not exclude or be exclusive of any other rights to which any person may be entitled under a certificate of incorporation, by-law, agreement, vote of shareholders or otherwise. Sections 1 and 2 of Article IX of the IR-New Jersey's By-Laws also provide directors and officers with certain rights to indemnity that are substantially similar to the foregoing provisions of Article Seventh. Section 14A: 3-5 of the NJBCA provides that no indemnification shall be made if such person shall have been adjudged liable for negligence or misconduct unless the court in which such proceeding was brought determines upon application that the defendant, officers or directors are fairly and reasonably entitled to indemnity for such expenses despite such adjudication of liability. In any case, a corporation must indemnify an officer director against expenses (including attorney's fees) to the extent that he has been successful on the merits or otherwise or in defense of any claim or issue. ITEM 16. Exhibits See Exhibit Index. ITEM 17. Undertakings The undersigned Registrants hereby undertake: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement: (i) to include any prospectus required by Section 10(a)(3) of the Securities Act; II-2 (ii) to reflect in the prospectus any facts or events arising after the effective date of this Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in this Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering price range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20% change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective registration statement; and (iii) to include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement or any material change to such information in this Registration Statement; provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) of this section do not apply if this Registration Statement is on Form S-3, Form S-8 or Form F-3, and the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Securities and Exchange Commission by Ingersoll-Rand Company Limited pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in this Registration Statement. (2) That, for the purposes of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. (4) That, for purposes of determining any liability under the Securities Act, each filing of Ingersoll-Rand Company Limited's annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in this Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (5) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrants pursuant to the foregoing provisions, or otherwise, the Registrants have been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrants of expenses incurred or paid by a director, officer or controlling person of the Registrants in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrants will, unless in the opinion of their counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by them is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. II-3 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, Ingersoll-Rand Company Limited certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Woodcliff Lake, New Jersey on May 17, 2002. INGERSOLL-RAND COMPANY LIMITED By: /s/ HERBERT L. HENKEL ----------------------------------- (Herbert L. Henkel) Chairman, President, Chief Executive Officer and Director Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed below by the following persons in the capacities indicated on May 17, 2002. Signature Title --------- ----- Chairman, President, /s/ HERBERT L. HENKEL Chief Executive Officer and Director - ------------------------------------- (Principal Executive Officer) Herbert L. Henkel /s/ TIMOTHY R. MCLEVISH Senior Vice President and Chief - ------------------------------------- Financial Officer (Principal Timothy R. McLevish Financial Officer) /s/ STEVEN R. SHAWLEY Vice President and Controller - ------------------------------------- (Principal Accounting Officer) Steven R. Shawley * ANN C. BERZIN Director - ------------------------------------- Ann C. Berzin * PETER C. GODSOE Director - ------------------------------------- Peter C. Godsoe * CONSTANCE J. HORNER Director - ------------------------------------- Constance J. Horner * H. WILLIAM LICHTENBERGER Director - -------------------------------------- H. William Lichtenberger * THEODORE E. MARTIN Director - -------------------------------------- Theodore E. Martin /s/ PATRICIA NACHTIGAL Director - -------------------------------------- Patricia Nachtigal II-4 Signature Title --------- ----- * ORIN R. SMITH Director - -------------------------------------- Orin R. Smith * RICHARD J. SWIFT Director - -------------------------------------- Richard J. Swift * TONY L. WHITE Director - -------------------------------------- Tony L. White *By: /s/ PATRICIA NACHTIGAL ---------------------------------- Patricia Nachtigal, Attorney-in-Fact II-5 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, Ingersoll-Rand Company certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Woodcliff Lake, New Jersey on May 17, 2002. INGERSOLL-RAND COMPANY By: /s/ HERBERT L. HENKEL --------------------------------------- (Herbert L. Henkel) President and Chief Executive Officer Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed below by the following persons in the capacities indicated on May 17, 2002. Signature Title --------- ---- President and Chief Executive /s/ HERBERT L. HENKEL Officer (Principal Executive - ------------------------------------------ Officer) Herbert L. Henkel /s/ TIMOTHY R. MCLEVISH Senior Vice President and Chief - ------------------------------------------ Financial Officer (Principal Timothy R. McLevish Financial Officer) /s/ STEVEN R. SHAWLEY Vice President and Controller - ------------------------------------------ (Principal Accounting Officer) Steven R. Shawley * RONALD G. HELLER Director - ------------------------------------------ Ronald G. Heller /s/ PATRICIA NACHTIGAL Director - ------------------------------------------ Patricia Nachtigal * GERALD E. SWIMMER Director - ------------------------------------------ Gerald E. Swimmer *By: /s/ PATRICIA NACHTIGAL -------------------------------------- Patricia Nachtigal, Attorney-in-Fact II-6 INDEX TO EXHIBITS 1.1+ -- Form of Underwriting Agreement (Debt). 1.2* -- Form of Underwriting Agreement (Equity). 1.3* -- Form of Underwriting Agreement (Share Purchase Contracts). 1.4* -- Form of Underwriting Agreement (Share Purchase Units). 1.5* -- Form of Underwriting Agreement (Warrants). 2 -- Agreement and Plan of Merger, dated as of October 31, 2001, among Ingersoll-Rand Company Limited, Ingersoll-Rand Company and IR-Merger Corporation (incorporated by reference to Annex I to the proxy statement/prospectus included as part of Amendment No. 1 to Ingersoll-Rand Company Limited's Registration Statement on Form S-4, Registration Statement No. 333-71642). 3.1 -- Memorandum of Association of Ingersoll-Rand Company Limited (incorporated by reference to Exhibit 3.1 to Amendment No. 1 to Ingersoll-Rand Company Limited's Registration Statement on Form S-4, Registration Statement No. 333-71642). 3.2 -- Amended and Restated Bye-laws of Ingersoll-Rand Company Limited (incorporated by reference to Exhibit 3.2 to Amendment No. 1 to Ingersoll-Rand Company Limited's Registration Statement on Form S-4, Registration Statement No. 333-71642). 3.3* -- Certificate of Designation, Preferences and Rights for Preference Shares. 3.4 -- Rights Agreement between Ingersoll-Rand Company Limited and The Bank of New York, as Rights Agent (incorporated by reference to Exhibit 4.2 to Amendment No. 1 to Ingersoll-Rand Company Limited's Registration Statement on Form S-4, Registration Statement No. 333-71642). 3.5 -- Certificate of Designation, Preferences and Rights of Series A Preference Shares of Ingersoll-Rand Company Limited (incorporated by reference to Exhibit 4.1 to Amendment No. 1 to Ingersoll-Rand Company Limited's Registration Statement on Form S-4, Registration Statement No. 333-71642). 3.6 -- Voting Agreement between Ingersoll-Rand Company Limited and Ingersoll-Rand Company (incorporated by reference to Exhibit 4.3 to Amendment No. 1 to Ingersoll-Rand Company Limited's Registration Statement on Form S-4, Registration Statement No. 333-71642). 4.1+ -- Form of Senior Indenture. 4.2+ -- Form of Subordinated Indenture. 4.3 -- Form of Senior Debt Security (included in Exhibit 4.1). 4.4 -- Form of Subordinated Debt Security (included in Exhibit 4.2). 4.5* -- Form of Rights (included in Exhibit 3.4). 4.6* -- Form of Deposit Agreement for Depository Shares. 4.7 -- Form of Class A Common Share Certificate (incorporated by reference to Exhibit 4.4 to Ingersoll-Rand Company Limited's Registration Statement on Form S-4, Registration No. 333-71642). 4.8* -- Form of Preference Share Certificate. 4.9* -- Form of Purchase Contract Agreement relating to Share Purchase Contracts and Share Purchase Units. 4.10* -- Form of Pledge Agreement for Share Purchase Contracts and Share Purchase Units. 4.11* -- Form of Warrant Agreement. 4.12* -- Form of Warrant Unit Agreement. 4.13 -- Form of Senior Guarantee by Ingersoll-Rand Company (included in Exhibit 4.1). 4.14 -- Form of Subordinated Guarantee by Ingersoll-Rand Company (included in Exhibit 4.2). 4.15 -- Indenture, dated as of March 23, 1998, between Ingersoll-Rand Company and The Bank of New York, as trustee (incorporated by reference to Exhibit 4 to the Annual Report on Form 10-K of Ingersoll-Rand Company filed on March 30, 1999). 4.16 -- First Supplemental Indenture, dated as of March 23, 1998, between Ingersoll-Rand Company and The Bank of New York, as trustee (incorporated by reference to Exhibit 4 to the Annual Report on Form 10-K of Ingersoll-Rand Company filed on March 30, 1999). 4.17 -- Second Supplemental Indenture, dated December 31, 2001, among Ingersoll-Rand Company Limited, Ingersoll-Rand Company and The Bank of New York, as trustee (incorporated by reference to Exhibit 4.8 to the Annual Report on Form 10-K of Ingersoll- Rand Company Limited filed on March 13, 2002). 4.18 -- Amended and Restated Declaration of Trust for Ingersoll-Rand Financing I, a Delaware statutory business trust, dated March 23, 1998 (incorporated by reference to Exhibit 4 to the Annual Report on Form 10-K of Ingersoll-Rand Company filed on March 30, 1999). 4.19 -- Guarantee Agreement, dated as of March 23, 1998, between Ingersoll-Rand Company and The First National Bank of Chicago, as trustee (incorporated by reference to Exhibit 4 to the Annual Report on Form 10-K of Ingersoll-Rand Company filed on March 30, 1999). 4.20 -- Five Year Credit Agreement dated as of July 2, 2001, among Ingersoll-Rand Company, the banks listed therein, The Chase Manhattan Bank, as Administrative Agent, Citibank N.A., and Deutsche Banc Alex. Brown Inc., as Co-Syndication Agents, and The Bank of Nova Scotia and Bank of Tokyo-Mitsubishi Trust Company, as Co-Documentation Agents (incorporated by reference to Exhibit 10(i)(a) to the Quarterly Report on Form 10-Q of Ingersoll-Rand Company filed August 2, 2001). 4.21 -- Amendment and Waiver, dated as of November 28, 2001, among Ingersoll-Rand Company Limited, Ingersoll-Rand Company, JP Morgan Chase Bank, as Administrative Agent, Citibank N.A., and Deutsche Banc Alex. Brown Inc., as Co-Syndication Agents, and The Bank of Nova Scotia and Bank of Tokyo-Mitsubishi Trust Company, as Co-Documentation Agents (incorporated by reference to Exhibit 4.12 to the Annual Report on Form 10-K of Ingersoll-Rand Company Limited filed on March 13, 2002). 4.22 -- 364-Day Credit Agreement dated as of July 2, 2001, among Ingersoll-Rand Company, the banks listed therein, The Chase Manhattan Bank, as Administrative Agent, Citibank N.A., and Deutsche Banc Alex. Brown Inc., as Co-Syndication Agents, and The Bank of Nova Scotia and Bank of Tokyo-Mitsubishi Trust Company, as Co-Documentation Agents (incorporated by reference to Exhibit 10(i)(b) to the Quarterly Report on Form 10-Q of Ingersoll-Rand Company filed August 2, 2001). 4.23 -- Amendment and Waiver, dated as of November 28, 2001, among Ingersoll-Rand Company Limited, Ingersoll-Rand Company, JP Morgan Chase Bank, as Administrative Agent, Citibank N.A., and Deutsche Banc Alex. Brown Inc., as Co-Syndication Agents, and The Bank of Nova Scotia and Bank of Tokyo-Mitsubishi Trust Company, as Co-Documentation Agents (incorporated by reference to Exhibit 4.14 to the Annual Report on Form 10-K of Ingersoll-Rand Company Limited filed on March 13, 2002). 4.24 -- Indenture, dated as of August 1, 1986, between Ingersoll-Rand Company and The Bank of New York, as trustee, as supplemented by first, second and third supplemental indentures (incorporated by reference to Exhibits 4.1, 4.2 and 4.3 to Ingersoll-Rand Company's Registration Statement on Form S-3, Registration Statement No. 33-39474, and to Exhibit 4.2 to Ingersoll-Rand Company's Registration Statement on Form S-3, Registration Statement No. 333-50902). 4.25 -- Fourth Supplemental Indenture, dated as of December 31, 2001, among Ingersoll-Rand Company Limited, Ingersoll-Rand Company and The Bank of New York, as trustee (incorporated by reference to Exhibit 4.5 to the Annual Report on Form 10-K of Ingersoll-Rand Company Limited filed March 13, 2002). 5.1+ -- Opinion of Patricia Nachtigal, Esq., Senior Vice President and General Counsel. 5.2+ -- Opinion of Conyers Dill & Pearman. 12 -- Computation of Ratio of Earnings to Fixed Charges of Ingersoll -Rand Company (incorporated by reference to Exhibit 12 to the Quarterly Report on Form 10-Q of Ingersoll-Rand Company Limited filed May 15, 2002). 23.1 -- Consent of Patricia Nachtigal, Esq. (included in Exhibit 5.1). 23.2 -- Consent of Conyers Dill & Pearman (included in Exhibit 5.2). 23.3+ -- Consent of Independent Accountants. 24.1+ -- Powers of Attorney (Ingersoll-Rand Company Limited). 24.2+ -- Powers of Attorney (Ingersoll Rand Company). 25.1+ -- Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of Wells Fargo Bank Minnesota, N.A. as Trustee under the Senior Indenture. 25.2+ -- Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of Wells Fargo Bank Minnesota, N.A., as Trustee under the Subordinated Indenture. - -------------- * To be filed with Subsequent Current Report on Form 8-K + Filed herewith EX-1.1 3 exh1_1.txt UNDERWRITING AGREEMENT EXHIBIT 1.1 INGERSOLL-RAND COMPANY LIMITED DEBT SECURITIES UNDERWRITING AGREEMENT STANDARD PROVISIONS __________ __, 2002 From time to time Ingersoll-Rand Company Limited, a Bermuda company (the "Company") proposes to enter into one or more Pricing Agreements (each a "Pricing Agreement") in the form of Annex I hereto, with such additions and deletions as the parties thereto may determine, and, subject to the terms and conditions stated herein and therein, to issue and sell to the firms named in Schedule I to the applicable Pricing Agreement (such firms constituting the "Underwriters" with respect to such Pricing Agreement) certain of its debt securities (the "Securities") specified in Schedule II to such Pricing Agreement (the Securities so specified being referred to herein as the "Designated Securities"). The Designated Securities may be guaranteed (the "Guarantee") by Ingersoll-Rand Company, a New Jersey corporation and a subsidiary of the Company (the "Guarantor") (any such guaranteed Designated Securities, the "Guaranteed Securities"). If the Designated Securities are Guaranteed Securities, the Guarantor will also enter into the Pricing Agreement with respect thereto. 1. The terms and rights of the issuance of the Designated Securities shall be specified in Schedule I to the applicable Pricing Agreement and in or pursuant to the indenture (the "Indenture") identified in such Pricing Agreement. Particular sales of Designated Securities may be made from time to time to the Underwriters of such Securities, for whom the firm or firms designated as representatives of the Underwriters of such Securities in the Pricing Agreement relating thereto will act as representative (the "Representative"). The term "Representative" also refers to Underwriters who act without any firm being designated as their representative. These Underwriting Agreement Standard Provisions shall not be construed as an obligation of the Company to sell or the Guarantor to guarantee any of the Securities or as an obligation of any of the Underwriters to purchase the Securities. The obligation of the Company to issue and sell any of the Securities, the obligation of the Guarantor to issue any Guarantee and the obligation of any of the Underwriters to purchase any of the Securities shall be evidenced by the Pricing Agreement with respect to the Designated Securities specified therein. Each Pricing Agreement shall specify the aggregate principal amount of such Designated Securities, the initial public offering price of such Designated Securities, the purchase price to the Underwriters of such Designated Securities, the names of the Underwriters of such Designated Securities, the names of the Representatives of such Underwriters, whether the Designated Securities are Guaranteed Securities and the principal amount of such Designated Securities to be purchased by each Underwriter and shall set forth the date, time and manner of delivery of such Designated Securities and payment therefor. The Pricing Agreement shall also specify (to the extent not set forth in the Indenture and the registration statement and prospectus with respect thereto) the terms of such Designated Securities. A Pricing Agreement shall be in the form of an executed writing (which may be in counterparts), and may be evidenced by an exchange of facsimile 2 communications or any other rapid transmission device designated to produce a written record of communications transmitted. The obligations of the Underwriters under this Agreement and each Pricing Agreement shall be several and not joint. 2. The Company, and if the Designated Securities are Guaranteed Securities, the Guarantor, jointly and severally represent and warrant to, and agree with, each of the Underwriters that: (a) A registration statement in respect of the Securities and, in the case of Guaranteed Securities, the Guarantees and more particularly described in the applicable Pricing Agreement has been filed with the Securities and Exchange Commission (the "Commission") in the form heretofore delivered or to be delivered to the Representative, and such registration statement in such form has been declared effective by the Commission and no stop order suspending the effectiveness of such registration statement has been issued and no proceeding for that purpose has been initiated or threatened by the Commission (any preliminary prospectus included in such registration statement being hereinafter called a "Preliminary Prospectus"); if any post-effective amendment to such registration statement has been filed with the Commission prior to the date of the applicable Pricing Agreement, the most recent such amendment has been declared effective by the Commission; "Effective Date" means the date as of which such registration statement, or the most recent post-effective amendment thereto, if any, was declared effective by the Commission; such registration statement, as amended at the Effective Date, including all material incorporated by reference therein and, if the date of the Pricing Agreement is on or before the fifteenth business day after the Effective Date, including all information deemed to be a part thereof as of the Effective Date pursuant to paragraph (b) of Rule 430A under the Securities Act of 1933, as amended (the "Act"), is hereinafter referred to as the "Registration Statement," and the form of prospectus relating to the Designated Securities, as first filed pursuant to paragraph (1) or (4) of Rule 424(b) ("Rule 424(b)") under the Act or, if the date of the Pricing Agreement is after the fifteenth business day after the Effective Date, pursuant to Rule 424(b)(2) or (5), as such form of prospectus may be supplemented as contemplated by Section 1 to reflect the terms of the Designated Securities and the terms of offering thereof, including all documents incorporated by reference therein, is hereinafter referred to as 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 the applicable form under the Act, as of the date of such Preliminary Prospectus or Prospectus, as the case may be; and 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 therein by reference); (b) 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 3 required to be stated therein or necessary to make the statements therein not misleading; any further documents so filed and incorporated by reference in the Prospectus or in any amendments or supplements 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 apply only to documents so filed and incorporated by reference during the period that a prospectus relating to the Designated Securities is required to be delivered in connection with sales of such Designated Securities (such period being hereinafter sometimes referred to as the "prospectus delivery period"); and provided further, 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 or (in the case of Guaranteed Securities) the Guarantor by an Underwriter through the Representative expressly for use in the Prospectus; (c) The Registration Statement and the Prospectus conform, and any amendments or supplements thereto will conform, 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 the Registration Statement does not and will not, as of the applicable effective date as to the Registration Statement and any amendment 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, and the Prospectus does not and will not, as of the applicable filing date as to the Prospectus and any supplement thereto and as of the Time of Delivery contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein in light of the circumstances under which they were made not misleading; provided, however, that this representation and warranty shall apply only to amendments or supplements filed or made during the prospectus delivery period; and provided further, 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 or (in the case of Guaranteed Securities) the Guarantor by an Underwriter through the Representative expressly for use in the Prospectus; (d) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, there has not been any material adverse change or any development involving a prospective material adverse change in or affecting the business and operations, financial position, stockholders' 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; (e) The Company is duly incorporated and validly existing as a company in good standing under the laws of its jurisdiction of incorporation, with corporate power and authority to own its properties and conduct its business as described in the Prospectus, and has been duly qualified as a foreign corporation for the transaction of business under 4 the laws of each other jurisdiction in which the nature of the business it transacts or the properties it owns requires such qualification except where such failures to be so qualified would not, individually or in the aggregate, have a material adverse effect on the Company and its subsidiaries taken as a whole; (f) If the Designated Securities are Guaranteed Securities, the Guarantor is duly incorporated and validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation, with corporate power and authority to own its properties and conduct its business as described in the Prospectus, and has been duly qualified as a foreign corporation for the transaction of business under the laws of each other jurisdiction in which the nature of the business it transacts or the properties it owns requires such qualification except where such failures to be so qualified would not, individually or in the aggregate, have a material adverse effect on the Guarantor and its subsidiaries taken as a whole; (g) The Securities have been duly authorized by the Company, and, when Designated Securities are issued and delivered pursuant to this Agreement and the Pricing Agreement with respect thereto and duly authenticated by the Trustee in accordance with the Indenture, such Designated Securities will have been duly executed, issued and delivered by the Company and will constitute valid and legally binding obligations of the Company enforceable against the Company in accordance with their terms and entitled to the benefits provided by the Indenture, subject, as to enforcement, to bankruptcy, insolvency, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally and to general equity principles; the Indenture has been duly authorized, executed and delivered by the Company and is duly qualified under the Trust Indenture Act and, assuming due authorization, execution and delivery thereof by the Trustee, constitutes a valid and legally binding instrument of the Company, enforceable against the Company in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally and to general equity principles; this Agreement and the Pricing Agreement with respect to the Designated Securities has been duly authorized, executed and delivered by the Company; and the Securities, the Designated Securities, this Agreement, the Pricing Agreement and the Indenture will conform in all material respects to the descriptions thereof in the Prospectus; (h) If the Designated Securities are Guaranteed Securities, the Guarantee of the Guaranteed Securities has been duly authorized by the Guarantor and, when the Guarantee endorsed on the Guaranteed Securities is executed by the Guarantor, and when the Guaranteed Securities are issued, executed and delivered pursuant to this Agreement and the Pricing Agreement with respect thereto and duly authenticated by the Trustee in accordance with the Indenture and delivered and paid for by the Underwriters, such Guarantee will have been duly executed and issued by the Guarantor and will constitute a valid and legally binding obligation of the Guarantor enforceable against the Guarantor in accordance with its terms and entitled to the benefits provided by the Indenture, subject, as to enforcement, to bankruptcy, insolvency, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally and to general equity principles; the Indenture has been duly authorized, executed and delivered by the 5 Guarantor and, assuming due authorization, execution and delivery thereof by the Trustee, constitutes a valid and legally binding instrument of the Guarantor, enforceable against the Guarantor in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally and to general equity principles; this Agreement and the Pricing Agreement with respect to the Designated Securities has been duly authorized, executed and delivered by the Guarantor; and the Guarantee will conform in all material respects to the descriptions thereof in the Prospectus; (i) The issue and sale of the Designated Securities and, in the case of Guaranteed Securities, the Guarantee, and the compliance by the Company and, in the case of Guaranteed Securities, the Guarantor, with all of the provisions of the Designated Securities, the Indenture, the Guarantee and this Agreement and the Pricing Agreement with respect thereto, and the consummation of the transactions herein and therein contemplated will not conflict with or result in a breach 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 or, in the case of Guaranteed Securities, the Guarantor, is a party or by which the Company or, in the case of Guaranteed Securities, the Guarantor, is bound or to which any of the property or assets of the Company or, in the case of Guaranteed Securities, the Guarantor, is subject, nor will such action result in any violation of the provisions of the Memorandum of Association or Bye-Laws of the Company, or in the case of Guaranteed Securities, the certificate of incorporation, as amended, or the by-laws of the Guarantor or any statute, order, rule or regulation (except for state securities or Blue Sky laws, rules and regulations, as to which the Company and the Guarantor make no representation) of any court or governmental agency or body having jurisdiction over the Company or, in the case of Guaranteed Securities, the Guarantor, or any of the properties of the Company, or in the case of Guaranteed Securities, the Guarantor; 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 Designated Securities or the consummation by the Company or, in the case of Guaranteed Securities, the Guarantor, of the other transactions contemplated by the applicable Pricing Agreement or the Indenture except such as have been, or will have been prior to the Time of Delivery (as defined in Section 4 hereof), obtained under the Act and the Trust Indenture Act and such consents, approvals, authorizations, registrations and qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Designated Securities by the Underwriters. (j) Other than as set forth or contemplated in the Prospectus, there are no legal or governmental proceedings pending or, to the best of the Company's or, in the case of Guaranteed Securities, the Guarantor's knowledge, threatened to which the Company, the Guarantor (in the case of Guaranteed Securities) or any of their subsidiaries is a party or of which any property of the Company, the Guarantor (in the case of Guaranteed Securities) or any of their subsidiaries is the subject which individually or in the aggregate have a reasonable possibility of having a material adverse effect on the consolidated financial position, shareholders' equity or results of operations of the Company and its subsidiaries taken as a whole. 6 3. Upon the execution of the applicable Pricing Agreement and the authorization by the Representative of the release of the Designated Securities, the several Underwriters propose to offer such Securities for sale upon the terms and conditions set forth in the Prospectus. 4. Designated Securities to be purchased by each Underwriter in such authorized denominations and registered in such names as the Representative 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 Representative for the accounts of the Underwriters, against payment by such Underwriter or on its behalf of the purchase price therefor in the manner and in the funds specified in such Pricing Agreement, all at the place and time and date specified in such Pricing Agreement or at such other place and time and date as the Representative and the Company may agree upon in writing, such time and date being herein called the "Time of Delivery" for such Designated Securities. 5. The Company and, in the case of Guaranteed Securities, the Guarantor, jointly and severally agree with each of the Underwriters of any Designated Securities: (a) To prepare the Prospectus as amended and supplemented in relation to the applicable Designated Securities in a form not disapproved by the Representative and to file such Prospectus with both the Registrar of Companies in Bermuda and with the Commission (i) pursuant to Rule 424(b)(1) (or, if applicable and if consented to by the Representatives, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (A) the second business day following the date of the applicable Pricing Agreement or (B) the fifteenth business day after the Effective Date, or (ii) if the date of the applicable Pricing Agreement is after the fifteenth business day after the Effective Date, pursuant to Rule 424(b)(2) (or, if applicable and if consented to by the Representatives, pursuant to Rule 424(b)(5)) not later than the second business day following the date of the applicable Pricing Agreement; the Company or, in the case of Guaranteed Securities, the Guarantor, will advise you promptly of any such filing pursuant to Rule 424(b); to advise the Representative promptly of any amendment or supplement to the Registration Statement or Prospectus after such relevant Time of Delivery and during the prospectus delivery period and furnish the Representative with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed by the Company or, in the case of Guaranteed Securities, the Guarantor, 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 during the prospectus delivery period; and during such same period to advise the Representative, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement has been filed or become effective or any supplement to the Prospectus or any amended Prospectus has been filed, or mailed for filing, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any prospectus relating to the Designated Securities, of the suspension of the qualification of such Designated 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 such stop order or of any such order 7 preventing or suspending the use of any prospectus relating to the Designated Securities or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal; (b) Promptly from time to time to take such action as the Representative may reasonably request to qualify the Designated Securities for offering and sale under the securities laws of such jurisdictions as the Representative 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 such Designated Securities, provided that in connection therewith neither the Company nor the Guarantor shall be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction; (c) To furnish the Underwriters with copies of the Prospectus in such quantities as the Representative may from time to time reasonably request, and, if the delivery of a prospectus is required at any time prior to the expiration of nine months after the time of issue of such prospectus in connection with the offering or sale of the Designated 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 the 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 Representative and upon the request of the Representative to file such document and to prepare and furnish without charge to each Underwriter and to any dealer in securities as many copies as the Representative 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; and in case any Underwriter is required to deliver a prospectus in connection with sales of any of such Designated Securities at any time nine months or more after the time of issue of the Prospectus, upon the request of the Representative but at the expense of such Underwriter, to prepare and deliver to such Underwriter as many copies as the Representative may request of an amended or supplemented Prospectus complying with Section 10(a)(3) of the Act; (d) To make generally available to its security holders as soon as practicable an earnings 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 of the Commission thereunder (including, at the option of the Company or the Guarantor, Rule 158); and (e) During the period beginning from the date of the applicable Pricing Agreement and continuing to and including the earlier of (i) the termination of trading restrictions for the Designated Securities, as notified to the Company by the Representative and (ii) the Time of Delivery, not to offer, sell, contract to sell or otherwise dispose of any debt securities of the Company or, in the case of Guaranteed 8 Securities, the Guarantor, which mature more than one year after such Time of Delivery, without the prior written consent of the Representative. 6. The Company and, in the case of Guaranteed Securities, the Guarantor, jointly and severally covenant and agree with the several Underwriters that the Company and, in the case of Guaranteed Securities, the Guarantor, will jointly and severally pay or cause to be paid the following: (i) the fees, disbursements and expenses of the Company's and the Guarantor's counsel and accountants in connection with the registration of the Designated Securities and, in the case of Guaranteed Securities, the Guarantee, 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 (except as expressly provided in the last clause of Section 5(c) hereof) 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, any Pricing Agreement, any Indenture, any Blue Sky survey and any other documents in connection with the offering, purchase, sale and delivery of the Designated Securities; (iii) all expenses in connection with the qualification of the Designated Securities for offering and sale under state securities laws as provided in Section 5(b) hereof, including the reasonable fees and disbursements of counsel for the Underwriters in connection with such qualification and in connection with the Blue Sky survey; (iv) any fees charged by securities rating services for rating the Designated Securities; (v) any filing fees incident to any required review by the National Association of Securities Dealers, Inc. of the terms of the sale of the Designated Securities; (vi) the cost of preparing the Designated Securities and, in the case of Guaranteed Securities, the Guarantee; (vii) the fees and expenses of any Trustee and any agent of any Trustee and the fees and disbursements of counsel for any Trustee in connection with any Indenture, the Designated Securities and, in the case of Guaranteed Securities, the Guarantee; 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, Section 5(c), Section 8 and Section 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 and Guarantees by them, and any advertising expenses connected with any offers they may make. 7. The Representative shall have the right to terminate the Pricing Agreement, in its sole discretion, due to any inaccuracy in the representations and warranties and other statements of the Company or, in the case of Guaranteed Securities, the Guarantor, herein, at and as of the Time of Delivery, the nonperformance by the Company or, in the case of Guaranteed Securities, the Guarantor, of any of its obligations hereunder to be performed, and the nonperformance of 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) of the Agreement; no stop order suspending the effectiveness of the Registration Statement 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; 9 (b) Simpson Thacher & Bartlett, counsel for the Underwriters, shall have furnished to the Representative such opinion or opinions, dated the Time of Delivery, with respect to the validity of the Indenture, the Designated Securities, the Registration Statement, the Prospectus as amended or supplemented and other related matters as the Representative 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) Conyers Dill & Pearman, Bermuda counsel for the Company, shall have furnished to the Representative its written opinion, dated the Time of Delivery, covering such matters (including, without limitation, the validity of the Indenture and the Designated Securities) and in such form and substance as the Representative may reasonably request; (d) Patricia Nachtigal, Esq., Senior Vice President and General Counsel of the Guarantor, shall have furnished to the Representative her written opinion, dated the Time of Delivery, to the effect that: (i) In the case of Guaranteed Securities, the Guarantor has been duly incorporated and is validly existing and in good standing as a corporation under the laws of the State of New Jersey and has full corporate power and authority to own its properties and conduct its business as described in the Prospectus; (ii) Each of the Company and, in the case of Guaranteed Securities, the Guarantor has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties, or conducts any business, so as to require such qualification except where such failures to be so qualified or be in good standing would not, individually or in the aggregate, have a material adverse effect on the Company, the Guarantor (in the case of Guaranteed Securities) and their subsidiaries taken as a whole (such counsel being entitled to rely in respect of the opinion in this clause upon certificates of state officials, provided that such counsel shall state that she believes that both the Representative and she are justified in relying upon such certificates); (iii) To the best of such counsel's knowledge there are no legal or governmental proceedings pending to which the Company, the Guarantor (in the case of Guaranteed Securities) or any of their subsidiaries is a party or of which any property of the Company, the Guarantor (in the case of Guaranteed Securities) or any of their subsidiaries is the subject, other than as set forth in the Prospectus and other than litigation incident to the kind of business conducted by the Company, the Guarantor (in the case of Guaranteed Securities) and their subsidiaries which individually and in the aggregate is not material to the Company, the Guarantor (in the case of Guaranteed Securities) and their 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; 10 (iv) In the case of Guaranteed Securities, this Agreement and the Pricing Agreement with respect to the Designated Securities have been duly authorized, executed and delivered by the Guarantor; (v) This Agreement and the Pricing Agreement with respect to the Designated Securities have been duly delivered by the Company; (vi) The Designated Securities have been duly issued and delivered by the Company and, assuming due authentication thereof by the Trustee and upon payment and delivery in accordance with this Agreement and the Pricing Agreement, will constitute valid and legally binding obligations of the Company enforceable against the Company in accordance with their terms and entitled to the benefits provided by the Indenture, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other similar laws of general applicability relating to or affecting creditors' rights and to general equity principles; and the Designated Securities and the Indenture conform to the descriptions thereof in the Prospectus as amended or supplemented; (vii) The Indenture has been duly delivered by the Company, and assuming the Indenture is the valid and legally binding obligation of the Trustee, the Indenture constitutes a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other similar laws of general applicability relating to or affecting creditors' rights and to general equity principles; and (viii) In the case of Guaranteed Securities, the Guarantee has been duly authorized, executed and issued by the Guarantor and, assuming due authentication of the Designated Securities by the Trustee and upon payment for and delivery of the Designated Securities in accordance with this Agreement and the Pricing Agreement, will constitute valid and legally binding obligations of the Guarantor enforceable against the Guarantor in accordance with its terms and entitled to the benefits provided by the Indenture, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other similar laws of general applicability relating to or affecting creditors' rights and to general equity principles; and the Guarantee conforms to the descriptions thereof in the Prospectus as amended or supplemented; (ix) In the case of Guaranteed Securities, the Indenture has been duly authorized, executed and delivered by the Guarantor and, assuming the Indenture is the valid and legally binding obligation of the Trustee, constitutes a valid and legally binding obligation of the Guarantor, enforceable against the Guarantor in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other similar 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; 11 (x) The issue and sale of the Designated Securities and the compliance by the Company with all of the provisions of the Designated Securities, the Indenture, this Agreement and the Pricing Agreement with respect to the Designated Securities and the consummation of the transactions herein and therein contemplated will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of the Company pursuant to the terms of, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument which is material to the Company and its subsidiaries taken as a whole and is 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 or any of its significant subsidiaries is subject, nor will such action result in any violation of any statute or any order, rule or regulation known to such counsel 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 any such regulatory authority or other governmental agency or body is required for the issue and sale of the Designated Securities or the consummation of the other transactions contemplated by this Agreement or such Pricing Agreement or the Indenture, except such as have been obtained under the Act and 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 Designated Securities by the Underwriters; (xi) In the case of Guaranteed Securities, the issue and sale of the Designated Securities and the Guarantee and the compliance by the Guarantor with all of the provisions of the Guarantee, the Indenture, this Agreement and the Pricing Agreement with respect to the Designated Securities and the consummation of the transactions herein and therein contemplated will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of the Guarantor pursuant to the terms of, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument which is material to the Company, the Guarantor and its subsidiaries taken as a whole and is known to such counsel to which the Guarantor is a party or by which the Guarantor is bound or to which any of the property or assets of the Guarantor or any of its significant subsidiaries is subject, nor will such action result in any violation of the provisions of the Restated Certificate of Incorporation, as amended, or the By-Laws, as amended, of the Guarantor or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Guarantor or any of its properties; and no consent, approval, authorization, order, registration or qualification of or with any such court or any such regulatory authority or other governmental agency or body is required for the issue and sale of the Guarantee or the consummation of the other transactions contemplated by this Agreement or such Pricing Agreement or the Indenture, except such as have 12 been obtained under the Act and 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 Designated Securities by the Underwriters; (xii) The documents incorporated by reference in the Prospectus as amended or supplemented (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 such counsel has no reason to believe that any of such documents, when they 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, and, 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 required to be stated therein or 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, as of its effective date, and the Prospectus as amended or supplemented and any further amendments and supplements thereto made by the Company prior to the Time of Delivery for the Designated Securities as of its date (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; such counsel has no reason to believe that, as of the effective date of the Registration Statement, the Registration Statement (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 and as of the Time of Delivery, the Prospectus, as amended or supplemented (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 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; and such counsel does not know 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 as amended or supplemented or required to be described in the Registration Statement or the Prospectus as amended or supplemented which are not filed or incorporated by reference or described as required; 13 (e) The Trustee shall have furnished to the Representative a certificate, dated the Time of Delivery, as to its due authorization, execution and delivery of the Indenture and its due authentication of the Designated Securities; (f) At the Time of Delivery, the independent accountants who have certified the financial statements of the Company and its subsidiaries included or incorporated by reference in the Registration Statement shall have furnished to the Representative a letter, dated the Time of Delivery, of the type described in the American Institute of Certified Public Accountants' Statement on Auditing Standards No. 72 covering such matters as the Representative may reasonably request and in form and substance satisfactory to the Representative; (g) Since the effective date of the Registration Statement (or any post-effective amendment thereto) no event shall have occurred which should have been set forth in an amendment to the Registration Statement or a supplement to the Prospectus but which has not been so set forth, and since the respective dates as of which information is given in the Prospectus there shall not have been any change or any development involving a prospective change in or affecting the business and operations, 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 is in the reasonable judgment of the Representative so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Designated Securities on the terms and in the manner contemplated in the Prospectus; (h) Subsequent to the date of the applicable Pricing Agreement 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, Inc.; (ii) a general moratorium on commercial banking activities in New York declared by either Federal or New York State authorities; (iii) a material disruption in securities settlement or clearance services; or (iv) the outbreak or material escalation of hostilities involving the United States or Bermuda or the declaration, on or after the date hereof, by the United States or Bermuda of a national emergency or war if the effect of any such event specified in this clause (iv) in the reasonable judgment of the Representative makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Designated Securities on the terms and in the manner contemplated in the Prospectus; (i) Each of the Company and, in the case of Guaranteed Securities, the Guarantor shall have furnished or caused to be furnished to the Representative at the Time of Delivery a certificate or certificates of officers of the Company and, in the case of Guaranteed Securities, the Guarantor as to the accuracy of the representations and warranties of the Company and, in the case of Guaranteed Securities, the Guarantor herein at and as of the Time of Delivery, as to the performance by the Company and, in the case of Guaranteed Securities, the Guarantor of all of their obligations hereunder to be performed at or prior to the Time of Delivery, and as to the matters set forth in subsections (a) and (g) of this Section; and 14 (j) Subsequent to the execution of the applicable Pricing Agreement, there shall not have been any decrease in the ratings of any of the debt securities of the Company or, in the case of Guaranteed Securities, the Guarantor by Moody's Investors Service, Inc. or Standard & Poor's Corporation. 8. (a) Each of the Company and, in the case of Guaranteed Securities, the Guarantor will jointly and severally indemnify and hold harmless each Underwriter against any losses, claims, damages or liabilities, joint or several, to which such Underwriter 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 or any other prospectus relating to the Designated 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; provided, however, that neither the Company nor, in the case of Guaranteed Securities, the Guarantor shall 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 or any other prospectus relating to the Designated Securities, or any amendment or supplement thereto, in reliance upon and in conformity with written information furnished to the Company or, in the case of Guaranteed Securities, the Guarantor by any Underwriter through the Representative expressly for use in the Prospectus relating to such Designated Securities; provided further, however, that the foregoing indemnity with respect to preliminary prospectuses shall not inure to the benefit of any Underwriter from whom the person asserting any such losses, claims, damages or liabilities purchased Designated Securities if such untrue statement or omission made in any preliminary prospectus is eliminated or remedied in the Prospectus relating to such Securities and if a copy of the Prospectus relating to such Securities (excluding documents incorporated by reference) has not been sent or given to such person at or prior to the written confirmation of the sale of such Securities to such person. (b) Each Underwriter will indemnify and hold harmless the Company and, in the case of Guaranteed Securities, the Guarantor against any losses, claims, damages or liabilities to which the Company or, in the case of Guaranteed Securities, the Guarantor 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 or any other prospectus relating to the Designated 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 or any other prospectus relating to the Designated Securities, or any amendment or supplement thereto, in reliance upon and in conformity with 15 written information furnished to the Company or, in the case of Guaranteed Securities, the Guarantor by such Underwriter through the Representative expressly for use therein; and will reimburse the Company and, in the case of Guaranteed Securities, the Guarantor for any legal or other expenses reasonably incurred by the Company or, in the case of Guaranteed Securities, the Guarantor in connection with investigating or defending any such action or claim. (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, provided, however, that if the defendants in any such action include both the indemnified party and the indemnifying party and the indemnified party shall have been advised by its counsel that representation of such indemnified party and the indemnifying party by the same counsel would be inappropriate (whether or not such representation by the same counsel has been proposed) under applicable standards of professional conduct due to actual or potential differing interests or defenses between them, the indemnified party or parties shall have the right to select separate counsel or participate in the defense of such action on behalf of such indemnified party or parties. Upon receipt of notice from the indemnifying party to such indemnified party of its election so to assume the defense of such action and approval by the indemnified party of counsel, the indemnifying party will not be liable to such indemnified party under this Section 8 for any legal or other expenses subsequently incurred by such indemnified party in connection with the defense thereof unless the indemnified party shall have employed separate counsel in accordance with the proviso to the next preceding sentence (it being understood, however, that the indemnifying party shall not be liable for the expenses of more than one separate counsel, approved by the Representative in the case of paragraph (a) of this Section 8, representing the indemnified parties under such paragraph (a) who are parties to such action). (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 and, in the case of Guaranteed Securities, the Guarantor on the one hand and the Underwriters on the other from the offering of the Designated Securities to which such loss, claim, damage or liability (or action in respect thereof) relates. 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 and, in the case of Guaranteed Securities, the Guarantor on the one hand and the Underwriters on 16 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 and, in the case of Guaranteed Securities, the Guarantor 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 such offering (before deducting expenses) received by the Company and, in the case of Guaranteed Securities, the Guarantor bear to the total underwriting discounts and commissions received by the Underwriters. 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 and, in the case of Guaranteed Securities, the Guarantor 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, the Guarantor (in the case of Guaranteed Securities) 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 Designated 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 obligations of the Underwriters in this subsection (d) to contribute are several in proportion to their respective underwriting obligations with respect to such Securities and not joint. (e) The obligations of the Company and, in the case of Guaranteed Securities, the Guarantor under this Section 8 shall be in addition to any liability which the Company and, in the case of Guaranteed Securities, the Guarantor 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, in the case of Guaranteed Securities, the Guarantor and to each person, if any, who controls the Company and, in the case of Guaranteed Securities, the Guarantor within the meaning of the Act. 9. (a) If any Underwriter shall default in its obligations to purchase the Designated Securities which it has agreed to purchase under the Pricing Agreement, the Representative may in its discretion arrange for any Underwriter or Underwriters or another party or other parties to purchase such Designated Securities on the terms contained herein. If within thirty-six hours after such default by any Underwriter the Representative does not arrange for the purchase of such Designated Securities, then the Company and, in the case of Guaranteed 17 Securities, the Guarantor shall be entitled to a further period of thirty-six hours within which to procure another party or other parties satisfactory to the Representative to purchase such Designated Securities on such terms. In the event that, within the respective prescribed periods, the Representative notifies the Company and, in the case of Guaranteed Securities, the Guarantor that it has so arranged for the purchase of such Designated Securities, or either of the Company and, in the case of Guaranteed Securities, the Guarantor notifies the Representative that it has so arranged for the purchase of such Designated Securities, the Representative, the Company or, in the case of Guaranteed Securities, the Guarantor 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 each of the Company and, in the case of Guaranteed Securities, the Guarantor agrees to file promptly any amendments to the Registration Statement or the Prospectus which in the opinion of the Representative 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 the Agreement with respect to such Designated Securities. (b) If, after giving effect to any arrangement for the purchase of the Designated Securities of a defaulting Underwriter or Underwriters by the Representative, the Company and, in the case of Guaranteed Securities, the Guarantor as provided in subsection (a) above, the aggregate principal amount of such Designated Securities which remains unpurchased does not exceed one-tenth of the aggregate principal amount of all the Designated Securities, then the Company and, in the case of Guaranteed Securities, the Guarantor shall have the right to require each non-defaulting Underwriter to purchase the principal amount of Designated 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 such Designated Securities which such Underwriter agreed to purchase hereunder) of the Designated 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 Designated Securities of a defaulting Underwriter or Underwriters by the Representative, the Company and, in the case of Guaranteed Securities, the Guarantor as provided in subsection (a) above, the aggregate principal amount of Designated Securities which remains unpurchased exceeds one-tenth of the aggregate principal amount of Designated Securities, or if the Company and, in the case of Guaranteed Securities, the Guarantor shall not exercise the right described in subsection (b) above to require non-defaulting Underwriters to purchase Designated Securities of a defaulting Underwriter or Underwriters, then this Agreement shall thereupon terminate, without liability on the part of any nondefaulting Underwriter, the Company or, in the case of Guaranteed Securities, the Guarantor, except for the expenses to be borne by the Company, the Guarantor (in the case of Guaranteed Securities) 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. 10. The respective indemnities, agreements, warranties and other statements of the Company, the Guarantor (in the case of Guaranteed Securities) and the several Underwriters, as set forth in this Agreement or made by or on behalf of them, respectively, pursuant to this 18 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, or, in the case of Guaranteed Securities, the Guarantor or any officer or director or controlling person of the Guarantor, and shall survive delivery of and payment for the Designated Securities. 11. If the applicable Pricing Agreement shall be terminated pursuant to Section 9 hereof, neither the Company nor, in the case of Guaranteed Securities, the Guarantor shall then be under any liability to any Underwriter with respect to the Designated Securities except as provided in Section 6 and Section 8 hereof; but if for any other reason Designated Securities are not delivered by or on behalf of the Company as provided herein, the Company and, in the case of Guaranteed Securities, the Guarantor will jointly and severally reimburse the Underwriters through the Representative for all out-of-pocket expenses approved in writing by the Representative, including fees and disbursements of counsel, reasonably incurred by the Underwriters in making preparations for the purchase, sale and delivery of such Designated Securities, but the Company and, in the case of Guaranteed Securities, the Guarantor shall then be under no further liability to any Underwriter with respect to such Designated Securities except as provided in Section 6 and Section 8 hereof. 12. In all dealings hereunder, the Representative 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 Representative. All statements, requests, notices and agreements hereunder shall be in writing or by facsimile, and if to the Underwriters shall be sufficient in all respects if delivered or sent by registered mail to the address of the Representative as set forth in the applicable Pricing Agreement; if to the Company shall be sufficient in all respects if delivered or sent by registered mail in care of the Guarantor to the address of the Guarantor set forth in the Registration Statement, Attention: Vice President and Treasurer, with a copy to: Senior Vice President and General Counsel; if to the Guarantor (in the case of Guaranteed Securities) shall be sufficient in all respects if delivered or sent by registered mail to the address of the Guarantor set forth in the Registration Statement, Attention: Vice President and Treasurer, with a copy to: Senior Vice President and General Counsel; provided, however, that any notice to an Underwriter pursuant to Section 8(c) hereof shall be delivered or sent by registered mail to such Underwriter at its address set forth in its Underwriters' Questionnaire, or facsimile constituting such Questionnaire, which address has been supplied to the Company by the Representative. 13. This Agreement shall be binding upon, and inure solely to the benefit of, the Underwriters, the Company, the Guarantor (in the case of Guaranteed Securities) and, to the extent provided in Section 8 and Section 10 hereof, the officers and directors of the Company and the Guarantor (in the case of Guaranteed Securities) and each person who controls the Company, the Guarantor (in the case of Guaranteed Securities) 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. 19 14. Time shall be of the essence in connection with each Pricing Agreement. 15. This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York applicable to contracts made and to be performed therein. 16. This Agreement and each Pricing 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. ANNEX I FORM OF PRICING AGREEMENT INSERT NAME , As Representatives of the several Underwriters named in Schedule I hereto, Insert Address ____________ __, 200_ Dear Sirs: Ingersoll-Rand Company Limited (the "Company") proposes, subject to the terms and conditions stated herein and in the Underwriting Agreement Standard Provisions dated as of _____ __, 2002 (the "Underwriting Agreement"), to issue and sell to the Underwriters named in Schedule I hereto (the "Underwriters") the Securities specified in Schedule II hereto (the "Designated Securities"). [If the Designated Securities are Guaranteed Securities, insert: The Designated Securities will be guaranteed (the "Guarantee") to the extent and as provided in the Indenture.] Each of the provisions of the Underwriting Agreement is incorporated herein by reference in its entirety, and shall be deemed to be a part of this Agreement to the same extent as if such provisions had been set forth in full herein; and each of the representations and warranties set forth therein shall be deemed to have been made at and as of the date of this Pricing Agreement, except that each representation and warranty with respect to the Prospectus in Section 2 of the Underwriting Agreement shall be deemed to be a representation or warranty as of the date of the Underwriting Agreement in relation to the Prospectus (as therein defined), and also a representation and warranty as of the date of this Pricing Agreement in relation to the Prospectus as amended or supplemented relating to the Designated Securities which are the subject of this Pricing Agreement [If the Designated Securities are not Guaranteed Securities, insert: ; provided that all covenants, agreements, conditions, indemnities, representations and warranties with respect to the Guarantor and the Guarantee and all other provisions with respect to the Guarantor and the Guarantee set forth therein shall not be incorporated by reference herein or deemed to be a part hereof]. Each reference to the Representatives herein and in the provisions of the Underwriting Agreement so incorporated by reference shall be deemed to refer to you. Unless otherwise defined herein, terms defined in the Underwriting Agreement are used herein as therein defined. The Representatives designated to act on behalf of the Representatives and on behalf of each of the Underwriters of the Designated Securities pursuant to Section 12 of the Underwriting Agreement and the address of the Representatives referred to in such Section 12 are set forth at the end of Schedule II hereto. An amendment to the Registration Statement, or a supplement to the Prospectus, as the case may be, relating to the Designated Securities, in the form heretofore delivered to you is now proposed to be filed with the Commission. Subject to the terms and conditions set forth herein and in the Underwriting Agreement incorporated herein by reference, the Company agrees to issue and sell to each of the Underwriters, and each of the Underwriters agrees, severally and 2 not jointly, to purchase from the Company, at the time and place and at the purchase price to the Underwriters set forth in Schedule II hereto, the principal amount of Designated Securities set forth opposite the name of such Underwriter in Schedule I hereto. If the foregoing is in accordance with your understanding, please sign and return to us two counterparts hereof, and upon acceptance hereof by you, on behalf of each of the Underwriters, this letter and such acceptance hereof, including the provisions of the Underwriting Agreement incorporated herein by reference, shall constitute a binding agreement between each of the Underwriters [and][,] the Company [and the Guarantor]. It is understood that your acceptance of this letter on behalf of each of the Underwriters is or will be pursuant to the authority set forth in a form of Agreement among Underwriters, the form of which shall be submitted to the Company [and the Guarantor] for examination, upon request, but without warranty on the part of the Representatives as to the authority of the signers thereof. Very truly yours, INGERSOLL-RAND COMPANY LIMITED By: ------------------------------------ [In the case of Guaranteed Securities, insert INGERSOLL-RAND COMPANY By: ------------------------------------ By: ------------------------------------] Accepted as of the date hereof: Insert Name By: --------------------------------------- On behalf of each of the Underwriters SCHEDULE I Principal Amount of Designated Securities Underwriter to be Purchased - ----------- -------------------- Name of Underwriters $ ------------------------ Total $ ------------------------ SCHEDULE II TITLE OF DESIGNATED SECURITIES [%] [Floating Rate] [Zero Coupon] [Notes][due] AGGREGATE PRINCIPAL AMOUNT: [U.S.] $ PRICE TO PUBLIC: % of the principal amount of the Designated Securities, plus accrued interest, if any, from to [and accrued amortization, if any, from to ] PURCHASE PRICE BY UNDERWRITERS: % of the principal amount of the Designated Securities, plus accrued interest, if any, from to [and accrued amortization, if any, from to ] METHOD AND SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE: [same day] [next day] funds; [certificated] [book-entry] form INDENTURE: Indenture, dated as of ______ _, 2002, as supplemented, between the Company, the Guarantor and Wells Fargo Bank Minnesota, N.A., as Trustee MATURITY: INTEREST RATE: [%] [zero Coupon] [See Floating Rate Provisions] INTEREST PAYMENT DATES: [months and dates] REDEMPTION PROVISIONS: [No provisions for redemption] [The Designated Securities may be redeemed, otherwise than through the sinking fund, in whole or in part at the option of the Company [or the Guarantor] in the amount of $ or an integral multiple thereof, on or after , at the following redemption price 2 (expressed in percentages of principal amount).] If [redeemed on or before , %, and if redeemed during the 12-month period beginning Redemption Year Price ---- ----- ------- ---------- and thereafter at 100% of their principal amount, together in each case with accrued interest to the redemption date.] [On any interest payment date falling on or after , , at the election of the Company [or the Guarantor] at a redemption price equal to the principal amount thereof, plus accrued interest to the date of redemption.] [Other possible redemption provisions, such as make-whole provision mandatory redemption upon occurrence of certain events or redemption for changes in tax law.] [Restriction on refunding] CONVERSION PROVISIONS: [No provisions for conversion] [If securities are convertible, insert applicable conversion provisions] PUT PROVISIONS: [No provisions for right to put] [If securities have put rights, insert applicable provisions] SINKING FUND PROVISIONS: [No sinking fund provisions] [The Designated Securities are entitled to the benefit of a sinking fund to retire $ principal amount of Designated Securities on in each of the years through at 100% of their principal amount plus accrued interest] [, together with [cumulative] [noncumulative] redemptions at the option of the Company [or the Guarantor] to retire an additional $ principal amount of Designated Securities in the years through at 100% of their principal amount plus accrued interest]. [If Securities are extendable debt Securities, insert - - EXTENDABLE PROVISIONS: Securities are repayable on , [insert date and years], at the option of the holder, at their principal amount with accrued interest. Initial annual interest rate will be %, and thereafter annual interest rate will be adjusted on , and to a rate not less than % 3 of the effective annual interest rate on U.S. Treasury obligations with -year maturities as of the [insert date 15 days prior to maturity date] prior to such [insert maturity date].] [If Securities are Floating Rate debt Securities, insert - - FLOATING RATE PROVISIONS: Initial annual interest rate will be % through ________ [and thereafter will be adjusted [______] [on each , ] [, and to an annual rate of % above the average rate for -year [insert period of time] [securities] [certificates of deposit] by and [insert names of banks].] [and the annual interest rate [thereafter] [from through ] will be the interest yield equivalent of the weekly average per annum market discount rate for - month Treasury bills plus % of Interest Differential (the excess, if any, of (i) then current weekly average per annum secondary market yield for -month certificates of deposit over (ii) then current interest yield equivalent of the weekly average per annum market discount rate for -month Treasury bills); [from and thereafter the rate will be the then current interest yield equivalent plus % of Interest Differential].] TIME OF DELIVERY: CLOSING LOCATION: NAME AND ADDRESSES OF REPRESENTATIVE: Designated Representative: Address for Notice; etc.: [OTHER TERMS]: EX-4.1 4 exh4_1.txt INDENTURE Exhibit 4.1 ============================================================================== INGERSOLL-RAND COMPANY LIMITED, as ISSUER, INGERSOLL-RAND COMPANY, as GUARANTOR and WELLS FARGO BANK MINNESOTA, N.A., as Trustee ------------- INDENTURE Dated as of __________ __, 2002 -------------- Debt Securities ============================================================================== Table of Contents Page RECITALS OF THE COMPANY.....................................................1 ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION.........1 SECTION 101. Definitions...................................................1 Act....................................................................2 Affiliate..............................................................2 Attributable Debt......................................................2 Authenticating Agent...................................................2 Board of Directors.....................................................2 Board Resolution.......................................................2 Business Day...........................................................2 Commission.............................................................2 Common Shares..........................................................3 Company................................................................3 Company Request........................................................3 Company Order..........................................................3 Corporate Trust Office.................................................3 Defaulted Interest.....................................................3 Dollar.................................................................3 Event of Default.......................................................3 Funded Indebtedness....................................................3 Global Security........................................................3 Guarantee..............................................................3 Guaranteed Securities..................................................4 Guarantor..............................................................4 Holder.................................................................4 Indenture..............................................................4 Interest...............................................................4 Interest Payment Date..................................................4 Judgment Currency......................................................4 i Maturity...............................................................4 Mortgage...............................................................4 Officer's Certificate..................................................4 Opinion of Counsel.....................................................4 Original Issue Discount Security.......................................5 Outstanding............................................................5 Paying Agent...........................................................6 Person.................................................................6 Place of Payment.......................................................6 Predecessor Security...................................................6 Principal Property.....................................................6 Process Agent..........................................................6 Redemption Date........................................................6 Redemption Price.......................................................6 Regular Record Date....................................................6 Required Currency......................................................6 Responsible Officer....................................................6 Restricted Subsidiary..................................................7 Sale and Leaseback Transaction.........................................7 Securities.............................................................7 Security Register and Security Registrar...............................7 shareholders' equity in the Company and its consolidated Subsidiaries..7 Special Record Date....................................................7 Stated Maturity........................................................7 Subsidiary.............................................................7 Trustee................................................................7 Trust Indenture Act....................................................7 U.S. Depositary........................................................7 U.S. Government Obligations............................................8 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 ii SECTION 105. Notices, Etc., to Trustee, Guarantor and Company..............10 SECTION 106. Notice to Holders; Waiver.....................................10 SECTION 107. Conflict with Trust Indenture Act.............................11 SECTION 108. Effect of Headings and Table of Contents......................11 SECTION 109. Successors and Assigns........................................11 SECTION 110. Separability Clause...........................................11 SECTION 111. Benefits of Indenture.........................................11 SECTION 112. GOVERNING LAW.................................................11 SECTION 113. Legal Holidays................................................11 SECTION 114. Incorporators, Shareholders, Officers and Directors of the Company and the Guarantor Exempt from Individual Liability....12 SECTION 115. Counterparts..................................................12 SECTION 116. Currency Exchange.............................................12 SECTION 117. Judgment Currency; Consent to Jurisdiction and Service........12 ARTICLE TWO SECURITY FORMS..................................................14 SECTION 201. Forms Generally...............................................14 SECTION 202. Form of Face of Security......................................14 SECTION 203. Form of Reverse of Security...................................16 SECTION 204. Form of Trustee's Certificate of Authentication...............20 SECTION 205. Securities in Global Form.....................................21 SECTION 206. Guarantee; Form of Guarantee..................................21 ARTICLE THREE THE SECURITIES................................................23 SECTION 301. Amount Unlimited; Issuable in Series..........................23 SECTION 302. Denominations.................................................25 SECTION 303. Execution, Authentication, Delivery and Dating................25 SECTION 304. Temporary Securities..........................................27 SECTION 305. Registration, Registration of Transfer and Exchange...........27 SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities..............30 SECTION 307. Payment of Interest; Interest Rights Preserved................31 SECTION 308. Persons Deemed Owners.........................................32 SECTION 309. Cancellation..................................................32 SECTION 310. Computation of Interest.......................................33 SECTION 311. CUSIP Numbers.................................................33 iii ARTICLE FOUR SATISFACTION AND DISCHARGE.....................................33 SECTION 401. Satisfaction and Discharge of Indenture.......................33 SECTION 402. Application of Trust Money....................................35 SECTION 403. Satisfaction, Discharge and Defeasance of Securities of any Series....................................................35 SECTION 404. Reinstatement.................................................37 ARTICLE FIVE REMEDIES.......................................................38 SECTION 501. Events of Default.............................................38 SECTION 502. Acceleration of Maturity; Rescission and Annulment............39 SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee.......................................................41 SECTION 504. Trustee May File Proofs of Claim..............................41 SECTION 505. Trustee May Enforce Claims Without Possession of Securities...42 SECTION 506. Application of Money Collected................................42 SECTION 507. Limitation on Suits...........................................43 SECTION 508. Unconditional Right of Holders to Receive Principal, Premium and Interest..................................................44 SECTION 509. Restoration of Rights and Remedies............................44 SECTION 510. Rights and Remedies Cumulative................................44 SECTION 511. Delay or Omission Not Waiver..................................44 SECTION 512. Control by Holders............................................45 SECTION 513. Waiver of Past Defaults.......................................45 SECTION 514. Undertaking for Costs.........................................45 SECTION 515. Waiver of Stay or Extension Laws..............................46 ARTICLE SIX THE TRUSTEE.....................................................46 SECTION 601. Certain Duties and Responsibilities...........................46 SECTION 602. Notice of Defaults............................................47 SECTION 603. Certain Rights of Trustee.....................................47 SECTION 604. Not Responsible for Recitals or Issuance of Securities........48 SECTION 605. May Hold Securities...........................................49 SECTION 606. Money Held in Trust...........................................49 SECTION 607. Compensation and Reimbursement................................49 SECTION 608. Disqualification; Conflicting Interests.......................50 SECTION 609. Corporate Trustee Required; Different Trustees for Different Series; Eligibility...........................................50 iv SECTION 610. Resignation and Removal; Appointment of Successor.............51 SECTION 611. Acceptance of Appointment by Successor........................52 SECTION 612. Merger, Conversion, Consolidation or Succession to Business...53 SECTION 613. Preferential Collection of Claims Against the Company or the Guarantor.....................................................53 SECTION 614. Authenticating Agents.........................................54 ARTICLE SEVEN HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY.............55 SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.....55 SECTION 702. Preservation of Information; Communications to Holders........56 SECTION 703. Reports by Trustee............................................57 SECTION 704. Reports by Company............................................57 ARTICLE EIGHT CONSOLIDATION, MERGER, CONVEYANCE, SALE OR LEASE..............58 SECTION 801. Company and Guarantor May Consolidate, Etc., on Certain Terms.........................................................58 SECTION 802. Securities to be Secured in Certain Events....................60 SECTION 803. Successor Corporation to be Substituted.......................60 SECTION 804. Opinion of Counsel to be Given to Trustee.....................60 ARTICLE NINE SUPPLEMENTAL INDENTURES........................................61 SECTION 901. Supplemental Indentures without Consent of Holders............61 SECTION 902. Supplemental Indentures with Consent of Holders...............62 SECTION 903. Execution of Supplemental Indentures..........................63 SECTION 904. Effect of Supplemental Indentures.............................63 SECTION 905. Conformity with Trust Indenture Act...........................64 SECTION 906. Reference in Securities to Supplemental Indentures............64 ARTICLE TEN COVENANTS.......................................................64 SECTION 1001. Payment of Principal, Premium and Interest....................64 SECTION 1002. Maintenance of Office or Agency...............................64 SECTION 1003. Money for Securities Payments to Be Held in Trust.............65 SECTION 1004. Limitation on Liens...........................................66 SECTION 1005. Limitation on Sale and Leaseback Transactions.................68 SECTION 1006. Defeasance of Certain Obligations.............................69 SECTION 1007. Statement by Officer as to Default............................70 SECTION 1008. Waiver of Certain Covenants...................................71 v SECTION 1009. Calculation of Original Issue Discount........................71 ARTICLE ELEVEN REDEMPTION OF SECURITIES.....................................71 SECTION 1101. Applicability of Article......................................71 SECTION 1102. Election to Redeem; Notice to Trustee.........................71 SECTION 1103. Selection by Trustee of Securities to Be Redeemed.............72 SECTION 1104. Notice of Redemption..........................................72 SECTION 1105. Deposit of Redemption Price...................................73 SECTION 1106. Securities Payable on Redemption Date.........................73 SECTION 1107. Securities Redeemed in Part...................................73 ARTICLE TWELVE SINKING FUNDS................................................74 SECTION 1201. Applicability of Article......................................74 SECTION 1202. Satisfaction of Sinking Fund Payments with Securities.........74 SECTION 1203. Redemption of Securities for Sinking Fund.....................74 ARTICLE THIRTEEN GUARANTEE OF GUARANTEED SECURITIES.........................75 SECTION 1301. Guarantee.....................................................75 SECTION 1302. Execution and Delivery of Guarantees..........................76 SECTION 1303. Notice to Trustee.............................................77 SECTION 1304. This Article Not to Prevent Events of Default.................77 SECTION 1305. Amendment, Etc................................................77 SECTION 1306. Limitation on Liability.......................................77 vi Reconciliation and tie between Trust Indenture Act of 1939 and Indenture, dated as of _________ __, 2002. Trust Indenture Act Section Indenture Section --------------------------- ----------------- ss. 310(a)(1).................................... 609 (a)(2).................................. 609 (a)(3).................................. Not Applicable (a)(4).................................. Not Applicable (b)..................................... 608, 610 ss. 311(a)....................................... 613 (b)..................................... 613 (b)(2).................................. 703(a) ss. 312(a)....................................... 701, 702(a) (b)..................................... 702(b) (c)..................................... 702(c) ss. 313(a)....................................... 703(a) (b)(1).................................. Not Applicable (b)(2).................................. 703(a) (c)..................................... 703(a) (d)..................................... 703(b) ss. 314(a)....................................... 704 (b)..................................... Not Applicable (c)(1).................................. 102 (c)(2).................................. 102 (c)(3).................................. Not Applicable (d)..................................... Not Applicable (e)..................................... 102 ss. 315(a)....................................... 601(a) (b)..................................... 602 (c)..................................... 601(b) (d)..................................... 601(c) (d)(1).................................. 601(c)(1) (d)(2).................................. 601(c)(2) (d)(3).................................. 601(c)(3) (e)..................................... 514 ss. 316(a)(1)(A)................................. 502, 512 (a)(1)(B)............................... 513 (a)(2).................................. Not Applicable (b)..................................... 508 ss. 317(a)(1).................................... 503 (a)(2).................................. 504 (b)..................................... 1003 ss. 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 _______ __, 2002 among INGERSOLL-RAND COMPANY LIMITED, a company duly organized and existing under the laws of Bermuda (herein called the "Company"), having an office at Clarendon House, 2 Church Street, Hamilton, HM11 Bermuda, INGERSOLL-RAND COMPANY, a corporation duly organized and existing under the laws of the State of New Jersey (herein called the "Guarantor"), having an office at 200 Chestnut Ridge Road, Woodcliff Lake, New Jersey 07677, and Wells Fargo Bank Minnesota, 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. The Company, directly or indirectly, owns beneficially 100% of the issued share capital of the Guarantor. All things necessary to make this Indenture a valid agreement of the Company, in accordance with its terms, have been done. The Guarantor has duly authorized the execution and delivery of this Indenture to provide for the Guarantee of the Guaranteed Securities provided for herein. All things necessary to make this Indenture a valid agreement of the Guarantor, in accordance with its terms, have been done. NOW, THEREFORE, THIS INDENTURE WITNESSETH: For and in consideration of the premises and the purchase of the Securities by the Holders thereof, it is mutually covenanted and agreed, for the equal and proportionate benefit of all Holders of the Securities or of series thereof, as follows: ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION SECTION 101. Definitions. ----------- For all purposes of this Indenture, except as otherwise expressly provided or unless the context otherwise requires: (1) the terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular; (2) all other terms used herein which are defined in the Trust Indenture Act, either directly or by reference therein, have the meanings assigned to them therein; (3) all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with generally accepted accounting principles in the United States of America, and, except as otherwise herein expressly provided, the term "generally accepted accounting principles" with respect to any computation required or permitted hereunder shall mean such accounting principles as are generally accepted at the date of such computation; and (4) the words "herein", "hereof" and "hereunder" and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision. Certain terms, used principally in Article Six, are defined in that Article. "Act" when used with respect to any Holder, has the meaning specified in Section 104. "Affiliate" of any specified person means any other person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified person. For the purposes of this definition, "control" when used with respect to any specified person means the power to direct the management and policies of such person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms "controlling" and "controlled" have meanings correlative to the foregoing. "Attributable Debt" has the meaning specified in Section 1004. "Authenticating Agent" means any person authorized to authenticate and deliver Securities on behalf of the Trustee for the Securities of any series pursuant to Section 614. "Board of Directors" means either the Board of Directors of the Company or the Guarantor, as applicable, or an executive committee of such Board or any other duly authorized committee of that Board to which the powers of that Board have been lawfully delegated. "Board Resolution" means a copy of a resolution certified by the Secretary or an Assistant Secretary of the Company or the Guarantor, as applicable, to have been duly adopted by the Company's Board of Directors or the Guarantor's Board of Directors, as the case may be, and to be in full force and effect on the date of such certification, and delivered to the Trustee for the Securities of any series. "Business Day", when used with respect to any Place of Payment, means each day which is not a day on which banking institutions in that Place of Payment are authorized or obligated by law to close. "Commission" means the Securities and Exchange Commission, as from time to time constituted, created under the Securities Exchange Act of 1934, or, if at any time after the execution of this instrument such Commission is not existing and performing the 2 duties now assigned to it under the Trust Indenture Act, then the body performing such duties at such time. "Common Shares" means the common shares, par value $1 per share, of the Company. "Company" means the person named as the "Company" in the first paragraph of this instrument until a successor corporation shall have become such pursuant to the applicable provisions of this Indenture, and thereafter "Company" shall mean such successor corporation. "Company Request" or "Company Order" means, in the case of the Company, a written request or order signed in the name of the Company, by its Chairman of the Board, a Deputy Chairman of the Board, its President or a Vice President, and by its Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary, and delivered to the Trustee for the Securities of any series and, in the case of the Guarantor, a written request or order signed in the name of the Guarantor by its Chairman of the Board, a Vice Chairman of the Board, its President or a Vice President, and by its Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary and delivered to the Trustee for the Securities of any series. "Corporate Trust Office" means the principal office of the Trustee for the Securities of any series at which at any particular time its corporate trust business shall be administered, which at the date of this Indenture is 9062 Old Annapolis Road, Columbia, MD 21045-1951, Attention: Corporate Trust Trustee Administration, Reference Number: MAC-N2702-011. "Defaulted Interest" has the meaning specified in Section 307. "Dollar" or "$" means a dollar or other equivalent unit in such coin or currency of the United States of America as at the time shall be legal tender for the payment of public and private debts. "Event of Default" unless otherwise specified in the supplemental indenture, Board Resolution or Officer's Certificate establishing a series of Securities, has the meaning specified in Section 501. "Funded Indebtedness" means indebtedness created, assumed or guaranteed by a person for money borrowed which matures by its terms, or is renewable by the borrower to a date, more than one year after the date of its original creation, assumption or guarantee. "Global Security" means a Security evidencing all or part of a series of Securities, including, without limitation, any temporary or permanent Global Securities. "Guarantee" means the guarantee by the Guarantor as endorsed on each Guaranteed Security and authenticated and delivered pursuant to this Indenture, which 3 guarantee shall include the provisions set forth in Article Thirteen of this Indenture. "Guaranteed" shall have a meaning correlative to the foregoing. "Guaranteed Securities" means Securities which are Guaranteed by the Guarantor and authenticated and delivered under this Indenture, and which are designated as Guaranteed Securities pursuant to Section 301(16). "Guarantor" means the Person named as the "Guarantor" in the first paragraph of this Indenture until a successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter "Guarantor" shall mean such successor Person. "Holder" means a person in whose name a Security is registered in the Security Register. "Indenture" means this instrument as originally executed or as it may from time to time be supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof and shall include the terms of particular series of Securities established as contemplated by Section 301. "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. "Judgment Currency" has the meaning specified in Section 117. "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. "Mortgage" has the meaning specified in Section 1004. "Officer's Certificate" means, in the case of the Company, a certificate signed by the Chairman of the Board, a Deputy Chairman of the Board, the President or a Vice President of the Company, and in the case of the Guarantor, a certificate signed by the Chairman of the Board, a Vice Chairman of the Board, the President or a Vice President of the Guarantor, and, in each case, delivered to the Trustee for the Securities of any series. Each such certificate shall include the statements provided for in Section 102 if and to the extent required by this Indenture. "Opinion of Counsel" means a written opinion of counsel, who may be an employee of or regular counsel for the Company or the Guarantor, as the case may be, or may be other counsel reasonably satisfactory to the Trustee for the Securities of any series. Each such opinion shall include the statements provided for in Section 102 if and to the extent required by this Indenture. 4 "Original Issue Discount Security" means any Security which provides for an amount less than the principal amount thereof to be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 502. "Outstanding", when used with respect to Securities, means, as of the date of determination, all Securities theretofore authenticated and delivered under this Indenture, except: (i) Securities theretofore cancelled by the Trustee for such Securities or delivered to such 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 for such Securities 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 reasonably satisfactory to such Trustee has been made; and (iii) Securities which have been paid pursuant to Section 306 or in exchange for or in lieu of which other Securities have been authenticated and delivered pursuant to this Indenture, other than any such Securities in respect of which there shall have been presented to the Trustee for such Securities proof satisfactory to it that such Securities are held by a bona fide purchaser in whose hands such Securities are valid obligations of the Company, provided, however, that in determining whether the Holders of the requisite principal amount of the Outstanding Securities have given any request, demand, authorization, direction, notice, consent or waiver hereunder, (a) the principal amount of an Original Issue Discount Security that shall be deemed to be Outstanding for such purposes shall be the amount of the principal thereof that would be due and payable as of the date of such determination upon a declaration of acceleration of the maturity thereof pursuant to Section 502, and (b) Securities owned by the Company, the Guarantor or any other obligor upon the Securities or any Affiliate of the Company, the Guarantor or of such other obligor shall be disregarded and deemed not to be Outstanding, except that in determining whether the Trustee for such Securities shall be protected in relying upon any such request, demand, authorization, direction, notice, consent or waiver, only Securities which a Responsible Officer of such Trustee actually knows to be so owned shall be so disregarded. Securities so owned as described in (b) above which have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of such Trustee the pledgee's right so to act with respect to such Securities and that the pledgee is not the Company, the Guarantor or any other obligor upon the Securities or any Affiliate of the Company or of such other obligor. 5 "Paying Agent" means any person authorized by the Company to pay the principal of (and premium, if any) or interest, if any, on any Securities on behalf of the Company. "Person" means any individual, corporation, partnership, joint venture, joint-stock company, trust unincorporated organization or government or any agency or political subdivision thereof. "Place of Payment", when used with respect to the Securities of any series means the place or places where the principal of (and premium, if any) and interest, if any, on the Securities of that series are payable as specified in or as contemplated by Section 301. "Predecessor Security" of any particular Security means every previous Security evidencing all or a portion of the same debt as that evidenced by such particular Security; and, for the purposes of this definition, any Security authenticated and delivered under Section 306 in exchange for or in lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen Security. "Principal Property" means any manufacturing plant or other manufacturing facility of the Company or any Restricted Subsidiary, which plant or facility is located within the United States of America, except any such plant or facility which the Board of Directors of the Company by resolution declares is not of material importance to the total business conducted by the Company and its Restricted Subsidiaries. "Process Agent" has the meaning specified in Section 117. "Redemption Date", when used with respect to any Security to be redeemed, means the date fixed for such redemption by or pursuant to this Indenture. "Redemption Price", when used with respect to any Security to be redeemed, means the price at which it is to be redeemed pursuant to this Indenture, exclusive of accrued and unpaid interest. "Regular Record Date" for the interest payable on any Interest Payment Date on the Securities of any series means the date specified for that purpose as contemplated by Section 301. "Required Currency" has the meaning specified in Section 117. "Responsible Officer", where used with respect to the Trustee for the Securities of any series, means any officer within the corporate trust department of such Trustee, including any vice president, assistant vice president, assistant secretary, assistant treasurer, trust officer or any other officer of such Trustee who customarily performs functions similar to those performed by the Persons who at the time shall be such officers, respectively, or to whom any corporate trust matter is referred because of such person's knowledge of and familiarity with the particular subject and who shall have direct responsibility for the administration of this Indenture. 6 "Restricted Subsidiary" means any Subsidiary which owns a Principal Property excluding however, any corporation the greater part of the operating assets of which are located or the principal business of which is carried on outside the United States of America. "Sale and Leaseback Transaction" has the meaning specified in Section 1005. "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. "shareholders' equity in the Company and its consolidated Subsidiaries" has the meaning specified in Section 1004. "Special Record Date" for the payment of any Defaulted Interest means a date fixed by the Trustee for such series pursuant to Section 307. "Stated Maturity", when used with respect to any Security or any installment of principal thereof or interest thereon, means the date specified in such Security as the fixed date on which the principal of such Security or such installment of principal or interest is due and payable. "Subsidiary" means any corporation of which at least a majority of the outstanding stock having voting power under ordinary circumstances to elect a majority of the board of directors of said corporation shall at the time be owned by the Company or by the Company and one or more Subsidiaries or by one or more Subsidiaries of the Company. "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 each such Trustee with respect to those series of Securities with respect to which it is serving as Trustee. "Trust Indenture Act" means the Trust Indenture Act of 1939 as in force at the date as of which this instrument was executed, except as provided in Section 905. "U.S. Depositary" means a clearing agency registered under the Securities Exchange Act of 1934, as amended, or any successor thereto, which 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" as used with respect to the Securities of any series shall mean the U.S. Depositary with respect to the Securities of that series. 7 "U.S. Government Obligations" means direct obligations of the United States for the payment of which its full faith and credit is pledged, or obligations of a person controlled or supervised by and acting as an agency or instrumentality of the United States and the payment of which is unconditionally guaranteed by the United States. "Vice President", when used with respect to the Company, the Guarantor or the Trustee for any series of Securities, 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 or the Guarantor to the Trustee for any series of Securities to take any action under any provision of this Indenture, the Company or the Guarantor, as the case may be, shall furnish to such 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: (1) a statement that each individual signing such certificate or opinion has read such covenant or condition and the definitions herein relating thereto; (2) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based; (3) a statement that, in the opinion of each such individual, he has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not such covenant or condition has been complied with; and (4) a statement as to whether, in the opinion of each such individual, such condition or covenant has been complied with. SECTION 103. Form of Documents Delivered to Trustee. -------------------------------------- In any case where several matters are required to be certified by, or covered by an opinion of, any specified person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such person, or that they may 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. 8 Any certificate or opinion of an officer of the Company or the Guarantor 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 or her 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 or the Guarantor, as the case may be, stating that the information with respect to such factual matters is in the possession of the Company or the Guarantor, as the case may be, 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 instructions 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 an agent duly appointed in writing, and, except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments are delivered to the Trustee for the appropriate series of Securities and, where it is hereby expressly required, to the Company or the Guarantor. 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 such Trustee, the Guarantor 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 or her the execution thereof. Where such execution is by a signer acting in a capacity other than his or her individual capacity, such certificate or affidavit shall also constitute sufficient proof of his or her authority. The fact and date of the execution of any such instrument or writing, or the authority of the person executing the same, may also be proved in any other manner which the Trustee for such Securities deems sufficient. (c) The ownership of 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 for 9 such Securities, the Guarantor or the Company in reliance thereon, whether or not notation of such action is made upon such Security. SECTION 105. Notices, Etc., to Trustee, Guarantor and Company. Any request, demand, authorization, direction, notice, consent, waiver or Act of Holders or other document provided or permitted by this Indenture to be made upon, given or furnished to, or filed with, (1) the Trustee for a series of Securities by any Holder or by the Company or the Guarantor shall be sufficient for every purpose hereunder if made, given, furnished or filed in writing to or with such Trustee at its Corporate Trust Office, (2) the Company by such Trustee, or by any Holder shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if in writing and sent by registered or certified mail, prepaid, to the Company addressed to it care of the Guarantor at the address of the Guarantor specified in the first paragraph of this instrument or at any other address previously furnished in writing to such Trustee by the Company, or (3) the Guarantor by such Trustee, or by any Holder shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if in writing and sent by registered or certified mail, prepaid, to the Guarantor addressed to it at the address of its office specified in the first paragraph of this instrument or at any other address previously furnished in writing to such Trustee by the Guarantor. SECTION 106. Notice to Holders; Waiver. ------------------------- Where this Indenture provides for notice to Holders of any event, such notice shall be sufficiently given (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to each Holder affected by such event, at his or her address as it appears in the Security Register, not later than the latest date, and not earlier than the earliest date, prescribed for the giving of such notice. In any case where notice to Holders is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder shall affect the sufficiency of such notice with respect to other Holders. Where this Indenture provides for notice in any manner, such notice may be waived in writing by the person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waiver of notice by Holders shall be filed with the Trustee for such Securities, 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 for such Securities shall constitute a sufficient notification for every purpose hereunder. 10 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. SECTION 108. Effect of Headings and Table of Contents. The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof. SECTION 109. Successors and Assigns. All covenants and agreements in this Indenture by each of the Company and the Guarantor 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 or the Guarantee 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 or the Guarantee, 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, THE SECURITIES AND THE GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. SECTION 113. Legal Holidays. -------------- In any case where any Interest Payment Date, Redemption Date 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 or the Guarantee) payment of interest, if any, or principal (and premium, if any) need not be made at such Place of Payment on such date, but may be made on the next succeeding Business Day at such Place of Payment with the same force and effect as if made on the Interest Payment Date or Redemption Date, or at the Stated Maturity, provided that no interest shall accrue for the period from and after such Interest Payment Date, Redemption Date or Stated Maturity, as the case may be. 11 SECTION 114. Incorporators, Shareholders, Officers and Directors of the Company and the Guarantor Exempt from Individual Liability. ---------------------------------------------------------- No recourse for the payment of the principal of (and premium, if any) or interest, if any, on any Security or any Guarantee, or for any claim based thereon or otherwise in respect thereof, and no recourse under or upon any obligation, covenant or agreement of the Company or the Guarantor in this Indenture or in any supplemental indenture, or in any Security or in any Guarantee, or because of the creation of any indebtedness represented thereby, shall be had against any incorporator, shareholder, officer or director, as such, past, present or future, of the Company or the Guarantor or of any successor corporation, either directly or through the Company or the Guarantor or any successor corporation, whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise; it being expressly understood that all such liability is hereby waived and released as a condition of and as a consideration for, the execution of this Indenture and the issue of the Securities and the Guarantee. SECTION 115. Counterparts. ------------ 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. SECTION 116. Currency Exchange. ----------------- If, in determining whether the Holders of the requisite principal amount of Securities have given any request, demand, authorization, direction, notice, consent or waiver hereunder, it becomes necessary to determine the principal amount of Securities of any series denominated in any coin or currency other than that of the United States of America, such principal amount shall be computed by converting such coin or currency into coin or currency of the United States of America based upon the rate of exchange in effect at the office of the Trustee for such Securities in New York, New York at 10:00 A.M., New York City time, or as close to such time as is reasonably practicable, on the date of initial issuance of such series of Securities. SECTION 117. Judgment Currency; Consent to Jurisdiction and Service. ------------------------------------------------------ (a) Each of the Company and, in the case of Guaranteed Securities, the Guarantor agrees, to the fullest extent that it may effectively do so under applicable law, that (a) if for the purpose of obtaining judgment in any court it is necessary to convert the sum due in respect of the principal of or interest on the Securities of any series (the "Required Currency") into a currency in which a judgment will be rendered (the "Judgment Currency"), the rate of exchange used shall be the rate at which in accordance with normal banking procedures the Trustee for such Securities could purchase in The City of New York the Required Currency with the Judgment Currency at 10:00 A.M. New York City time, or as close to such time as is reasonably practicable, on the day on which final unappealable judgment is entered, unless such day is not a New York Banking Day, then, to the extent permitted by applicable law, the rate of exchange used shall be the rate at which in accordance with normal banking procedures such Trustee could 12 purchase in The City of New York the Required Currency with the Judgment Currency at 10:00 A.M. New York City time, or as close to such time as is reasonably practicable, on the New York Banking Day preceding the day on which final unappealable judgment is entered and (b) its obligations under this Indenture to make payments in the Required Currency (i) shall not be discharged or satisfied by any tender, or any recovery pursuant to any judgment (whether or not entered in accordance with this subsection (a)), in any currency other than the Required Currency, except to the extent that such tender or recovery shall result in the actual receipt, by the payee, of the full amount of the Required Currency expressed to be payable in respect of such payments, (ii) shall be enforceable as an alternative or additional cause of action for the purpose of recovering in the Required Currency the amount, if any, by which such actual receipt shall fall short of the full amount of the Required Currency so expressed to be payable and (iii) shall not be affected by judgment being obtained for any other sum due under this Indenture. For purposes of the foregoing, "New York Banking Day" means any day except a Saturday, Sunday or a legal holiday in The City of New York or a day on which banking institutions in The City of New York are authorized or required by law or executive order to close. (b) To the fullest extent permitted by applicable law, each of the Company and the Guarantor hereby irrevocably submits to the jurisdiction of any Federal or state court located in the Borough of Manhattan in The City of New York, New York in any suit, action or proceeding based on or arising out of or relating to this Indenture or any Securities or any Guarantee and irrevocably agrees that all claims in respect of such suit or proceeding may be determined in any such court. Each of the Company and the Guarantor irrevocably waives, to the fullest extent permitted by law, any objection which it may have to the laying of the venue of any such suit, action or proceeding brought in an inconvenient forum. Each of the Company and the Guarantor agrees that final judgment in any such suit, action or proceeding brought in such a court shall be conclusive and binding upon the Company and/or the Guarantor, as applicable, and may be enforced in the courts of Bermuda (or any other courts to the jurisdiction of which the Company or the Guarantor, as applicable, is subject) by a suit upon such judgment, provided that service of process is effected upon the Company and/or the Guarantor, as applicable, in the manner specified herein or as otherwise permitted by law. Each of the Company and the Guarantor hereby irrevocably designates and appoints CT Corporation System, 1633 Broadway, 23 Floor, New York, New York (the "Process Agent") as their authorized agent for purposes of this Section 117(b), it being understood that the designation and appointment of the Process Agent as such authorized agent shall become effective immediately without any further action on the part of the Company and the Guarantor. Each of the Company and the Guarantor further agrees that service of process upon the Process Agent and written notice of said service to the Company and/or the Guarantor, as applicable, mailed by prepaid registered first class mail or delivered to the Process Agent at its principal office, shall be deemed in every respect effective service of process upon the Company and/or the Guarantor, as applicable, in any such suit or proceeding. Each of the Company and the Guarantor further agrees to take any and all action, including the execution and filing of any and all such documents and instruments as may be necessary, to continue such designation and appointment of the Process Agent in full force and effect so long as the Company and/or the Guarantor, as applicable, has any outstanding obligations under this Indenture. To the extent the Company and/or the Guarantor, as applicable, has or hereafter may acquire any immunity from jurisdiction of any court or from any legal process (whether through service of notice, attachment prior to judgment, attachment in aid of execution, executor or otherwise) with respect to itself or its property, each of the Company and the Guarantor hereby 13 irrevocably waives such immunity in respect of its obligations under this Indenture to the extent permitted by law. ARTICLE TWO SECURITY FORMS SECTION 201. Forms Generally. --------------- The Securities of each series shall be in substantially the form set forth in this Article, or in such other form as shall be established by or pursuant to a Board Resolution of the Company 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 officer executing such Securities, as evidenced by his or her execution of such Securities. The certificate of authentication of the Trustee for any series of Securities shall be in substantially the form set forth in this Article. The definitive Securities shall be printed, lithographed or engraved on steel engraved borders or may be produced in any other manner, all as determined by the officer executing such Securities, as evidenced by their execution of such Securities. If the Securities are Guaranteed Securities, the definitive Guarantees shall be printed, lithographed or engraved on steel engraved borders or may be produced in any other manner, all as determined by the officers executing such Guarantees, as evidenced by their execution of such Guarantees. SECTION 202. Form of Face of Security. ------------------------ INGERSOLL-RAND COMPANY LIMITED [Title of the Security] No. Cusip No. _____ $____________ INGERSOLL-RAND COMPANY LIMITED, a company duly organized and existing under the laws of Bermuda (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 _____________ Dollars on _______________ [If the Security is to bear interest prior to Maturity, insert - -- , and to pay interest thereon from __________________ __, ______ (the "Original Issue Date"), or from the most recent Interest Payment Date to which interest has been paid or duly provided for, [semiannually on ______________ and ______________] [quarterly on _________, __________, ___________ and ____________] in each year, commencing _______ __, _____, at [If the Security is to bear interest at a fixed rate insert-the rate per annum 14 provided in the title hereof] [If the Security is to bear interest at a floating rate, insert- [a rate of [Insert Floating Rate] per annum], until the principal hereof is paid or made available for payment. [If applicable insert - -- , and, subject to the terms of the Indenture, at [the rate per annum provided in the title hereof] [such rate] on any overdue principal and premium and (to the extent that the payment of such interest shall be legally enforceable) on any overdue installment of interest]. The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in such Indenture, be paid to the person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest, which shall be the [_________ or _________] [________, _________, ________ or ___________] (whether or not a Business Day), as the case may be, next preceding such Interest Payment Date. Any such interest not so punctually paid or duly provided for will forthwith cease to be payable to the Holder on such Regular Record Date and may either be paid to the person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to Holders of Securities of this series not less than 10 days prior to such Special Record Date, or be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Securities of this series may be listed, and upon such notice as may be required by such exchange, all as more fully provided in said Indenture]. [If the Security is to bear interest at a fixed rated prior to Maturity, insert -- Interest shall be computed on the basis of a year of twelve 30-day months.] [If the Security is to bear interest at a floating rate prior to Maturity, insert -- Interest shall be computed on the basis of the actual number of days in the relevant interest period and a 360-day year.] [If the Security is to bear interest at a floating rate prior to Maturity, insert -- The [insert Floating Rate] will be reset [insert period time as set forth in a Board Resolution of the Company] on each Interest Payment Date (each an "Interest Reset Date"), beginning on ________ __, _____. The interest rate for the period from and including the Original Issue Date to and excluding the first Interest Payment Date shall be ______ per annum (the "Initial Interest Rate"). The _________ Business Day preceding an Interest Reset Date will be the "Interest Determination Date" for that Interest Reset Date. The interest rate in effect on each day that is not an Interest Reset Date will be the interest rate determined as of the Interest Determination Date pertaining to the immediately preceding Interest Reset Date or the Initial Interest Rate, as the case may be. The interest rate in effect on any day that is an Interest Reset Date will be the interest rate determined as of the Interest Determination Date pertaining to that Interest Reset Date. Wells Fargo Bank Minnesota, N.A. shall act as calculation agent (together with its successors in that capacity, the "Calculation Agent") in connection with the Securities. The Calculation Agent shall serve as the calculation agent hereunder unless and until a successor calculation agent is appointed by the Company. The following definitions shall be used by the Calculation Agent in its determination of the interest rate: [insert definitions for floating rate determination]. ] [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 15 acceleration, upon redemption or at Stated Maturity and in such case the overdue principal of this Security shall bear interest at the rate of [yield to maturity]% 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 [yield to maturity]% 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 interest, if any, on this Security will be made at the office or agency of the Company maintained for that purpose in the Borough of Manhattan, The City of New York, in [coin or currency], provided, however, that at the option of the Company payment of interest may be made by check mailed to the address of the person entitled thereto as such address shall appear in the Security Register. REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS SECURITY SET FORTH ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL PURPOSES HAVE THE SAME EFFECT AS IF SET FORTH AT THIS PLACE. Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof by manual signature, this Security shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose. IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed under its corporate seal. Dated: [Seal] INGERSOLL-RAND COMPANY LIMITED By_____________________________________ SECTION 203. Form of Reverse of Security. --------------------------- INGERSOLL-RAND COMPANY LIMITED [Title of the Security] 16 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 _________ __, 2002 (herein called the "Indenture"), among the Company, Ingersoll-Rand Company (herein called the "Guarantor", which term includes any successor guarantor under the Indenture) and Wells Fargo Bank Minnesota, N.A., as Trustee (herein called the "Trustee", which term includes any successor trustee under the Indenture), to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, the Guarantor, 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 or more than 60 days' notice by mail to the Holders of such Securities at their addresses in the Security Register for such series, [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 _________________, 20__], 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 ____________________: Redemption Redemption Year Price Year Price ---- ----- ---- ----- and thereafter at a Redemption Price equal to _____% of the principal amount, together in the case of any such redemption [if applicable, insert -- (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.] [If applicable, insert -- The Securities of this series are subject to redemption upon not less than 30 or more than 60 days' notice by mail to the Holders of such Securities at their addresses in the Security Register for such series, (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: 17 If redeemed during the 12-month period beginning _________________: Redemption Price For Redemption Redemption Price For Through Operation Redemption Otherwise 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, at the option of the Company, 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 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.] The Indenture contains provisions for defeasance of (a) the entire indebtedness of this Security and (b) certain restrictive covenants upon compliance by the Company with certain conditions set forth therein. [If the Security is not an Original Issue Discount Security, insert - -- If an Event of Default with respect to Securities of this series shall occur and be continuing, the principal of the 18 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 (the "Acceleration Amount") may be declared due and payable in the manner and with the effect provided in the Indenture. In case of a declaration of acceleration on or before _______, ________ or on _______ in any year, the Acceleration Amount per principal amount at Stated Maturity of the Securities shall be equal to the amount set forth in respect of such date below: Acceleration Amount per principal amount Date of declaration at Stated Maturity ------------------- ------------------ and in case of a declaration of acceleration on any other date, the Acceleration Amount shall be equal to the Acceleration Amount as of the next preceding date set forth in the table above, plus accrued original issue discount (computed in accordance with generally accepted accounting principles in effect on __________) from such next preceding date to the date of declaration at the yield to maturity. For the purpose of this computation the yield to maturity is ______%. Upon payment (i) of the Acceleration Amount so declared due and payable and (ii) of interest on any overdue principal and overdue interest (in each case to the extent that the payment of such interest shall be legally enforceable), all of the Company's obligations in respect of the payment of the principal of and interest, if any, on the Securities of this series shall terminate.] The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and, in the case of Guaranteed Securities, the Guarantor and the rights of the Holders of the Securities of each series to be affected under the Indenture at any time by the Company, the Guarantor, in the case of Guaranteed Securities, and the Trustee with the consent of the Holders of a majority in principal amount of the Securities at the time Outstanding of all series to be affected. The Indenture also contains provisions permitting the Holders of specified percentages in principal amount of the Securities at the time Outstanding of all series to be affected, on behalf of the Holders of all Securities of such series, to waive compliance by the Company and, in the case of Guaranteed Securities, the Guarantor with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Security. No reference herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of (and premium, if any) and interest, if any, on this Security at the times, place and rate, and in the coin or currency, herein prescribed. 19 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, if any, 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 or her attorney duly authorized in writing, and thereupon one or more new Securities of this series, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees. The Securities of this series are issuable only in registered form without coupons in denominations of _____________ and any integral multiple thereof. As provided in the Indenture and subject to certain limitations therein set forth, Securities of this series are exchangeable for a like aggregate principal amount of Securities of this series 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 Guarantor,] the Trustee and any agent of the Company [, the Guarantor] 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 none of the Company [,the Guarantor,] the Trustee or any such agent shall be affected by notice to the contrary. No recourse for the payment of the principal of (and premium, if any) or interest, if any, on this Security [or the Guarantee endorsed hereon], or for any claim based hereon or thereon or otherwise in respect hereof or thereof, and no recourse under or upon any obligation, covenant or agreement of the Company or the Guarantor in the Indenture or in any indenture supplemental thereto, or in any Security [or in the Guarantee], or because of the creation of any indebtedness represented thereby, shall be had against any incorporator, shareholder, officer or director, as such, past, present or future, of the Company [or the Guarantor] or of any successor corporation, either directly or through the Company [or the Guarantor] or any successor corporation, whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise, all such liability being, by the acceptance hereof and as part of the consideration for the issue hereof, expressly waived and released. THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. All terms used in this Security which are defined in the Indenture shall have the meanings assigned to them in the Indenture. SECTION 204. Form of Trustee's Certificate of Authentication. This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture. 20 Wells Fargo Bank Minnesota, N.A., as Trustee By____________________________________ Authorized Signature SECTION 205. Securities in Global Form. ------------------------- If any Security of a series is issuable in global form, such Global Security may provide that it shall represent the aggregate amount of Outstanding Securities from time to time endorsed thereon and may also provide that the aggregate amount of Outstanding Securities represented thereby may from time to time be reduced to reflect exchanges. Any endorsement of a Global Security to reflect the amount, or any increase or decrease in the amount, of Outstanding Securities represented thereby shall be made by the Trustee of such series of Securities and in such manner as shall be specified in such Global Security. Any instructions by the Company with respect to a Global Security, after its initial issuance, shall be in writing but need not comply with Section 102. None of the Company, the Guarantor, the Trustee of such series of Securities, any Paying Agent or the Security Registrar will have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests of a Global Security or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests. SECTION 206. Guarantee; Form of Guarantee. ---------------------------- The Guarantor by its execution of this Indenture hereby agrees with each Holder of a Guaranteed Security of each series authenticated and delivered by the Trustee of such series of Securities and with such Trustee on behalf of each such Holder, to be unconditionally bound by the terms and provisions of the Guarantee set forth below and authorizes such Trustee to confirm such Guarantees to the Holder of each such Guaranteed Security by its execution and delivery of each such Guaranteed Security, with such Guarantees endorsed thereon, authenticated and delivered by such Trustee. Guarantees to be endorsed on the Guaranteed Securities shall, subject to Section 201, be in substantially the form set forth below: GUARANTEE OF INGERSOLL-RAND COMPANY For value received, Ingersoll-Rand Company, a corporation incorporated under the laws of the State of New Jersey, having an office at 200 Chestnut Ridge Road, Woodcliff Lake, New Jersey 07677 (herein called the "Guarantor", which term includes any successor Person under the Indenture referred to in the Guaranteed Security upon which this Guarantee is endorsed), hereby irrevocably and unconditionally guarantees to the Holder of the Guaranteed Security upon which this Guarantee is endorsed and to the Trustee on behalf of each such Holder 21 the due and punctual payment of the principal of, premium, if any, and interest on such Guaranteed Security and the due and punctual payment of the sinking fund or analogous payments referred to therein, if any, when and as the same shall become due and payable, whether at the Stated Maturity, by declaration of acceleration, call for redemption or otherwise, according to the terms thereof and of the Indenture referred to therein, all in accordance with and subject to the terms and limitations of the Guaranteed Security on which this Guarantee is endorsed and Article Thirteen of the Indenture. In case of the failure of Ingersoll-Rand Company Limited, a company duly organized under the laws of Bermuda (herein called the "Company", which term includes any successor Person under such Indenture), promptly to make any such payment of principal, premium, if any, or interest or any such sinking fund or analogous payment, the Guarantor hereby agrees to cause any such payment to be made promptly when and as the same shall become due and payable, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise, and as if such payment were made by the Company, subject to the terms and limitations of Article Thirteen of the Indenture. This Guarantee shall not be valid or obligatory for any purpose until the certificate of authentication of such Guaranteed Security shall have been manually executed by or on behalf of the Trustee under such Indenture. All terms used in this Guarantee which are defined in such Indenture shall have the meanings assigned to them in such Indenture. THIS GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. Executed and dated the date on this ___________ day of ________, 20__. [Seal] INGERSOLL-RAND COMPANY By ------------------------------------- Name: Title: By: ------------------------------------- Name: Title: - ----------------- Reference is made to Article Thirteen for further provisions with respect to the Guarantees. 22 ARTICLE THREE THE SECURITIES SECTION 301. Amount Unlimited; Issuable in Series. ------------------------------------ The aggregate principal amount of Securities which may be authenticated and delivered under this Indenture is unlimited. The Securities may be issued in one or more series. There shall be established in or pursuant to a Board Resolution of the Company, and, if the Securities are Guaranteed Securities, the Guarantor, and set forth in an Officer's Certificate of the Company, and, if the Securities are Guaranteed Securities, the Guarantor, 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 that series (which shall distinguish the Securities of that series from all other series of Securities); (2) any limit upon the aggregate principal amount of the Securities of that 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 that series pursuant to Sections 304, 305, 306, 906, or 1107); (3) the date or dates on which the principal of the Securities of that series is payable; (4) the rate or rates (or the manner of calculation thereof) at which the Securities of that series shall bear interest, 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; (5) the place or places where the principal of (and premium, if any) and interest, if any, on Securities of that series shall be payable and where such Securities may be registered or transferred; (6) the period or periods within which, the price or prices at which and the terms and conditions upon which Securities of that series may be redeemed, in whole or in part, at the option of the Company; (7) the obligation, if any, of the Company to redeem or purchase Securities of that series pursuant to any sinking fund or analogous provisions or at the option of a Holder thereof, and the period or periods within which, the price or prices at which and the terms and conditions upon which Securities of that series shall be redeemed or purchased, in whole or in part, pursuant to such obligation; (8) if other than denominations of $1,000 and any integral multiple thereof, the denominations in which Securities of that series shall be issuable; 23 (9) if other than the principal amount thereof, the portion of the principal amount of Securities of that series which shall be payable upon declaration of acceleration of the Maturity thereof pursuant to Section 502; (10) if other than such coin or currency of the United States of America, the currency or currency unit in which payment of the principal of (or premium, if any) or interest, if any, on the Securities of that series shall be payable or in which the Securities of that series shall be denominated and the particular provisions applicable thereto; (11) if the principal of (and premium, if any) or interest, if any, on the Securities of that series are to be payable, at the election of the Company, the Guarantor or a Holder thereof, in a coin or currency other than that in which the Securities are stated to be payable, the period or periods within which, and the terms and conditions upon which, such election may be made; (12) if the amount of payments of principal of (and premium, if any) or interest, if any, on the Securities of that series may be determined with reference to an index based on a coin or currency other than that in which the Securities are stated to be payable, the manner in which such amounts shall be determined; (13) any provisions permitted by this Indenture relating to Events of Default or covenants of the Company with respect to such series of Securities (including deletions therefrom, modifications thereof or additions thereto, whether or not consistent with the Events of Default or covenants set forth herein); (14) if the Securities of that series shall be issued in whole or in part in the form of one or more Global Securities and, in such case, the U.S. Depositary for such Global Security or Securities; the manner in which and the circumstances under which Global Securities representing Securities of that series may be exchanged for Securities in definitive form, if other than, or in addition to, the manner and circumstances specified in Section 305; (15) whether the Securities of that series will be convertible into Common Shares of the Company and/or exchangeable for other Securities, and if so, the terms and conditions upon which such Securities will be so convertible or exchangeable, and any deletions from or modifications or additions to this Indenture to permit or to facilitate the issuance of such convertible or exchangeable Securities or the administration thereof; (16) whether or not the Securities are Guaranteed Securities and the applicability of any other guarantees; (17) if a Person other than Wells Fargo Bank Minnesota, N.A. is to act as Trustee for the Securities of that series, the name and location of the Corporate Trust Office of such Trustee; and 24 (18) any other terms of that series (which terms shall not be inconsistent with the provisions of this Indenture). All Securities of any particular series shall be substantially identical except as to denomination and except as may otherwise be provided in or pursuant to such Board Resolution of the Company and, in the case of Guaranteed Securities, the Guarantor, and set forth in such Officer's Certificate or in any such indenture supplemental hereto. If any of the terms of the series, including the form of Security of such series, are established by action taken pursuant to a Board Resolution of the Company, and, in the case of Guaranteed Securities, a Board Resolution of the Guarantor, a copy of an appropriate record of such action shall be certified by the Secretary or an Assistant Secretary of the Company and, in the case of Guaranteed Securities, the Secretary or Assistant Secretary of the Guarantor, and delivered to the Trustee for the Securities of such series at or prior to the delivery of the Company Order contemplated by Section 303 for the authentication and delivery of such series of Securities. 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, manually or by facsimile, on behalf of the Company by its Chairman of the Board, a Deputy Chairman of the Board, its President, one of its Vice Presidents or its Treasurer under its corporate seal reproduced thereon, by facsimile or otherwise, and which need not be attested. The Guarantees endorsed on any Guaranteed Securities shall be executed, manually or by facsimile, on behalf of the Guarantor by its Chairman of the Board, a Vice Chairman of the Board, its President or one of its Vice Presidents and by its Treasurer or one of its Assistant Treasurers or its Secretary or one of its Assistant Secretaries, under its corporate seal reproduced thereon, by facsimile or otherwise, and which need not be attested. Securities or Guarantees bearing the manual or facsimile signatures of individuals who were at any time the proper officers of the Company or the Guarantor, as the case may be, shall bind the Company or the Guarantor, as the case may be, notwithstanding that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Securities or Guarantees or did not hold such offices at the date of such Securities or Guarantees. 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 the Securities of such series for authentication, together with a Company Order for the authentication and delivery of such Securities, and such Trustee in accordance with the Company Order shall authenticate and deliver such Securities. If the form or terms of the Securities of the series have 25 been established in or pursuant to one or more Board Resolutions of the Company and, in the case of Guaranteed Securities, the Guarantor, as permitted by Sections 201 and 301, in authenticating such Securities, and accepting the additional responsibilities under this Indenture in relation to such Securities, such Trustee shall be entitled to receive, and (subject to Section 601) shall be fully protected in relying upon, an Opinion of Counsel of the Company and, if the Securities are Guaranteed Securities, the Guarantor, stating, (a) if the form of such Securities has been established by or pursuant to Board Resolution of the Company 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 of the Company and, if the Securities are Guaranteed Securities, the Guarantor, as permitted by Section 301, that such terms have been established in conformity with the provisions of this Indenture; (c) that such Securities and, in the case of Guaranteed Securities, the Guarantees endorsed thereon, when authenticated and delivered by such Trustee and issued by the Company and, in the case of Guaranteed Securities, the Guarantor in the manner and subject to any conditions specified in such Opinion of Counsel, will constitute valid and legally binding obligations of the Company and the Guarantor, respectively, enforceable in accordance with their terms, subject to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting the enforcement of creditors' rights and to general equity principles; and (d) that all laws and requirements in respect of the execution and delivery by the Company of such Securities and, in the case of Guaranteed Securities, by the Guarantor of such Guarantees have been complied with. If such form or terms have been so established, the Trustee for the Securities of such series shall not be required to authenticate such Securities if such Trustee, being advised by counsel, determines that the issue of such Securities pursuant to this Indenture will affect such Trustee's own rights, duties or immunities under the Securities and this Indenture or otherwise in a manner which is not reasonably acceptable to such Trustee. Notwithstanding the foregoing, if not all the Securities of any series are to be issued at one time, it shall not be necessary to deliver the Officer's Certificate otherwise required pursuant to the foregoing or the Company Order and Opinion of Counsel otherwise required pursuant to the foregoing prior to or at the time of issuance of each Security, but such documents shall be delivered prior to or at the time of issuance of the first Security of such series. Each Security shall be dated the date of its authentication. No Security or Guarantee endorsed thereon 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 for the Securities of such series by manual signature, and such certificate upon any Security shall be conclusive evidence, and the only evidence, that such Security has been duly authenticated 26 and delivered hereunder and, together with the Guarantee, if any, endorsed thereon, is entitled to the benefits of this Indenture. SECTION 304. Temporary Securities. -------------------- Pending the preparation of definitive Securities of any particular series, the Company may execute, and upon Company Order the Trustee for the Securities of such series shall authenticate and deliver temporary Securities which are printed, lithographed, typewritten, mimeographed or otherwise produced, in any authorized denomination, substantially of the tenor of the definitive Securities in lieu of which they are issued and, in the case of Guaranteed Securities, having endorsed thereon a Guarantee executed by the Guarantor, of the tenor of the definitive Guarantee, and with such appropriate insertions, omissions, substitutions and other variations as the officer executing such Securities may determine, as evidenced by his or her execution of such Securities. If temporary Securities of any series are issued, the Company will cause definitive Securities of that series to be prepared without unreasonable delay. After the preparation of definitive Securities of such series, the temporary Securities of such series shall be exchangeable for definitive Securities of such series upon surrender of the temporary Securities of such series at the office or agency of the Company in a Place of Payment for that series, without charge to the Holder. Upon surrender for cancellation of any one or more temporary Securities of any series the Company shall execute and the Trustee for the Securities of such series shall authenticate and deliver in exchange therefor a like principal amount of definitive Securities of the same series of authorized denominations and, in the case of Guaranteed Securities, having endorsed thereon the Guarantee by the Guarantor. 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. SECTION 305. Registration, Registration of Transfer and Exchange. --------------------------------------------------- The Company shall cause to be kept at the Corporate Trust Office of the Trustee for the Securities of each series a register (the register maintained at such office and in any other office or agency of the Company in a Place of Payment being herein sometimes collectively referred to as the "Security Register") in which, subject to such reasonable regulations as it may prescribe, the Company shall provide for the registration of Securities and of transfers of Securities. The Trustee for the Securities of each series 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 in a Place of Payment for that series, the Company shall execute, and the Trustee for the Securities of each series shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Securities of the same series, of any authorized denominations and of a like aggregate principal amount, and, in the case of Guaranteed Securities, having endorsed thereon a Guarantee executed by the Guarantor. 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 27 amount, upon surrender of the Securities to be exchanged at such office or agency. Whenever any Securities are so surrendered for exchange, the Company shall execute, and the Trustee for the Securities of such series shall authenticate and deliver, the Securities which the Holder making the exchange is entitled to receive, and, in the case of Guaranteed Securities, having endorsed thereon a Guarantee executed by the Guarantor. All Securities and, in the case of Guaranteed Securities, Guarantees endorsed thereon issued upon any registration of transfer or exchange of Securities and, in the case of Guaranteed Securities, Guarantees endorsed thereon, shall be the valid obligations of the Company and, in the case of Guaranteed Securities, the Guarantor, respectively evidencing the same debt, and entitled to the same benefits under this Indenture, as the Securities and, in the case of Guaranteed Securities, Guarantees endorsed thereon 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 for the Securities of such series) 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 or her attorney duly authorized in writing. No service charge shall be made for any registration of transfer or exchange of Securities, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Securities, other than exchanges pursuant to Sections 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. If the Company shall establish pursuant to Section 301 that the Securities of a series are to be issued in whole or in part in the form of one or more Global Securities, then the Company shall execute (along with, in the case of Guaranteed Securities, a Guarantee executed by the Guarantor endorsed thereon) and the Trustee for the Securities of such series shall, in accordance with Section 303 and the Company Order with respect to such series, authenticate and deliver one or more Global Securities in temporary or permanent form that (i) shall represent and shall be denominated in an amount equal to the aggregate principal amount of the Outstanding Securities of such series to be represented by one or more Global Securities, (ii) shall be registered in the name of the U.S. Depositary for such Global Security or Securities or the nominee of such depositary, and (iii) shall bear a legend substantially to the following effect: "This Security (and in the case of Guaranteed Securities, the related Guarantee) may not be transferred except 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 or by the Depositary or any such nominee to a successor Depositary or a nominee of such successor Depositary, unless 28 and until this Security is exchanged in whole or in part for Securities in definitive form" and such other legend as may be required by the U.S. Depositary. Notwithstanding any other provision of this Section, unless and until it is exchanged in whole or in part for Securities in definitive form, a Global Security (and, in the case of Guaranteed Securities, the related Guarantee) representing all or a portion of the Securities of a series may not be transferred except as a whole by the U.S. Depositary for such series to a nominee of such depositary or by a nominee of such depositary to such depositary or another nominee of such depositary or by such depositary or any such nominee to a successor U.S. Depositary for such series or a nominee of such successor depositary. If at any time the U.S. Depositary for the Securities of a series notifies the Company that it is unwilling or unable to continue as U.S. Depositary for the Securities of such series or if any time the U.S. Depositary for Securities of a series shall no longer be a clearing agency registered and in good standing under the Securities Exchange Act of 1934, as amended, or other applicable statute or regulation, the Company shall appoint a successor U.S. Depositary with respect to the Securities of such series. If a successor U.S. Depositary for the Securities of such series is not appointed by the Company within 90 days after the Company receives such notice or becomes aware of such condition, the Company will execute, and the Trustee for the Securities of such series, upon receipt of a Company Order for the authentication and delivery of definitive Securities of such series, will authenticate and deliver, Securities of such series in definitive form in an aggregate principal amount equal to the principal amount of the Global Security or Securities representing such series in exchange for such Global Security or Securities and in the case of Guaranteed Securities, having endorsed thereon a Guarantee executed by the Guarantor. The Company may at any time and in its sole discretion determine that the Securities of any series issued in the form of one or more Global Securities shall no longer be represented by such Global Security or Securities. In such event, the Company will execute, and the Trustee for the Securities of such series, upon receipt of a Company Order for the authentication and delivery of definitive Securities of such series, will authenticate and deliver, Securities of such Series in definitive form and in an aggregate principal amount equal to the principal amount of the Global Security or Securities representing such series in exchange for such Global Security or Securities and, in the case of Guaranteed Securities, having endorsed thereon a Guarantee executed by the Guarantor. If the Securities of any series shall have been issued in the form of one or more Global Securities and if an Event of Default with respect to the Securities of such series shall have occurred and be continuing, the Company will promptly execute, and the Trustee for the Securities of such series, upon receipt of a Company Order for the authentication and delivery of definitive Securities of such series, will authenticate and deliver Securities of such series in definitive form and in an aggregate principal amount equal to the principal amount of the Global Security or Securities representing such series in exchange for such Global Security or Securities and, in the case of Guaranteed Securities, having endorsed thereon a Guarantee executed by the Guarantor. If specified by the Company pursuant to Section 301 with respect to Securities of a series, the U.S. Depositary for such series of Securities may surrender a Global Security for such series 29 of Securities in exchange in whole or in part for Securities of such series in definitive form on such terms as are acceptable to the Company and such depositary. Thereupon, the Company shall execute and the Trustee for the Securities of such series shall authenticate and deliver, without charge: (i) to each Person specified by the U.S. Depositary a new registered Security or Securities of the same series, of an authorized denomination as requested by such Person in an aggregate principal amount equal to and in exchange for such Person's beneficial interest in the Global Security and, in the case of Guaranteed Securities, having endorsed thereon a Guarantee executed by the Guarantor; and (ii) to the U.S. Depositary a new Global Security in a denomination equal to the difference, if any, between the principal amount of the surrendered Global Security and the aggregate principal amount of Securities delivered to Holders thereof and, in the case of Guaranteed Securities, having endorsed thereon a Guarantee executed by the Guarantor. Upon the exchange of a Global Security in whole for Securities in definitive form, such Global Security shall be canceled by the Trustee for the Securities of such series. Securities issued in exchange for a Global Security shall be registered in such names and in such authorized denominations as the U.S. Depositary for such Global Security, pursuant to instructions from its direct or indirect participants or otherwise, shall instruct the Trustee for the Securities of such series. Such Trustee shall deliver such Securities to the Persons in whose names such Securities are so registered. SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities. ------------------------------------------------ If any mutilated Security is surrendered to the Trustee for the series of such Securities, the Company shall execute and such 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, and, in the case of Guaranteed Securities, having endorsed thereon a Guarantee executed by the Guarantor. If there shall be delivered to the Company and the Trustee for the series of such Securities (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 such Trustee that such Security has been acquired by a bona fide purchaser, the Company shall execute and upon its request such 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, and, in the case of Guaranteed Securities, having endorsed thereon a Guarantee executed by the Guarantor. 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. 30 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 for the series of such Securities) connected therewith. Every new Security of any series and, in the case of Guaranteed Securities, the Guarantee endorsed thereon, issued pursuant to this Section in lieu of any destroyed, lost or stolen Security shall constitute an original additional contractual obligation of the Company and, in the case of Guaranteed Securities, the Guarantor, respectively, 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 to the person in whose name that Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest. Any interest on any Security of any series which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date (herein called "Defaulted Interest") shall forthwith cease to be payable to the Holder on the relevant Regular Record Date by virtue of having been such Holder, and such Defaulted Interest may be paid by the Company, at its election in each case, as provided in Clause (1) or (2) below: (1) The Company may elect to make payment of any Defaulted Interest to the persons in whose names the Securities of such series (or their respective Predecessor Securities) are registered at the close of business on a Special Record Date for the payment of such Defaulted Interest, which shall be fixed in the following manner. The Company shall notify the Trustee for the Securities of such series 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 such Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements reasonably satisfactory to such Trustee for such deposit prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the persons entitled to such Defaulted Interest as in this Clause provided. Thereupon such 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 such Trustee of the notice of the proposed payment. Such Trustee shall promptly notify the Company of 31 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 or her 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 for the Securities of such series of the proposed payment pursuant to this Clause, such manner of payment shall be deemed practicable by such Trustee. Subject to the foregoing provisions of this Section, each Security delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of any other Security shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Security. SECTION 308. Persons Deemed Owners. --------------------- Prior to due presentment of a Security for registration of transfer, the Company, the Guarantor (in the case of Guaranteed Securities), the Trustee for such Security and any agent of the Company, the Guarantor (in the case of Guaranteed Securities) or such 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, if any, on such Security and for all other purposes whatsoever, whether or not such Security be overdue, and none of the Company, the Guarantor, such Trustee or any agent of the Company, the Guarantor or such Trustee shall be affected by notice to the contrary. Notwithstanding the foregoing, with respect to any Global Security, nothing herein shall prevent the Company, the Guarantor (in the case of Guaranteed Securities), the Trustee for such Security, or any agent of any of the foregoing, from giving effect to any written certification, proxy or other authorization furnished by any depositary, as a Holder, with respect to such Global Security or impair, as between such depositary and owners of beneficial interests in such Global Security, the operation of customary practices governing the exercise of the rights of such depositary (or its nominee) as Holder of such Global Security. SECTION 309. Cancellation. ------------ All Securities surrendered for payment, redemption, registration of transfer or exchange or for credit against any sinking fund payment shall, if surrendered to any person other than the 32 Trustee for such Securities, be delivered to such Trustee and shall be promptly cancelled by it. The Company or the Guarantor (in the case of Guaranteed Securities) may at any time deliver to such Trustee for cancellation any Securities previously authenticated and delivered hereunder which the Company or the Guarantor (in the case of Guaranteed Securities) may have acquired in any manner whatsoever, and all Securities so delivered shall be promptly cancelled by such Trustee. No Securities shall be authenticated in lieu of or in exchange for any Securities cancelled as provided in this Section, except as expressly permitted by this Indenture. All cancelled Securities held by such Trustee shall be disposed of in accordance with such Trustee's customary practices. SECTION 310. Computation of Interest. ----------------------- Except as otherwise specified as contemplated by Section 301 for Securities of any particular series, interest, if any, on the Securities of each series shall be computed on the basis of a year of twelve 30-day months. SECTION 311. CUSIP Numbers. ------------- The Company in issuing the Securities may use "CUSIP" numbers (if then generally in use), and, if so, the Trustee for such Securities shall use "CUSIP" numbers in notices of redemption as a convenience to Holders of such Securities; provided that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Securities or as contained in any notice of a redemption and that reliance may be placed only on the other 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 such Trustee of any change in the "CUSIP" numbers. ARTICLE FOUR SATISFACTION AND DISCHARGE SECTION 401. Satisfaction and Discharge of Indenture. --------------------------------------- This Indenture shall upon Company Request cease to be of further effect (except as to any surviving rights of registration of transfer or exchange of Securities herein expressly provided for), and the Trustee for the Securities of each series, 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 or, in the case of Guaranteed Securities, the Guarantor and thereafter repaid to the Company or, in the case of Guaranteed Securities, the Guarantor or discharged from such 33 trust, as provided in Section 1003) have been delivered to the Trustee for the Securities of such series for cancellation; or (B) all such Securities not theretofore delivered to the Trustee for the Securities of such series 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 reasonably satisfactory to such Trustee for the giving of notice of redemption by such Trustee in the name, and at the expense, of the Company or, in the case of Guaranteed Securities, the Guarantor; or (iv) are deemed paid and discharged pursuant to Section 403, as applicable, and the Company or, in the case of Guaranteed Securities, the Guarantor, in the case of (i), (ii) or (iii) above, has deposited or caused to be deposited with the Trustee for the Securities of such series as trust funds in trust for the purpose an amount of (a) money, or (b) in the case of (ii) or (iii) above and (except as provided in an indenture supplemental hereto) if no Securities of any series Outstanding are subject to repurchase at the option of Holders, (I) U.S. Government Obligations which through the payment of interest and principal in respect thereof in accordance with their terms will provide not later than one day before the Stated Maturity or Redemption Date, as the case may be, money in an amount, or (II) a combination of money or U.S. Government Obligations as provided in (I) above, in each case sufficient to pay and discharge the entire indebtedness on such Securities not theretofore delivered to such Trustee for cancellation, for principal (and premium, if any) and interest, if any, to the date of such deposit (in the case of Securities which have become due and payable) or to the Stated Maturity or Redemption Date, as the case may be; (2) the Company or, in the case of Guaranteed Securities, the Guarantor has paid or caused to be paid all other sums payable hereunder by the Company; and (3) the Company or, in the case of Guaranteed Securities, the Guarantor has delivered to the Trustee for the Securities of such series an Officer's Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of this Indenture have been complied with. 34 Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the Company to the Trustee of the Securities of each series under Section 607, the obligations of such Trustee to any Authenticating Agent under Section 614 and, if money or U.S. Government Obligations shall have been deposited with the Trustee of the Securities of any series pursuant to subclause (B) of Clause (1) of this Section or if money or U.S. Government Obligations shall have been deposited with or received by the Trustee of the Securities of any series pursuant to Section 403, the obligations of such Trustee under Section 402 and the last paragraph of Section 1003 shall survive. SECTION 402. Application of Trust Money. -------------------------- (a) Subject to the provisions of the last paragraph of Section 1003, all money or U.S. Government Obligations deposited with the Trustee of a particular series of Securities pursuant to Section 401, 403 or 1006 and all money received by the Trustee of a particular series of Securities in respect of U.S. Government Obligations deposited with the Trustee of that series of Securities pursuant to Section 401, 403 or 1006, 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, or in the case of Guaranteed Securities, the Guarantor acting as its own Paying Agent) as such Trustee may determine, to the persons entitled thereto, of the principal (and premium, if any) and interest, if any, for whose payment such money has been deposited with or received by such Trustee or to make mandatory sinking fund payments or analogous payments as contemplated by Section 401, 403 or 1006. (b) The Company and, in the case of Guaranteed Securities, the Guarantor shall pay and shall indemnify the Trustee of each series of Securities against any tax, fee, or other charge imposed on or assessed against U.S. Government Obligations deposited pursuant to Section 401, 403 or 1006 or the interest and principal received in respect of such obligations other than any payable by or on behalf of Holders. (c) The Trustee of each series of Securities shall deliver or pay to the Company or, in the case of Guaranteed Securities, the Guarantor from time to time upon Company Request any U.S. Government Obligations or money held by it as provided in Section 401, 403 or 1006 which, in the opinion of a nationally recognized firm of independent certified public accountants expressed in a written certification thereof delivered to such Trustee, are then in excess of the amount thereof which then would have been required to be deposited for the purpose for which such U.S. Government Obligations or money was deposited or received. This provision shall not authorize the sale by such Trustee of any U.S. Government Obligations held under this Indenture. SECTION 403. Satisfaction, Discharge and Defeasance of Securities of any Series. ----------------------------------------------------------- The Company and, in the case of Guaranteed Securities, the Guarantor shall be deemed to have paid and discharged the entire indebtedness on all the Outstanding Securities of any series and, in the case of Guaranteed Securities, the Guarantees, respectively, on the 91st day after the date of the deposit referred to in subparagraph (a) hereof, and the provisions of this Indenture, as it relates to such Outstanding Securities of such series and, in the case of Guaranteed Securities, 35 the Guarantees, respectively, shall no longer be in effect (and the Trustee for the Securities of such series, at the expense of the Company or, in the case of Guaranteed Securities, the Guarantor, shall at Company Request execute proper instruments acknowledging the same), except as to: (1) the rights of Holders of Securities of such series to receive, from the trust funds described in subparagraph (a) hereof, (i) payment of the principal of (and premium, if any) and each installment of principal of (and premium, if any) or interest, if any, on the Outstanding Securities of such series on the Stated Maturity of such principal or installment of principal or interest or to and including the Redemption Date irrevocably designated by the Company pursuant to subparagraph (e) hereof and (ii) the benefit of any mandatory sinking fund payments applicable to the Securities of such series on the day on which such payments are due and payable in accordance with the terms of this Indenture and the Securities of such series; (2) the Company's obligations with respect to such Securities of such series under Sections 305, 306, and 1002 and, if the Company shall have irrevocably designated a Redemption Date pursuant to subparagraph (e) hereof, Sections 1101, 1104 and 1106 as they apply to such Redemption Date; (3) the Company's obligations with respect to the Trustee for Securities of such series under Section 607; and (4) the rights, powers, trust and immunities of such Trustee hereunder and the duties of such Trustee under Section 402 and, if the Company shall have irrevocably designated a Redemption Date pursuant to subparagraph (e) hereof, Article Eleven and the duty of such Trustee to authenticate Securities of such series on registration of transfer or exchange; provided that, the following conditions shall have been satisfied: (a) the Company or the Guarantor has deposited or caused to be irrevocably deposited (except as provided in Section 402(c) and the last paragraph of Section 1003) with such Trustee as trust funds in trust, specifically pledged as security for, and dedicated solely to, the benefit of the Holders of the Securities of such series, (i) money in an amount, or (ii) (except as provided in a supplemental indenture with respect to such series) if Securities of such series are not subject to repurchase at the option of Holders, (A) U.S. Government Obligations which through the payment of interest and principal in respect thereof in accordance with their terms will provide not later than one day before the due date of any payment referred to in clause (x) or (y) of this subparagraph (a) money in an amount or (B) a combination thereof, sufficient, in the opinion of a nationally recognized firm of independent certified public accountants expressed in a written certification thereof delivered to such Trustee, to pay and discharge (x) the principal of (and premium, if any) and each installment of principal (and premium, if any) and interest, if any, on the Outstanding Securities of such series on the Stated Maturity of such principal or installment of principal or interest or to and including the 36 Redemption Date irrevocably designated by the Company pursuant to subparagraph (e) hereof and (y) any mandatory sinking fund payments applicable to the Securities of such series on the day on which such payments are due and payable in accordance with the terms of the Indenture and of the Securities of such series; (b) the Company or (in the case of Guaranteed Securities) the Guarantor has delivered to such Trustee an Opinion of Counsel to the effect that such provision would not cause any Outstanding Securities of such series then listed on any national securities exchange to be delisted as a result thereof; (c) no Event of Default or event which with notice or lapse of time would become an Event of Default (including by reason of such deposit) with respect to the Securities of such series shall have occurred and be continuing on the date of such deposit or during the period ending on the 91st day after such date; (d) the Company or (in the case of Guaranteed Securities) the Guarantor has delivered to such Trustee an Opinion of Counsel in the U.S. to the effect that the Company or (in the case of Guaranteed Securities) the Guarantor has received from, or there has been published by the Internal Revenue Service a ruling to the effect that Holders of the Securities of such series will not recognize income, gain or loss for Federal income tax purposes as a result of such deposit, defeasance and discharge; and (e) if the Company or the Guarantor has deposited or caused to be deposited money or U.S. Government Obligations to pay or discharge the principal of (and premium, if any) and interest, if any, on the Outstanding Securities of a series to and including a Redemption Date on which all of the Outstanding Securities of such series are to be redeemed, such Redemption Date shall be irrevocably designated by a Board Resolution of the Company delivered to such Trustee on or prior to the date of deposit of such money or U.S. Government Obligations, and such Board Resolution shall be accompanied by an irrevocable Company Request that such Trustee give notice of such redemption in the name and at the expense of the Company or (in the case of Guaranteed Securities) the Guarantor and less than 30 nor more than 60 days prior to such Redemption Date in accordance with Section 1104. SECTION 404. Reinstatement. ------------- If the Trustee of the Securities of any series or any Paying Agent is unable to apply any money in accordance with Section 402 by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the obligations of the Company and the Guarantor (in the case of Guaranteed Securities) under this Indenture and such Securities and any related coupons and Guarantees shall be revived and reinstated as though no deposit had occurred pursuant to Section 403 or Section 1006, as the case may be, until such time as such Trustee or Paying Agent is permitted to apply all such money in accordance with Section 402; provided, however, that if the Company makes any payment of principal of (or premium, if any) or interest, if any, on any such Security or any related coupon following the reinstatement of its obligations, the Company shall be subrogated to the rights of 37 the Holders of such Securities and any related coupons to receive such payment from the money held by such Trustee or Paying Agent. ARTICLE FIVE REMEDIES SECTION 501. Events of Default. ----------------- "Event of Default", wherever used herein with respect to Securities of any series, means any one of the following events (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body): (1) default in the payment of any interest upon any Security of that series when it becomes due and payable, and continuance of such default for a period of 30 days; or (2) default in the payment of the principal of (or premium, if any, on) any Security of that series at its Maturity; or (3) default in the payment of any sinking fund installment, when and as due by the terms of a Security of that series, and continuance of such default for a period of 30 days; or (4) default in the performance, or breach, of any covenant or warranty of the Company or, in the case of Guaranteed Securities, the Guarantor in this Indenture (other than a covenant or warranty a default in whose performance or whose breach is elsewhere in this Section specifically dealt with or which has expressly been included in this Indenture solely for the benefit of series of Securities other than that series), and continuance of such default or breach for a period of 90 days after there has been given, by registered or certified mail, to the Company and, in the case of Guaranteed Securities, the Guarantor by the Trustee for the Securities of such series or to the Company, the Guarantor (in the case of Guaranteed Securities) and such Trustee by the Holders of at least 25% in principal amount of the Outstanding Securities of that series a written notice specifying such default or breach and requiring it to be remedied and stating that such notice is a "Notice of Default" hereunder; or (5) the entry by a court having jurisdiction in the premises of (A) a decree or order for relief in respect of the Company or, in the case of Guaranteed Securities, the Guarantor in an involuntary case or proceeding under any applicable Federal or State or Bermuda bankruptcy, insolvency, reorganization or other similar law or (B) a decree or order adjudging the Company or, in the case of Guaranteed Securities, the Guarantor a bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect of the Company or, in the case of Guaranteed Securities, the Guarantor under any applicable Federal or State or Bermuda law, 38 or appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Company or, in the case of Guaranteed Securities, the Guarantor or of any substantial part of its property, or ordering the winding up or liquidation of its affairs, and the continuance of any such decree or order for relief or any such other decree or order unstayed and in effect for a period of 90 consecutive days; or (6) the commencement by the Company or, in the case of Guaranteed Securities, the Guarantor of a voluntary case or proceeding under any applicable Federal or State or Bermuda bankruptcy, insolvency, reorganization or other similar law or of any other case or proceeding to be adjudicated a bankrupt or insolvent, or the consent by the Company or, in the case of Guaranteed Securities, the Guarantor to the entry of a decree or order for relief in respect of the Company or, in the case of Guaranteed Securities, the Guarantor, respectively, in an involuntary case or proceeding under any applicable Federal or State or Bermuda bankruptcy, insolvency, reorganization or other similar law or to the commencement of any bankruptcy or insolvency case or proceeding against the Company or, in the case of Guaranteed Securities, the Guarantor, or the filing by the Company or, in the case of Guaranteed Securities, the Guarantor of a petition or answer or consent seeking reorganization or relief under any applicable Federal or State or Bermuda law, or the consent by the Company or, in the case of Guaranteed Securities, the Guarantor to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator or similar official of the Company or, in the case of Guaranteed Securities, the Guarantor or of any substantial part of its property, or the making by the Company or, in the case of Guaranteed Securities, the Guarantor of an assignment for the benefit of creditors, or the admission by the Company or, in the case of Guaranteed Securities, the Guarantor in writing of its inability to pay its debts generally as they become due, or the taking of corporate action by the Company or, in the case of Guaranteed Securities, the Guarantor in furtherance of any such action; or (7) any other Event of Default provided in the supplemental indenture or provided in or pursuant to a Board Resolution or Officer's Certificate of the Company and, in the case of Guaranteed Securities, the Guarantor, under which such series of Securities is issued or in the form of Security for such series. SECTION 502. Acceleration of Maturity; Rescission and Annulment. -------------------------------------------------- If an Event of Default (other than an Event of Default specified in Section 501(5) or 501(6)) with respect to Securities of any series at the time Outstanding occurs and is continuing, then in every such case the Trustee for the Securities of such series or the Holders of not less than 25% in aggregate principal amount of the Outstanding Securities of that series may declare the principal amount (or, if 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) of all of the Securities of that series to be due and payable immediately, by a notice in writing to the Company (and to such Trustee if given by Holders), and upon any such declaration such 39 principal amount (or specified amount) shall become immediately due and payable. If an Event of Default specified in Section 501(5) or 501(6) with respect to Securities of any series at the time Outstanding occurs, the principal amount of all the Securities of that series (or, if any Securities of that series are Original Issue Discount Securities, such portion of the principal amount of such Securities as may be specified by the terms thereof) shall automatically, and without any declaration or other action on the part of such Trustee or any Holder, become immediately due and payable. At any time after such a declaration of acceleration with respect to Securities of any series has been made and before a judgment or decree for payment of the money due has been obtained by the Trustee for the Securities of such series as hereinafter in this Article provided, the Holders of a majority in principal amount of the Outstanding Securities of that series, by written notice to the Company, the Guarantor (in the case of Guaranteed Securities) and such Trustee, may rescind and annul such declaration and its consequences if: (1) the Company or, in the case of Guaranteed Securities, the Guarantor has paid or deposited with such Trustee a sum sufficient to pay, (A) all overdue interest, if any, on all Securities of that series, (B) the principal of (and premium, if any, on) any Securities, of that series which have become due otherwise than by such declaration of acceleration and interest thereon at the rate or rates prescribed therefor in such Securities, (C) to the extent that payment of such interest is lawful, interest upon overdue interest at the rate or rates prescribed therefor in such Securities, and (D) all sums paid or advanced by such Trustee hereunder and the reasonable compensation, expenses, disbursements and advances of such Trustee, its agents and counsel; and (2) all Events of Default with respect to Securities of that series, other than the non-payment of the principal of and accrued interest on Securities of that series which have become due solely by such declaration of acceleration, have been cured or waived as provided in Section 513. No such rescission shall affect any subsequent default or impair any right consequent thereon. For all purposes under this Indenture, if a portion of the principal of any Original Issue Discount Securities shall have been accelerated and declared due and payable pursuant to the provisions hereof, then, from and after such declaration, unless such declaration has been rescinded and annulled, the principal amount of such Original Issue Discount Securities shall be deemed, for all purposes hereunder, to be such portion of the principal thereof as shall be due and payable as a result of such acceleration, and payment of such portion of the principal thereof as shall be due and payable as a result of such acceleration, together with interest, if any, thereon 40 and all other amounts owing thereunder, shall constitute payment in full of such Original Issue Discount Securities. SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee. --------------------------------------------------------------- The Company covenants that if: (1) default is made in the payment of any interest on any Security when such interest becomes due and payable and such default continues for a period of 30 days, or (2) default is made in the payment of the principal of (or premium, if any, on) any Security at the Maturity thereof, the Company will, upon demand of the Trustee for the Securities of such series, 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, if any, 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 costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of such Trustee, its agents and counsel. If the Company fails to pay such amounts forthwith upon such demand, such 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, the Guarantor (in the case of Guaranteed Securities) 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, the Guarantor (in the case of Guaranteed Securities) 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 for the Securities of such series 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 such Trustee shall deem most effectual to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy. SECTION 504. Trustee May File Proofs of Claim. -------------------------------- In any case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative to the Company, the Guarantor (in the case of Guaranteed Securities) or any other obligor upon the Securities or the property of the Company, the Guarantor (in the case of Guaranteed Securities) or of such other obligor or their creditors, the Trustee for the Securities of such series (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 such Trustee shall have 41 made any demand on the Company or the Guarantor (in the case of Guaranteed Securities) 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 such Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of such Trustee, its agents and counsel) and of the Holders of such Securities allowed in such judicial proceeding; and (ii) to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Holder of such Securities to make such payments to such Trustee and, in the event that such Trustee shall consent to the making of such payments directly to such Holders, to pay to such Trustee any amount due it for the reasonable compensation, expenses, disbursements and advances of such Trustee, its agents and counsel, and any other amounts due such Trustee under Section 607. Nothing herein contained shall be deemed to authorize the Trustee for the Securities of any series 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, the Guarantees (in the case of Guaranteed Securities) or the rights of any Holder thereof or to authorize such 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 for any series of Securities without the possession of any of the Securities or the production thereof in any proceeding relating thereto, and any such proceeding instituted by such 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 such 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 for any series of Securities pursuant to this Article shall be applied in the following order, at the date or dates fixed by such Trustee and, in case of the distribution of such money on account of principal (or premium, if any) or interest, upon presentation of the Securities and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid: FIRST: to the payment of all amounts due such Trustee under Section 607; 42 SECOND: In case the principal of the Securities of such series in respect of which moneys have been collected shall not have become and be then due and payable, to the payment of interest, if any, on the Securities of such series in default in the order of the maturity of the installments of such interest, with interest (to the extent that such interest has been collected by such Trustee and to the extent permitted by law) upon the overdue installments of interest at the rate prescribed therefor in such Securities, such payments to be made ratably to the persons entitled thereto, without discrimination or preference; THIRD: In case the principal of the Securities of such series in respect of which moneys have been collected shall have become and shall be then due and payable, to the payment of the whole amount then owing and unpaid upon all the Securities of such series for principal and interest, if any, with interest upon the overdue principal, and (to the extent that such interest has been collected by such Trustee and to the extent permitted by law) upon overdue installments of interest at the rate prescribed therefor in the Securities of such series; and in case such moneys shall be insufficient to pay in full the whole amount so due and unpaid upon the Securities of such series, then to the payment of such principal and interest, without preference or priority of principal over interest, or of interest over principal, or of any installment of interest over any other installment of interest, or of any Security of such series over any other Security of such series, ratably to the aggregate of such principal and accrued and unpaid interest; and FOURTH: To the payment of the remainder, if any, to the Company or any other person lawfully entitled thereto. SECTION 507. Limitation on Suits. ------------------- No Holder of any Security of any series shall have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless: (1) such Holder has previously given written notice to the Trustee for the Securities of such series 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 such 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 such Trustee reasonable indemnity against the costs, expenses and liabilities to be incurred in compliance with such request; (4) such Trustee for 60 days after its receipt of such notice, request and offer of indemnity has failed to institute any such proceeding; and 43 (5) no direction inconsistent with such written request has been given to such Trustee during such 60-day period by the Holders of a majority in principal amount of the Outstanding Securities of that series, it being understood and intended that no one or more of such Holders shall have any right in any manner whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb or prejudice the rights of any other of such Holders, or to obtain or to seek to obtain priority or preference over any other of such Holders or to enforce any right under this Indenture, except in the manner herein provided and for the equal and ratable benefit of all such Holders. SECTION 508. Unconditional Right of Holders to Receive Principal, Premium and Interest. ------------------------------------------------------------ Notwithstanding any other provision in this Indenture, the Holder of any Security shall have the right, which is absolute and unconditional, to receive payment of the principal of (and premium, if any) and (subject to Section 307) interest, if any, 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 for the Securities of any series 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 such Trustee or to such Holder, then and in every such case, subject to any determination in such proceeding, the Company, the Guarantor (in the case of Guaranteed Securities), such Trustee and the Holders shall be restored severally and respectively to their former positions hereunder and thereafter all rights and remedies of such Trustee and the Holders shall continue as though no such proceeding had been instituted. SECTION 510. Rights and Remedies Cumulative. ------------------------------ Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities in the last paragraph of Section 306, no right or remedy herein conferred upon or reserved to the Trustee for the Securities of any series or to any Holder 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 for the Securities of any series 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 such Trustee or to the Holders 44 may be exercised from time to time, and as often as may be deemed expedient, by such 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 for the Securities of such series, or exercising any trust or power conferred on such Trustee, with respect to the Securities of such series, provided that: (1) such direction shall not be in conflict with any rule of law or with this Indenture; and (2) such Trustee may take any other action deemed proper by such Trustee which is not inconsistent with such direction. SECTION 513. Waiver of Past Defaults. ----------------------- The Holders of not less than a majority in aggregate principal amount of the Outstanding Securities of any series may on behalf of the Holders of all of the Securities of such series waive any past default hereunder with respect to such series and its consequences, except a default (1) in the payment of the principal of (or premium, if any) or interest, if any, on any Security of such series, or (2) in respect of a covenant or provision hereof which under Article Nine cannot be modified or amended without the consent of the Holder of each Outstanding Security of such series affected. Upon any such waiver, such default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon. SECTION 514. Undertaking for Costs. --------------------- All parties to this Indenture agree, and each Holder of any Security by his or her 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 the Securities of any series for any action taken 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 Trustee for the Securities of any series, 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, if any, on any Security on or 45 after the Stated Maturity or Maturities expressed in such Security (or, in the case of redemption, on or after the Redemption Date). SECTION 515. Waiver of Stay or Extension Laws. -------------------------------- Each of the Company and, in the case of Guaranteed Securities, the Guarantor covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of this Indenture; and each of the Company and, in the case of Guaranteed Securities, the Guarantor (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Trustee for the Securities of any series, but will suffer and permit the execution of every such power as though no such law had been enacted. ARTICLE SIX THE TRUSTEE SECTION 601. Certain Duties and Responsibilities. ----------------------------------- (a) Except during the continuance of an Event of Default with respect to the Securities of any series for which the Trustee is serving as such: (1) such Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this Indenture against such Trustee; and (2) in the absence of bad faith on its part, such Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to such Trustee and conforming to the requirements of this Indenture; but in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to such Trustee, such Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Indenture. (b) In case an Event of Default with respect to a series of Securities has occurred and is continuing, the Trustee for the Securities of such series shall exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent man would exercise or use under the circumstances in the conduct of his or her own affairs. (c) No provision of this Indenture shall be construed to relieve the Trustee for the Securities of any series from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that: (1) this Subsection shall not be construed to limit the effect of Subsection (a) of this Section; 46 (2) such Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it shall be proved that such Trustee was negligent in ascertaining the pertinent facts; (3) such Trustee shall not be liable with respect to any action taken, suffered or omitted to be taken by it in good faith in accordance with the direction of the Holders of a majority in principal amount of the Outstanding Securities of any particular series, determined as provided in Section 512, relating to the time, method and place of conducting any proceeding for any remedy available to such Trustee, or exercising any trust or power conferred upon such Trustee, under this Indenture with respect to the Securities of that series; and (4) no provision of this Indenture shall require the Trustee for any series of Securities to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. (d) Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee for any series of Securities shall be subject to the provisions of this Section. SECTION 602. Notice of Defaults. ------------------ Within 90 days after the occurrence of any default hereunder with respect to the Securities of any particular series, the Trustee for the Securities of such series shall transmit by mail to all Holders of Securities of that series, as their names and addresses appear in the Security Register for that series, notice of such default hereunder known to such Trustee, unless such default shall have been cured or waived; provided, however, that, except in the case of a default in the payment of the principal of (or premium, if any) or interest, if any, on any Security of that series or in the payment of any sinking fund installment with respect to Securities of that series, such Trustee shall be protected in withholding such notice if and so long as the board of directors, the executive committee or a trust committee of directors and/or Responsible Officers of such Trustee in good faith determines that the withholding of such notice is in the interest of the Holders of Securities of that series; and provided, further, that in the case of any default of the character specified in Section 501(4) with respect to Securities of that series, no such notice to Holders shall be given until at least 30 days after the occurrence thereof. For the purpose of this Section, the term "default" means any event which is, or after notice or lapse of time or both would become, an Event of Default with respect to Securities of that series. SECTION 603. Certain Rights of Trustee. ------------------------- Subject to the provisions of Section 601: (a) the Trustee for any series of Securities may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, 47 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 or, in the case of Guaranteed Securities, the Guarantor mentioned herein shall be sufficiently evidenced by a Company Request or Company Order of the Company or, in the case of Guaranteed Securities, the Guarantor, as the case may be, and any resolution of the Board of Directors may be sufficiently evidenced by a Board Resolution of the Company or, in the case of Guaranteed Securities, the Guarantor, as the case may be; (c) whenever in the administration of this Indenture such Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, such 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) such 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) such Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders of Securities of any series pursuant to this Indenture for which it is acting as Trustee, unless such Holders shall have offered to such Trustee reasonable security or indemnity against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction; (f) such Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document, but such Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if such Trustee shall determine to make such further inquiry or investigation, it shall be entitled upon reasonable request to examine the books, records and premises of the Company, personally or by agent or attorney; and (g) such 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 such Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder. SECTION 604. Not Responsible for Recitals or Issuance of Securities. ------------------------------------------------------ The recitals contained herein and in the Securities, except the Trustee's certificates of authentication, shall be taken as the statements of the Company and, in the case of Guaranteed Securities, the Guarantor, and neither the Trustee for any 48 series of Securities nor any Authenticating Agent assumes any responsibility for their correctness. The Trustee for any series of Securities makes no representations as to the validity or sufficiency of this Indenture or of the Securities. Neither the Trustee for any series of Securities nor any Authenticating Agent shall be accountable for the use or application by the Company of Securities or the proceeds thereof. SECTION 605. May Hold Securities. ------------------- The Trustee for any series of Securities, any Authenticating Agent, any Paying Agent, any Security Registrar or any other agent of the Company, the Guarantor or such Trustee, 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 or the Guarantor with the same rights it would have if it were not such Trustee, Authenticating Agent, Paying Agent, Security Registrar or such other agent. SECTION 606. Money Held in Trust. ------------------- Money held by the Trustee for any series of Securities in trust hereunder need not be segregated from other funds except to the extent required by law. The Trustee for any series of Securities shall be under no liability for interest on any money received by it hereunder except as otherwise agreed with the Company or, in the case of Guaranteed Securities, the Guarantor. SECTION 607. Compensation and Reimbursement. ------------------------------ The Company agrees: (1) to pay to the Trustee for any series of Securities from time to time such compensation for all services rendered by it hereunder as shall be agreed upon in writing from time to time by the Company and such Trustee (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 for any series of Securities upon its request for all reasonable expenses, disbursements and advances incurred or made by such Trustee in accordance with any provision of this Indenture (including the reasonable compensation and the reasonable 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 such Trustee for, and to hold it harmless against, any loss, liability or expense incurred without negligence or bad faith on its part, arising out of or in connection with the acceptance or administration of this trust or trusts hereunder, including the costs and expenses of defending itself against any claim or liability in connection with the exercise or performance of any of its powers or duties hereunder. The Trustee for any series of Securities shall have a lien prior to the Securities as to all property and funds held by such Trustee hereunder for any amount owing it or any predecessor 49 Trustee pursuant to this Section 607, except with respect to funds held in trust for the benefit of the Holders of such particular Securities. When the Trustee for any series of Securities 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 shall survive the termination of this Indenture. SECTION 608. Disqualification; Conflicting Interests. --------------------------------------- If the Trustee for any series of Securities has or shall acquire a conflicting interest within the meaning of the Trust Indenture Act, such Trustee shall either eliminate such interest or resign, to the extent and in the manner provided by, and subject to the provisions of, the Trust Indenture Act and this Indenture. In determining whether such Trustee has a conflicting interest as defined in Section 310(b) of the Trust Indenture Act with respect to the Securities of any series, there shall be excluded Securities of any particular series of Securities other than that series. SECTION 609. Corporate Trustee Required; Different Trustees for Different Series; Eligibility. ------------------------------------------------------------ There shall at all times be a Trustee hereunder for each series of Securities which shall 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 exercise corporate trust powers, 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. If at any time such 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. A different Trustee may be appointed by the Company for each series of Securities prior to the issuance of such Securities. If the initial Trustee for any series of Securities is to be other than Wells Fargo Bank Minnesota, N.A., the Company and such Trustee shall, prior to the issuance of such Securities, execute and deliver an indenture supplemental hereto, which shall provide for the appointment of such Trustee as Trustee for the Securities of such series and shall add to or change any of the provisions of this Indenture as shall be necessary to 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. 50 SECTION 610. Resignation and Removal; Appointment of Successor. ------------------------------------------------- (a) No resignation or removal of the Trustee for the Securities of any series 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 for the Securities of any series may resign at any time with respect to the Securities of such 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 for the Securities of such series 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 for the Securities of any series may be removed at any time with respect to the Securities of such series by Act of the Holders of a majority in principal amount of the Outstanding Securities of such series, delivered to such Trustee and to the Company. (d) If at any time: (1) the Trustee for the Securities of any series shall fail to comply with Section 608 after written request thereof by the Company or by any Holder who has been a bona fide Holder of a Security of such series for at least six months; or (2) such Trustee shall cease to be eligible under Section 609 and shall fail to resign after written request therefor by the Company or by any such Holder; or (3) such Trustee shall become incapable of acting or shall be adjudged a bankrupt or insolvent or a receiver of such Trustee or of its property shall be appointed or any public officer shall take charge or control of such 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 such Trustee and appoint a successor Trustee, or (ii) subject to Section 514, 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 removal of such Trustee and the appointment of a successor Trustee or Trustees. (e) If the Trustee for the Securities of any series shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of Trustee for the Securities of any series for any cause, the Company, by a Board Resolution, shall promptly appoint a successor Trustee with respect to the Securities of such 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 such series shall not have been appointed by the 51 Company pursuant to this Section 610, then a successor Trustee may 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. If no successor Trustee for the Securities of such series shall have been so appointed by the Company or the Holders and shall have accepted appointment in the manner required by Section 611, and if such Trustee to be replaced is still incapable of acting, 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 that series and the address of its Corporate Trust Office. SECTION 611. Acceptance of Appointment by Successor. -------------------------------------- (a) Every such successor Trustee appointed hereunder with respect to the Securities of any series shall execute, acknowledge and deliver to the Company, the Guarantor (in the case of Guaranteed Securities) and 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, the Guarantor (in the case of Guaranteed Securities) or the successor Trustee, such retiring Trustee shall, upon payment of its charges, execute, and deliver an instrument transferring to such successor Trustee all the rights, powers and trusts of the retiring Trustee and shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder. (b) In case of the appointment hereunder of a successor Trustee with respect to the Securities of one or more (but not all) series, the Company, the Guarantor (in the case of Guaranteed Securities), the retiring Trustee and each successor Trustee with respect to the Securities of one or more series shall execute and deliver an indenture supplemental hereto wherein each successor Trustee shall accept such appointment and which (1) shall contain such provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, each successor Trustee all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates, (2) if the retiring Trustee is not retiring with respect to all Securities, shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series as to which the retiring Trustee is not retiring shall continue to be vested in the retiring Trustee and (3) shall add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the 52 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 each such Trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such Trustee; and upon the execution and delivery of such supplemental indenture the resignation or removal of the retiring Trustee shall become effective to the extent provided therein and each such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates; but, on request of the Company, the Guarantor (in the case of Guaranteed Securities) or any successor Trustee, such retiring Trustee shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder with respect to the Securities of that or those series to which the appointment of such successor Trustee relates. (c) Upon request of any such successor Trustee, the Company and, in the case of Guaranteed Securities, the Guarantor 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 for the Securities of any series shall be qualified and eligible under this Article. SECTION 612. Merger, Conversion, Consolidation or Succession to Business. ----------------------------------------------------------- Any corporation into which the Trustee for the Securities of any series may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which such Trustee shall be a party, or any corporation succeeding to all or substantially all of the corporate trust business of such Trustee, shall be the successor of such 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 or the Authenticating Agent for such series then in office, any successor by merger, conversion or consolidation to such authenticating Trustee or Authenticating Agent, as the case may be, may adopt such authentication and deliver the Securities so authenticated with the same effect as if such successor Trustee or successor Authenticating Agent had itself authenticated such Securities. SECTION 613. Preferential Collection of Claims Against the Company or the Guarantor. ------------------------------------------------------------ If and when the Trustee of any series of Securities shall be or become a creditor of the Company or, in the case of Guaranteed Securities, the Guarantor (or any other obligor upon the Securities), such Trustee shall be subject to the provisions of the Trust Indenture Act regarding the collection of claims against the company (or any such other obligor). 53 SECTION 614. Authenticating Agents. --------------------- From time to time the Trustee of any series of Securities, in its sole discretion, may appoint one or more Authenticating Agents with respect to the Securities of such series, which may include the Company, the Guarantor or any Affiliate of the Company or the Guarantor, with power to act on the Trustee's behalf and subject to its discretion in the authentication and delivery of Securities of such series or in connection with transfers and exchanges under Sections 304, 305, 306 and 1107 as fully to all intents and purposes as though such Authenticating Agent had been expressly authorized by those Sections of this Indenture to authenticate and deliver Securities of such series. For all purposes of this Indenture, the authentication and delivery of Securities of such series by an Authenticating Agent for such Securities pursuant to this Section shall be deemed to be authentication and delivery of such Securities "by the Trustee" for the Securities of such series. Any such 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, any State thereof or the District of Columbia, authorized under such laws to exercise corporate trust powers, having a combined capital and surplus of at least $25,000,000 and, if other than the Company, the Guarantor or any Affiliate of the Company or the Guarantor, subject to supervision or examination by Federal, State or District of Columbia authority. If such corporation publishes reports of condition at least annually pursuant to law or the requirements of such authority, then for the purposes of this Section the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time an Authenticating Agent for any series of Securities 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 any Authenticating Agent may be merged or with which it may be consolidated, or any corporation resulting from any merger or consolidation or to which any Authenticating Agent shall be a party, or any corporation succeeding to the corporate trust business of any Authenticating Agent, shall be the successor of such Authenticating Agent hereunder, if such successor corporation is otherwise eligible under this Section, without the execution or filing of any paper or any further act on the part of the parties hereto or the Authenticating Agent or such successor corporation. Any Authenticating Agent for any series of Securities may resign at any time by giving written notice of resignation to the Trustee for such series and to the Company. The Trustee for any series of Securities may at any time terminate the agency of any Authenticating Agent for such series by giving written notice of termination 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 any Authenticating Agent for any series of Securities shall cease to be eligible under this Section, the Trustee for such series may appoint a successor Authenticating Agent, which shall be acceptable to the Company, shall give written notice of such appointment to the Company and shall give written notice of such appointment to all Holders of Securities of such series with respect to which such Authenticating Agent will serve, as the names and addresses of such Holders appear on 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 54 Agent. No successor Authenticating Agent shall be appointed unless eligible under the provisions of this Section. The Trustee for any series of Securities agrees to pay to the Authenticating Agent for such series from time to time reasonable compensation for its services, and such Trustee shall be entitled to be reimbursed for such payments, subject to Section 607. If an appointment with respect to one or more series of Securities is made pursuant to this Section, the Securities of such series may have endorsed thereon, in addition to the Trustee's certificate of authentication, an alternate certificate of authentication in the following form: This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture. Wells Fargo Bank Minnesota, N.A., as Trustee By ____________________________ As Authenticating Agent By ____________________________ Authorized Officer The provisions of Sections 309, 604 and 605 shall be applicable to any Authenticating Agent. ARTICLE SEVEN HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY SECTION 701. Company to Furnish Trustee Names and Addresses of Holders. --------------------------------------------------------- With respect to each particular series of Securities, the Company will furnish or cause to be furnished to the Trustee for the Securities of such series, (a) semi-annually, not later than 15 days after each Regular Record Date, or, in the case of any series of Securities on which semi-annual interest is not payable, not more than 15 days after such semi-annual dates as may be specified by such Trustee, a list, in such form as such Trustee may reasonably require, of the names and addresses of the Holders as of such Regular Record Date or semi-annual date, as the case may be, and (b) at such other times as such 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; 55 provided, however, that so long as such Trustee is Security Registrar for any series of Securities, no such list shall be required to be furnished with respect to any such series. SECTION 702. Preservation of Information; Communications to Holders. ------------------------------------------------------ (a) The Trustee for each series of Securities 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 such Trustee as provided in Section 701 and the names and addresses of Holders received by such Trustee in its capacity as Security Registrar. Such 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 of any particular series (herein referred to as "applicants") apply in writing to the Trustee for the Securities of such series, and furnish to such 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 of Securities of such series 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 such 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 such Trustee in accordance with Section 702(a); or (ii) inform such applicants as to the approximate number of Holders of Securities of such series whose names and addresses appear in the information preserved at the time by such 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 any such Trustee shall elect not to afford such applicants access to such information, such Trustee shall, upon the written request of such applicants, mail to each Holder of Securities of such series whose name and address appear in the information preserved at the time by such 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 such 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 such 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 such 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 56 such objections, the Commission shall find, after notice and opportunity for hearing, that all the objections so sustained have been met and shall enter an order so declaring, such 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 such Trustee shall be relieved of any obligation or duty to such applicants respecting their application. (c) Every Holder of Securities of each series, by receiving and holding the same, agrees with the Company, the Guarantor and the Trustee for the Securities of such series that none of the Company, the Guarantor and such Trustee nor any agent of any 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 such Trustee shall not be held accountable by reason of mailing any material pursuant to a request made under Section 702(b). (d) The U.S. Depositary may grant proxies and otherwise authorize its participants which own the Global Securities to give or take any Act which a Holder is entitled to take under the Indenture; provided, however, that the U.S. Depositary has delivered a list of such participants to the Trustee for the Securities of such series. SECTION 703. Reports by Trustee. ------------------ (a) The Trustee for the Securities of each series shall transmit to Holders of Securities of each series for which such Trustee serves such reports concerning such Trustee and its actions under this Indenture as may be required pursuant to the Trust Indenture Act at the times and in the manner provided pursuant thereto. If required by Section 313(a) of the Trust Indenture Act, the Trustee for the Securities of each series shall, within sixty days after each May 15 following the date of this Indenture deliver to Holders of Securities of each series for which such Trustee serves a brief report, dated as of such May 15, which complies with the provisions of such Section 313(a). (b) A copy of each such report shall, at the time of such transmission to Holders of Securities of each particular series be filed by each particular Trustee with each stock exchange upon which any Securities are listed, with the Commission and with the Company. The Company will notify the Trustee when any Securities are listed on any stock exchange. SECTION 704. Reports by Company. ------------------ The Company shall: (1) file with the Trustee for the Securities of each series, within 15 days after the Company is required to file the same with the Commission, copies of the annual reports and of the information, documents and other reports (or copies of such portions of any of the foregoing as the Commission may from time to time by rules and regulations prescribe) which the Company may be required to file with the Commission pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934; or if the Company is not required to file information, 57 documents or reports pursuant to either of said Sections, then it shall file with such Trustee and the Commission, in accordance with rules and regulations prescribed from time to time by the Commission, such of the supplementary and periodic information, documents and reports which may be required pursuant to Section 13 of the Securities Exchange Act of 1934, in respect of a security listed and registered on a national securities exchange as may be prescribed from time to time in such rules and regulations; (2) file with the Trustee for the Securities of such series 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; and (3) transmit by mail to all Holders, as their names and addresses appear in the Security Register, within 30 days after the filing thereof with the Trustee for the Securities of such series, such summaries of any information, documents and reports required to be filed by the Company pursuant to paragraphs (1) and (2) of this Section as may be required by rules and regulations prescribed from time to time by the Commission. Delivery of such reports, information and documents to the Trustee for the Securities of each series is for informational purposes only and such Trustee's receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Company's compliance with any of its covenants hereunder (as to which such Trustee is entitled to rely exclusively on Officer's Certificates). ARTICLE EIGHT CONSOLIDATION, MERGER, CONVEYANCE, SALE OR LEASE SECTION 801. Company and Guarantor May Consolidate, Etc., on Certain Terms. ------------------------------------------------------------- (a) Subject to the provisions of Section 802, nothing contained in this Indenture or in any of the Securities shall prevent any consolidation, amalgamation or merger of the Company with or into any other corporation or corporations (whether or not affiliated with the Company) or successive consolidations, amalgamations or mergers in which the Company or its successor or successors shall be a party or parties, or shall prevent any sale, conveyance or lease of all or substantially all the property of the Company, to any other corporation (whether or not affiliated with the Company), authorized to acquire and operate the same; provided, however, that the Company hereby covenants and agrees, that upon any such consolidation, amalgamation, merger, sale, conveyance or lease, the due and punctual payment of the principal of (and premium, if any) and interest, if any, on all of the Securities, according to their tenor, and the due and punctual performance and observance of all of the covenants and conditions of this Indenture to be performed by the Company shall be expressly assumed, by supplemental indenture reasonably satisfactory in form to the Trustee for each series of Securities, executed and delivered to each such Trustee by the corporation (if other than the Company) formed by such 58 consolidation or amalgamation, or into which the Company shall have been merged, or by the corporation which shall have acquired or leased such property, and provided further, that such corporation shall be a solvent corporation organized under the laws of the United States of America or a State thereof or the District of Columbia or Bermuda. The Company will not so consolidate, amalgamate or merge, or make any such sale, lease or other disposition, and the Company will not permit any other corporation to merge into the Company, unless immediately after the proposed consolidation, amalgamation, merger, sale, lease or other disposition, and after giving effect thereto, the Company or such successor corporation, as the case may be, will not be in default in the performance or observance of any of the terms, covenants, agreements or conditions contained in this Indenture. (b) Nothing contained in this Indenture or in any of the Securities shall prevent any consolidation or merger of the Guarantor with or into any other corporation or corporations (whether or not affiliated with the Guarantor) or successive consolidations or mergers in which the Guarantor or its successor or successors shall be a party or parties, or shall prevent any sale, conveyance or lease of all or substantially all the property of the Guarantor, to any other corporation (whether or not affiliated with the Guarantor), authorized to acquire and operate the same; provided, however, that with respect to Guaranteed Securities, the Guarantor hereby covenants and agrees, that upon any such consolidation, merger, sale, conveyance or lease to or with a Person other than the Company, the performance of the obligations under the Guarantee, and the due and punctual performance and observance of all of the covenants and conditions of this Indenture to be performed by the Guarantor shall be expressly assumed, by supplemental indenture reasonably satisfactory in form to the Trustee for each series of Guaranteed Securities, executed and delivered to each such Trustee by the corporation (if other than the Guarantor) formed by such consolidation, or into which the Guarantor shall have been merged, or by the corporation which shall have acquired or leased such property, and provided further, that with respect to Guaranteed Securities, except in the case of any such consolidation, amalgamation, merger, sale, conveyance or lease to or with the Company, such corporation shall be a solvent corporation organized under the laws of the United States of America or a State thereof or the District of Columbia. With respect to the Guaranteed Securities, except in the case of a consolidation, amalgamation, merger, sale, conveyance or lease to or with the Company, the Guarantor will not so consolidate or merge, or make any such sale, lease or other disposition, and the Guarantor will not permit any other corporation to merge into the Guarantor, unless immediately after the proposed consolidation, merger, sale, lease or other disposition, and after giving effect thereto, the Guarantor or such successor corporation, as the case may be, will not be in default in the performance or observance of any of the terms, covenants, agreements or conditions contained in this Indenture or the Guarantee. Notwithstanding the preceding sentences, the Guarantor may consolidate or merge with or into or sell, convey or lease all or substantially all of its property or sell any or all of its capital stock to the Company without limitation. 59 SECTION 802. Securities to be Secured in Certain Events. ------------------------------------------ If upon any such consolidation, amalgamation or merger, or upon any such sale, conveyance or lease, or upon any consolidation, amalgamation or merger of any Restricted Subsidiary, or upon the sale, conveyance or lease of all or substantially all the property of any Restricted Subsidiary to any other corporation, any Principal Property or any shares of stock or Funded Indebtedness of any Restricted Subsidiary owned immediately prior thereto would thereupon become subject to any Mortgage, the Company, prior to such consolidation, amalgamation, merger, sale, conveyance or lease, will by indenture supplemental hereto secure the due and punctual payment of the principal of and premium, if any, and interest, if any, on the Securities (together with, if the Company shall so determine, any other indebtedness of or guarantee by the Company or such Restricted Subsidiary ranking equally with the Securities and then existing or thereafter created) by a Mortgage, the lien of which, upon completion of said merger, consolidation, amalgamation, sale, conveyance or lease, will rank prior to the lien of such Mortgage of such other corporation on all assets owned by the Company or such Restricted Subsidiary immediately prior to such merger, consolidation, amalgamation, sale, conveyance or lease. SECTION 803. Successor Corporation to be Substituted. --------------------------------------- (a) Upon any consolidation, amalgamation or merger of the Company with or into any other corporation or corporations or any sale, conveyance or lease of all or substantially all of the property of the Company to any other corporation or corporations in accordance with this Article Eight, the successor shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture and the Securities with the same effect as if such successor had been named as the Company herein and therein, and thereafter, except in the case of a lease, the Company as the predecessor corporation shall be relieved of all obligations and covenants under this Indenture and the Securities and the Company as the predecessor corporation may thereupon or at any time thereafter be dissolved, wound up or liquidated. (b) Subject to Section 801(b), upon any consolidation or merger of the Guarantor with or into any other corporation or corporations or any sale, conveyance or lease of all or substantially all of the property of the Guarantor to any other corporation or corporations in accordance with this Article Eight, the successor shall succeed to, and be substituted for, and may exercise every right and power of, the Guarantor under this Indenture, the Securities and the Guarantee with the same effect as if such successor had been named as the Guarantor herein and therein, and thereafter, except in the case of a lease, the Guarantor as predecessor corporation shall be relieved of all obligations and covenants under this Indenture and the Guarantee, and the Guarantor as the predecessor corporation may thereupon or at any time thereafter be dissolved, wound up or liquidated. SECTION 804. Opinion of Counsel to be Given to Trustee. ----------------------------------------- The Trustee for each series of Securities, subject to Section 601, shall be entitled to receive an Opinion of Counsel as conclusive evidence that any such consolidation, 60 amalgamation, merger, sale, conveyance or lease and any such assumption complies with the provisions of this Article. ARTICLE NINE SUPPLEMENTAL INDENTURES SECTION 901. Supplemental Indentures without Consent of Holders. -------------------------------------------------- Without the consent of any Holders, the Company, when authorized by or pursuant to a Board Resolution of its Board of Directors, the Guarantor (in the case of Guaranteed Securities), when authorized by or pursuant to a Board Resolution by the Guarantor's Board of Directors, and the Trustee for the Securities of any or all series, at any time and from time to time, may enter into one or more indentures supplemental hereto, in form reasonably satisfactory to such Trustee, for any of the following purposes: (1) to evidence the succession of another corporation to the Company or (in the case of Guaranteed Securities) the Guarantor and the assumption by any such successor of the covenants of the Company herein and in the Securities or the assumption by any such successor of the covenants of the Guarantor (in the case of Guaranteed Securities) herein and in the Guarantee; or (2) to add to the covenants of the Company or the Guarantor (in the case of Guaranteed Securities) for the benefit of the Holders of all or any series of Securities (and if such covenants are to be for the benefit of less than all series of Securities, stating that such covenants are expressly being included solely for the benefit of such series) or to surrender any right or power herein conferred upon the Company or the Guarantor, as applicable; or (3) to add any additional Events of Default; or (4) to add to or change any of the provisions of this Indenture to such extent as shall be necessary to permit or facilitate the issuance of Securities in bearer form, registrable or not registrable as to principal, and with or without interest coupons; or (5) to 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 provisions; or (6) to secure the Securities; or (7) to establish the form or terms of Securities of any series as permitted by Sections 201 and 301; or (8) to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Securities of one or more series and to add to or change any of the provisions of this Indenture as shall be 61 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 evidence and provide for the acceptance of appointment hereunder of a Trustee other than Wells Fargo Bank Minnesota, N.A. as Trustee for a series of Securities 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 609; or (10) to provide for any rights of the Holders of Securities of any series to require the repurchase of Securities of such series from the Company; or (11) to cure any ambiguity, to correct or supplement any provision herein which may be inconsistent with any other provision herein, or to make any other provisions with respect to matters or questions arising under this Indenture, provided such action shall not adversely affect the interests of the Holders of Securities of any series in any material respect; (12) to continue its qualification under the Trust Indenture Act or as may be necessary or desirable in accordance with amendments to the Trust Indenture Act; or (13) for any other reason specified pursuant to Section 301 with respect to the Securities of such series. SECTION 902. Supplemental Indentures with Consent of Holders. ----------------------------------------------- With the consent of the Holders of not less than a majority in principal amount of the Outstanding Securities of any or all series affected by such supplemental indenture (voting as one class), by Act of said Holders delivered to the Company, the Guarantor (in the case of Guaranteed Securities) and the Trustee of each such series of Securities, the Company, when authorized by or pursuant to a Board Resolution of its Board of Directors, the Guarantor, when authorized by or pursuant to a Board Resolution by the Guarantor's Board of Directors, and each such Trustee may enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of modifying in any manner the rights of the Holders of Securities of such series under this Indenture; provided, however, that no such supplemental indenture shall, without the consent of the Holder of each Outstanding Security affected thereby: (1) change the Stated Maturity of the principal of, or any installment of principal of or interest, if any, on, any Security, or reduce the principal amount thereof or the rate of interest thereon or any premium payable upon the redemption thereof, or reduce the amount of the principal of an Original Issue Discount Security 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 62 enforcement of any such payment on or after the Stated Maturity thereof (or, in the case of redemption, on or after the Redemption Date), or (in the case of Guaranteed Securities) release the Guarantor from any of its obligations under the Guarantee otherwise than in accordance with the terms of this Indenture; (2) reduce the percentage in principal amount of the Outstanding Securities of any series, the consent of whose Holders is required for any such supplemental indenture or the consent of whose Holders is required for any waiver (of compliance with certain provisions of this Indenture or certain defaults hereunder and their consequences) provided for in this Indenture; or (3) modify any of the provisions of this Section, Section 513 or Section 1008, except to increase any such percentage or to provide that certain other provisions of this Indenture cannot be modified or waived without the consent of the Holder of each Outstanding Security affected thereby provided, however, that this clause shall not be deemed to require the consent of any Holder with respect to changes in the references to "the Trustee" and concomitant changes in this Section and Section 1008, or the deletion of this proviso, in accordance with the requirements of Sections 609, 611(b), 901(8) and 901(9). A supplemental indenture which changes or eliminates any covenant or other provision of this Indenture which has expressly been included solely for the benefit of one or more particular series of Securities, or which modifies the rights of the Holders of Securities of such series with respect to such covenant or other provision, shall be deemed not to affect the rights under this Indenture of the Holders of Securities of any other series. It shall not be necessary for any Act of Holders of any series of Securities under this Section to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such Act shall approve the substance thereof. SECTION 903. Execution of Supplemental Indentures. ------------------------------------ In executing, or accepting the additional trusts created by, and supplemental indenture permitted by this Article or the modifications thereby of the trusts created by this Indenture, the Trustee for any series of Securities shall be entitled to receive, and (subject to Section 601) shall be fully protected in relying upon, an Opinion of Counsel stating that the execution of such supplemental indenture is authorized or permitted by this Indenture. The Trustee for any series of Securities may, but shall not be obligated to, enter into any such supplemental indenture which affects such 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. 63 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 for the Securities of such series, bear a notation in form approved by such Trustee as to any matter provided for in such supplemental indenture. If the Company or (in the case of Guaranteed Securities) the Guarantor shall so determine, new forms of the Securities of any series and (in the case of Guaranteed Securities) any Guarantees endorsed thereon modified as to conform, in the opinion of the Trustee for the Securities of such series , the Company and (in the case of Guaranteed Securities) the Guarantor, to any supplemental indenture may be prepared and executed by the Company and authenticated and delivered by such Trustee in exchange for Outstanding Securities of such series. ARTICLE TEN COVENANTS SECTION 1001. Payment of Principal, Premium and Interest. ------------------------------------------ The Company covenants and agrees for the benefit of each series of Securities that it will duly and punctually pay the principal of (and premium, if any) and interest, if any, on the Securities of that series in accordance with the terms of the Securities and this Indenture. SECTION 1002. Maintenance of Office or Agency. ------------------------------- The Company will maintain in each Place of Payment for any series of Securities an office or agency where Securities of that series may be presented or surrendered for payment, where Securities of that series may be surrendered for registration of transfer or exchange and where notices and demands to or upon the Company in respect of the Securities of that series and this Indenture may be served. If Securities are Guaranteed Securities, the Guarantor will maintain an office or agency in each Place of Payment for any series of Guaranteed Securities where notices and demands to or upon the Guarantor in respect of the Guaranteed Securities of that series and this Indenture may be served. The Company and (in the case of Guaranteed Securities) the Guarantor will give prompt written notice to the Trustee for Securities of that series of the location, and any change in the location, of such office or agency. If at any time the Company or (in the case of Guaranteed Securities) the Guarantor shall fail to maintain any such required office or agency or shall fail to furnish the Trustee for the Securities of that series with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of such Trustee, and the Company and (in the case of Guaranteed Securities) the Guarantor hereby appoints such Trustee as its agent to receive all such presentations, surrenders, notices and demands. The Company may also from time to time designate one or more other offices or agencies where the Securities of one or more series may be presented or surrendered for any or all such 64 purposes and may from time to time rescind such designations; provided, however, that no such designation or rescission shall in any manner relieve the Company of its obligation to maintain an office or agency in each Place of Payment for Securities of any series for such purposes. The Company will give prompt written notice to the Trustee for the Securities of each series of any such designation or rescission and of any change in the location of any such other office or agency. SECTION 1003. Money for Securities Payments to Be Held in Trust. ------------------------------------------------- If the Company shall at any time act as its own Paying Agent with respect to any series of Securities, it will, on or before each due date of the principal of (and premium, if any) or interest, if any, 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, if any, 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 for the Securities of such series 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, if any, 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 for the Securities of such series) the Company will promptly notify such Trustee of its action or failure so to act. The Company will cause each Paying Agent for any series of Securities other than the Trustee for the Securities of such series to execute and deliver to such Trustee an instrument in which such Paying Agent shall agree with such Trustee, subject to the provisions of this Section, that such Paying Agent will: (1) hold all sums held by it for the payment of the principal of (and premium, if any) or interest, if any, on Securities of that series in trust for the benefit of the persons entitled thereto until such sums shall be paid to such persons or otherwise disposed of as herein provided; (2) give such Trustee notice of any default by the Company (or any other obligor upon the Securities of that series) in the making of any payment of principal (and premium, if any) or interest, if any, on the Securities of that series; and (3) at any time during the continuance of any such default, upon the written request of such Trustee, forthwith pay to such 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 for the Securities of any series all sums held in trust by the Company or such Paying Agent, such sums to be held by such Trustee upon the same trusts as 65 those upon which such sums were held by the Company or such Paying Agent; and, upon such payment by any Paying Agent to such 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 for the Securities of any series, or then held by the Company or (in the case of Guaranteed Securities) the Guarantor, in trust for the payment of the principal of (and premium, if any) or interest, if any, 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 or (in the case of Guaranteed Securities) the Guarantor on Company Request, or (if then held by the Company or (in the case of Guaranteed Securities) the Guarantor) shall be discharged from such trust; and the Holder of such Security shall thereafter, as an unsecured general creditor, look only to the Company or (in the case of Guaranteed Securities) the Guarantor, as the case may be, for payment thereof, and all liability of such Trustee or such Paying Agent with respect to such trust money, and all liability of the Company or (in the case of Guaranteed Securities) the Guarantor, as the case may be, as trustee thereof, shall thereupon cease; provided, however, that such Trustee or such Paying Agent, before being required to make any such repayment, may at the expense of the Company cause to be published once, in a newspaper published in the English language, customarily published on each Business Day and of general circulation in the City, County and State of New York, notice that such money remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such publication, any unclaimed balance of such money then remaining will be repaid to the Company or (in the case of Guaranteed Securities) the Guarantor, as the case may be. SECTION 1004. Limitation on Liens. ------------------- (a) The Company covenants and agrees for the benefit of each series of Securities, other than any series established by or pursuant to a Board Resolution of the Company or in one or more supplemental indentures hereto which specifically provides otherwise, that it will not, and will not permit any Restricted Subsidiary to, create, assume or guarantee any indebtedness for money borrowed secured by a Mortgage (i) on any Principal Property of the Company or of a Restricted Subsidiary or (ii) on any shares or Funded Indebtedness of a Restricted Subsidiary (whether such Principal Property, shares or Funded Indebtedness are now owned or hereafter acquired), without, in any such case, effectively providing concurrently with the creation, assumption or guaranteeing of such indebtedness that the Securities (together, if the Company shall so determine, with any other indebtedness then or thereafter existing, created, assumed or guaranteed by the Company or such Restricted Subsidiary ranking equally with the Securities) shall be secured equally and ratably with (or prior to) such indebtedness; excluding, however, from the foregoing any indebtedness secured by a Mortgage (including any extension, renewal or replacement, or successive extensions, renewals or replacements, of any Mortgage hereinafter specified or any indebtedness secured thereby, without increase of the principal of such indebtedness): (1) on property, shares or Funded Indebtedness of any corporation existing at the time such corporation becomes a Restricted Subsidiary; or 66 (2) on property existing at the time of acquisition thereof by the Company or a Restricted Subsidiary, or to secure any indebtedness incurred by the Company or a Restricted Subsidiary prior to, at the time of, or within 180 days after the later of the acquisition, the completion of construction (including any improvements on an existing property) or the commencement of commercial operation of such property, which indebtedness is incurred for the purpose of financing all or any part of the purchase price thereof or construction or improvements thereon; provided, however, that in the case of any such acquisition, construction or improvement the Mortgage shall not apply to any property theretofore owned by the Company or a Restricted Subsidiary, other than, in the case of any such construction or improvement, any theretofore unimproved real property on which the property so constructed, or the improvement, is located; or (3) on property, shares or Funded Indebtedness of a corporation existing at the time such corporation is merged into or consolidated with the Company or a Restricted Subsidiary, or at the time of a sale, lease or other disposition of the properties of a corporation as an entirety or substantially as an entirety to the Company or a Restricted Subsidiary; or (4) on property of a Restricted Subsidiary to secure indebtedness of such Restricted Subsidiary to the Company or another Restricted Subsidiary; or (5) on property of the Company or a Restricted Subsidiary in favor of the United States of America or any State thereof, or any department, agency or instrumentality or political subdivision of the United States of America or any State thereof, to secure partial, progress, advance or other payments pursuant to any contract or statute or to secure any indebtedness incurred for the purpose of financing all or any part of the purchase price or the cost of constructing or improving the property subject to such Mortgage; or (6) existing at the date of this Indenture; provided, however, that any Mortgage permitted by any of the foregoing clauses (1), (2), (3) and (5) of this Section 1004(a) shall not extend to or cover any property of the Company or such Restricted Subsidiary, as the case may be, other than the property specified in such clauses and improvements thereto. (b) Notwithstanding the provisions of subsection (a) of this Section 1004, the Company or any Restricted Subsidiary may create, assume or guarantee secured indebtedness for money borrowed which would otherwise be prohibited in said subsection (a) in an aggregate amount which, together with all other such indebtedness for money borrowed of the Company and its Restricted Subsidiaries and the Attributable Debt of the Company and its Restricted Subsidiaries in respect of Sale and Leaseback Transactions (as defined in Section 1005) existing at such time (other than Sale and Leaseback Transactions entered into prior to the date of this Indenture and Sale and Leaseback Transactions the proceeds of which have been applied in accordance with 67 clause (b) of Section 1005), does not at the time exceed 10% of the shareholders' equity in the Company and its consolidated Subsidiaries, as shown on the audited consolidated balance sheet contained in the latest annual report to shareholders of the Company. (c) For the purposes of this Article Ten, (1) the term "Attributable Debt" shall mean, as of any particular time, the then present value of the total net amount of rent required to be paid under such lease during the remaining term thereof (excluding any renewal term unless the renewal is at the option of the lessor) computed by discounting from the respective due dates to such date such total net amount of rent at the actual interest factor included in such rent, or, if such interest factor cannot readily be determined, at the rate per annum borne by the initial series of Securities, except that if no interest is payable in respect of the initial series of Securities or if such rate is not fixed then at the rate of 8?% per annum. The net amount of rent required to be paid for any such period shall be the aggregate amount of the rent payable by the lessee with respect to such period after excluding amounts required to be paid on account of, or measured or determined by, any variable factor, including, without limitation, the cost-of-living index and costs of maintenance and repairs, insurance, taxes, assessments, water rates and similar charges and after excluding any portion of rentals based on a percentage of sales made by the lessee. In the case of any lease which is terminable by the lessee upon the payment of a penalty, such net amount shall also include the amount of such penalty, but no rent shall be considered as required to be paid under such lease subsequent to the first date upon which it may be so terminated; (2) the term "shareholders' equity in the Company and its consolidated Subsidiaries" shall mean the share capital, share premium, contributed surplus and retained earnings of the Company and its consolidated Subsidiaries, excluding the cost of shares of the Company held by its affiliates, all as determined in accordance with U.S. generally accepted accounting principles; and (3) the term "Mortgage" on any specified property shall mean any mortgage, lien, pledge, charge or other security interest or encumbrance of any kind in respect of such property. SECTION 1005. Limitation on Sale and Leaseback Transactions. --------------------------------------------- The Company covenants and agrees for the benefit of each series of Securities, other than any series established by or pursuant to a Board Resolution of the Company or in one or more supplemental indentures hereto which specifically provides otherwise, that it will not, and will not permit any Restricted Subsidiary to, enter into any arrangement with any person for the leasing by the Company or a Restricted Subsidiary (except for leases for a term of not more than three years and for leases of a part of a Principal Property, which has been sold, for use in connection with the winding up or termination of the business conducted on such Principal Property, and except, in the case of a Restricted Subsidiary, a lease to the Company or another Restricted Subsidiary) of any Principal Property (whether now owned or hereafter acquired), 68 which Principal Property has been or is intended to be sold or transferred by the Company or such Restricted Subsidiary to such person (herein referred to as a "Sale and Leaseback Transaction"), unless (a) the Company or such Restricted Subsidiary would be entitled, pursuant to the provisions of Section 1004, to incur indebtedness secured by a Mortgage on such Principal Property without equally and ratably securing the Securities, or (b) the Company shall (and in any such case the Company covenants that it will) apply an amount equal to the fair value of such Principal Property so leased (as determined by the Board of Directors) to the retirement (other than by payment at maturity or to satisfy the mandatory requirements of any sinking, purchase or analogous fund or prepayment provision), within 180 days of the effective date of any such Sale and Leaseback Transaction, of Securities or other Funded Indebtedness of the Company or any Restricted Subsidiary ranking on a parity with the Securities, or to the purchase, improvement or construction of properties which are Principal Properties; provided, however, that the amount to be applied to the retirement of such Funded Indebtedness shall be reduced by (x) the principal amount of any Securities delivered within 180 days after such sale or transfer to the Trustee for the Securities of such series for retirement and cancellation and (y) the principal amount of other Funded Indebtedness ranking on a parity with the Securities voluntarily retired by the Company within 180 days after such sale or transfer; and promptly after the expiration of such 180-day period the Company shall have delivered to the Trustee for the Securities of such series an Officer's Certificate setting forth in reasonable detail all material facts necessary to show compliance with this Subsection. SECTION 1006. Defeasance of Certain Obligations. --------------------------------- The Company may omit to comply with, and shall have no liability in respect of, any term, provision or condition set forth in Sections 802, 1004 and 1005 (and the Company and the Guarantor (in the case of Guaranteed Securities) may omit to comply with, and shall have no liability in respect of any other provision or condition specified pursuant to Section 301(13) for such Securities) with respect to the Securities of any series whether directly or indirectly, by reason of any reference elsewhere herein to any such covenant, to any other provision herein or in any other document and such omission to comply shall not constitute a Default or Event of Default under Section 501(4) or otherwise, as the case may be, provided that the following conditions shall have been satisfied: (1) The Company or the Guarantor has deposited or caused to be irrevocably deposited (except as provided in Section 402(c) and the last paragraph of Section 1003) with the Trustee for the Securities of such series (specifying that each deposit is pursuant to this Section 1006) as trust funds in trust, specifically pledged as security for, and dedicated solely to, the benefit of the Holders of the Securities of such series, (i) money in an amount, or (ii) (except as provided in a supplemental indenture with respect to such series) if Securities of such series are not subject to repurchase at the option of such Holders, (A) U.S. Government Obligations which through the payment of interest and principal in respect thereof in accordance with their terms will provide not later than one day before the due date of any payment referred to in clause (x) or (y) of this subparagraph (1) money in an amount, or (B) a combination thereof, sufficient, in the opinion of a nationally recognized firm of independent certified public accountants expressed in a written certification thereof delivered to such Trustee, to pay and discharge 69 (x) the principal of (and premium, if any) and each installment of principal (and premium, if any) and interest, if any, on the Outstanding Securities of such series on the Stated Maturity of such principal or installment of principal or interest or to and including the Redemption Date irrevocably designated by the Company pursuant to subparagraph (4) of this Section and (y) any mandatory sinking fund payments applicable to the Securities of such series on the day on which such payments are due and payable in accordance with the terms of the Indenture and of the Securities of such series; (2) No Event of Default or event which with notice or lapse of time would become an Event of Default (including by reason of such deposit) with respect to the Securities of such series shall have occurred and be continuing on the date of such deposit; (3) The Company or (in the case of Guaranteed Securities) the Guarantor shall have delivered to such Trustee an Opinion of Counsel to the effect that Holders of the Securities of such series will not recognize income, gain or loss for Federal income tax purposes as a result of such deposit and defeasance of certain obligations; and (4) If the Company or (in the case of Guaranteed Securities) the Guarantor has deposited or caused to be deposited money or U.S. Government Obligations to pay or discharge the principal of (and premium, if any) and interest, if any, on the Outstanding Securities of a series to and including a Redemption Date on which all of the Outstanding Securities of such series are to be redeemed, such Redemption Date shall be irrevocably designated by a Board Resolution of the Company or delivered to such Trustee on or prior to the date of deposit of such money or U.S. Government Obligations, and such Board Resolution shall be accompanied by an irrevocable Company Request that such Trustee give notice of such redemption in the name and at the expense of the Company and less than 30 nor more than 60 days prior to such Redemption Date in accordance with Section 1104. SECTION 1007. Statement by Officer as to Default. ---------------------------------- The Company will deliver to the Trustee for each series of Securities, on or before May 15 in each year ending after the date hereof, an Officer's Certificate stating that in the course of the performance by such signer of his or her duties as an officer of the Company he would normally have knowledge of any default by the Company in the performance and observance of any of the covenants contained in Sections 802, 1004 and 1005, stating whether or not he has knowledge of any such default and, if so, specifying each such default of which such signer has knowledge and the nature thereof. The Company shall deliver to the Trustee, for each series of Securities as soon as possible and in any event within five days after the Company becomes aware of the occurrence of any Event of Default or an event which, with notice or the lapse of time or both, would constitute an 70 Event of Default, an Officer's Certificate setting forth the details of such Event of Default or default and the action which the Company proposes to take with respect thereto. SECTION 1008. Waiver of Certain Covenants. --------------------------- The Company may omit in any particular instance to comply with any term, provision or condition set forth in Sections 802, 1004 and 1005 (and the Company and the Guarantor may omit in any particular instance to comply with any term, provision or condition specified pursuant to Section 301(13) for such Securities) if before the time for such compliance the Holders of at least a majority in principal amount of the Outstanding Securities of all series affected by such omission (voting as one class) shall, by Act of such Holders, either waive such compliance in such instance or generally waive compliance with such term, provision or condition, but no such waiver shall extend to or affect such term, provision or condition except to the extent so expressly waived, and, until such waiver shall become effective, the obligations of the Company and the Guarantor, as the case may be, and the duties of the Trustee for the Securities of each series in respect of any such term, provision or condition shall remain in full force and effect. SECTION 1009. Calculation of Original Issue Discount. -------------------------------------- The Company shall file with the Trustee for the Securities of each series promptly at the end of each calendar year (i) a written notice specifying the amount of original issue discount (including daily rates and accrual periods) accrued on the Outstanding Securities as of the end of such year and (ii) such other specific information relating to such original issue discount as may then be relevant under the Internal Revenue Code of 1986, as amended from time to time. ARTICLE ELEVEN REDEMPTION OF SECURITIES SECTION 1101. Applicability of Article. ------------------------ Securities of any series which are redeemable before their Stated Maturity shall be redeemable in accordance with their terms and (except as otherwise specified as contemplated by Section 301 for Securities of any series) in accordance with this Article. SECTION 1102. Election to Redeem; Notice to Trustee. ------------------------------------- The election of the Company to redeem any Securities of any series shall be evidenced by an Officer's Certificate. 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 60 days prior to the Redemption Date fixed by the Company (unless a shorter notice shall be reasonably satisfactory to the Trustee for the Securities of such series), notify such Trustee of such Redemption Date and of the principal amount of Securities of such series to be redeemed, such notice to be accompanied by a written statement signed by an authorized officer of the Company stating that no defaults in the payment of interest or Events of Default with respect to the Securities of that series have occurred (which have not been waived or cured). 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 71 elsewhere in this Indenture, the Company shall furnish the Trustee for the Securities of such series 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 of that series to be redeemed shall be selected not more than 60 days prior to the Redemption Date by the Trustee for the Securities of such series, from the Outstanding Securities of such series not previously called for redemption, by such method as such Trustee shall deem fair and appropriate and which may provide for the selection for redemption of portions (equal to the minimum authorized denomination for Securities of that series or any integral multiple thereof) of the principal amount of Securities of such series of a denomination larger than the minimum authorized denomination for Securities of that series. Securities shall be excluded from eligibility for selection for redemption if they are identified by registration and certificate number in a written statement signed by an authorized officer of the Company and delivered to the Trustee for the Securities of such series at least 60 days prior to the Redemption Date as being owned of record and beneficially by, and not pledged or hypothecated by either (a) the Company or (in the case of Guaranteed Securities) the Guarantor or (b) an entity specifically identified in such written statement which is an Affiliate of the Company or (in the case of Guaranteed Securities) the Guarantor. The Trustee for the Securities of such series shall promptly notify the Company and (in the case of Guaranteed Securities) the Guarantor in writing of the Securities selected for redemption and, in the case of any Securities selected for partial redemption, the principal amount thereof to be redeemed. For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of Securities shall relate, in the case of any Securities redeemed or to be redeemed only in part, to the portion of the principal amount of such Securities which has been or is to be redeemed. SECTION 1104. Notice of Redemption. -------------------- Notice of redemption shall be given by first-class mail, postage prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption Date, to each Holder of Securities to be redeemed, at his or her 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; 72 (4) that on the Redemption Date the Redemption Price will become due and payable upon each such Security to be redeemed and, if applicable, that interest thereon will cease to accrue on and after said date; (5) the place or places where such Securities are to be surrendered for payment of the Redemption Price; and (6) that the redemption is for a sinking fund, if such is the case. Notice of redemption of Securities to be redeemed at the election of the Company shall be given by the Company or, at the Company's request, by the Trustee for such Securities in the name and at the expense of the Company. SECTION 1105. Deposit of Redemption Price. --------------------------- At least one Business Day prior to any Redemption Date, the Company or (in the case of Guaranteed Securities) the Guarantor shall deposit with the Trustee for the Securities to be redeemed or with a Paying agent (or, if the Company or (in the case of Guaranteed Securities) the Guarantor is acting as its own Paying Agent, segregate and hold in trust as provided in Section 1003) an amount of money sufficient to pay the Redemption Price of, and (except if the Redemption Date shall be an Interest Payment Date) accrued interest on, all the Securities which are to be redeemed on that date (to the extent that such amounts are not already on deposit at such time in accordance with the provisions of Section 401, 403 or 1006). 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 and unpaid 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 and unpaid interest to the Redemption Date; provided, however, that installments of interest whose Stated Maturity is on or prior to the Redemption Date shall be payable to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Record Dates according to their terms and the provisions of Section 307. If any Security called for redemption shall not be so paid upon surrender thereof for redemption, the principal (and premium, if any) shall, until paid, bear interest from the Redemption Date at the rate prescribed therefor in the Security. SECTION 1107. Securities Redeemed in Part. --------------------------- Any Security which is to be redeemed only in part shall be surrendered at a Place of Payment therefor (with, if the Company or the Trustee for such Security so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and such Trustee duly executed by, the Holder thereof or his or her attorney duly authorized in writing), and the Company shall execute, and such Trustee shall authenticate and deliver to the Holder of 73 such Security without service charge, a new Security or Securities of the same series, and, in the case of Guaranteed Securities, having endorsed thereon the Guarantee executed by the Guarantor, of any authorized denomination as requested by such Holder, in aggregate principal amount equal to and in exchange for the unredeemed portion of the principal of the Security so surrendered. ARTICLE TWELVE SINKING FUNDS SECTION 1201. Applicability of Article. ------------------------ The provisions of this Article shall be applicable to any sinking fund for the retirement of Securities of a series except as otherwise specified as contemplated by Section 301 for Securities of such series. The minimum amount of any sinking fund payment provided for by the terms of Securities of any series is herein referred to as a "mandatory sinking fund payment," and any payment in excess of such minimum amount provided for by the terms of Securities of any series is herein referred to as an "optional sinking fund payment." If provided for by the terms of Securities of any series, the cash amount of any sinking fund payment may be subject to reduction as provided in Section 1202. Each sinking fund payment shall be applied to the redemption of Securities of any series as provided for by the terms of Securities of such series. SECTION 1202. Satisfaction of Sinking Fund Payments with Securities. ----------------------------------------------------- In lieu of making all or any part of any mandatory sinking fund payment with respect to any series of Securities in cash, the Company may at its option (a) deliver to the Trustee for such Securities, Securities of such series theretofore purchased or otherwise acquired (except upon redemption pursuant to the mandatory sinking fund) by the Company or receive credit for Securities of such series (not previously so credited) theretofore purchased or otherwise acquired (except as aforesaid) by the Company and delivered to such Trustee for cancellation pursuant to Section 309, (b) receive credit for optional sinking fund payments (not previously so credited) made pursuant to this Section, or (c) receive credit for Securities of such series (not previously so credited) redeemed by the Company through any optional redemption provision contained in the terms of such series. Securities so delivered or credited shall be received or credited by such Trustee at the sinking fund redemption price specified in such Securities. SECTION 1203. Redemption of Securities for Sinking Fund. ----------------------------------------- Not less than 60 days prior to each sinking fund payment date for any series of Securities, the Company will deliver to the Trustee for the Securities of such series an Officer's Certificate (which need not contain the statements required by Section 102) stating that no defaults in the payment of interest, if any, with respect to Securities of that series and no Events of Default with respect to Securities of that series have occurred (which in either case have not been waived or cured) and (a) specifying the amount of the next ensuing sinking fund payment for that series pursuant to the terms of that series, (b) whether or not the Company intends to exercise its right, if any, to make an optional sinking fund payment with respect to such series on the next ensuing sinking fund payment date and, if so, the amount of such optional sinking fund payment, and 74 (c) 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 such Trustee any Securities to be so delivered. Such written statement shall be irrevocable and upon its receipt by such Trustee the Company shall become unconditionally obligated to make all the cash payments or payments therein referred to, if any, on or before the next succeeding sinking fund payment date. Failure of the Company, on or before any such 60th day, to deliver such written statement and Securities specified in this paragraph, if any, shall not constitute a default but shall constitute, on and as of such date, the irrevocable election of the Company (i) that the mandatory sinking fund payment for such series due on the next succeeding sinking fund payment date shall be paid entirely in cash without the option to deliver or credit Securities of such series in respect therefor and (ii) that the Company will make no optional sinking fund payment with respect to such series as provided in this Section. Not less than 30 days before each such sinking fund payment date the Trustee for any series of Securities shall select the Securities of such series 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 1105, 1106 and 1107. The Trustee for any series of Securities shall not redeem or cause to be redeemed any Security of such series with sinking fund moneys or mail any notice of redemption of Securities of such series by operation of the sinking fund during the continuance of a default in payment of interest with respect to Securities of that series or an Event of Default with respect to the Securities of that series except that, where the mailing of notice of redemption of any Securities shall theretofore have been made, such Trustee shall redeem or cause to be redeemed such Securities, provided that it shall have received from the Company a sum sufficient for such redemption. Except as aforesaid, any moneys in the sinking fund for such series at the time when any such default or Event of Default, shall occur, and any moneys thereafter paid into the sinking fund, shall, during the continuance of such default or Event of Default, be deemed to have been collected under Article Five and held for the payment of all such Securities. In case such Event of Default shall have been waived as provided in Section 513 or the default or Event of Default cured on or before the 60th day preceding the sinking fund payment date, such moneys shall thereafter be applied on the next succeeding sinking fund payment date in accordance with this Section to the redemption of such Securities. ARTICLE THIRTEEN GUARANTEE OF GUARANTEED SECURITIES SECTION 1301. Guarantee. --------- (a) Subject to the provisions of this Article Thirteen and for good and valuable consideration, the receipt of which is hereby acknowledged, the Guarantor hereby fully and unconditionally guarantees to each Holder of a Guaranteed Security of each series authenticated and delivered by the Trustee for such Guaranteed Securities hereunder and to such Trustee on behalf of each such Holder, the due and punctual payment of principal 75 of, premium, if any, and interest on the Guaranteed Securities when and as the same shall become due and payable, whether at the Stated Maturity, by declaration of acceleration, call for redemption or otherwise, according to the terms thereof and of this Indenture. In case of the failure of the Company promptly to make any such payment of principal, premium, if any, or interest, the Guarantor hereby agrees to make any such payment to be made promptly when and as the same shall become due and payable, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise, and as if such payment were made by the Company. (b) The Guarantor hereby agrees that its obligations hereunder shall be as if it were principal debtor and not merely surety, and shall be absolute and unconditional, joint and several, irrespective of, and shall be unaffected by any failure to enforce the provisions of such Guaranteed Security or this Indenture, or any waiver, modification or indulgence granted to the Company with respect thereto, by the Holder of such Guaranteed Security or the Trustee for the Securities of such series or any other circumstance which may otherwise constitute a legal or equitable discharge of a surety or guarantor; provided, however, that, notwithstanding the foregoing, no such waiver, modification or indulgence shall, without the consent of the Guarantor, increase the principal amount of such Guaranteed Security, or increase the interest rate thereon, or increase any premium payable upon redemption thereof, or alter the Stated Maturity thereof, or increase the principal amount of any Original Issue Discount Security that would be due and payable upon a declaration of acceleration or the maturity thereof pursuant to Article Five of this Indenture. The Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of merger or bankruptcy of the Company, any right to require a proceeding first against the Company, protest or notice with respect to such Guaranteed Security or the indebtedness evidenced thereby or with respect to any sinking fund or analogous payment required under such Guaranteed Security and all demands whatsoever, and covenants that this Guarantee will not be discharged except by payment in full of the principal of, premium, if any, and interest on such Guaranteed Security or as otherwise set forth in this Indenture. (c) The Guarantor shall be subrogated to all rights of the Holder of such Guaranteed Security and the Trustee for the Securities of such series against the Company in respect of any amounts paid to such Holder by the Guarantor pursuant to the provisions of this Guarantee; provided, however, that the Guarantor shall not be entitled to enforce or to receive any payments arising out of or based upon such right of subrogation until the principal of, premium, if any, and interest on all Securities of the same series issued under the Indenture shall have been paid in full. SECTION 1302. Execution and Delivery of Guarantees. ------------------------------------ The Guarantees to be endorsed on the Guaranteed Securities of each series shall include the terms of the guarantees set forth in Section 1301 and any other terms that may be set forth in the form established pursuant to Section 206 with respect to such series. The Guarantor hereby agrees to execute the Guarantees, in a form established pursuant to Section 206, to be endorsed on each Guaranteed Security authenticated and delivered by the Trustee for the Securities of such series. 76 The Guarantees shall be executed in accordance with Section 303. The delivery of any Guaranteed Security by the Trustee for the Securities of such series, after the authentication thereof hereunder, shall constitute due delivery of the Guarantee endorsed thereon on behalf of the Guarantor. The Guarantor hereby agrees that its Guarantee set forth in Section 1301 shall remain in full force and effect notwithstanding any failure to endorse a Guarantee on any Guaranteed Security. SECTION 1303. Notice to Trustee. ----------------- The Guarantor shall give prompt written notice to the Trustee for the Securities of such series of any fact known to the Guarantor which prohibits the making of any payment to or by such Trustee in respect of the Guarantee pursuant to the provisions of this Article Thirteen other than any agreement in effect on the date hereof. SECTION 1304. This Article Not to Prevent Events of Default. --------------------------------------------- The failure to make a payment on account of principal of, premium, if any, or interest on the Guaranteed Securities by reason of any provision of this Article will not be construed as preventing the occurrence of an Event of Default. SECTION 1305. Amendment, Etc. --------------- No amendment, modification or waiver of any provision of this Indenture relating to the Guarantor or consent to any departure by the Guarantor or any other person from any such provision will in any event be effective unless it is signed by the Guarantor and the Trustee for the Securities of such series. SECTION 1306. Limitation on Liability. ----------------------- The obligations of the Guarantor hereunder will be limited to the maximum amount, as will not result in the obligations of the Guarantor under the Guarantee constituting a fraudulent conveyance or fraudulent transfer, after giving effect to all other relevant liabilities of the Guarantor. 77 IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed and their respective corporate seals to be hereunto affixed and attested, all as of the day and year first above written. [Seal] INGERSOLL-RAND COMPANY LIMITED, as the Company By:_______________________________ Title: Attest: Title: [Seal] INGERSOLL-RAND COMPANY, as the Guarantor By:_______________________________ Title: Attest: By:_______________________________ Title: Attest: [Seal] WELLS FARGO BANK MINNESOTA, N.A., as Trustee By:_______________________________ Title: Attest: STATE OF NEW YORK ) ) ss.: COUNTY OF NEW YORK ) On the ___ day of _________, 2002 before me personally came __________________, to me known, who, being by me duly sworn, did depose and say that he is ____________________ of Ingersoll-Rand Company Limited, one of the corporations described in and which executed the foregoing instrument; that he knows the seal of said corporation; that the seal affixed to said instrument is such corporate seal; that it was so affixed by authority of the Board of Directors of said corporation and that he signed his or her name thereto by like authority. ------------------------------- STATE OF NEW YORK ) ) ss.: COUNTY OF NEW YORK ) On the ___ day of _________, 2002 before me personally came __________________, to me known, who, being by me duly sworn, did depose and say that he is __________________ of Ingersoll-Rand Company, one of the corporations described in and which executed the foregoing instrument; that he knows the seal of said corporation; that the seal affixed to said instrument is such corporate seal; that it was so affixed by authority of the Board of Directors of said corporation and that he signed his or her name thereto by like authority. ------------------------------- STATE OF NEW YORK ) ) ss.: COUNTY OF NEW YORK ) On the ___ day of __________, 2002 before me personally came _________________, to me known, who, being by me duly sworn, did depose and say that he is _________________ of Wells Fargo Bank Minnesota, N.A., one of the corporations described in and which executed the foregoing instrument; that he knows the seal of said corporation; that the seal affixed to said instrument is such corporate seal; that it was so affixed by authority of the Board of Directors of said corporation, and that he signed his or her name thereto by like authority. ------------------------------- EX-4.2 5 ex4_2.txt INSTRUMENTS DEFINING RIGHTS OF SECURITY HOLDERS Exhibit 4.2 =============================================================================== INGERSOLL-RAND COMPANY LIMITED, as ISSUER, INGERSOLL-RAND COMPANY, as GUARANTOR and WELLS FARGO BANK MINNESOTA, N.A., as Trustee ------------- INDENTURE Dated as of __________ __, 2002 -------------- Subordinated Debt Securities ============================================================================== TABLE OF CONTENTS Page RECITALS OF THE COMPANY......................................................1 ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION..........1 SECTION 101. Definitions....................................................1 Act.....................................................................2 Affiliate...............................................................2 Authenticating Agent....................................................2 Board of Directors......................................................2 Board Resolution........................................................2 Business Day............................................................2 Commission..............................................................2 Common Shares...........................................................3 Company.................................................................3 Company Request.........................................................3 Company Order...........................................................3 Corporate Trust Office..................................................3 Defaulted Interest......................................................3 Designated Guarantor Senior Indebtedness................................3 Designated Senior Indebtedness..........................................3 Dollar..................................................................3 Event of Default........................................................3 Global Security.........................................................3 Guarantee...............................................................3 Guaranteed Securities...................................................4 Guarantor...............................................................4 Guarantor Senior Indebtedness...........................................4 Guarantor Senior Representative.........................................4 Holder..................................................................4 Indenture...............................................................4 Interest................................................................4 i Page Interest Payment Date...................................................4 Judgment Currency.......................................................4 Maturity................................................................4 Officer's Certificate...................................................4 Opinion of Counsel......................................................5 Original Issue Discount Security........................................5 Outstanding.............................................................5 Paying Agent............................................................6 Person..................................................................6 Permitted Guarantor Junior Securities...................................6 Permitted Junior Securities.............................................6 Place of Payment........................................................6 Predecessor Security....................................................6 Process Agent...........................................................6 Redemption Date.........................................................6 Redemption Price........................................................6 Regular Record Date.....................................................6 Required Currency.......................................................6 Responsible Officer.....................................................6 Securities..............................................................7 Security Register and Security Registrar................................7 Senior Indebtedness.....................................................7 Senior Representative...................................................7 Special Record Date.....................................................7 Stated Maturity.........................................................7 Subsidiary..............................................................7 Trustee.................................................................7 Trust Indenture Act.....................................................7 U.S. Depositary.........................................................7 U.S. Government Obligations.............................................8 Vice President..........................................................8 SECTION 102. Compliance Certificates and Opinions...........................8 SECTION 103. Form of Documents Delivered to Trustee........................9 ii Page SECTION 104. Acts of Holders...............................................9 SECTION 105. Notices, Etc., to Trustee, Guarantor and Company.............10 SECTION 106. Notice to Holders; Waiver....................................10 SECTION 107. Conflict with Trust Indenture Act............................11 SECTION 108. Effect of Headings and Table of Contents.....................11 SECTION 109. Successors and Assigns.......................................11 SECTION 110. Separability Clause..........................................11 SECTION 111. Benefits of Indenture........................................11 SECTION 112. Governing Law................................................11 SECTION 113. Legal Holidays...............................................11 SECTION 114. Incorporators, Shareholders, Officers and Directors of the Company and the Guarantor Exempt from Individual Liability.........................................12 SECTION 115. Counterparts.................................................12 SECTION 116. Currency Exchange............................................12 SECTION 117. Judgment Currency; Consent to Jurisdiction and Service......................................................12 ARTICLE TWO SECURITY FORMS..................................................14 SECTION 201. Forms Generally...............................................14 SECTION 202. Form of Face of Security......................................14 SECTION 203. Form of Reverse of Security...................................17 SECTION 204. Form of Trustee's Certificate of Authentication...............21 SECTION 205. Securities in Global Form.....................................21 SECTION 206. Guarantee; Form of Guarantee..................................21 ARTICLE THREE THE SECURITIES................................................23 SECTION 301. Amount Unlimited; Issuable in Series..........................23 SECTION 302. Denominations.................................................26 SECTION 303. Execution, Authentication, Delivery and Dating................26 SECTION 304. Temporary Securities..........................................27 SECTION 305. Registration, Registration of Transfer and Exchange...........28 SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities..............31 SECTION 307. Payment of Interest; Interest Rights Preserved................32 SECTION 308. Persons Deemed Owners.........................................33 SECTION 309. Cancellation..................................................33 SECTION 310. Computation of Interest.......................................34 iii Page SECTION 311. CUSIP Numbers.................................................34 ARTICLE FOUR SATISFACTION AND DISCHARGE.....................................34 SECTION 401. Satisfaction and Discharge of Indenture.......................34 SECTION 402. Application of Trust Money....................................36 SECTION 403. Satisfaction, Discharge and Defeasance of Securities if any Series.................................................36 SECTION 404. Reinstatement.................................................38 SECTION 405. Effect on Subordination Provisions............................38 ARTICLE FIVE REMEDIES.......................................................39 SECTION 501. Events of Default..............................................39 SECTION 502. Acceleration of Maturity; Rescission and Annulment.............41 SECTION 503. Collection of Indebtedness and Suits for Enforcement...........42 SECTION 504. Trustee May File Proofs of Claim...............................43 SECTION 505. Trustee May Enforce Claims Without Possession of Securities.....................................................43 SECTION 506. Application of Money Collected.................................44 SECTION 507. Limitation on Suits............................................44 SECTION 508. Unconditional Right of Holders to Receive Principal, Premium and Interest...........................................45 SECTION 509. Restoration of Rights and Remedies.............................45 SECTION 510. Rights and Remedies Cumulative.................................45 SECTION 511. Delay or Omission Not Waiver...................................46 SECTION 512. Control by Holders.............................................46 SECTION 513. Waiver of Past Defaults........................................46 SECTION 514. Undertaking for Costs..........................................47 SECTION 515. Waiver of Stay or Extension Laws...............................47 ARTICLE SIX THE TRUSTEE.....................................................47 SECTION 601. Certain Duties and Responsibilities............................47 SECTION 602. Notice of Defaults.............................................48 SECTION 603. Certain Rights of Trustee......................................49 SECTION 604. Not Responsible for Recitals or Issuance of Securities.....................................................50 SECTION 605. May Hold Securities............................................50 SECTION 606. Money Held in Trust............................................50 SECTION 607. Compensation and Reimbursement.................................50 SECTION 608. Disqualification; Conflicting Interests........................51 iv Page SECTION 609. Corporate Trustee Required; Different Trustees for Different Series; Eligibility..............................51 SECTION 610. Resignation and Removal; Appointment of Successor......................................................52 SECTION 611. Acceptance of Appointment by Successor.........................53 SECTION 612. Merger, Conversion, Consolidation or Succession to Business....................................................54 SECTION 613. Preferential Collection of Claims Against the Company or the Guarantor.......................................55 SECTION 614.Authenticating Agents...........................................55 ARTICLE SEVEN HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY.............57 SECTION 701. Company to Furnish Trustee Names and Addresses of Holders........................................................57 SECTION 702. Preservation of Information; Communications to Holders.....................................................57 SECTION 703. Reports by Trustee.............................................58 SECTION 704. Reports by Company.............................................59 ARTICLE EIGHT CONSOLIDATION, MERGER, CONVEYANCE, SALE OR LEASE..............60 SECTION 801. Company and Guarantor May Consolidate, Etc., on Certain Terms.................................................60 SECTION 802. [Intentionally Omitted].......................................61 SECTION 803. Successor Corporation to be Substituted.......................61 SECTION 804. Opinion of Counsel to be Given to Trustee.....................61 ARTICLE NINE SUPPLEMENTAL INDENTURES........................................62 SECTION 901. Supplemental Indentures without Consent of Holders.......................................................62 SECTION 902. Supplemental Indentures with Consent of Holders...............63 SECTION 903. Execution of Supplemental Indentures..........................64 SECTION 904. Effect of Supplemental Indentures.............................64 SECTION 905. Conformity with Trust Indenture Act...........................65 SECTION 906. Reference in Securities to Supplemental Indentures............65 SECTION 907. Effect on Senior Indebtedness.................................65 ARTICLE TEN COVENANTS.......................................................65 SECTION 1001. Payment of Principal, Premium and Interest...................65 SECTION 1002. Maintenance of Office or Agency..............................65 SECTION 1003. Money for Securities Payments to Be Held in Trust............66 SECTION 1004. [Intentionally Omitted]......................................68 SECTION 1005. [Intentionally Omitted]......................................68 v Page SECTION 1006. Defeasance of Certain Obligations............................68 SECTION 1007. Statement by Officer as to Default...........................69 SECTION 1008. Waiver of Certain Covenants..................................69 SECTION 1009. Calculation of Original Issue Discount.......................70 ARTICLE ELEVEN REDEMPTION OF SECURITIES.....................................70 SECTION 1101. Applicability of Article.....................................70 SECTION 1102. Election to Redeem; Notice to Trustee........................70 SECTION 1103. Selection by Trustee of Securities to Be Redeemed.....................................................70 SECTION 1104. Notice of Redemption.........................................71 SECTION 1105. Deposit of Redemption Price..................................71 SECTION 1106. Securities Payable on Redemption Date........................72 SECTION 1107. Securities Redeemed in Part..................................72 ARTICLE TWELVE SINKING FUNDS................................................72 SECTION 1201. Applicability of Article.....................................72 SECTION 1202. Satisfaction of Sinking Fund Payments with Securities........73 SECTION 1203. Redemption of Securities for Sinking Fund....................73 ARTICLE THIRTEEN GUARANTEE OF GUARANTEED SECURITIES.........................74 SECTION 1301. Guarantee....................................................74 SECTION 1302. Execution and Delivery of Guarantees.........................75 SECTION 1303. Notice to Trustee............................................75 SECTION 1304. This Article Not to Prevent Events of Default................76 SECTION 1305. Amendment, Etc...............................................76 SECTION 1306. Limitation on Liability......................................76 ARTICLE FOURTEEN SUBORDINATED OF SECURITIES ................................76 SECTION 1401. Agreement to Subordinate.....................................76 SECTION 1402. Payment Over of Proceeds upon Dissolution, etc...............76 SECTION 1403. No Payment on Securities in Event of Default on Senior Indebtedness.................................................78 SECTION 1404. Trustee's Relation to Senior Indebtedness....................78 SECTION 1405. Subrogation to Rights of Holders of Senior Indebtedness.................................................78 SECTION 1406. Provisions Solely To Define Relative Rights..................79 SECTION 1407. Trustee To Effectuate Subordination..........................79 SECTION 1408. No Waiver of Subordination Provisions........................80 vi Page SECTION 1409. Notices to Trustee...........................................80 SECTION 1410. Reliance on Judicial Order or Certificate of Liquidating Agent............................................81 SECTION 1411. Rights of Trustee as a Holder of Senior Indebtedness; Preservation of Trustee's Rights...............81 SECTION 1412. Article Applicable to Paying Agents..........................82 SECTION 1413. No Suspension of Remedies....................................82 SECTION 1414. Other Subordination Provisions...............................82 ARTICLE FIFTEEN SUBORDINATION OF GUARANTEES.................................82 SECTION 1501. Agreement to Subordinate.....................................83 SECTION 1502. Payment Over of Proceeds upon Dissolution, etc...............83 SECTION 1503. No Payment on Securities in Event of Default on Guarantor Senior Indebtedness................................85 SECTION 1504. Trustee's Relation to Guarantor Senior Indebtedness.................................................85 SECTION 1505. Subrogation to Rights of Holders of Guarantor Senior Indebtedness..........................................85 SECTION 1506. Provisions Solely To Define Relative Rights..................85 SECTION 1507. Trustee To Effectuate Subordination..........................86 SECTION 1508. No Waiver of Subordination Provisions........................86 SECTION 1509. Notices to Trustee...........................................87 SECTION 1510. Reliance on Judicial Order or Certificate of Liquidating Agent............................................88 SECTION 1511. Rights of Trustee as a Holder of Guarantor Senior Indebtedness; Preservation of Trustee's Rights...............88 SECTION 1512. No Suspension of Remedies....................................88 SECTION 1513. Other Subordination Provisions...............................89 vii Reconciliation and tie between Trust Indenture Act of 1939 and Indenture, dated as of _________ __, 2002. Trust Indenture Act Section Indenture Section --------------------------- ----------------- ss. 310(a)(1).................................... 609 (a)(2).................................... 609 (a)(3).................................... Not Applicable (a)(4).................................... Not Applicable (b)....................................... 608, 610 ss. 311(a)....................................... 613 (b)....................................... 613 (b)(2).................................... 703(a) ss. 312(a)....................................... 701, 702(a) (b)....................................... 702(b) (c)....................................... 702(c) ss. 313(a)....................................... 703(a) (b)(1).................................... Not Applicable (b)(2).................................... 703(a) (c)....................................... 703(a) (d)....................................... 703(b) ss. 314(a)....................................... 704 (b)....................................... Not Applicable (c)(1).................................... 102 (c)(2).................................... 102 (c)(3).................................... Not Applicable (d)....................................... Not Applicable (e)....................................... 102 ss. 315(a)....................................... 601(a) (b)....................................... 602 (c)....................................... 601(b) (d)....................................... 601(c) (d)(1).................................... 601(c)(1) (d)(2).................................... 601(c)(2) (d)(3).................................... 601(c)(3) (e)....................................... 514 ss. 316(a)(1)(A)................................. 502, 512 (a)(1)(B)................................. 513 (a)(2).................................... Not Applicable (b)....................................... 508 ss. 317(a)(1).................................... 503 (a)(2).................................... 504 (b)....................................... 1003 ss. 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 _______ __, 2002 among INGERSOLL-RAND COMPANY LIMITED, a company duly organized and existing under the laws of Bermuda (herein called the "Company"), having an office at Clarendon House, 2 Church Street, Hamilton, HM11 Bermuda, INGERSOLL-RAND COMPANY, a corporation duly organized and existing under the laws of the State of New Jersey (herein called the "Guarantor"), having an office at 200 Chestnut Ridge Road, Woodcliff Lake, New Jersey 07677, and Wells Fargo Bank Minnesota, 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 subordinated debentures, notes or other evidences of indebtedness (herein called the "Securities"), to be issued in one or more series as in this Indenture provided. The Company, directly or indirectly, owns beneficially 100% of the issued share capital of the Guarantor. All things necessary to make this Indenture a valid agreement of the Company, in accordance with its terms, have been done. The Guarantor has duly authorized the execution and delivery of this Indenture to provide for the Guarantee of the Guaranteed Securities provided for herein. All things necessary to make this Indenture a valid agreement of the Guarantor, in accordance with its terms, have been done. NOW, THEREFORE, THIS INDENTURE WITNESSETH: For and in consideration of the premises and the purchase of the Securities by the Holders thereof, it is mutually covenanted and agreed, for the equal and proportionate benefit of all Holders of the Securities or of series thereof, as follows: ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION SECTION 101. Definitions. For all purposes of this Indenture, except as otherwise expressly provided or unless the context otherwise requires: (1) the terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular; (2) all other terms used herein which are defined in the Trust Indenture Act, either directly or by reference therein, have the meanings assigned to them therein; 2 (3) all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with generally accepted accounting principles in the United States of America, and, except as otherwise herein expressly provided, the term "generally accepted accounting principles" with respect to any computation required or permitted hereunder shall mean such accounting principles as are generally accepted at the date of such computation; and (4) the words "herein", "hereof" and "hereunder" and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision. Certain terms, used principally in Article Six, are defined in that Article. "Act" when used with respect to any Holder, has the meaning specified in Section 104. "Affiliate" of any specified person means any other person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified person. For the purposes of this definition, "control" when used with respect to any specified person means the power to direct the management and policies of such person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms "controlling" and "controlled" have meanings correlative to the foregoing. "Authenticating Agent" means any person authorized to authenticate and deliver Securities on behalf of the Trustee for the Securities of any series pursuant to Section 614. "Board of Directors" means either the Board of Directors of the Company or the Guarantor, as applicable, or an executive committee of such Board or any other duly authorized committee of that Board to which the powers of that Board have been lawfully delegated. "Board Resolution" means a copy of a resolution certified by the Secretary or an Assistant Secretary of the Company or the Guarantor, as applicable, to have been duly adopted by the Company's Board of Directors or the Guarantor's Board of Directors, as the case may be, and to be in full force and effect on the date of such certification, and delivered to the Trustee for the Securities of any series. "Business Day", when used with respect to any Place of Payment, means each day which is not a day on which banking institutions in that Place of Payment are authorized or obligated by law to close. "Commission" means the Securities and Exchange Commission, as from time to time constituted, created under the Securities Exchange Act of 1934, 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. 3 "Common Shares" means the common shares, par value $1 per share, of the Company. "Company" means the person named as the "Company" in the first paragraph of this instrument until a successor corporation shall have become such pursuant to the applicable provisions of this Indenture, and thereafter "Company" shall mean such successor corporation. "Company Request" or "Company Order" means, in the case of the Company, a written request or order signed in the name of the Company, by its Chairman of the Board, a Deputy Chairman of the Board, its President or a Vice President, and by its Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary, and delivered to the Trustee for the Securities of any series and, in the case of the Guarantor, a written request or order signed in the name of the Guarantor by its Chairman of the Board, a Vice Chairman of the Board, its President or a Vice President, and by its Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary and delivered to the Trustee for the Securities of any series. "Corporate Trust Office" means the principal office of the Trustee for the Securities of any series at which at any particular time its corporate trust business shall be administered, which at the date of this Indenture is 9062 Old Annapolis Road, Columbia, MD 21045-1951, Attention: Corporate Trust Trustee Administration, Reference Number: MAC-N2702-011. "Defaulted Interest" has the meaning specified in Section 307. "Designated Guarantor Senior Indebtedness", in respect of a particular series of Guaranteed Securities, shall have the meaning set forth in the supplemental indenture, Board Resolution or Officer's Certificate pursuant to Section 301 establishing such series of Guaranteed Securities. "Designated Senior Indebtedness", in respect of a particular series of Securities, shall have the meaning set forth in the supplemental indenture, Board Resolution or Officer's Certificate pursuant to Section 301 establishing such series of Securities. "Dollar" or "$" means a dollar or other equivalent unit in such coin or currency of the United States of America as at the time shall be legal tender for the payment of public and private debts. "Event of Default" unless otherwise specified in the supplemental indenture, Board Resolution or Officer's Certificate establishing a series of Securities, has the meaning specified in Section 501. "Global Security" means a Security evidencing all or part of a series of Securities, including, without limitation, any temporary or permanent Global Securities. "Guarantee" means the subordinated guarantee by the Guarantor as endorsed on each Guaranteed Security and authenticated and delivered pursuant to this Indenture, 4 which guarantee shall include the provisions set forth in Article Thirteen of this Indenture. "Guaranteed" shall have a meaning correlative to the foregoing. "Guaranteed Securities" means Securities which are Guaranteed by the Guarantor and authenticated and delivered under this Indenture, and which are designated as Guaranteed Securities pursuant to Section 301(16). "Guarantor" means the Person named as the "Guarantor" in the first paragraph of this Indenture until a successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter "Guarantor" shall mean such successor Person. "Guarantor Senior Indebtedness", in respect of a particular series of Guaranteed Securities, shall have the meaning set forth in the supplemental indenture, Board Resolution or Officer's Certificate pursuant to Section 301 establishing such series of Guaranteed Securities. "Guarantor Senior Representative", in respect of a particular series of Guaranteed Securities, shall have the meaning set forth in the supplemental indenture, Board Resolution or Officer's Certificate pursuant to Section 301 establishing such series of Guaranteed Securities. "Holder" means a person in whose name a Security is registered in the Security Register. "Indenture" means this instrument as originally executed or as it may from time to time be supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof and shall include the terms of particular series of Securities established as contemplated by Section 301. "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. "Judgment Currency" has the meaning specified in Section 117. "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's Certificate" means, in the case of the Company, a certificate signed by the Chairman of the Board, a Deputy Chairman of the Board, the President or a Vice President of the Company, and in the case of the Guarantor, a certificate signed by the Chairman of the Board, a Vice Chairman of the Board, the President or a Vice President of the Guarantor, and, in each case, delivered to the Trustee for the Securities of any 5 series. Each such certificate shall include the statements provided for in Section 102 if and to the extent required by this Indenture. "Opinion of Counsel" means a written opinion of counsel, who may be an employee of or regular counsel for the Company or the Guarantor, as the case may be, or may be other counsel reasonably satisfactory to the Trustee for the Securities of any series. Each such opinion shall include the statements provided for in Section 102 if and to the extent required by this Indenture. "Original Issue Discount Security" means any Security which provides for an amount less than the principal amount thereof to be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 502. "Outstanding", when used with respect to Securities, means, as of the date of determination, all Securities theretofore authenticated and delivered under this Indenture, except: (i) Securities theretofore cancelled by the Trustee for such Securities or delivered to such 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 for such Securities 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 reasonably satisfactory to such Trustee has been made; and (iii) Securities which have been paid pursuant to Section 306 or in exchange for or in lieu of which other Securities have been authenticated and delivered pursuant to this Indenture, other than any such Securities in respect of which there shall have been presented to the Trustee for such Securities proof satisfactory to it that such Securities are held by a bona fide purchaser in whose hands such Securities are valid obligations of the Company, provided, however, that in determining whether the Holders of the requisite principal amount of the Outstanding Securities have given any request, demand, authorization, direction, notice, consent or waiver hereunder, (a) the principal amount of an Original Issue Discount Security that shall be deemed to be Outstanding for such purposes shall be the amount of the principal thereof that would be due and payable as of the date of such determination upon a declaration of acceleration of the maturity thereof pursuant to Section 502, and (b) Securities owned by the Company, the Guarantor or any other obligor upon the Securities or any Affiliate of the Company, the Guarantor or of such other obligor shall be disregarded and deemed not to be Outstanding, except that in determining whether the Trustee for such Securities shall be protected in relying upon any such request, demand, authorization, direction, notice, consent or waiver, only 6 Securities which a Responsible Officer of such Trustee actually knows to be so owned shall be so disregarded. Securities so owned as described in (b) above which have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of such Trustee the pledgee's right so to act with respect to such Securities and that the pledgee is not the Company, the Guarantor 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, if any, on any Securities on behalf of the Company. "Person" means any individual, corporation, partnership, joint venture, joint-stock company, trust unincorporated organization or government or any agency or political subdivision thereof. "Permitted Guarantor Junior Securities" has the meaning specified in Section 1402. "Permitted Junior Securities" has the meaning specified in Section 1402. "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, if any, on the Securities of that series are payable as specified in or as contemplated by Section 301. "Predecessor Security" of any particular Security means every previous Security evidencing all or a portion of the same debt as that evidenced by such particular Security; and, for the purposes of this definition, any Security authenticated and delivered under Section 306 in exchange for or in lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen Security. "Process Agent" has the meaning specified in Section 117. "Redemption Date", when used with respect to any Security to be redeemed, means the date fixed for such redemption by or pursuant to this Indenture. "Redemption Price", when used with respect to any Security to be redeemed, means the price at which it is to be redeemed pursuant to this Indenture, exclusive of accrued and unpaid interest. "Regular Record Date" for the interest payable on any Interest Payment Date on the Securities of any series means the date specified for that purpose as contemplated by Section 301. "Required Currency" has the meaning specified in Section 117. "Responsible Officer", where used with respect to the Trustee for the Securities of any series, means any officer within the corporate trust department of such Trustee, 7 including any vice president, assistant vice president, assistant secretary, assistant treasurer, trust officer or any other officer of such Trustee who customarily performs functions similar to those performed by the Persons who at the time shall be such officers, respectively, or to whom any corporate trust matter is referred because of such person's knowledge of and familiarity with the particular subject and who shall have direct responsibility for the administration of this Indenture. "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. "Senior Indebtedness", in respect of a particular series of Securities, shall have the meaning set forth in the supplemental indenture, Board Resolution or Officer's Certificate pursuant to Section 301 establishing such series of Securities. "Senior Representative", in respect of a particular series of Securities, shall have the meaning set forth in the supplemental indenture, Board Resolution or Officer's Certificate pursuant to Section 301 establishing such series of Securities. "Special Record Date" for the payment of any Defaulted Interest means a date fixed by the Trustee for such series pursuant to Section 307. "Stated Maturity", when used with respect to any Security or any installment of principal thereof or interest thereon, means the date specified in such Security as the fixed date on which the principal of such Security or such installment of principal or interest is due and payable. "Subsidiary" means any corporation of which at least a majority of the outstanding stock having voting power under ordinary circumstances to elect a majority of the board of directors of said corporation shall at the time be owned by the Company or by the Company and one or more Subsidiaries or by one or more Subsidiaries of the Company. "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 each such Trustee with respect to those series of Securities with respect to which it is serving as Trustee. "Trust Indenture Act" means the Trust Indenture Act of 1939 as in force at the date as of which this instrument was executed, except as provided in Section 905. "U.S. Depositary" means a clearing agency registered under the Securities Exchange Act of 1934, as amended, or any successor thereto, which shall have become 8 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" as used with respect to the Securities of any series shall mean the U.S. Depositary with respect to the Securities of that series. "U.S. Government Obligations" means direct obligations of the United States for the payment of which its full faith and credit is pledged, or obligations of a person controlled or supervised by and acting as an agency or instrumentality of the United States and the payment of which is unconditionally guaranteed by the United States. "Vice President", when used with respect to the Company, the Guarantor or the Trustee for any series of Securities, 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 or the Guarantor to the Trustee for any series of Securities to take any action under any provision of this Indenture, the Company or the Guarantor, as the case may be, shall furnish to such 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: (1) a statement that each individual signing such certificate or opinion has read such covenant or condition and the definitions herein relating thereto; (2) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based; (3) a statement that, in the opinion of each such individual, he has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not such covenant or condition has been complied with; and (4) a statement as to whether, in the opinion of each such individual, such condition or covenant has been complied with. 9 SECTION 103. Form of Documents Delivered to Trustee. In any case where several matters are required to be certified by, or covered by an opinion of, any specified person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such person, or that they may be so certified or covered by only one document, but one such person may certify or give an opinion with respect to some matters and one or more other such persons as to other matters, and any such person may certify or give an opinion as to such matters in one or several documents. Any certificate or opinion of an officer of the Company or the Guarantor 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 or her 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 or the Guarantor, as the case may be, stating that the information with respect to such factual matters is in the possession of the Company or the Guarantor, as the case may be, 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 instructions 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 an agent duly appointed in writing, and, except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments are delivered to the Trustee for the appropriate series of Securities and, where it is hereby expressly required, to the Company or the Guarantor. 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 such Trustee, the Guarantor 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 or her the execution thereof. Where such execution is by a signer acting in a capacity other than his or her individual capacity, such certificate or affidavit shall also constitute sufficient proof of his or her authority. The fact and date of the execution of any such instrument or writing, or the authority of the 10 person executing the same, may also be proved in any other manner which the Trustee for such Securities deems sufficient. (c) The ownership of 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 for such Securities, the Guarantor or the Company in reliance thereon, whether or not notation of such action is made upon such Security. SECTION 105. Notices, Etc., to Trustee, Guarantor and Company. Any request, demand, authorization, direction, notice, consent, waiver or Act of Holders or other document provided or permitted by this Indenture to be made upon, given or furnished to, or filed with, (1) the Trustee for a series of Securities by any Holder or by the Company or the Guarantor shall be sufficient for every purpose hereunder if made, given, furnished or filed in writing to or with such Trustee at its Corporate Trust Office, (2) the Company by such Trustee, or by any Holder shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if in writing and sent by registered or certified mail, prepaid, to the Company addressed to it care of the Guarantor at the address of the Guarantor specified in the first paragraph of this instrument or at any other address previously furnished in writing to such Trustee by the Company, or (3) the Guarantor by such Trustee, or by any Holder shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if in writing and sent by registered or certified mail, prepaid, to the Guarantor addressed to it at the address of its office specified in the first paragraph of this instrument or at any other address previously furnished in writing to such Trustee by the Guarantor. SECTION 106. Notice to Holders; Waiver. Where this Indenture provides for notice to Holders of any event, such notice shall be sufficiently given (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to each Holder affected by such event, at his or her address as it appears in the Security Register, not later than the latest date, and not earlier than the earliest date, prescribed for the giving of such notice. In any case where notice to Holders is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder shall affect the sufficiency of such notice with respect to other Holders. Where this Indenture provides for notice in any manner, such notice may be waived in writing by the person entitled to receive such notice, either before or after the event, and such waiver shall be 11 the equivalent of such notice. Waiver of notice by Holders shall be filed with the Trustee for such Securities, 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 for such Securities shall constitute a sufficient notification for every purpose hereunder. SECTION 107. Conflict with Trust Indenture Act. If any provision hereof limits, qualifies or conflicts with 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. SECTION 108. Effect of Headings and Table of Contents. The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof. SECTION 109. Successors and Assigns. All covenants and agreements in this Indenture by each of the Company and the Guarantor 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 or the Guarantee 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 or the Guarantee, express or implied, shall give to any person, other than the parties hereto and their successors hereunder, the holders of Senior Indebtedness, and the Holders, any benefit or any legal or equitable right, remedy or claim under this Indenture. SECTION 112. GOVERNING LAW. THIS INDENTURE, THE SECURITIES AND THE GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. SECTION 113. Legal Holidays. In any case where any Interest Payment Date, Redemption Date or Stated Maturity of any Security shall not be a Business Day at any Place of Payment, then 12 (notwithstanding any other provision of this Indenture or of the Securities or the Guarantee) payment of interest, if any, or principal (and premium, if any) need not be made at such Place of Payment on such date, but may be made on the next succeeding Business Day at such Place of Payment with the same force and effect as if made on the Interest Payment Date or Redemption Date, or at the Stated Maturity, provided that no interest shall accrue for the period from and after such Interest Payment Date, Redemption Date or Stated Maturity, as the case may be. SECTION 114. Incorporators, Shareholders, Officers and Directors of the Company and the Guarantor Exempt from Individual Liability. No recourse for the payment of the principal of (and premium, if any) or interest, if any, on any Security or any Guarantee, or for any claim based thereon or otherwise in respect thereof, and no recourse under or upon any obligation, covenant or agreement of the Company or the Guarantor in this Indenture or in any supplemental indenture, or in any Security or in any Guarantee, or because of the creation of any indebtedness represented thereby, shall be had against any incorporator, shareholder, officer or director, as such, past, present or future, of the Company or the Guarantor or of any successor corporation, either directly or through the Company or the Guarantor or any successor corporation, whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise; it being expressly understood that all such liability is hereby waived and released as a condition of and as a consideration for, the execution of this Indenture and the issue of the Securities and the Guarantee. SECTION 115. Counterparts. 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. SECTION 116. Currency Exchange. If, in determining whether the Holders of the requisite principal amount of Securities have given any request, demand, authorization, direction, notice, consent or waiver hereunder, it becomes necessary to determine the principal amount of Securities of any series denominated in any coin or currency other than that of the United States of America, such principal amount shall be computed by converting such coin or currency into coin or currency of the United States of America based upon the rate of exchange in effect at the office of the Trustee for such Securities in New York, New York at 10:00 A.M., New York City time, or as close to such time as is reasonably practicable, on the date of initial issuance of such series of Securities. SECTION 117. Judgment Currency; Consent to Jurisdiction and Service. (a) Each of the Company and, in the case of Guaranteed Securities, the Guarantor agrees, to the fullest extent that it may effectively do so under applicable law, that (a) if for the purpose of obtaining judgment in any court it is necessary to convert the sum due in respect of the principal of or interest on the Securities of any series (the "Required Currency") into a currency in which a judgment will be rendered (the "Judgment Currency"), the rate of exchange 13 used shall be the rate at which in accordance with normal banking procedures the Trustee for such Securities could purchase in The City of New York the Required Currency with the Judgment Currency at 10:00 A.M. New York City time, or as close to such time as is reasonably practicable, on the day on which final unappealable judgment is entered, unless such day is not a New York Banking Day, then, to the extent permitted by applicable law, the rate of exchange used shall be the rate at which in accordance with normal banking procedures such Trustee could purchase in The City of New York the Required Currency with the Judgment Currency at 10:00 A.M. New York City time, or as close to such time as is reasonably practicable, on the New York Banking Day preceding the day on which final unappealable judgment is entered and (b) its obligations under this Indenture to make payments in the Required Currency (i) shall not be discharged or satisfied by any tender, or any recovery pursuant to any judgment (whether or not entered in accordance with this subsection (a)), in any currency other than the Required Currency, except to the extent that such tender or recovery shall result in the actual receipt, by the payee, of the full amount of the Required Currency expressed to be payable in respect of such payments, (ii) shall be enforceable as an alternative or additional cause of action for the purpose of recovering in the Required Currency the amount, if any, by which such actual receipt shall fall short of the full amount of the Required Currency so expressed to be payable and (iii) shall not be affected by judgment being obtained for any other sum due under this Indenture. For purposes of the foregoing, "New York Banking Day" means any day except a Saturday, Sunday or a legal holiday in The City of New York or a day on which banking institutions in The City of New York are authorized or required by law or executive order to close. (b) To the fullest extent permitted by applicable law, each of the Company and the Guarantor hereby irrevocably submits to the jurisdiction of any Federal or state court located in the Borough of Manhattan in The City of New York, New York in any suit, action or proceeding based on or arising out of or relating to this Indenture or any Securities or any Guarantee and irrevocably agrees that all claims in respect of such suit or proceeding may be determined in any such court. Each of the Company and the Guarantor irrevocably waives, to the fullest extent permitted by law, any objection which it may have to the laying of the venue of any such suit, action or proceeding brought in an inconvenient forum. Each of the Company and the Guarantor agrees that final judgment in any such suit, action or proceeding brought in such a court shall be conclusive and binding upon the Company and/or the Guarantor, as applicable, and may be enforced in the courts of Bermuda (or any other courts to the jurisdiction of which the Company or the Guarantor, as applicable, is subject) by a suit upon such judgment, provided that service of process is effected upon the Company and/or the Guarantor, as applicable, in the manner specified herein or as otherwise permitted by law. Each of the Company and the Guarantor hereby irrevocably designates and appoints CT Corporation System, 1633 Broadway, 23 Floor, New York, New York (the "Process Agent") as their authorized agent for purposes of this Section 117(b), it being understood that the designation and appointment of the Process Agent as such authorized shall become effective immediately without any further action on the part of the Company and the Guarantor. Each of the Company and the Guarantor further agrees that service of process upon the Process Agent and written notice of said service to the Company and/or the Guarantor, as applicable, mailed by prepaid registered first class mail or delivered to the Process Agent at its principal office, shall be deemed in every respect effective service of process upon the Company and/or the Guarantor, as applicable, in any such suit or proceeding. Each of the Company and the Guarantor further agrees to take any and all action, including the execution and filing of any and all such documents and instruments as may be necessary, to 14 continue such designation and appointment of the Process Agent in full force and effect so long as the Company and/or the Guarantor, as applicable, has any outstanding obligations under this Indenture. To the extent the Company and/or the Guarantor, as applicable, has or hereafter may acquire any immunity from jurisdiction of any court or from any legal process (whether through service of notice, attachment prior to judgment, attachment in aid of execution, executor or otherwise) with respect to itself or its property, each of the Company and the Guarantor hereby irrevocably waives such immunity in respect of its obligations under this Indenture to the extent permitted by law. ARTICLE TWO SECURITY FORMS SECTION 201. Forms Generally. The Securities of each series shall be in substantially the form set forth in this Article, or in such other form as shall be established by or pursuant to a Board Resolution of the Company 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 officer executing such Securities, as evidenced by his or her execution of such Securities. The certificate of authentication of the Trustee for any series of Securities shall be in substantially the form set forth in this Article. The definitive Securities shall be printed, lithographed or engraved on steel engraved borders or may be produced in any other manner, all as determined by the officer executing such Securities, as evidenced by their execution of such Securities. If the Securities are Guaranteed Securities, the definitive Guarantees shall be printed, lithographed or engraved on steel engraved borders or may be produced in any other manner, all as determined by the officers executing such Guarantees, as evidenced by their execution of such Guarantees. SECTION 202. Form of Face of Security. INGERSOLL-RAND COMPANY LIMITED [Title of the Security] No. Cusip No. ------ $____________ INGERSOLL-RAND COMPANY LIMITED, a company duly organized and existing under the laws of Bermuda (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 15 _____________ Dollars on _______________ [If the Security is to bear interest prior to Maturity, insert -- , and to pay interest thereon from __________________ __, ______ (the "Original Issue Date"), or from the most recent Interest Payment Date to which interest has been paid or duly provided for, [semiannually on ______________ and ______________] [quarterly on _________, __________, ___________ and ____________] in each year, commencing _______ __, _____, at [If the Security is to bear interest at a fixed rate insert-the rate per annum provided in the title hereof] [If the Security is to bear interest at a floating rate, insert- [a rate of [Insert Floating Rate] per annum], until the principal hereof is paid or made available for payment. [If applicable insert -- , and, subject to the terms of the Indenture, at [the rate per annum provided in the title hereof] [such rate] on any overdue principal and premium and (to the extent that the payment of such interest shall be legally enforceable) on any overdue installment of interest]. The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in such Indenture, be paid to the person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest, which shall be the [_________ or _________] [________, _________, ________ or ___________] (whether or not a Business Day), as the case may be, next preceding such Interest Payment Date. Any such interest not so punctually paid or duly provided for will forthwith cease to be payable to the Holder on such Regular Record Date and may either be paid to the person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to Holders of Securities of this series not less than 10 days prior to such Special Record Date, or be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Securities of this series may be listed, and upon such notice as may be required by such exchange, all as more fully provided in said Indenture]. [If the Security is to bear interest at a fixed rated prior to Maturity, insert -- Interest shall be computed on the basis of a year of twelve 30-day months.] [If the Security is to bear interest at a floating rate prior to Maturity, insert -- Interest shall be computed on the basis of the actual number of days in the relevant interest period and a 360-day year.] [If the Security is to bear interest at a floating rate prior to Maturity, insert -- The [insert Floating Rate] will be reset [insert period time as set forth in a Board Resolution of the Company] on each Interest Payment Date (each an "Interest Reset Date"), beginning on ________ __, _____. The interest rate for the period from and including the Original Issue Date to and excluding the first Interest Payment Date shall be ______ per annum (the "Initial Interest Rate"). The _________ Business Day preceding an Interest Reset Date will be the "Interest Determination Date" for that Interest Reset Date. The interest rate in effect on each day that is not an Interest Reset Date will be the interest rate determined as of the Interest Determination Date pertaining to the immediately preceding Interest Reset Date or the Initial Interest Rate, as the case may be. The interest rate in effect on any day that is an Interest Reset Date will be the interest rate determined as of the Interest Determination Date pertaining to that Interest Reset Date. Wells Fargo Bank Minnesota, N.A. shall act as calculation agent (together with its successors in that capacity, the "Calculation Agent") in connection with the Securities. The 16 Calculation Agent shall serve as the calculation agent hereunder unless and until a successor calculation agent is appointed by the Company. The following definitions shall be used by the Calculation Agent in its determination of the interest rate: [insert definitions for floating rate determination]. ] [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 [yield to maturity]% 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 [yield to maturity]% 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 interest, if any, on this Security will be made at the office or agency of the Company maintained for that purpose in the Borough of Manhattan, The City of New York, in [coin or currency], 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. The indebtedness evidenced by this Security is, to the extent provided in the Indenture, subordinate and subject in right of payments to the prior payment in full of all Senior Indebtedness, and this Security is issued subject to the provisions of the Indenture with respect thereto. Each Holder of this Security, by accepting the same, (a) agrees to and shall be bound by such provisions, (b) authorizes and directs the Trustee on his behalf to take such actions as may be necessary or appropriate to effectuate the subordination so provided and (c) appoints the Trustee his attorney-in-fact for any and all such purposes. Each Holder hereof, by his acceptance hereof, waives all notice of the acceptance of the subordination provisions contained herein and in the Indenture by each holder of Senior Indebtedness, whether now outstanding or hereafter incurred, and waives reliance by each such holder upon said provisions. REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS SECURITY SET FORTH ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL PURPOSES HAVE THE SAME EFFECT AS IF SET FORTH AT THIS PLACE. Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof by manual signature, this Security shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose. IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed under its corporate seal. Dated: 17 [Seal] INGERSOLL-RAND COMPANY LIMITED By_____________________________________ SECTION 203. Form of Reverse of Security. INGERSOLL-RAND COMPANY LIMITED [Title of the 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 _________ __, 2002 (herein called the "Indenture"), among the Company, Ingersoll-Rand Company (herein called the "Guarantor", which term includes any successor guarantor under the Indenture) and Wells Fargo Bank Minnesota, N.A., as Trustee (herein called the "Trustee", which term includes any successor trustee under the Indenture), to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, the Guarantor, 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 or more than 60 days' notice by mail to the Holders of such Securities at their addresses in the Security Register for such series, [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 _________________, 20__], 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 ____________________: Redemption Redemption Year Price Year Price ---- ---------- ---- ---------- and thereafter at a Redemption Price equal to _____% of the principal amount, together in the case of any such redemption [if applicable, insert - (whether through operation of the sinking 18 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 or more than 60 days' notice by mail to the Holders of such Securities at their addresses in the Security Register for such series, (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 the 12-month period beginning __________________: Redemption Price For Redemption Redemption Price For Through Operation Redemption Otherwise 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, at the option of the Company, not more than 19 _______] 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 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.] The Indenture contains provisions for defeasance of (a) the entire indebtedness of this Security and (b) certain restrictive covenants upon compliance by the Company with certain conditions set forth therein. [If the Security is not an Original Issue Discount Security, insert - If an Event of Default with respect to Securities of this series shall occur and be continuing, the principal of the Securities of this series may be declared due and payable in the manner and with the effect provided in the Indenture.] [If the Security is an Original Issue Discount Security, insert - 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 (the "Acceleration Amount") may be declared due and payable in the manner and with the effect provided in the Indenture. In case of a declaration of acceleration on or before _______, ________ or on _______in any year, the Acceleration Amount per principal amount at Stated Maturity of the Securities shall be equal to the amount set forth in respect of such date below: Acceleration Amount per principal amount Date of declaration at Stated Maturity ------------------- -------------------- and in case of a declaration of acceleration on any other date, the Acceleration Amount shall be equal to the Acceleration Amount as of the next preceding date set forth in the table above, plus accrued original issue discount (computed in accordance with generally accepted accounting principles in effect on __________) from such next preceding date to the date of declaration at the yield to maturity. For the purpose of this computation the yield to maturity is ______%. Upon payment (i) of the Acceleration Amount so declared due and payable and (ii) of interest on any overdue principal and overdue interest (in each case to the extent that the payment of such interest shall be legally enforceable), all of the Company's obligations in respect of the payment of the principal of and interest, if any, on the Securities of this series shall terminate.] The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and, in the case of Guaranteed Securities, the Guarantor and the rights of the Holders of the Securities of each series to be affected under the Indenture at any time by the Company, the Guarantor, in the case of Guaranteed Securities, and the Trustee with the consent of the Holders of a majority in principal 20 amount of the Securities at the time Outstanding of all series to be affected. The Indenture also contains provisions permitting the Holders of specified percentages in principal amount of the Securities at the time Outstanding of all series to be affected, on behalf of the Holders of all Securities of such series, to waive compliance by the Company and, in the case of Guaranteed Securities, the Guarantor with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Security. No reference herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of (and premium, if any) and interest, if any, 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, if any, 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 or her attorney duly authorized in writing, and thereupon one or more new Securities of this series, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees. The Securities of this series are issuable only in registered form without coupons in denominations of _____________ and any integral multiple thereof. As provided in the Indenture and subject to certain limitations therein set forth, Securities of this series are exchangeable for a like aggregate principal amount of Securities of this series 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 Guarantor,] the Trustee and any agent of the Company[, the Guarantor] 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 none of the Company [,the Guarantor,] the Trustee or any such agent shall be affected by notice to the contrary. No recourse for the payment of the principal of (and premium, if any) or interest, if any, on this Security [or the Guarantee endorsed hereon], or for any claim based hereon or thereon or otherwise in respect hereof or thereof, and no recourse under or upon any obligation, covenant or agreement of the Company or the Guarantor in the Indenture or in any indenture supplemental thereto, or in any Security [or in the Guarantee], or because of the creation of any indebtedness represented thereby, shall be had against any incorporator, shareholder, officer or director, as 21 such, past, present or future, of the Company [or the Guarantor] or of any successor corporation, either directly or through the Company [or the Guarantor] or any successor corporation, whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise, all such liability being, by the acceptance hereof and as part of the consideration for the issue hereof, expressly waived and released. THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. All terms used in this Security which are defined in the Indenture shall have the meanings assigned to them in the Indenture. SECTION 204. Form of Trustee's Certificate of Authentication. This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture. Wells Fargo Bank Minnesota, N.A., as Trustee By____________________________________ Authorized Signature SECTION 205. Securities in Global Form. If any Security of a series is issuable in global form, such Global Security may provide that it shall represent the aggregate amount of Outstanding Securities from time to time endorsed thereon and may also provide that the aggregate amount of Outstanding Securities represented thereby may from time to time be reduced to reflect exchanges. Any endorsement of a Global Security to reflect the amount, or any increase or decrease in the amount, of Outstanding Securities represented thereby shall be made by the Trustee of such series of Securities and in such manner as shall be specified in such Global Security. Any instructions by the Company with respect to a Global Security, after its initial issuance, shall be in writing but need not comply with Section 102. None of the Company, the Guarantor, the Trustee of such series of Securities, any Paying Agent or the Security Registrar will have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests of a Global Security or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests. SECTION 206. Guarantee; Form of Guarantee. The Guarantor by its execution of this Indenture hereby agrees with each Holder of a Guaranteed Security of each series authenticated and delivered by the Trustee of such series of Securities and with such Trustee on behalf of each such Holder, to be unconditionally bound by the terms and provisions of the Guarantee set forth below and authorizes such Trustee to confirm such Guarantees to the Holder of each such Guaranteed Security by its execution and delivery of 22 each such Guaranteed Security, with such Guarantees endorsed thereon, authenticated and delivered by such Trustee. Guarantees to be endorsed on the Guaranteed Securities shall, subject to Section 201, be in substantially the form set forth below: GUARANTEE OF INGERSOLL-RAND COMPANY For value received, Ingersoll-Rand Company, a corporation incorporated under the laws of the State of New Jersey, having an office at 200 Chestnut Ridge Road, Woodcliff Lake, New Jersey 07677 (herein called the "Guarantor", which term includes any successor Person under the Indenture referred to in the Guaranteed Security upon which this Guarantee is endorsed), hereby irrevocably and unconditionally guarantees to the Holder of the Guaranteed Security upon which this Guarantee is endorsed and to the Trustee on behalf of each such Holder the due and punctual payment of the principal of, premium, if any, and interest on such Guaranteed Security and the due and punctual payment of the sinking fund or analogous payments referred to therein, if any, when and as the same shall become due and payable, whether at the Stated Maturity, by declaration of acceleration, call for redemption or otherwise, according to the terms thereof and of the Indenture referred to therein, all in accordance with and subject to the terms and limitations of the Guaranteed Security on which this Guarantee is endorsed and Article Thirteen of the Indenture. In case of the failure of Ingersoll-Rand Company Limited, a company duly organized under the laws of Bermuda (herein called the "Company", which term includes any successor Person under such Indenture), promptly to make any such payment of principal, premium, if any, or interest or any such sinking fund or analogous payment, the Guarantor hereby agrees to cause any such payment to be made promptly when and as the same shall become due and payable, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise, and as if such payment were made by the Company, subject to the terms and limitations of Article Thirteen of the Indenture. The indebtedness evidenced by this Guarantee is, to the extent provided in the Indenture, subordinate and subject in right of payments to the prior payment in full of all Guarantor Senior Indebtedness, and this Guarantee is issued subject to the provisions of the Indenture with respect thereto. Each Holder of this Guarantee, by accepting the same, (a) agrees to and shall be bound by such provisions, (b) authorizes and directs the Trustee on his behalf to take such actions as may be necessary or appropriate to effectuate the subordination so provided and (c) appoints the Trustee his attorney-in-fact for any and all such purposes. Each Holder hereof, by his acceptance hereof, waives all notice of the acceptance of the subordination provisions contained herein and in the Indenture by each holder of Guarantor Senior Indebtedness, whether now outstanding or hereafter incurred, and waives reliance by each such holder upon said provisions. 23 This Guarantee shall not be valid or obligatory for any purpose until the certificate of authentication of such Guaranteed Security shall have been manually executed by or on behalf of the Trustee under such Indenture. All terms used in this Guarantee which are defined in such Indenture shall have the meanings assigned to them in such Indenture. THIS GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. Executed and dated the date on this ___________ day of ________, 20__. [Seal] INGERSOLL-RAND COMPANY By ------------------------------------------------ Name: Title: By: ------------------------------------------------ Name: Title: - -------------------- Reference is made to Article Thirteen for further provisions with respect to the Guarantees. ARTICLE THREE THE SECURITIES SECTION 301. Amount Unlimited; Issuable in Series. The aggregate principal amount of Securities which may be authenticated and delivered under this Indenture is unlimited. The Securities may be issued in one or more series. The Securities shall be subordinated in right of payment to Senior Indebtedness as set forth in Article Fourteen. There shall be established in or pursuant to a Board Resolution of the Company, and, if the Securities are Guaranteed Securities, the Guarantor, and set forth in an Officer's Certificate of the Company, and, if the Securities are Guaranteed Securities, the Guarantor, 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 that series (which shall distinguish the Securities of that series from all other series of Securities); 24 (2) any limit upon the aggregate principal amount of the Securities of that 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 that series pursuant to Sections 304, 305, 306, 906, or 1107); (3) the date or dates on which the principal of the Securities of that series is payable; (4) the rate or rates (or the manner of calculation thereof) at which the Securities of that series shall bear interest, 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; (5) the place or places where the principal of (and premium, if any) and interest, if any, on Securities of that series shall be payable and where such Securities may be registered or transferred; (6) the period or periods within which, the price or prices at which and the terms and conditions upon which Securities of that series may be redeemed, in whole or in part, at the option of the Company; (7) the obligation, if any, of the Company to redeem or purchase Securities of that series pursuant to any sinking fund or analogous provisions or at the option of a Holder thereof, and the period or periods within which, the price or prices at which and the terms and conditions upon which Securities of that series shall be redeemed or purchased, in whole or in part, pursuant to such obligation; (8) if other than denominations of $1,000 and any integral multiple thereof, the denominations in which Securities of that series shall be issuable; (9) if other than the principal amount thereof, the portion of the principal amount of Securities of that series which shall be payable upon declaration of acceleration of the Maturity thereof pursuant to Section 502; (10) if other than such coin or currency of the United States of America, the currency or currency unit in which payment of the principal of (or premium, if any) or interest, if any, on the Securities of that series shall be payable or in which the Securities of that series shall be denominated and the particular provisions applicable thereto; (11) if the principal of (and premium, if any) or interest, if any, on the Securities of that series are to be payable, at the election of the Company, the Guarantor or a Holder thereof, in a coin or currency other than that in which the Securities are stated to be payable, the period or periods within which, and the terms and conditions upon which, such election may be made; 25 (12) if the amount of payments of principal of (and premium, if any) or interest, if any, on the Securities of that series may be determined with reference to an index based on a coin or currency other than that in which the Securities are stated to be payable, the manner in which such amounts shall be determined; (13) any provisions permitted by this Indenture relating to Events of Default or covenants of the Company with respect to such series of Securities (including deletions therefrom, modifications thereof or additions thereto, whether or not consistent with the Events of Default or covenants set forth herein); (14) if the Securities of that series shall be issued in whole or in part in the form of one or more Global Securities and, in such case, the U.S. Depositary for such Global Security or Securities; the manner in which and the circumstances under which Global Securities representing Securities of that series may be exchanged for Securities in definitive form, if other than, or in addition to, the manner and circumstances specified in Section 305; (15) whether the Securities of that series will be convertible into Common Shares of the Company and/or exchangeable for other Securities, and if so, the terms and conditions upon which such Securities will be so convertible or exchangeable, and any deletions from or modifications or additions to this Indenture to permit or to facilitate the issuance of such convertible or exchangeable Securities or the administration thereof; (16) whether or not the Securities are Guaranteed Securities and the applicability of any other guarantees; (17) if a Person other than Wells Fargo Bank Minnesota, N.A. is to act as Trustee for the Securities of that series, the name and location of the Corporate Trust Office of such Trustee; and (18) any other terms of that series (which terms shall not be inconsistent with the provisions of this Indenture). All Securities of any particular series shall be substantially identical except as to denomination and except as may otherwise be provided in or pursuant to such Board Resolution of the Company and, in the case of Guaranteed Securities, the Guarantor, and set forth in such Officer's Certificate or in any such indenture supplemental hereto. If any of the terms of the series, including the form of Security of such series, are established by action taken pursuant to a Board Resolution of the Company, and, in the case of Guaranteed Securities, a Board Resolution of the Guarantor, a copy of an appropriate record of such action shall be certified by the Secretary or an Assistant Secretary of the Company and, in the case of Guaranteed Securities, the Secretary or Assistant Secretary of the Guarantor, and delivered to the Trustee for the Securities of such series at or prior to the delivery of the Company Order contemplated by Section 303 for the authentication and delivery of such series of Securities. 26 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, manually or by facsimile, on behalf of the Company by its Chairman of the Board, a Deputy Chairman of the Board, its President, one of its Vice Presidents or its Treasurer under its corporate seal reproduced thereon, by facsimile or otherwise, and which need not be attested. The Guarantees endorsed on any Guaranteed Securities shall be executed, manually or by facsimile, on behalf of the Guarantor by its Chairman of the Board, a Vice Chairman of the Board, its President or one of its Vice Presidents and by its Treasurer or one of its Assistant Treasurers or its Secretary or one of its Assistant Secretaries, under its corporate seal reproduced thereon, by facsimile or otherwise, and which need not be attested. Securities or Guarantees bearing the manual or facsimile signatures of individuals who were at any time the proper officers of the Company or the Guarantor, as the case may be, shall bind the Company or the Guarantor, as the case may be, notwithstanding that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Securities or Guarantees or did not hold such offices at the date of such Securities or Guarantees. 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 the Securities of such series for authentication, together with a Company Order for the authentication and delivery of such Securities, and such Trustee in accordance with the Company Order shall authenticate and deliver such Securities. If the form or terms of the Securities of the series have been established in or pursuant to one or more Board Resolutions of the Company and, in the case of Guaranteed Securities, the Guarantor, as permitted by Sections 201 and 301, in authenticating such Securities, and accepting the additional responsibilities under this Indenture in relation to such Securities, such Trustee shall be entitled to receive, and (subject to Section 601) shall be fully protected in relying upon, an Opinion of Counsel of the Company and, if the Securities are Guaranteed Securities, the Guarantor, stating, (a) if the form of such Securities has been established by or pursuant to Board Resolution of the Company 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 of the Company and, if the Securities are Guaranteed Securities, the Guarantor, as permitted by Section 301, that such terms have been established in conformity with the provisions of this Indenture; 27 (c) that such Securities and, in the case of Guaranteed Securities, the Guarantees endorsed thereon, when authenticated and delivered by such Trustee and issued by the Company and, in the case of Guaranteed Securities, the Guarantor in the manner and subject to any conditions specified in such Opinion of Counsel, will constitute valid and legally binding obligations of the Company and the Guarantor, respectively, enforceable in accordance with their terms, subject to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting the enforcement of creditors' rights and to general equity principles; and (d) that all laws and requirements in respect of the execution and delivery by the Company of such Securities and, in the case of Guaranteed Securities, by the Guarantor of such Guarantees have been complied with. If such form or terms have been so established, the Trustee for the Securities of such series shall not be required to authenticate such Securities if such Trustee, being advised by counsel, determines that the issue of such Securities pursuant to this Indenture will affect such Trustee's own rights, duties or immunities under the Securities and this Indenture or otherwise in a manner which is not reasonably acceptable to such Trustee. Notwithstanding the foregoing, if not all the Securities of any series are to be issued at one time, it shall not be necessary to deliver the Officer's Certificate otherwise required pursuant to the foregoing or the Company Order and Opinion of Counsel otherwise required pursuant to the foregoing prior to or at the time of issuance of each Security, but such documents shall be delivered prior to or at the time of issuance of the first Security of such series. Each Security shall be dated the date of its authentication. No Security or Guarantee endorsed thereon 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 for the Securities of such series 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, together with the Guarantee, if any, endorsed thereon, is entitled to the benefits of this Indenture. SECTION 304. Temporary Securities. Pending the preparation of definitive Securities of any particular series, the Company may execute, and upon Company Order the Trustee for the Securities of such series shall authenticate and deliver temporary Securities which are printed, lithographed, typewritten, mimeographed or otherwise produced, in any authorized denomination, substantially of the tenor of the definitive Securities in lieu of which they are issued and, in the case of Guaranteed Securities, having endorsed thereon a Guarantee executed by the Guarantor, of the tenor of the definitive Guarantee, and with such appropriate insertions, omissions, substitutions and other variations as the officer executing such Securities may determine, as evidenced by his or her execution of such Securities. 28 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 for the Securities of such series shall authenticate and deliver in exchange therefor a like principal amount of definitive Securities of the same series of authorized denominations and, in the case of Guaranteed Securities, having endorsed thereon the Guarantee by the Guarantor. 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. SECTION 305. Registration, Registration of Transfer and Exchange. The Company shall cause to be kept at the Corporate Trust Office of the Trustee for the Securities of each series a register (the register maintained at such office and in any other office or agency of the Company in a Place of Payment being herein sometimes collectively referred to as the "Security Register") in which, subject to such reasonable regulations as it may prescribe, the Company shall provide for the registration of Securities and of transfers of Securities. The Trustee for the Securities of each series 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 in a Place of Payment for that series, the Company shall execute, and the Trustee for the Securities of each series shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Securities of the same series, of any authorized denominations and of a like aggregate principal amount, and, in the case of Guaranteed Securities, having endorsed thereon a Guarantee executed by the Guarantor. 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, 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 for the Securities of such series shall authenticate and deliver, the Securities which the Holder making the exchange is entitled to receive, and, in the case of Guaranteed Securities, having endorsed thereon a Guarantee executed by the Guarantor. All Securities and, in the case of Guaranteed Securities, Guarantees endorsed thereon issued upon any registration of transfer or exchange of Securities and, in the case of Guaranteed Securities, Guarantees endorsed thereon, shall be the valid obligations of the Company and, in the case of Guaranteed Securities, the Guarantor, respectively evidencing the same debt, and entitled to the same benefits under this Indenture, as the Securities and, in the case of Guaranteed Securities, Guarantees endorsed thereon surrendered upon such registration of transfer or exchange. 29 Every Security presented or surrendered for registration of transfer or for exchange shall (if so required by the Company or the Trustee for the Securities of such series) 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 or her attorney duly authorized in writing. No service charge shall be made for any registration of transfer or exchange of Securities, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Securities, other than exchanges pursuant to Sections 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. If the Company shall establish pursuant to Section 301 that the Securities of a series are to be issued in whole or in part in the form of one or more Global Securities, then the Company shall execute (along with, in the case of Guaranteed Securities, a Guarantee executed by the Guarantor endorsed thereon) and the Trustee for the Securities of such series shall, in accordance with Section 303 and the Company Order with respect to such series, authenticate and deliver one or more Global Securities in temporary or permanent form that (i) shall represent and shall be denominated in an amount equal to the aggregate principal amount of the Outstanding Securities of such series to be represented by one or more Global Securities, (ii) shall be registered in the name of the U.S. Depositary for such Global Security or Securities or the nominee of such depositary, and (iii) shall bear a legend substantially to the following effect: "This Security (and in the case of Guaranteed Securities, the related Guarantee) may not be transferred except 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 or by the Depositary or any such nominee to a successor Depositary or a nominee of such successor Depositary, unless and until this Security is exchanged in whole or in part for Securities in definitive form" and such other legend as may be required by the U.S. Depositary. Notwithstanding any other provision of this Section, unless and until it is exchanged in whole or in part for Securities in definitive form, a Global Security (and, in the case of Guaranteed Securities, the related Guarantee) representing all or a portion of the Securities of a series may not be transferred except as a whole by the U.S. Depositary for such series to a nominee of such depositary or by a nominee of such depositary to such depositary or another nominee of such depositary or by such depositary or any such nominee to a successor U.S. Depositary for such series or a nominee of such successor depositary. If at any time the U.S. Depositary for the Securities of a series notifies the Company that it is unwilling or unable to continue as U.S. Depositary for the Securities of such series or if any time the U.S. Depositary for Securities of a series shall no longer be a clearing agency registered 30 and in good standing under the Securities Exchange Act of 1934, as amended, or other applicable statute or regulation, the Company shall appoint a successor U.S. Depositary with respect to the Securities of such series. If a successor U.S. Depositary for the Securities of such series is not appointed by the Company within 90 days after the Company receives such notice or becomes aware of such condition, the Company will execute, and the Trustee for the Securities of such series, upon receipt of a Company Order for the authentication and delivery of definitive Securities of such series, will authenticate and deliver, Securities of such series in definitive form in an aggregate principal amount equal to the principal amount of the Global Security or Securities representing such series in exchange for such Global Security or Securities and in the case of Guaranteed Securities, having endorsed thereon a Guarantee executed by the Guarantor. The Company may at any time and in its sole discretion determine that the Securities of any series issued in the form of one or more Global Securities shall no longer be represented by such Global Security or Securities. In such event, the Company will execute, and the Trustee for the Securities of such series, upon receipt of a Company Order for the authentication and delivery of definitive Securities of such series, will authenticate and deliver, Securities of such Series in definitive form and in an aggregate principal amount equal to the principal amount of the Global Security or Securities representing such series in exchange for such Global Security or Securities and, in the case of Guaranteed Securities, having endorsed thereon a Guarantee executed by the Guarantor. If the Securities of any series shall have been issued in the form of one or more Global Securities and if an Event of Default with respect to the Securities of such series shall have occurred and be continuing, the Company will promptly execute, and the Trustee for the Securities of such series, upon receipt of a Company Order for the authentication and delivery of definitive Securities of such series, will authenticate and deliver Securities of such series in definitive form and in an aggregate principal amount equal to the principal amount of the Global Security or Securities representing such series in exchange for such Global Security or Securities and, in the case of Guaranteed Securities, having endorsed thereon a Guarantee executed by the Guarantor. If specified by the Company pursuant to Section 301 with respect to Securities of a series, the U.S. Depositary for such series of Securities may surrender a Global Security for such series of Securities in exchange in whole or in part for Securities of such series in definitive form on such terms as are acceptable to the Company and such depositary. Thereupon, the Company shall execute and the Trustee for the Securities of such series shall authenticate and deliver, without charge: (i) to each Person specified by the U.S. Depositary a new registered Security or Securities of the same series, of an authorized denomination as requested by such Person in an aggregate principal amount equal to and in exchange for such Person's beneficial interest in the Global Security and, in the case of Guaranteed Securities, having endorsed thereon a Guarantee executed by the Guarantor; and (ii) to the U.S. Depositary a new Global Security in a denomination equal to the difference, if any, between the principal amount of the surrendered Global Security and the aggregate principal amount of Securities delivered to Holders thereof and, in the case 31 of Guaranteed Securities, having endorsed thereon a Guarantee executed by the Guarantor. Upon the exchange of a Global Security in whole for Securities in definitive form, such Global Security shall be canceled by the Trustee for the Securities of such series. Securities issued in exchange for a Global Security shall be registered in such names and in such authorized denominations as the U.S. Depositary for such Global Security, pursuant to instructions from its direct or indirect participants or otherwise, shall instruct the Trustee for the Securities of such series. Such Trustee shall deliver such Securities to the Persons in whose names such Securities are so registered. SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities. If any mutilated Security is surrendered to the Trustee for the series of such Securities, the Company shall execute and such 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, and, in the case of Guaranteed Securities, having endorsed thereon a Guarantee executed by the Guarantor. If there shall be delivered to the Company and the Trustee for the series of such Securities (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 such Trustee that such Security has been acquired by a bona fide purchaser, the Company shall execute and upon its request such 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, and, in the case of Guaranteed Securities, having endorsed thereon a Guarantee executed by the Guarantor. 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 for the series of such Securities) connected therewith. Every new Security of any series and, in the case of Guaranteed Securities, the Guarantee endorsed thereon, issued pursuant to this Section in lieu of any destroyed, lost or stolen Security shall constitute an original additional contractual obligation of the Company and, in the case of Guaranteed Securities, the Guarantor, respectively, 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. 32 The provisions of this Section are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities. SECTION 307. Payment of Interest; Interest Rights Preserved. Interest on any Security which is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall be paid to the person in whose name that Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest. Any interest on any Security of any series which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date (herein called "Defaulted Interest") shall forthwith cease to be payable to the Holder on the relevant Regular Record Date by virtue of having been such Holder, and such Defaulted Interest may be paid by the Company, at its election in each case, as provided in Clause (1) or (2) below: (1) The Company may elect to make payment of any Defaulted Interest to the persons in whose names the Securities of such series (or their respective Predecessor Securities) are registered at the close of business on a Special Record Date for the payment of such Defaulted Interest, which shall be fixed in the following manner. The Company shall notify the Trustee for the Securities of such series 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 such Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements reasonably satisfactory to such Trustee for such deposit prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the persons entitled to such Defaulted Interest as in this Clause provided. Thereupon such 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 such Trustee of the notice of the proposed payment. Such 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 or her 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 33 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 for the Securities of such series of the proposed payment pursuant to this Clause, such manner of payment shall be deemed practicable by such Trustee. Subject to the foregoing provisions of this Section, each Security delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of any other Security shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Security. SECTION 308. Persons Deemed Owners. Prior to due presentment of a Security for registration of transfer, the Company, the Guarantor (in the case of Guaranteed Securities), the Trustee for such Security and any agent of the Company, the Guarantor (in the case of Guaranteed Securities) or such 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, if any, on such Security and for all other purposes whatsoever, whether or not such Security be overdue, and none of the Company, the Guarantor, such Trustee or any agent of the Company, the Guarantor or such Trustee shall be affected by notice to the contrary. Notwithstanding the foregoing, with respect to any Global Security, nothing herein shall prevent the Company, the Guarantor (in the case of Guaranteed Securities), the Trustee for such Security, or any agent of any of the foregoing, from giving effect to any written certification, proxy or other authorization furnished by any depositary, as a Holder, with respect to such Global Security or impair, as between such depositary and owners of beneficial interests in such Global Security, the operation of customary practices governing the exercise of the rights of such depositary (or its nominee) as Holder of such Global Security. SECTION 309. Cancellation. All Securities surrendered for payment, redemption, registration of transfer or exchange or for credit against any sinking fund payment shall, if surrendered to any person other than the Trustee for such Securities, be delivered to such Trustee and shall be promptly cancelled by it. The Company or the Guarantor (in the case of Guaranteed Securities) may at any time deliver to such Trustee for cancellation any Securities previously authenticated and delivered hereunder which the Company or the Guarantor (in the case of Guaranteed Securities) may have acquired in any manner whatsoever, and all Securities so delivered shall be promptly cancelled by such Trustee. No Securities shall be authenticated in lieu of or in exchange for any Securities cancelled as provided in this Section, except as expressly permitted by this Indenture. All cancelled Securities held by such Trustee shall be disposed of in accordance with such Trustee's customary practices. 34 SECTION 310. Computation of Interest. Except as otherwise specified as contemplated by Section 301 for Securities of any particular series, interest, if any, on the Securities of each series shall be computed on the basis of a year of twelve 30-day months. SECTION 311. CUSIP Numbers. The Company in issuing the Securities may use "CUSIP" numbers (if then generally in use), and, if so, the Trustee for such Securities shall use "CUSIP" numbers in notices of redemption as a convenience to Holders of such Securities; provided that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Securities or as contained in any notice of a redemption and that reliance may be placed only on the other 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 such Trustee of any change in the "CUSIP" numbers. ARTICLE FOUR SATISFACTION AND DISCHARGE SECTION 401. Satisfaction and Discharge of Indenture. This Indenture shall upon Company Request cease to be of further effect (except as to any surviving rights of registration of transfer or exchange of Securities herein expressly provided for), and the Trustee for the Securities of each series, 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 or, in the case of Guaranteed Securities, the Guarantor and thereafter repaid to the Company or, in the case of Guaranteed Securities, the Guarantor or discharged from such trust, as provided in Section 1003) have been delivered to the Trustee for the Securities of such series for cancellation; or (B) all such Securities not theretofore delivered to the Trustee for the Securities of such series for cancellation: (i) have become due and payable; or (ii) will become due and payable at their Stated Maturity within one year; or 35 (iii) are to be called for redemption within one year under arrangements reasonably satisfactory to such Trustee for the giving of notice of redemption by such Trustee in the name, and at the expense, of the Company or, in the case of Guaranteed Securities, the Guarantor; or (iv) are deemed paid and discharged pursuant to Section 403, as applicable, and the Company or, in the case of Guaranteed Securities, the Guarantor, in the case of (i), (ii) or (iii) above, has deposited or caused to be deposited with the Trustee for the Securities of such series as trust funds in trust for the purpose an amount of (a) money, or (b) in the case of (ii) or (iii) above and (except as provided in an indenture supplemental hereto) if no Securities of any series Outstanding are subject to repurchase at the option of Holders, (I) U.S. Government Obligations which through the payment of interest and principal in respect thereof in accordance with their terms will provide not later than one day before the Stated Maturity or Redemption Date, as the case may be, money in an amount, or (II) a combination of money or U.S. Government Obligations as provided in (I) above, in each case sufficient to pay and discharge the entire indebtedness on such Securities not theretofore delivered to such Trustee for cancellation, for principal (and premium, if any) and interest, if any, to the date of such deposit (in the case of Securities which have become due and payable) or to the Stated Maturity or Redemption Date, as the case may be; (2) the Company or, in the case of Guaranteed Securities, the Guarantor has paid or caused to be paid all other sums payable hereunder by the Company; and (3) the Company or, in the case of Guaranteed Securities, the Guarantor has delivered to the Trustee for the Securities of such series an Officer's Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of this Indenture have been complied with. Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the Company to the Trustee of the Securities of each series under Section 607, the obligations of such Trustee to any Authenticating Agent under Section 614 and, if money or U.S. Government Obligations shall have been deposited with the Trustee of the Securities of any series pursuant to subclause (B) of Clause (1) of this Section or if money or U.S. Government Obligations shall have been deposited with or received by the Trustee of the Securities of any series pursuant to Section 403, the obligations of such Trustee under Section 402 and the last paragraph of Section 1003 shall survive. 36 SECTION 402. Application of Trust Money. (a) Subject to the provisions of the last paragraph of Section 1003, all money or U.S. Government Obligations deposited with the Trustee of a particular series of Securities pursuant to Section 401, 403 or 1006 and all money received by the Trustee of a particular series of Securities in respect of U.S. Government Obligations deposited with the Trustee of that series of Securities pursuant to Section 401, 403 or 1006, 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, or in the case of Guaranteed Securities, the Guarantor acting as its own Paying Agent) as such Trustee may determine, to the persons entitled thereto, of the principal (and premium, if any) and interest, if any, for whose payment such money has been deposited with or received by such Trustee or to make mandatory sinking fund payments or analogous payments as contemplated by Section 401, 403 or 1006. (b) The Company and, in the case of Guaranteed Securities, the Guarantor shall pay and shall indemnify the Trustee of each series of Securities against any tax, fee, or other charge imposed on or assessed against U.S. Government Obligations deposited pursuant to Section 401, 403 or 1006 or the interest and principal received in respect of such obligations other than any payable by or on behalf of Holders. (c) The Trustee of each series of Securities shall deliver or pay to the Company or, in the case of Guaranteed Securities, the Guarantor from time to time upon Company Request any U.S. Government Obligations or money held by it as provided in Section 401, 403 or 1006 which, in the opinion of a nationally recognized firm of independent certified public accountants expressed in a written certification thereof delivered to such Trustee, are then in excess of the amount thereof which then would have been required to be deposited for the purpose for which such U.S. Government Obligations or money was deposited or received. This provision shall not authorize the sale by such Trustee of any U.S. Government Obligations held under this Indenture. SECTION 403. Satisfaction, Discharge and Defeasance of Securities of any Series. The Company and, in the case of Guaranteed Securities, the Guarantor shall be deemed to have paid and discharged the entire indebtedness on all the Outstanding Securities of any series and, in the case of Guaranteed Securities, the Guarantees, respectively, on the 91st day after the date of the deposit referred to in subparagraph (a) hereof, and the provisions of this Indenture, as it relates to such Outstanding Securities of such series and, in the case of Guaranteed Securities, the Guarantees, respectively, shall no longer be in effect (and the Trustee for the Securities of such series, at the expense of the Company or, in the case of Guaranteed Securities, the Guarantor, shall at Company Request execute proper instruments acknowledging the same), except as to: (1) the rights of Holders of Securities of such series to receive, from the trust funds described in subparagraph (a) hereof, (i) payment of the principal of (and premium, if any) and each installment of principal of (and premium, if any) or interest, if any, on the Outstanding Securities of such series on the Stated 37 Maturity of such principal or installment of principal or interest or to and including the Redemption Date irrevocably designated by the Company pursuant to subparagraph (e) hereof and (ii) the benefit of any mandatory sinking fund payments applicable to the Securities of such series on the day on which such payments are due and payable in accordance with the terms of this Indenture and the Securities of such series; (2) the Company's obligations with respect to such Securities of such series under Sections 305, 306, and 1002 and, if the Company shall have irrevocably designated a Redemption Date pursuant to subparagraph (e) hereof, Sections 1101, 1104 and 1106 as they apply to such Redemption Date; (3) the Company's obligations with respect to the Trustee for Securities of such series under Section 607; and (4) the rights, powers, trust and immunities of such Trustee hereunder and the duties of such Trustee under Section 402 and, if the Company shall have irrevocably designated a Redemption Date pursuant to subparagraph (e) hereof, Article Eleven and the duty of such Trustee to authenticate Securities of such series on registration of transfer or exchange; provided that, the following conditions shall have been satisfied: (a) the Company or the Guarantor has deposited or caused to be irrevocably deposited (except as provided in Section 402(c) and the last paragraph of Section 1003) with such Trustee as trust funds in trust, specifically pledged as security for, and dedicated solely to, the benefit of the Holders of the Securities of such series, (i) money in an amount, or (ii) (except as provided in a supplemental indenture with respect to such series) if Securities of such series are not subject to repurchase at the option of Holders, (A) U.S. Government Obligations which through the payment of interest and principal in respect thereof in accordance with their terms will provide not later than one day before the due date of any payment referred to in clause (x) or (y) of this subparagraph (a) money in an amount or (B) a combination thereof, sufficient, in the opinion of a nationally recognized firm of independent certified public accountants expressed in a written certification thereof delivered to such Trustee, to pay and discharge (x) the principal of (and premium, if any) and each installment of principal (and premium, if any) and interest, if any, on the Outstanding Securities of such series on the Stated Maturity of such principal or installment of principal or interest or to and including the Redemption Date irrevocably designated by the Company pursuant to subparagraph (e) hereof and (y) any mandatory sinking fund payments applicable to the Securities of such series on the day on which such payments are due and payable in accordance with the terms of the Indenture and of the Securities of such series; (b) the Company or (in the case of Guaranteed Securities) the Guarantor has delivered to such Trustee an Opinion of Counsel to the effect that such provision would not cause any Outstanding Securities of such series then listed on any national securities exchange to be delisted as a result thereof; 38 (c) no Event of Default or event which with notice or lapse of time would become an Event of Default (including by reason of such deposit) with respect to the Securities of such series shall have occurred and be continuing on the date of such deposit or during the period ending on the 91st day after such date; (d) the Company or (in the case of Guaranteed Securities) the Guarantor has delivered to such Trustee an Opinion of Counsel in the U.S. to the effect that the Company or (in the case of Guaranteed Securities) the Guarantor has received from, or there has been published by the Internal Revenue Service a ruling to the effect that Holders of the Securities of such series will not recognize income, gain or loss for Federal income tax purposes as a result of such deposit, defeasance and discharge; and (e) if the Company or the Guarantor has deposited or caused to be deposited money or U.S. Government Obligations to pay or discharge the principal of (and premium, if any) and interest, if any, on the Outstanding Securities of a series to and including a Redemption Date on which all of the Outstanding Securities of such series are to be redeemed, such Redemption Date shall be irrevocably designated by a Board Resolution of the Company delivered to such Trustee on or prior to the date of deposit of such money or U.S. Government Obligations, and such Board Resolution shall be accompanied by an irrevocable Company Request that such Trustee give notice of such redemption in the name and at the expense of the Company or (in the case of Guaranteed Securities) the Guarantor and less than 30 nor more than 60 days prior to such Redemption Date in accordance with Section 1104. SECTION 404. Reinstatement. If the Trustee of the Securities of any series or any Paying Agent is unable to apply any money in accordance with Section 402 by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the obligations of the Company and the Guarantor (in the case of Guaranteed Securities) under this Indenture and such Securities and any related coupons and Guarantees shall be revived and reinstated as though no deposit had occurred pursuant to Section 403 or Section 1006, as the case may be, until such time as such Trustee or Paying Agent is permitted to apply all such money in accordance with Section 402; provided, however, that if the Company makes any payment of principal of (or premium, if any) or interest, if any, on any such Security or any related coupon following the reinstatement of its obligations, the Company shall be subrogated to the rights of the Holders of such Securities and any related coupons to receive such payment from the money held by such Trustee or Paying Agent. SECTION 405. Effect on Subordination Provisions. Unless otherwise expressly provided pursuant to Section 301 with respect to the Securities of any series, the provisions for subordination of the Securities set forth in Article Fourteen hereof and, in the case of Guaranteed Securities, the provisions for subordination of the Guarantee set forth in Article Fifteen hereof are hereby expressly made subject to the provisions for satisfaction and discharge set forth in Section 401 hereof and the provisions for defeasance and covenant defeasance set forth in Section 1006 hereof and, anything herein to the contrary 39 notwithstanding, upon the effectiveness of such satisfaction and discharge pursuant to Section 401 or any such defeasance or covenant defeasance pursuant to Section 1006 with respect to the Securities of any series, such Securities and, in the case of Guaranteed Securities, the Guarantee shall thereupon cease to be so subordinated and such Securities and, in the case of Guaranteed Securities, the Guarantee (and the monies and/or U.S. Government Obligations deposited in respect thereof) shall no longer be subject to the provisions of Article Fourteen or, in the case of Guaranteed Securities, Article Fifteen, hereof and, without limitation to the foregoing, all moneys, U.S. Government Obligations and other securities or property deposited with the Trustee (or other qualifying trustee) in trust in connection with such satisfaction and discharge, defeasance or covenant defeasance, as the case may be, and all proceeds therefrom may be applied to pay the principal of, premium, if any, and interest, if any, on, the Securities of such series as and when the same shall become due and payable notwithstanding the provisions of Article Fourteen and, in the case of Guaranteed Securities, Article Fifteen. ARTICLE FIVE REMEDIES SECTION 501. Events of Default. "Event of Default", wherever used herein with respect to Securities of any series, means any one of the following events (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body): (1) default in the payment of any interest upon any Security of that series when it becomes due and payable, and continuance of such default for a period of 30 days; or (2) default in the payment of the principal of (or premium, if any, on) any Security of that series at its Maturity; or (3) default in the payment of any sinking fund installment, when and as due by the terms of a Security of that series, and continuance of such default for a period of 30 days; or (4) default in the performance, or breach, of any covenant or warranty of the Company or, in the case of Guaranteed Securities, the Guarantor in this Indenture (other than a covenant or warranty a default in whose performance or whose breach is elsewhere in this Section specifically dealt with or which has expressly been included in this Indenture solely for the benefit of series of Securities other than that series), and continuance of such default or breach for a period of 90 days after there has been given, by registered or certified mail, to the Company and, in the case of Guaranteed Securities, the Guarantor by the Trustee for the Securities of such series or to the Company, the Guarantor (in the case of Guaranteed Securities) and such Trustee by the Holders of at least 25% in principal amount of the Outstanding Securities of that series a written notice 40 specifying such default or breach and requiring it to be remedied and stating that such notice is a "Notice of Default" hereunder; or (5) the entry by a court having jurisdiction in the premises of (A) a decree or order for relief in respect of the Company or, in the case of Guaranteed Securities, the Guarantor in an involuntary case or proceeding under any applicable Federal or State or Bermuda bankruptcy, insolvency, reorganization or other similar law or (B) a decree or order adjudging the Company or, in the case of Guaranteed Securities, the Guarantor a bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect of the Company or, in the case of Guaranteed Securities, the Guarantor under any applicable Federal or State or Bermuda law, or appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Company or, in the case of Guaranteed Securities, the Guarantor or of any substantial part of its property, or ordering the winding up or liquidation of its affairs, and the continuance of any such decree or order for relief or any such other decree or order unstayed and in effect for a period of 90 consecutive days; or (6) the commencement by the Company or, in the case of Guaranteed Securities, the Guarantor of a voluntary case or proceeding under any applicable Federal or State or Bermuda bankruptcy, insolvency, reorganization or other similar law or of any other case or proceeding to be adjudicated a bankrupt or insolvent, or the consent by the Company or, in the case of Guaranteed Securities, the Guarantor to the entry of a decree or order for relief in respect of the Company or, in the case of Guaranteed Securities, the Guarantor, respectively, in an involuntary case or proceeding under any applicable Federal or State or Bermuda bankruptcy, insolvency, reorganization or other similar law or to the commencement of any bankruptcy or insolvency case or proceeding against the Company or, in the case of Guaranteed Securities, the Guarantor, or the filing by the Company or, in the case of Guaranteed Securities, the Guarantor of a petition or answer or consent seeking reorganization or relief under any applicable Federal or State or Bermuda law, or the consent by the Company or, in the case of Guaranteed Securities, the Guarantor to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator or similar official of the Company or, in the case of Guaranteed Securities, the Guarantor or of any substantial part of its property, or the making by the Company or, in the case of Guaranteed Securities, the Guarantor of an assignment for the benefit of creditors, or the admission by the Company or, in the case of Guaranteed Securities, the Guarantor in writing of its inability to pay its debts generally as they become due, or the taking of corporate action by the Company or, in the case of Guaranteed Securities, the Guarantor in furtherance of any such action; or (7) any other Event of Default provided in the supplemental indenture or provided in or pursuant to a Board Resolution or Officer's Certificate of the 41 Company and, in the case of Guaranteed Securities, the Guarantor, under which such series of Securities is issued or in the form of Security for such series. SECTION 502. Acceleration of Maturity; Rescission and Annulment. If an Event of Default (other than an Event of Default specified in Section 501(5) or 501(6)) with respect to Securities of any series at the time Outstanding occurs and is continuing, then in every such case the Trustee for the Securities of such series or the Holders of not less than 25% in aggregate principal amount of the Outstanding Securities of that series may declare the principal amount (or, if 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) of all of the Securities of that series to be due and payable immediately, by a notice in writing to the Company (and to such Trustee if given by Holders), and upon any such declaration such principal amount (or specified amount) shall become immediately due and payable. If an Event of Default specified in Section 501(5) or 501(6) with respect to Securities of any series at the time Outstanding occurs, the principal amount of all the Securities of that series (or, if any Securities of that series are Original Issue Discount Securities, such portion of the principal amount of such Securities as may be specified by the terms thereof) shall automatically, and without any declaration or other action on the part of such Trustee or any Holder, become immediately due and payable. At any time after such a declaration of acceleration with respect to Securities of any series has been made and before a judgment or decree for payment of the money due has been obtained by the Trustee for the Securities of such series as hereinafter in this Article provided, the Holders of a majority in principal amount of the Outstanding Securities of that series, by written notice to the Company, the Guarantor (in the case of Guaranteed Securities) and such Trustee, may rescind and annul such declaration and its consequences if: (1) the Company or, in the case of Guaranteed Securities, the Guarantor has paid or deposited with such Trustee a sum sufficient to pay, (A) all overdue interest, if any, on all Securities of that series, (B) the principal of (and premium, if any, on) any Securities, of that series which have become due otherwise than by such declaration of acceleration and interest thereon at the rate or rates prescribed therefor in such Securities, (C) to the extent that payment of such interest is lawful, interest upon overdue interest at the rate or rates prescribed therefor in such Securities, and (D) all sums paid or advanced by such Trustee hereunder and the reasonable compensation, expenses, disbursements and advances of such Trustee, its agents and counsel; and (2) all Events of Default with respect to Securities of that series, other than the non-payment of the principal of and accrued interest on Securities of that 42 series which have become due solely by such declaration of acceleration, have been cured or waived as provided in Section 513. No such rescission shall affect any subsequent default or impair any right consequent thereon. For all purposes under this Indenture, if a portion of the principal of any Original Issue Discount Securities shall have been accelerated and declared due and payable pursuant to the provisions hereof, then, from and after such declaration, unless such declaration has been rescinded and annulled, the principal amount of such Original Issue Discount Securities shall be deemed, for all purposes hereunder, to be such portion of the principal thereof as shall be due and payable as a result of such acceleration, and payment of such portion of the principal thereof as shall be due and payable as a result of such acceleration, together with interest, if any, thereon and all other amounts owing thereunder, shall constitute payment in full of such Original Issue Discount Securities. SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee. The Company covenants that if: (1) default is made in the payment of any interest on any Security when such interest becomes due and payable and such default continues for a period of 30 days, or (2) default is made in the payment of the principal of (or premium, if any, on) any Security at the Maturity thereof, the Company will, upon demand of the Trustee for the Securities of such series, 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, if any, 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 costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of such Trustee, its agents and counsel. If the Company fails to pay such amounts forthwith upon such demand, such 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, the Guarantor (in the case of Guaranteed Securities) 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, the Guarantor (in the case of Guaranteed Securities) 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 for the Securities of such series 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 such Trustee shall deem most effectual to protect and enforce any such rights, 43 whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy. SECTION 504. Trustee May File Proofs of Claim. In any case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative to the Company, the Guarantor (in the case of Guaranteed Securities) or any other obligor upon the Securities or the property of the Company, the Guarantor (in the case of Guaranteed Securities) or of such other obligor or their creditors, the Trustee for the Securities of such series (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 such Trustee shall have made any demand on the Company or the Guarantor (in the case of Guaranteed Securities) 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 such Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of such Trustee, its agents and counsel) and of the Holders of such Securities allowed in such judicial proceeding; and (ii) to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Holder of such Securities to make such payments to such Trustee and, in the event that such Trustee shall consent to the making of such payments directly to such Holders, to pay to such Trustee any amount due it for the reasonable compensation, expenses, disbursements and advances of such Trustee, its agents and counsel, and any other amounts due such Trustee under Section 607. Nothing herein contained shall be deemed to authorize the Trustee for the Securities of any series 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, the Guarantees (in the case of Guaranteed Securities) or the rights of any Holder thereof or to authorize such 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 for any series of Securities without the possession of any of the Securities or the production thereof in any proceeding relating thereto, and any such proceeding instituted by such 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 such 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. 44 SECTION 506. Application of Money Collected. Any money collected by the Trustee for any series of Securities pursuant to this Article shall be applied in the following order, at the date or dates fixed by such Trustee and, in case of the distribution of such money on account of principal (or premium, if any) or interest, upon presentation of the Securities and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid: FIRST: to the payment of all amounts due such Trustee under Section 607; SECOND: To the payment of amounts then due and unpaid to the holders of Senior Indebtedness, to the extent required by Article Fourteen; THIRD: In case the principal of the Securities of such series in respect of which moneys have been collected shall not have become and be then due and payable, to the payment of interest, if any, on the Securities of such series in default in the order of the maturity of the installments of such interest, with interest (to the extent that such interest has been collected by such Trustee and to the extent permitted by law) upon the overdue installments of interest at the rate prescribed therefor in such Securities, such payments to be made ratably to the persons entitled thereto, without discrimination or preference; FOURTH: In case the principal of the Securities of such series in respect of which moneys have been collected shall have become and shall be then due and payable, to the payment of the whole amount then owing and unpaid upon all the Securities of such series for principal and interest, if any, with interest upon the overdue principal, and (to the extent that such interest has been collected by such Trustee and to the extent permitted by law) upon overdue installments of interest at the rate prescribed therefor in the Securities of such series; and in case such moneys shall be insufficient to pay in full the whole amount so due and unpaid upon the Securities of such series, then to the payment of such principal and interest, without preference or priority of principal over interest, or of interest over principal, or of any installment of interest over any other installment of interest, or of any Security of such series over any other Security of such series, ratably to the aggregate of such principal and accrued and unpaid interest; and FIFTH: To the payment of the remainder, if any, to the Company or any other person lawfully entitled thereto. SECTION 507. Limitation on Suits. No Holder of any Security of any series shall have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless: (1) such Holder has previously given written notice to the Trustee for the Securities of such series of a continuing Event of Default with respect to the Securities of that series; 45 (2) the Holders of not less than 25% in principal amount of the Outstanding Securities of that series shall have made written request to such 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 such Trustee reasonable indemnity against the costs, expenses and liabilities to be incurred in compliance with such request; (4) such 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 such Trustee during such 60-day period by the Holders of a majority in principal amount of the Outstanding Securities of that series, it being understood and intended that no one or more of such Holders shall have any right in any manner whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb or prejudice the rights of any other of such Holders, or to obtain or to seek to obtain priority or preference over any other of such Holders or to enforce any right under this Indenture, except in the manner herein provided and for the equal and ratable benefit of all such Holders. SECTION 508. Unconditional Right of Holders to Receive Principal, Premium and Interest. Notwithstanding any other provision in this Indenture, the Holder of any Security shall have the right, which is absolute and unconditional, to receive payment of the principal of (and premium, if any) and (subject to Section 307) interest, if any, 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 for the Securities of any series 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 such Trustee or to such Holder, then and in every such case, subject to any determination in such proceeding, the Company, the Guarantor (in the case of Guaranteed Securities), such Trustee and the Holders shall be restored severally and respectively to their former positions hereunder and thereafter all rights and remedies of such Trustee and the Holders shall continue as though no such proceeding had been instituted. SECTION 510. Rights and Remedies Cumulative. Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities in the last paragraph of Section 306, no right or remedy herein conferred upon or reserved to the Trustee for the Securities of any series or to any Holder is 46 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 for the Securities of any series 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 such Trustee or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by such 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 for the Securities of such series, or exercising any trust or power conferred on such Trustee, with respect to the Securities of such series, provided that: (1) such direction shall not be in conflict with any rule of law or with this Indenture; and (2) such Trustee may take any other action deemed proper by such Trustee which is not inconsistent with such direction. SECTION 513. Waiver of Past Defaults. The Holders of not less than a majority in aggregate principal amount of the Outstanding Securities of any series may on behalf of the Holders of all of the Securities of such series waive any past default hereunder with respect to such series and its consequences, except a default (1) in the payment of the principal of (or premium, if any) or interest, if any, on any Security of such series, or (2) in respect of a covenant or provision hereof which under Article Nine cannot be modified or amended without the consent of the Holder of each Outstanding Security of such series affected. Upon any such waiver, such default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon. 47 SECTION 514. Undertaking for Costs. All parties to this Indenture agree, and each Holder of any Security by his or her 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 the Securities of any series for any action taken 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 Trustee for the Securities of any series, 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, if any, on any Security on or after the Stated Maturity or Maturities expressed in such Security (or, in the case of redemption, on or after the Redemption Date). SECTION 515. Waiver of Stay or Extension Laws. Each of the Company and, in the case of Guaranteed Securities, the Guarantor covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of this Indenture; and each of the Company and, in the case of Guaranteed Securities, the Guarantor (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Trustee for the Securities of any series, but will suffer and permit the execution of every such power as though no such law had been enacted. ARTICLE SIX THE TRUSTEE SECTION 601. Certain Duties and Responsibilities. (a) Except during the continuance of an Event of Default with respect to the Securities of any series for which the Trustee is serving as such: (1) such Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this Indenture against such Trustee; and (2) in the absence of bad faith on its part, such Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to such Trustee and conforming to the requirements of this Indenture; but in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to such Trustee, such Trustee shall be under a duty to examine the 48 same to determine whether or not they conform to the requirements of this Indenture. (b) In case an Event of Default with respect to a series of Securities has occurred and is continuing, the Trustee for the Securities of such series shall exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent man would exercise or use under the circumstances in the conduct of his or her own affairs. (c) No provision of this Indenture shall be construed to relieve the Trustee for the Securities of any series from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that: (1) this Subsection shall not be construed to limit the effect of Subsection (a) of this Section; (2) such Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it shall be proved that such Trustee was negligent in ascertaining the pertinent facts; (3) such Trustee shall not be liable with respect to any action taken, suffered or omitted to be taken by it in good faith in accordance with the direction of the Holders of a majority in principal amount of the Outstanding Securities of any particular series, determined as provided in Section 512, relating to the time, method and place of conducting any proceeding for any remedy available to such Trustee, or exercising any trust or power conferred upon such Trustee, under this Indenture with respect to the Securities of that series; and (4) no provision of this Indenture shall require the Trustee for any series of Securities to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. (d) Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee for any series of Securities shall be subject to the provisions of this Section. SECTION 602. Notice of Defaults. Within 90 days after the occurrence of any default hereunder with respect to the Securities of any particular series, the Trustee for the Securities of such series shall transmit by mail to all Holders of Securities of that series, as their names and addresses appear in the Security Register for that series, notice of such default hereunder known to such Trustee, unless such default shall have been cured or waived; provided, however, that, except in the case of a default in the payment of the principal of (or premium, if any) or interest, if any, on any Security of that series or in the payment of any sinking fund installment with respect to Securities of that 49 series, such Trustee shall be protected in withholding such notice if and so long as the board of directors, the executive committee or a trust committee of directors and/or Responsible Officers of such Trustee in good faith determines that the withholding of such notice is in the interest of the Holders of Securities of that series; and provided, further, that in the case of any default of the character specified in Section 501(4) with respect to Securities of that series, no such notice to Holders shall be given until at least 30 days after the occurrence thereof. For the purpose of this Section, the term "default" means any event which is, or after notice or lapse of time or both would become, an Event of Default with respect to Securities of that series. SECTION 603. Certain Rights of Trustee. Subject to the provisions of Section 601: (a) the Trustee for any series of Securities 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 or, in the case of Guaranteed Securities, the Guarantor mentioned herein shall be sufficiently evidenced by a Company Request or Company Order of the Company or, in the case of Guaranteed Securities, the Guarantor, as the case may be, and any resolution of the Board of Directors may be sufficiently evidenced by a Board Resolution of the Company or, in the case of Guaranteed Securities, the Guarantor, as the case may be; (c) whenever in the administration of this Indenture such Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, such 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) such 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) such Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders of Securities of any series pursuant to this Indenture for which it is acting as Trustee, unless such Holders shall have offered to such Trustee reasonable security or indemnity against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction; (f) such Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document, but such Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if such Trustee shall determine to make such further 50 inquiry or investigation, it shall be entitled upon reasonable request to examine the books, records and premises of the Company, personally or by agent or attorney; and (g) such 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 such Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder. SECTION 604. Not Responsible for Recitals or Issuance of Securities. The recitals contained herein and in the Securities, except the Trustee's certificates of authentication, shall be taken as the statements of the Company and, in the case of Guaranteed Securities, the Guarantor, and neither the Trustee for any series of Securities nor any Authenticating Agent assumes any responsibility for their correctness. The Trustee for any series of Securities makes no representations as to the validity or sufficiency of this Indenture or of the Securities. Neither the Trustee for any series of Securities nor any Authenticating Agent shall be accountable for the use or application by the Company of Securities or the proceeds thereof. SECTION 605. May Hold Securities. The Trustee for any series of Securities, any Authenticating Agent, any Paying Agent, any Security Registrar or any other agent of the Company, the Guarantor or such Trustee, 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 or the Guarantor with the same rights it would have if it were not such Trustee, Authenticating Agent, Paying Agent, Security Registrar or such other agent. SECTION 606. Money Held in Trust. Money held by the Trustee for any series of Securities in trust hereunder need not be segregated from other funds except to the extent required by law. The Trustee for any series of Securities shall be under no liability for interest on any money received by it hereunder except as otherwise agreed with the Company or, in the case of Guaranteed Securities, the Guarantor. SECTION 607. Compensation and Reimbursement. The Company agrees: (1) to pay to the Trustee for any series of Securities from time to time such compensation for all services rendered by it hereunder as shall be agreed upon in writing from time to time by the Company and such Trustee (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust); 51 (2) except as otherwise expressly provided herein, to reimburse the Trustee for any series of Securities upon its request for all reasonable expenses, disbursements and advances incurred or made by such Trustee in accordance with any provision of this Indenture (including the reasonable compensation and the reasonable 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 such Trustee for, and to hold it harmless against, any loss, liability or expense incurred without negligence or bad faith on its part, arising out of or in connection with the acceptance or administration of this trust or trusts hereunder, including the costs and expenses of defending itself against any claim or liability in connection with the exercise or performance of any of its powers or duties hereunder. The Trustee for any series of Securities shall have a lien prior to the Securities as to all property and funds held by such Trustee hereunder for any amount owing it or any predecessor Trustee pursuant to this Section 607, except with respect to funds held in trust for the benefit of the Holders of such particular Securities. When the Trustee for any series of Securities 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 shall survive the termination of this Indenture. SECTION 608. Disqualification; Conflicting Interests. If the Trustee for any series of Securities has or shall acquire a conflicting interest within the meaning of the Trust Indenture Act, such Trustee shall either eliminate such interest or resign, to the extent and in the manner provided by, and subject to the provisions of, the Trust Indenture Act and this Indenture. In determining whether such Trustee has a conflicting interest as defined in Section 310(b) of the Trust Indenture Act with respect to the Securities of any series, there shall be excluded Securities of any particular series of Securities other than that series. SECTION 609. Corporate Trustee Required; Different Trustees for Different Series; Eligibility. There shall at all times be a Trustee hereunder for each series of Securities which shall 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 exercise corporate trust powers, 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 52 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 such 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. A different Trustee may be appointed by the Company for each series of Securities prior to the issuance of such Securities. If the initial Trustee for any series of Securities is to be other than Wells Fargo Bank Minnesota, N.A., the Company and such Trustee shall, prior to the issuance of such Securities, execute and deliver an indenture supplemental hereto, which shall provide for the appointment of such Trustee as Trustee for the Securities of such series and shall add to or change any of the provisions of this Indenture as shall be necessary to 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. SECTION 610. Resignation and Removal; Appointment of Successor. (a) No resignation or removal of the Trustee for the Securities of any series 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 for the Securities of any series may resign at any time with respect to the Securities of such 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 for the Securities of such series 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 for the Securities of any series may be removed at any time with respect to the Securities of such series by Act of the Holders of a majority in principal amount of the Outstanding Securities of such series, delivered to such Trustee and to the Company. (d) If at any time: (1) the Trustee for the Securities of any series shall fail to comply with Section 608 after written request thereof by the Company or by any Holder who has been a bona fide Holder of a Security of such series for at least six months; or (2) such Trustee shall cease to be eligible under Section 609 and shall fail to resign after written request therefor by the Company or by any such Holder; or (3) such Trustee shall become incapable of acting or shall be adjudged a bankrupt or insolvent or a receiver of such Trustee or of its property shall be 53 appointed or any public officer shall take charge or control of such 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 such Trustee and appoint a successor Trustee, or (ii) subject to Section 514, 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 removal of such Trustee and the appointment of a successor Trustee or Trustees. (e) If the Trustee for the Securities of any series shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of Trustee for the Securities of any series for any cause, the Company, by a Board Resolution, shall promptly appoint a successor Trustee with respect to the Securities of such 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 such series shall not have been appointed by the Company pursuant to this Section 610, then a successor Trustee may 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. If no successor Trustee for the Securities of such series shall have been so appointed by the Company or the Holders and shall have accepted appointment in the manner required by Section 611, and if such Trustee to be replaced is still incapable of acting, 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 that series and the address of its Corporate Trust Office. SECTION 611. Acceptance of Appointment by Successor. (a) Every such successor Trustee appointed hereunder with respect to the Securities of any series shall execute, acknowledge and deliver to the Company, the Guarantor (in the case of Guaranteed Securities) and 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, the Guarantor (in the case of Guaranteed Securities) 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, 54 transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder. (b) In case of the appointment hereunder of a successor Trustee with respect to the Securities of one or more (but not all) series, the Company, the Guarantor (in the case of Guaranteed Securities), the retiring Trustee and each successor Trustee with respect to the Securities of one or more series shall execute and deliver an indenture supplemental hereto wherein each successor Trustee shall accept such appointment and which (1) shall contain such provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, each successor Trustee all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates, (2) if the retiring Trustee is not retiring with respect to all Securities, shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series as to which the retiring Trustee is not retiring shall continue to be vested in the retiring Trustee and (3) shall add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it being understood that nothing herein or in such supplemental indenture shall constitute such Trustees co-trustees of the same trust and each such Trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such Trustee; and upon the execution and delivery of such supplemental indenture the resignation or removal of the retiring Trustee shall become effective to the extent provided therein and each such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates; but, on request of the Company, the Guarantor (in the case of Guaranteed Securities) or any successor Trustee, such retiring Trustee shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder with respect to the Securities of that or those series to which the appointment of such successor Trustee relates. (c) Upon request of any such successor Trustee, the Company and, in the case of Guaranteed Securities, the Guarantor 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 for the Securities of any series shall be qualified and eligible under this Article. SECTION 612. Merger, Conversion, Consolidation or Succession to Business. Any corporation into which the Trustee for the Securities of any series may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which such Trustee shall be a party, or any corporation succeeding to all or substantially all of the corporate trust business of such Trustee, shall be the 55 successor of such 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 or the Authenticating Agent for such series then in office, any successor by merger, conversion or consolidation to such authenticating Trustee or Authenticating Agent, as the case may be, may adopt such authentication and deliver the Securities so authenticated with the same effect as if such successor Trustee or successor Authenticating Agent had itself authenticated such Securities. SECTION 613. Preferential Collection of Claims Against the Company or the Guarantor. If and when the Trustee of any series of Securities shall be or become a creditor of the Company or, in the case of Guaranteed Securities, the Guarantor (or any other obligor upon the Securities), such Trustee shall be subject to the provisions of the Trust Indenture Act regarding the collection of claims against the company (or any such other obligor). SECTION 614. Authenticating Agents. From time to time the Trustee of any series of Securities, in its sole discretion, may appoint one or more Authenticating Agents with respect to the Securities of such series, which may include the Company, the Guarantor or any Affiliate of the Company or the Guarantor, with power to act on the Trustee's behalf and subject to its discretion in the authentication and delivery of Securities of such series or in connection with transfers and exchanges under Sections 304, 305, 306 and 1107 as fully to all intents and purposes as though such Authenticating Agent had been expressly authorized by those Sections of this Indenture to authenticate and deliver Securities of such series. For all purposes of this Indenture, the authentication and delivery of Securities of such series by an Authenticating Agent for such Securities pursuant to this Section shall be deemed to be authentication and delivery of such Securities "by the Trustee" for the Securities of such series. Any such 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, any State thereof or the District of Columbia, authorized under such laws to exercise corporate trust powers, having a combined capital and surplus of at least $25,000,000 and, if other than the Company, the Guarantor or any Affiliate of the Company or the Guarantor, subject to supervision or examination by Federal, State or District of Columbia authority. If such corporation publishes reports of condition at least annually pursuant to law or the requirements of such authority, then for the purposes of this Section the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time an Authenticating Agent for any series of Securities 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 any Authenticating Agent may be merged or with which it may be consolidated, or any corporation resulting from any merger or consolidation or to which any Authenticating Agent shall be a party, or any corporation succeeding to the corporate trust business of any Authenticating Agent, shall be the successor of such Authenticating Agent hereunder, if such successor corporation is otherwise eligible under this Section, without the 56 execution or filing of any paper or any further act on the part of the parties hereto or the Authenticating Agent or such successor corporation. Any Authenticating Agent for any series of Securities may resign at any time by giving written notice of resignation to the Trustee for such series and to the Company. The Trustee for any series of Securities may at any time terminate the agency of any Authenticating Agent for such series by giving written notice of termination 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 any Authenticating Agent for any series of Securities shall cease to be eligible under this Section, the Trustee for such series may appoint a successor Authenticating Agent, which shall be acceptable to the Company, shall give written notice of such appointment to the Company and shall give written notice of such appointment to all Holders of Securities of such series with respect to which such Authenticating Agent will serve, as the names and addresses of such Holders appear on 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 Trustee for any series of Securities agrees to pay to the Authenticating Agent for such series from time to time reasonable compensation for its services, and such Trustee shall be entitled to be reimbursed for such payments, subject to Section 607. If an appointment with respect to one or more series of Securities is made pursuant to this Section, the Securities of such series may have endorsed thereon, in addition to the Trustee's certificate of authentication, an alternate certificate of authentication in the following form: This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture. Wells Fargo Bank Minnesota, N.A., as Trustee By ____________________________ As Authenticating Agent By ____________________________ Authorized Officer The provisions of Sections 309, 604 and 605 shall be applicable to any Authenticating Agent. 57 ARTICLE SEVEN HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY SECTION 701. Company to Furnish Trustee Names and Addresses of Holders. With respect to each particular series of Securities, the Company will furnish or cause to be furnished to the Trustee for the Securities of such series, (a) semi-annually, not later than 15 days after each Regular Record Date, or, in the case of any series of Securities on which semi-annual interest is not payable, not more than 15 days after such semi-annual dates as may be specified by such Trustee, a list, in such form as such Trustee may reasonably require, of the names and addresses of the Holders as of such Regular Record Date or semi-annual date, as the case may be, and (b) at such other times as such 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 such Trustee is Security Registrar for any series of Securities, no such list shall be required to be furnished with respect to any such series. SECTION 702. Preservation of Information; Communications to Holders. (a) The Trustee for each series of Securities 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 such Trustee as provided in Section 701 and the names and addresses of Holders received by such Trustee in its capacity as Security Registrar. Such 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 of any particular series (herein referred to as "applicants") apply in writing to the Trustee for the Securities of such series, and furnish to such 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 of Securities of such series 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 such 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 such Trustee in accordance with Section 702(a); or (ii) inform such applicants as to the approximate number of Holders of Securities of such series whose names and addresses appear in the information preserved at the time by such Trustee in accordance with Section 702(a), and as to the approximate cost of 58 mailing to such Holders the form of proxy or other communication, if any, specified in such application. If any such Trustee shall elect not to afford such applicants access to such information, such Trustee shall, upon the written request of such applicants, mail to each Holder of Securities of such series whose name and address appear in the information preserved at the time by such 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 such 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 such 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 such 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 the objections so sustained have been met and shall enter an order so declaring, such 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 such Trustee shall be relieved of any obligation or duty to such applicants respecting their application. (c) Every Holder of Securities of each series, by receiving and holding the same, agrees with the Company, the Guarantor and the Trustee for the Securities of such series that none of the Company, the Guarantor and such Trustee nor any agent of any 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 such Trustee shall not be held accountable by reason of mailing any material pursuant to a request made under Section 702(b). (d) The U.S. Depositary may grant proxies and otherwise authorize its participants which own the Global Securities to give or take any Act which a Holder is entitled to take under the Indenture; provided, however, that the U.S. Depositary has delivered a list of such participants to the Trustee for the Securities of such series. SECTION 703. Reports by Trustee. (a) The Trustee for the Securities of each series shall transmit to Holders of Securities of each series for which such Trustee serves such reports concerning such Trustee and its actions under this Indenture as may be required pursuant to the Trust Indenture Act at the times and in the manner provided pursuant thereto. If required by Section 313(a) of the Trust Indenture Act, the Trustee for the Securities of each series shall, within sixty days after each May 15 following the date of this Indenture deliver to Holders of Securities of each series for which such Trustee serves a brief report, dated as of such May 15, which complies with the provisions of such Section 313(a). 59 (b) A copy of each such report shall, at the time of such transmission to Holders of Securities of each particular series be filed by each particular Trustee with each stock exchange upon which any Securities are listed, with the Commission and with the Company. The Company will notify the Trustee when any Securities are listed on any stock exchange. SECTION 704. Reports by Company. The Company shall: (1) file with the Trustee for the Securities of each series, within 15 days after the Company is required to file the same with the Commission, copies of the annual reports and of the information, documents and other reports (or copies of such portions of any of the foregoing as the Commission may from time to time by rules and regulations prescribe) which the Company may be required to file with the Commission pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934; or if the Company is not required to file information, documents or reports pursuant to either of said Sections, then it shall file with such Trustee and the Commission, in accordance with rules and regulations prescribed from time to time by the Commission, such of the supplementary and periodic information, documents and reports which may be required pursuant to Section 13 of the Securities Exchange Act of 1934, in respect of a security listed and registered on a national securities exchange as may be prescribed from time to time in such rules and regulations; (2) file with the Trustee for the Securities of such series 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; and (3) transmit by mail to all Holders, as their names and addresses appear in the Security Register, within 30 days after the filing thereof with the Trustee for the Securities of such series, such summaries of any information, documents and reports required to be filed by the Company pursuant to paragraphs (1) and (2) of this Section as may be required by rules and regulations prescribed from time to time by the Commission. Delivery of such reports, information and documents to the Trustee for the Securities of each series is for informational purposes only and such Trustee's receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Company's compliance with any of its covenants hereunder (as to which such Trustee is entitled to rely exclusively on Officer's Certificates). 60 ARTICLE EIGHT CONSOLIDATION, MERGER, CONVEYANCE, SALE OR LEASE SECTION 801. Company and Guarantor May Consolidate, Etc., on Certain Terms. (a) Nothing contained in this Indenture or in any of the Securities shall prevent any consolidation, amalgamation or merger of the Company with or into any other corporation or corporations (whether or not affiliated with the Company) or successive consolidations, amalgamations or mergers in which the Company or its successor or successors shall be a party or parties, or shall prevent any sale, conveyance or lease of all or substantially all the property of the Company, to any other corporation (whether or not affiliated with the Company), authorized to acquire and operate the same; provided, however, that the Company hereby covenants and agrees, that upon any such consolidation, amalgamation, merger, sale, conveyance or lease, the due and punctual payment of the principal of (and premium, if any) and interest, if any, on all of the Securities, according to their tenor, and the due and punctual performance and observance of all of the covenants and conditions of this Indenture to be performed by the Company shall be expressly assumed, by supplemental indenture reasonably satisfactory in form to the Trustee for each series of Securities, executed and delivered to each such Trustee by the corporation (if other than the Company) formed by such consolidation or amalgamation, or into which the Company shall have been merged, or by the corporation which shall have acquired or leased such property, and provided further, that such corporation shall be a solvent corporation organized under the laws of the United States of America or a State thereof or the District of Columbia or Bermuda. The Company will not so consolidate, amalgamate or merge, or make any such sale, lease or other disposition, and the Company will not permit any other corporation to merge into the Company, unless immediately after the proposed consolidation, amalgamation, merger, sale, lease or other disposition, and after giving effect thereto, the Company or such successor corporation, as the case may be, will not be in default in the performance or observance of any of the terms, covenants, agreements or conditions contained in this Indenture. (b) Nothing contained in this Indenture or in any of the Securities shall prevent any consolidation or merger of the Guarantor with or into any other corporation or corporations (whether or not affiliated with the Guarantor) or successive consolidations or mergers in which the Guarantor or its successor or successors shall be a party or parties, or shall prevent any sale, conveyance or lease of all or substantially all the property of the Guarantor, to any other corporation (whether or not affiliated with the Guarantor), authorized to acquire and operate the same; provided, however, that with respect to Guaranteed Securities, the Guarantor hereby covenants and agrees, that upon any such consolidation, merger, sale, conveyance or lease to or with a Person other than the Company, the performance of the obligations under the Guarantee, and the due and punctual performance and observance of all of the covenants and conditions of this Indenture to be performed by the Guarantor shall be expressly assumed, by supplemental indenture reasonably satisfactory in form to the Trustee for each series of Guaranteed Securities, executed and delivered to each such Trustee by the corporation (if other than the Guarantor) formed by such consolidation, or into which the Guarantor shall have been 61 merged, or by the corporation which shall have acquired or leased such property, and provided further, that with respect to Guaranteed Securities, except in the case of any such consolidation, amalgamation, merger, sale, conveyance or lease to or with the Company, such corporation shall be a solvent corporation organized under the laws of the United States of America or a State thereof or the District of Columbia. With respect to the Guaranteed Securities, except in the case of a consolidation, amalgamation, merger, sale, conveyance or lease to or with the Company, the Guarantor will not so consolidate or merge, or make any such sale, lease or other disposition, and the Guarantor will not permit any other corporation to merge into the Guarantor, unless immediately after the proposed consolidation, merger, sale, lease or other disposition, and after giving effect thereto, the Guarantor or such successor corporation, as the case may be, will not be in default in the performance or observance of any of the terms, covenants, agreements or conditions contained in this Indenture or the Guarantee. Notwithstanding the preceding sentences, the Guarantor may consolidate or merge with or into or sell, convey or lease all or substantially all of its property or sell any or all of its capital stock to the Company without limitation. SECTION 802. [Intentionally Omitted]. SECTION 803. Successor Corporation to be Substituted. (a) Upon any consolidation, amalgamation or merger of the Company with or into any other corporation or corporations or any sale, conveyance or lease of all or substantially all of the property of the Company to any other corporation or corporations in accordance with this Article Eight, the successor shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture and the Securities with the same effect as if such successor had been named as the Company herein and therein, and thereafter, except in the case of a lease, the Company as the predecessor corporation shall be relieved of all obligations and covenants under this Indenture and the Securities and the Company as the predecessor corporation may thereupon or at any time thereafter be dissolved, wound up or liquidated. (b) Subject to Section 801(b), upon any consolidation or merger of the Guarantor with or into any other corporation or corporations or any sale, conveyance or lease of all or substantially all of the property of the Guarantor to any other corporation or corporations in accordance with this Article Eight, the successor shall succeed to, and be substituted for, and may exercise every right and power of, the Guarantor under this Indenture, the Securities and the Guarantee with the same effect as if such successor had been named as the Guarantor herein and therein, and thereafter, except in the case of a lease, the Guarantor as predecessor corporation shall be relieved of all obligations and covenants under this Indenture and the Guarantee, and the Guarantor as the predecessor corporation may thereupon or at any time thereafter be dissolved, wound up or liquidated. SECTION 804. Opinion of Counsel to be Given to Trustee. The Trustee for each series of Securities, subject to Section 601, shall be entitled to receive an Opinion of Counsel as conclusive evidence that any such consolidation, 62 amalgamation, merger, sale, conveyance or lease and any such assumption complies with the provisions of this Article. ARTICLE NINE SUPPLEMENTAL INDENTURES SECTION 901. Supplemental Indentures without Consent of Holders. Without the consent of any Holders, the Company, when authorized by or pursuant to a Board Resolution of its Board of Directors, the Guarantor (in the case of Guaranteed Securities), when authorized by or pursuant to a Board Resolution by the Guarantor's Board of Directors, and the Trustee for the Securities of any or all series, at any time and from time to time, may enter into one or more indentures supplemental hereto, in form reasonably satisfactory to such Trustee, for any of the following purposes: (1) to evidence the succession of another corporation to the Company or (in the case of Guaranteed Securities) the Guarantor and the assumption by any such successor of the covenants of the Company herein and in the Securities or the assumption by any such successor of the covenants of the Guarantor (in the case of Guaranteed Securities) herein and in the Guarantee; or (2) to add to the covenants of the Company or the Guarantor (in the case of Guaranteed Securities) for the benefit of the Holders of all or any series of Securities (and if such covenants are to be for the benefit of less than all series of Securities, stating that such covenants are expressly being included solely for the benefit of such series) or to surrender any right or power herein conferred upon the Company or the Guarantor, as applicable; or (3) to add any additional Events of Default; or (4) to add to or change any of the provisions of this Indenture to such extent as shall be necessary to permit or facilitate the issuance of Securities in bearer form, registrable or not registrable as to principal, and with or without interest coupons; or (5) to 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 provisions; or (6) to secure the Securities; or (7) to establish the form or terms of Securities of any series as permitted by Sections 201 and 301; or (8) to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Securities of one or more series and to add to or change any of the provisions of this Indenture as shall be 63 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 evidence and provide for the acceptance of appointment hereunder of a Trustee other than Wells Fargo Bank Minnesota, N.A. as Trustee for a series of Securities 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 609; or (10) to provide for any rights of the Holders of Securities of any series to require the repurchase of Securities of such series from the Company; or (11) to cure any ambiguity, to correct or supplement any provision herein which may be inconsistent with any other provision herein, or to make any other provisions with respect to matters or questions arising under this Indenture, provided such action shall not adversely affect the interests of the Holders of Securities of any series in any material respect; (12) to continue its qualification under the Trust Indenture Act or as may be necessary or desirable in accordance with amendments to the Trust Indenture Act; or (13) for any other reason specified pursuant to Section 301 with respect to the Securities of such series. SECTION 902. Supplemental Indentures with Consent of Holders. With the consent of the Holders of not less than a majority in principal amount of the Outstanding Securities of any or all series affected by such supplemental indenture (voting as one class), by Act of said Holders delivered to the Company, the Guarantor (in the case of Guaranteed Securities) and the Trustee of each such series of Securities, the Company, when authorized by or pursuant to a Board Resolution of its Board of Directors, the Guarantor, when authorized by or pursuant to a Board Resolution by the Guarantor's Board of Directors, and each such Trustee may enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of modifying in any manner the rights of the Holders of Securities of such series under this Indenture; provided, however, that no such supplemental indenture shall, without the consent of the Holder of each Outstanding Security affected thereby: (1) change the Stated Maturity of the principal of, or any installment of principal of or interest, if any, on, any Security, or reduce the principal amount thereof or the rate of interest thereon or any premium payable upon the redemption thereof, or reduce the amount of the principal of an Original Issue Discount Security 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 64 enforcement of any such payment on or after the Stated Maturity thereof (or, in the case of redemption, on or after the Redemption Date), or (in the case of Guaranteed Securities) release the Guarantor from any of its obligations under the Guarantee otherwise than in accordance with the terms of this Indenture; (2) reduce the percentage in principal amount of the Outstanding Securities of any series, the consent of whose Holders is required for any such supplemental indenture or the consent of whose Holders is required for any waiver (of compliance with certain provisions of this Indenture or certain defaults hereunder and their consequences) provided for in this Indenture; (3) modify any of the provisions of this Section, Section 513 or Section 1008, except to increase any such percentage or to provide that certain other provisions of this Indenture cannot be modified or waived without the consent of the Holder of each Outstanding Security affected thereby provided, however, that this clause shall not be deemed to require the consent of any Holder with respect to changes in the references to "the Trustee" and concomitant changes in this Section and Section 1008, or the deletion of this proviso, in accordance with the requirements of Sections 609, 611(b), 901(8) and 901(9); or (4) modify any of the subordination provisions applicable to any series of Securities in a manner adverse to the Holders of such series of Securities. A supplemental indenture which changes or eliminates any covenant or other provision of this Indenture which has expressly been included solely for the benefit of one or more particular series of Securities, or which modifies the rights of the Holders of Securities of such series with respect to such covenant or other provision, shall be deemed not to affect the rights under this Indenture of the Holders of Securities of any other series. It shall not be necessary for any Act of Holders of any series of Securities under this Section to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such Act shall approve the substance thereof. SECTION 903. Execution of Supplemental Indentures. In executing, or accepting the additional trusts created by, and supplemental indenture permitted by this Article or the modifications thereby of the trusts created by this Indenture, the Trustee for any series of Securities shall be entitled to receive, and (subject to Section 601) shall be fully protected in relying upon, an Opinion of Counsel stating that the execution of such supplemental indenture is authorized or permitted by this Indenture. The Trustee for any series of Securities may, but shall not be obligated to, enter into any such supplemental indenture which affects such 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 65 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 for the Securities of such series, bear a notation in form approved by such Trustee as to any matter provided for in such supplemental indenture. If the Company or (in the case of Guaranteed Securities) the Guarantor shall so determine, new forms of the Securities of any series and (in the case of Guaranteed Securities) any Guarantees endorsed thereon modified as to conform, in the opinion of the Trustee for the Securities of such series, the Company and (in the case of Guaranteed Securities) the Guarantor, to any supplemental indenture may be prepared and executed by the Company and authenticated and delivered by such Trustee in exchange for Outstanding Securities of such series. SECTION 907. Effect on Senior Indebtedness. No supplemental indenture shall directly or indirectly modify or eliminate the provisions of Article Fourteen or the definition of "Senior Indebtedness" in any manner which might terminate or impair the subordination of the Securities to Senior Indebtedness without the prior written consent of the Holders of the Senior Indebtedness. In the case of Guaranteed Securities, no supplemental indenture shall directly or indirectly modify or eliminate the provisions of Article Fifteen or the definition of "Guarantor Senior Indebtedness" in any manner which might terminate or impair the subordination of the Guarantee to Guarantor Senior Indebtedness without the prior written consent of the Holders of the Guarantor Senior Indebtedness. ARTICLE TEN COVENANTS SECTION 1001. Payment of Principal, Premium and Interest. The Company covenants and agrees for the benefit of each series of Securities that it will duly and punctually pay the principal of (and premium, if any) and interest, if any, on the Securities of that series in accordance with the terms of the Securities and this Indenture. SECTION 1002. Maintenance of Office or Agency. The Company will maintain in each Place of Payment for any series of Securities an office or agency where Securities of that series may be presented or surrendered for payment, where Securities of that series may be surrendered for registration of transfer or exchange and 66 where notices and demands to or upon the Company in respect of the Securities of that series and this Indenture may be served. If Securities are Guaranteed Securities, the Guarantor will maintain an office or agency in each Place of Payment for any series of Guaranteed Securities where notices and demands to or upon the Guarantor in respect of the Guaranteed Securities of that series and this Indenture may be served. The Company and (in the case of Guaranteed Securities) the Guarantor will give prompt written notice to the Trustee for Securities of that series of the location, and any change in the location, of such office or agency. If at any time the Company or (in the case of Guaranteed Securities) the Guarantor shall fail to maintain any such required office or agency or shall fail to furnish the Trustee for the Securities of that series with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of such Trustee, and the Company and (in the case of Guaranteed Securities) the Guarantor hereby appoints such Trustee as its agent to receive all such presentations, surrenders, notices and demands. The Company may also from time to time designate one or more other offices or agencies where the Securities of one or more series may be presented or surrendered for any or all such purposes and may from time to time rescind such designations; provided, however, that no such designation or rescission shall in any manner relieve the Company of its obligation to maintain an office or agency in each Place of Payment for Securities of any series for such purposes. The Company will give prompt written notice to the Trustee for the Securities of each series of any such designation or rescission and of any change in the location of any such other office or agency. SECTION 1003. Money for Securities Payments to Be Held in Trust. If the Company shall at any time act as its own Paying Agent with respect to any series of Securities, it will, on or before each due date of the principal of (and premium, if any) or interest, if any, 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, if any, 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 for the Securities of such series 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, if any, 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 for the Securities of such series) the Company will promptly notify such Trustee of its action or failure so to act. The Company will cause each Paying Agent for any series of Securities other than the Trustee for the Securities of such series to execute and deliver to such Trustee an instrument in which such Paying Agent shall agree with such Trustee, subject to the provisions of this Section, that such Paying Agent will: 67 (1) hold all sums held by it for the payment of the principal of (and premium, if any) or interest, if any, on Securities of that series in trust for the benefit of the persons entitled thereto until such sums shall be paid to such persons or otherwise disposed of as herein provided; (2) give such Trustee notice of any default by the Company (or any other obligor upon the Securities of that series) in the making of any payment of principal (and premium, if any) or interest, if any, on the Securities of that series; and (3) at any time during the continuance of any such default, upon the written request of such Trustee, forthwith pay to such 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 for the Securities of any series all sums held in trust by the Company or such Paying Agent, such sums to be held by such 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 such 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 for the Securities of any series, or then held by the Company or (in the case of Guaranteed Securities) the Guarantor, in trust for the payment of the principal of (and premium, if any) or interest, if any, 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 or (in the case of Guaranteed Securities) the Guarantor on Company Request, or (if then held by the Company or (in the case of Guaranteed Securities) the Guarantor) shall be discharged from such trust; and the Holder of such Security shall thereafter, as an unsecured general creditor, look only to the Company or (in the case of Guaranteed Securities) the Guarantor, as the case may be, for payment thereof, and all liability of such Trustee or such Paying Agent with respect to such trust money, and all liability of the Company or (in the case of Guaranteed Securities) the Guarantor, as the case may be, as trustee thereof, shall thereupon cease; provided, however, that such Trustee or such Paying Agent, before being required to make any such repayment, may at the expense of the Company cause to be published once, in a newspaper published in the English language, customarily published on each Business Day and of general circulation in the City, County and State of New York, notice that such money remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such publication, any unclaimed balance of such money then remaining will be repaid to the Company or (in the case of Guaranteed Securities) the Guarantor, as the case may be. 68 SECTION 1004. [Intentionally Omitted]. SECTION 1005. [Intentionally Omitted]. SECTION 1006. Defeasance of Certain Obligations. The Company and the Guarantor (in the case of Guaranteed Securities) may omit to comply with, and shall have no liability in respect of, any term, provision or condition set forth in any specified covenant, provision or condition set forth in any supplemental indenture, Board Resolution or Officer's Certificate establishing any series of Securities with respect to the Securities of any series, whether directly or indirectly, by reason of any reference elsewhere herein to any such covenant, to any other provision herein or in any other document and such omission to comply shall not constitute a Default or Event of Default under Section 501(4) or otherwise, as the case may be, provided that the following conditions shall have been satisfied: (1) The Company or the Guarantor has deposited or caused to be irrevocably deposited (except as provided in Section 402(c) and the last paragraph of Section 1003) with the Trustee for the Securities of such series (specifying that each deposit is pursuant to this Section 1006) as trust funds in trust, specifically pledged as security for, and dedicated solely to, the benefit of the Holders of the Securities of such series, (i) money in an amount, or (ii) (except as provided in a supplemental indenture with respect to such series) if Securities of such series are not subject to repurchase at the option of such Holders, (A) U.S. Government Obligations which through the payment of interest and principal in respect thereof in accordance with their terms will provide not later than one day before the due date of any payment referred to in clause (x) or (y) of this subparagraph (1) money in an amount, or (B) a combination thereof, sufficient, in the opinion of a nationally recognized firm of independent certified public accountants expressed in a written certification thereof delivered to such Trustee, to pay and discharge (x) the principal of (and premium, if any) and each installment of principal (and premium, if any) and interest, if any, on the Outstanding Securities of such series on the Stated Maturity of such principal or installment of principal or interest or to and including the Redemption Date irrevocably designated by the Company pursuant to subparagraph (4) of this Section and (y) any mandatory sinking fund payments applicable to the Securities of such series on the day on which such payments are due and payable in accordance with the terms of the Indenture and of the Securities of such series; (2) No Event of Default or event which with notice or lapse of time would become an Event of Default (including by reason of such deposit) with respect to the Securities of such series shall have occurred and be continuing on the date of such deposit; (3) The Company or (in the case of Guaranteed Securities) the Guarantor shall have delivered to such Trustee an Opinion of Counsel to the effect that Holders of the Securities of such series will not recognize income, gain 69 or loss for Federal income tax purposes as a result of such deposit and defeasance of certain obligations; and (4) If the Company or (in the case of Guaranteed Securities) the Guarantor has deposited or caused to be deposited money or U.S. Government Obligations to pay or discharge the principal of (and premium, if any) and interest, if any, on the Outstanding Securities of a series to and including a Redemption Date on which all of the Outstanding Securities of such series are to be redeemed, such Redemption Date shall be irrevocably designated by a Board Resolution of the Company or delivered to such Trustee on or prior to the date of deposit of such money or U.S. Government Obligations, and such Board Resolution shall be accompanied by an irrevocable Company Request that such Trustee give notice of such redemption in the name and at the expense of the Company and less than 30 nor more than 60 days prior to such Redemption Date in accordance with Section 1104. SECTION 1007. Statement by Officer as to Default. The Company will deliver to the Trustee for each series of Securities, on or before May 15 in each year ending after the date hereof, an Officer's Certificate stating that in the course of the performance by such signer of his or her duties as an officer of the Company he would normally have knowledge of any default by the Company in the performance and observance of any of the covenants contained in any specified covenant set forth in any supplemental indenture, Board Resolution or Officer's Certificate establishing any series of Securities, stating whether or not he has knowledge of any such default and, if so, specifying each such default of which such signer has knowledge and the nature thereof. The Company shall deliver to the Trustee, for each series of Securities as soon as possible and in any event within five days after the Company becomes aware of the occurrence of any Event of Default or an event which, with notice or the lapse of time or both, would constitute an Event of Default, an Officer's Certificate setting forth the details of such Event of Default or default and the action which the Company proposes to take with respect thereto. SECTION 1008. Waiver of Certain Covenants. The Company may omit in any particular instance to comply with any term, provision or condition set forth in any specified covenant set forth in any supplemental indenture, Board Resolution or Officer's Certificate establishing any series of Securities if before the time for such compliance the Holders of at least a majority in principal amount of the Outstanding Securities of all series affected by such omission (voting as one class) shall, by Act of such Holders, either waive such compliance in such instance or generally waive compliance with such term, provision or condition, but no such waiver shall extend to or affect such term, provision or condition except to the extent so expressly waived, and, until such waiver shall become effective, the obligations of the Company and the Guarantor, as the case may be, and the duties of the Trustee for the Securities of each series in respect of any such term, provision or condition shall remain in full force and effect. 70 SECTION 1009. Calculation of Original Issue Discount. The Company shall file with the Trustee for the Securities of each series promptly at the end of each calendar year (i) a written notice specifying the amount of original issue discount (including daily rates and accrual periods) accrued on the Outstanding Securities as of the end of such year and (ii) such other specific information relating to such original issue discount as may then be relevant under the Internal Revenue Code of 1986, as amended from time to time. ARTICLE ELEVEN REDEMPTION OF SECURITIES SECTION 1101. Applicability of Article. Securities of any series which are redeemable before their Stated Maturity shall be redeemable in accordance with their terms and (except as otherwise specified as contemplated by Section 301 for Securities of any series) in accordance with this Article. SECTION 1102. Election to Redeem; Notice to Trustee. The election of the Company to redeem any Securities of any series shall be evidenced by an Officer's Certificate. 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 60 days prior to the Redemption Date fixed by the Company (unless a shorter notice shall be reasonably satisfactory to the Trustee for the Securities of such series), notify such Trustee of such Redemption Date and of the principal amount of Securities of such series to be redeemed, such notice to be accompanied by a written statement signed by an authorized officer of the Company stating that no defaults in the payment of interest or Events of Default with respect to the Securities of that series have occurred (which have not been waived or cured). 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 for the Securities of such series 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 of that series to be redeemed shall be selected not more than 60 days prior to the Redemption Date by the Trustee for the Securities of such series, from the Outstanding Securities of such series not previously called for redemption, by such method as such Trustee shall deem fair and appropriate and which may provide for the selection for redemption of portions (equal to the minimum authorized denomination for Securities of that series or any integral multiple thereof) of the principal amount of Securities of such series of a denomination larger than the minimum authorized denomination for Securities of that series. Securities shall be excluded from eligibility for selection for redemption if they are identified by registration and certificate number in a written statement signed by an authorized officer of the Company and delivered to the Trustee for the Securities of such series at least 60 days prior to the Redemption Date as being owned of record and beneficially by, and not pledged or hypothecated by either (a) the Company or (in the case of Guaranteed Securities) the 71 Guarantor or (b) an entity specifically identified in such written statement which is an Affiliate of the Company or (in the case of Guaranteed Securities) the Guarantor. The Trustee for the Securities of such series shall promptly notify the Company and (in the case of Guaranteed Securities) the Guarantor in writing of the Securities selected for redemption and, in the case of any Securities selected for partial redemption, the principal amount thereof to be redeemed. For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of Securities shall relate, in the case of any Securities redeemed or to be redeemed only in part, to the portion of the principal amount of such Securities which has been or is to be redeemed. SECTION 1104. Notice of Redemption. Notice of redemption shall be given by first-class mail, postage prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption Date, to each Holder of Securities to be redeemed, at his or her 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; (4) that on the Redemption Date the Redemption Price will become due and payable upon each such Security to be redeemed and, if applicable, that interest thereon will cease to accrue on and after said date; (5) the place or places where such Securities are to be surrendered for payment of the Redemption Price; and (6) that the redemption is for a sinking fund, if such is the case. Notice of redemption of Securities to be redeemed at the election of the Company shall be given by the Company or, at the Company's request, by the Trustee for such Securities in the name and at the expense of the Company. SECTION 1105. Deposit of Redemption Price. At least one Business Day prior to any Redemption Date, the Company or (in the case of Guaranteed Securities) the Guarantor shall deposit with the Trustee for the Securities to be redeemed or with a Paying Agent (or, if the Company or (in the case of Guaranteed Securities) the Guarantor is acting as its own Paying Agent, segregate and hold in trust as provided in 72 Section 1003) an amount of money sufficient to pay the Redemption Price of, and (except if the Redemption Date shall be an Interest Payment Date) accrued interest on, all the Securities which are to be redeemed on that date (to the extent that such amounts are not already on deposit at such time in accordance with the provisions of Section 401, 403 or 1006). 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 and unpaid 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 and unpaid interest to the Redemption Date; provided, however, that installments of interest whose Stated Maturity is on or prior to the Redemption Date shall be payable to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Record Dates according to their terms and the provisions of Section 307. If any Security called for redemption shall not be so paid upon surrender thereof for redemption, the principal (and premium, if any) shall, until paid, bear interest from the Redemption Date at the rate prescribed therefor in the Security. SECTION 1107. Securities Redeemed in Part. Any Security which is to be redeemed only in part shall be surrendered at a Place of Payment therefor (with, if the Company or the Trustee for such Security so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and such Trustee duly executed by, the Holder thereof or his or her attorney duly authorized in writing), and the Company shall execute, and such Trustee shall authenticate and deliver to the Holder of such Security without service charge, a new Security or Securities of the same series, and, in the case of Guaranteed Securities, having endorsed thereon the Guarantee executed by the Guarantor, of any authorized denomination as requested by such Holder, in aggregate principal amount equal to and in exchange for the unredeemed portion of the principal of the Security so surrendered. ARTICLE TWELVE SINKING FUNDS SECTION 1201. Applicability of Article. The provisions of this Article shall be applicable to any sinking fund for the retirement of Securities of 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 73 Securities of any series is herein referred to as an "optional sinking fund payment." If provided for by the terms of Securities of any series, the cash amount of any sinking fund payment may be subject to reduction as provided in Section 1202. Each sinking fund payment shall be applied to the redemption of Securities of any series as provided for by the terms of Securities of such series. SECTION 1202. Satisfaction of Sinking Fund Payments with Securities. In lieu of making all or any part of any mandatory sinking fund payment with respect to any series of Securities in cash, the Company may at its option (a) deliver to the Trustee for such Securities, Securities of such series theretofore purchased or otherwise acquired (except upon redemption pursuant to the mandatory sinking fund) by the Company or receive credit for Securities of such series (not previously so credited) theretofore purchased or otherwise acquired (except as aforesaid) by the Company and delivered to such Trustee for cancellation pursuant to Section 309, (b) receive credit for optional sinking fund payments (not previously so credited) made pursuant to this Section, or (c) receive credit for Securities of such series (not previously so credited) redeemed by the Company through any optional redemption provision contained in the terms of such series. Securities so delivered or credited shall be received or credited by such Trustee at the sinking fund redemption price specified in such Securities. SECTION 1203. Redemption of Securities for Sinking Fund. Not less than 60 days prior to each sinking fund payment date for any series of Securities, the Company will deliver to the Trustee for the Securities of such series an Officer's Certificate (which need not contain the statements required by Section 102) stating that no defaults in the payment of interest, if any, with respect to Securities of that series and no Events of Default with respect to Securities of that series have occurred (which in either case have not been waived or cured) and (a) specifying the amount of the next ensuing sinking fund payment for that series pursuant to the terms of that series, (b) whether or not the Company intends to exercise its right, if any, to make an optional sinking fund payment with respect to such series on the next ensuing sinking fund payment date and, if so, the amount of such optional sinking fund payment, and (c) 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 such Trustee any Securities to be so delivered. Such written statement shall be irrevocable and upon its receipt by such Trustee the Company shall become unconditionally obligated to make all the cash payments or payments therein referred to, if any, on or before the next succeeding sinking fund payment date. Failure of the Company, on or before any such 60th day, to deliver such written statement and Securities specified in this paragraph, if any, shall not constitute a default but shall constitute, on and as of such date, the irrevocable election of the Company (i) that the mandatory sinking fund payment for such series due on the next succeeding sinking fund payment date shall be paid entirely in cash without the option to deliver or credit Securities of such series in respect therefor and (ii) that the Company will make no optional sinking fund payment with respect to such series as provided in this Section. Not less than 30 days before each such sinking fund payment date the Trustee for any series of Securities shall select the Securities of such series 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 74 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 1105, 1106 and 1107. The Trustee for any series of Securities shall not redeem or cause to be redeemed any Security of such series with sinking fund moneys or mail any notice of redemption of Securities of such series by operation of the sinking fund during the continuance of a default in payment of interest with respect to Securities of that series or an Event of Default with respect to the Securities of that series except that, where the mailing of notice of redemption of any Securities shall theretofore have been made, such Trustee shall redeem or cause to be redeemed such Securities, provided that it shall have received from the Company a sum sufficient for such redemption. Except as aforesaid, any moneys in the sinking fund for such series at the time when any such default or Event of Default, shall occur, and any moneys thereafter paid into the sinking fund, shall, during the continuance of such default or Event of Default, be deemed to have been collected under Article Five and held for the payment of all such Securities. In case such Event of Default shall have been waived as provided in Section 513 or the default or Event of Default cured on or before the 60th day preceding the sinking fund payment date, such moneys shall thereafter be applied on the next succeeding sinking fund payment date in accordance with this Section to the redemption of such Securities. ARTICLE THIRTEEN GUARANTEE OF GUARANTEED SECURITIES SECTION 1301. Guarantee. (a) Subject to the provisions of this Article Thirteen and for good and valuable consideration, the receipt of which is hereby acknowledged, the Guarantor hereby fully and unconditionally guarantees to each Holder of a Guaranteed Security of each series authenticated and delivered by the Trustee for such Guaranteed Securities hereunder and to such Trustee on behalf of each such Holder, the due and punctual payment of principal of, premium, if any, and interest on the Guaranteed Securities when and as the same shall become due and payable, whether at the Stated Maturity, by declaration of acceleration, call for redemption or otherwise, according to the terms thereof and of this Indenture. In case of the failure of the Company promptly to make any such payment of principal, premium, if any, or interest, the Guarantor hereby agrees to make any such payment to be made promptly when and as the same shall become due and payable, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise, and as if such payment were made by the Company. The Guarantee shall be subordinated in right of payment to Guarantor Senior Indebtedness as set forth in Article Fifteen. (b) The Guarantor hereby agrees that its obligations hereunder shall be as if it were principal debtor and not merely surety, and shall be absolute and unconditional, joint and several, irrespective of, and shall be unaffected by any failure to enforce the provisions of such Guaranteed Security or this Indenture, or any waiver, modification or indulgence granted to the Company with respect thereto, by the Holder of such Guaranteed Security or the Trustee for the Securities of such series or any other circumstance which may otherwise constitute a legal or equitable discharge of a surety or guarantor; provided, however, that, notwithstanding the foregoing, no such waiver, 75 modification or indulgence shall, without the consent of the Guarantor, increase the principal amount of such Guaranteed Security, or increase the interest rate thereon, or increase any premium payable upon redemption thereof, or alter the Stated Maturity thereof, or increase the principal amount of any Original Issue Discount Security that would be due and payable upon a declaration of acceleration or the maturity thereof pursuant to Article Five of this Indenture. The Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of merger or bankruptcy of the Company, any right to require a proceeding first against the Company, protest or notice with respect to such Guaranteed Security or the indebtedness evidenced thereby or with respect to any sinking fund or analogous payment required under such Guaranteed Security and all demands whatsoever, and covenants that this Guarantee will not be discharged except by payment in full of the principal of, premium, if any, and interest on such Guaranteed Security or as otherwise set forth in this Indenture. (c) The Guarantor shall be subrogated to all rights of the Holder of such Guaranteed Security and the Trustee for the Securities of such series against the Company in respect of any amounts paid to such Holder by the Guarantor pursuant to the provisions of this Guarantee; provided, however, that the Guarantor shall not be entitled to enforce or to receive any payments arising out of or based upon such right of subrogation until the principal of, premium, if any, and interest on all Securities of the same series issued under the Indenture shall have been paid in full. SECTION 1302. Execution and Delivery of Guarantees. The Guarantees to be endorsed on the Guaranteed Securities of each series shall include the terms of the guarantees set forth in Section 1301 and any other terms that may be set forth in the form established pursuant to Section 206 with respect to such series. The Guarantor hereby agrees to execute the Guarantees, in a form established pursuant to Section 206, to be endorsed on each Guaranteed Security authenticated and delivered by the Trustee for the Securities of such series. The Guarantees shall be executed in accordance with Section 303. The delivery of any Guaranteed Security by the Trustee for the Securities of such series, after the authentication thereof hereunder, shall constitute due delivery of the Guarantee endorsed thereon on behalf of the Guarantor. The Guarantor hereby agrees that its Guarantee set forth in Section 1301 shall remain in full force and effect notwithstanding any failure to endorse a Guarantee on any Guaranteed Security. SECTION 1303. Notice to Trustee. The Guarantor shall give prompt written notice to the Trustee for the Securities of such series of any fact known to the Guarantor which prohibits the making of any payment to or by such Trustee in respect of the Guarantee pursuant to the provisions of this Article Thirteen other than any agreement in effect on the date hereof. 76 SECTION 1304. This Article Not to Prevent Events of Default. The failure to make a payment on account of principal of, premium, if any, or interest on the Guaranteed Securities by reason of any provision of this Article will not be construed as preventing the occurrence of an Event of Default. SECTION 1305. Amendment, Etc. No amendment, modification or waiver of any provision of this Indenture relating to the Guarantor or consent to any departure by the Guarantor or any other person from any such provision will in any event be effective unless it is signed by the Guarantor and the Trustee for the Securities of such series. SECTION 1306. Limitation on Liability. The obligations of the Guarantor hereunder will be limited to the maximum amount, as will not result in the obligations of the Guarantor under the Guarantee constituting a fraudulent conveyance or fraudulent transfer, after giving effect to all other relevant liabilities of the Guarantor. ARTICLE FOURTEEN SUBORDINATION OF SECURITIES Unless otherwise set forth in the supplemental indenture, Board Resolution or Officer's Certificate pursuant to Section 301 establishing the terms of a series of Securities, such series of Securities shall be subject to the following provisions: SECTION 1401. Agreement to Subordinate. The Company, for itself, its successors and assigns, covenants and agrees, and each Holder of Securities by his acceptance thereof, likewise covenants and agrees, that the payment of the principal of (and premium, if any) and interest, if any, on each and all of the Securities is hereby expressly subordinated, to the extent and in the manner hereinafter set forth, in right of payment to the prior payment in full in cash or cash equivalents or, as acceptable to the holders of Senior Indebtedness, in any other manner, of all amounts payable under all existing and future Senior Indebtedness. This Article Fourteen shall constitute a continuing offer to all Persons who, in reliance upon such provisions, become holders of, or continue to hold Senior Indebtedness; and such provisions are made for the benefit of the holders of Senior Indebtedness; and such holders are made obligees hereunder and they or each of them may enforce such provisions. SECTION 1402. Payment Over of Proceeds upon Dissolution, etc. In the event of (a) any insolvency or bankruptcy case or proceeding, or any receivership, liquidation, reorganization or other similar case or proceeding in connection therewith, relating to the Company or to its assets, or (b) any liquidation, dissolution or other winding-up of the Company whether voluntary or involuntary and whether or not involving insolvency or 77 bankruptcy, or (c) any assignment for the benefit of creditors or any other marshalling of assets or liabilities of the Company then and in any such event (subject to the power of a court of competent jurisdiction to make other equitable provision reflecting the rights conferred in this Indenture upon the Senior Indebtedness and the holders thereof with respect to the Securities and the Holders thereof by a lawful plan of reorganization under applicable bankruptcy law): (1) the holders of Senior Indebtedness shall be entitled to receive payment in full, in cash or cash equivalents or, as acceptable to the holders of Senior Indebtedness, in any other manner, of all Senior Indebtedness (including principal, premium, if any and interest, if any, and including, in the case of Designated Senior Indebtedness, any interest accruing subsequent to the filing of a petition for bankruptcy at the rate provided for in the documentation governing such Designated Senior Indebtedness, to the extent that such interest is an allowed claim under applicable law), or provision shall be made for such payment, before the Holders of the Securities are entitled to receive any payment or distribution of any kind or character (excluding securities of the Company or any other person that are equity securities or are expressly subordinated in right of payment to all Senior Indebtedness that may at the time be outstanding, to substantially the same extent as, or to a greater extent than, the Securities as provided in this Article; such securities are hereinafter collectively referred to as "Permitted Junior Securities") on account of principal of, premium, if any, or interest on the Securities; (2) any payment or distribution of assets of the Company of any kind or character, whether in cash, property or securities (excluding Permitted Junior Securities), by set-off or otherwise, to which the Holders of the Securities or the Trustee for the Securities of such series would be entitled but for the provisions of this Article Fourteen shall be paid by the liquidating trustee or agent or other person making such payment or distribution, whether a trustee in bankruptcy, a receiver or liquidating trustee or otherwise, directly to the holders of Senior Indebtedness or their representative or representatives or to the trustee or trustees under any indenture under which any instruments evidencing any of such Senior Indebtedness may have been issued, ratably according to the aggregate amounts remaining unpaid on account of the Senior Indebtedness held or represented by each, to the extent necessary to make payment in full, in cash or cash equivalents or, as acceptable to the holders of Senior Indebtedness, in any other manner, of all Senior Indebtedness remaining unpaid, after giving effect to any concurrent payment or distribution to or for the holders of such Senior Indebtedness; and (3) in the event that, notwithstanding the foregoing provisions of this Section 1402, the Trustee for any series of Securities or the Holder of any Security shall have received any payment or distribution of assets of the Company of any kind or character, whether in cash, property or securities, in respect of principal of, premium, if any, or interest, if any, on the Securities before all Senior Indebtedness is paid in full, in cash or cash equivalents or, as acceptable to the holders of Senior Indebtedness, in any other manner, or payment thereof provided for, then and in such event such payment or distribution (excluding Permitted 78 Junior Securities) shall be paid over or delivered forthwith to the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or other Person making payment or distribution of assets of the Company for application to the payment of all Senior Indebtedness remaining unpaid, ratably as aforesaid, to the extent necessary to pay all Senior Indebtedness in full, in cash or cash equivalents or, as acceptable to the holders of Senior Indebtedness, in any other manner, after giving effect to any concurrent payment or distribution to or for the holders of Senior Indebtedness. The consolidation or amalgamation of the Company with, or the merger of the Company with or into, another person or the liquidation or dissolution of the Company following the conveyance, transfer, lease or other disposition of its properties and assets substantially as an entirety to another Person upon the terms and conditions set forth in Article Eight hereof shall not be deemed a dissolution, winding-up, liquidation, reorganization, assignment for the benefit of creditors or marshalling of assets and liabilities of the Company for the purposes of this Article Fourteen if the Person formed by such consolidation or amalgamation or the surviving entity of such merger or the Person which acquires by conveyance, transfer, lease or other disposition such properties and assets substantially as an entirety, as the case may be, shall, as a part of such consolidation, amalgamation, merger, conveyance, transfer, lease or other disposition, comply with the conditions set forth in such Article Eight. SECTION 1403. No Payment on Securities in Event of Default on Senior Indebtedness. No payment by the Company on account of principal of, or premium, if any, sinking funds or interest, if any, on the Securities shall be made unless full payment of amounts then due for the principal of, and premium, if any, sinking funds and interest, if any, on Senior Indebtedness has been made or duly provided for in money or money's worth. SECTION 1404. Trustee's Relation to Senior Indebtedness. With respect to the holders of Senior Indebtedness, the Trustee for each series of Securities undertakes to perform or to observe only such of its covenants and obligations as are specifically set forth in this Article Fourteen, and no implied covenants or obligations with respect to the holders of Senior Indebtedness shall be read into this Indenture against such Trustee. The Trustee for each series of Securities shall not be deemed to owe any fiduciary duty to the holders of Senior Indebtedness and such Trustee shall not be liable to any holder of Senior Indebtedness if it shall mistakenly pay over or deliver to Holders of Securities, the Company, the Guarantor (in the case of Guaranteed Securities) or any other Person, moneys or assets to which any holder of Senior Indebtedness shall be entitled by virtue of this Article Fourteen or otherwise. SECTION 1405. Subrogation to Rights of Holders of Senior Indebtedness. Upon the payment in full of all Senior Indebtedness, the Holders of the Securities shall be subrogated to the rights of the holders of such Senior Indebtedness to receive payments and distributions of cash, property and securities applicable to the Senior Indebtedness until the principal of, premium, if any, and interest, if any, on the Securities shall be paid in full in cash or 79 cash equivalents. For purposes of such subrogation, no payments or distributions to the holders of Senior Indebtedness of any cash, property or securities to which the Holders of the Securities or the Trustee for such series of Securities would be entitled except for the provisions of this Article Fourteen, and no payments over pursuant to the provisions of this Article Fourteen to the holders of Senior Indebtedness by Holders of the Securities or such Trustee shall, as among the Company, its creditors other than holders of Senior Indebtedness, and the Holders of the Securities, be deemed to be a payment or distribution by the Company to or on account of the Senior Indebtedness. SECTION 1406. Provisions Solely To Define Relative Rights. The provisions of this Article Fourteen are and are intended solely for the purpose of defining the relative rights of the Holders of the Securities on the one hand and the holders of Senior Indebtedness on the other hand. Nothing contained in this Article Fourteen or elsewhere in this Indenture or in the Securities is intended to or shall (a) impair, as among the Company, its creditors other than holders of Senior Indebtedness and the Holders of the Securities, the obligations of the Company, which is absolute and unconditional, to pay to the Holders of the Securities the principal of, premium, if any, and interest, if any, on the Securities as and when the same shall become due and payable in accordance with their terms; or (b) affect the relative rights of the Holders of the Securities and creditors of the Company other than the holders of Senior Indebtedness; or (c) prevent the Trustee for the Securities of such series or the Holder of any Security from exercising all remedies otherwise permitted by applicable law upon a Default or an Event of Default under this Indenture, subject to the rights, if any, under this Article Fourteen of the holders of Senior Indebtedness (1) in any case, proceeding, dissolution, liquidation or other winding up, assignment for the benefit of creditors or other marshalling of assets and liabilities of the Company referred to in Section 1402, to receive, pursuant to and in accordance with such Section, cash, property and securities otherwise payable or deliverable to such Trustee or such Holder, or (2) under the conditions specified in Section 1403, to prevent any payment prohibited by such Section or enforce their rights pursuant to Section 1403. The failure to make a payment on account of principal of, or premium, if any, or interest, if any, on, or sinking funds, if any, in respect of any Securities of any series by reason of any provision of this Article Fourteen shall not be construed as preventing the occurrence of a Default or an Event of Default with respect of the Securities of such series. SECTION 1407. Trustee To Effectuate Subordination. Each Holder of a Security by such Holder's acceptance thereof authorizes and directs the Trustee for the Securities of such series on such Holder's behalf to take such action as may be necessary or appropriate to effectuate the subordination provided in this Article Fourteen and appoints such Trustee his attorney-in-fact for any and all such purposes, including, in the event of any dissolution, winding-up, liquidation or reorganization of the Company whether in bankruptcy, insolvency, receivership proceedings or otherwise, the timely filing of a claim for the unpaid balance of the Indebtedness of the Company owing to such Holder in the form required in such proceedings and the causing of such claim to be approved. If such Trustee does not file such a claim prior to 30 days before the expiration of the time to file such a claim, the 80 holders of Senior Indebtedness, or any Senior Representative, may file such a claim on behalf of Holders of the Securities. SECTION 1408. No Waiver of Subordination Provisions. (a) No right of any present or future holder of any Senior Indebtedness to enforce subordination as herein provided shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company or by any act or failure to act, in good faith, by any such holder, or by any non-compliance by the Company or with the terms, provisions and covenants of this Indenture, regardless of any knowledge thereof any such holder may have or be otherwise charged with. (b) Without limiting the generality of Section 1408(a), the holders of Senior Indebtedness may, at any time and from time to time, without the consent of or notice to the Trustee for the Securities of any series or the Holders of the Securities, without incurring responsibility to the Holders of the Securities and without impairing or releasing the subordination provided in this Article Fourteen or the obligations hereunder of the Holders of the Securities to the holders of Senior Indebtedness, do any one or more of the following: (1) change the manner, place or terms of payment or extend the time of payment of, or renew or alter, Senior Indebtedness or any instrument evidencing the same or any agreement under which Senior Indebtedness is outstanding; (2) sell, exchange, release or otherwise deal with any property pledged, mortgaged or otherwise securing Senior Indebtedness; (3) release any Person liable in any manner for the collection or payment of Senior Indebtedness; and (4) exercise or refrain from exercising any rights against the Company and any other Person; provided, however, that in no event shall any such actions limit the right of the Holders of the Securities of any series to take any action to accelerate the maturity of such Securities pursuant to Article Five hereof or to pursue any rights or remedies hereunder or under applicable laws if the taking of such action does not otherwise violate the terms of this Indenture. SECTION 1409. Notices to Trustee. (a) The Company shall give prompt written notice to the Trustee for the Securities of each series of any fact known to the Company which would prohibit the making of any payment to or by such Trustee in respect of the Securities pursuant to this Article Fourteen. Failure to give such notice shall not affect the subordination of the Securities to Senior Indebtedness. Notwithstanding the provisions of this Article Fourteen or any other provisions of this Indenture, neither the Trustee for the Securities of any series nor any Paying Agent (other than the Company) shall be charged with knowledge of the existence of any Senior Indebtedness or of any event which would prohibit the making of any payment of moneys to or by such Trustee or such Paying Agent, unless and until such Trustee or such Paying Agent shall have received (in the case of such Trustee, at its Corporate Trust Office) written notice thereof from the Company or from the holder of any Senior Indebtedness or from such trustee for any such holder, together with proof satisfactory to such Trustee or such Paying Agent, as the case may be, of such holding of Senior Indebtedness or of the authority of such trustee; provided, however, that if at least two Business Days prior to the date upon which by the terms hereof any 81 such moneys may become payable for any purpose (including, without limitation, the payment of either the principal of, or premium, if any, or interest, if any, on any Security) such Trustee shall not have received with respect to such moneys the notice provided for in this Section 1409, then, anything herein contained to the contrary notwithstanding, such Trustee shall have full power and authority to receive such moneys and to apply the same to the purpose for which they were received, and shall not be affected by any notice to the contrary, which may be received by it within two Business Days prior to such date. (b) Subject to the provisions of Section 603, the Trustee for the Securities of each series shall be entitled to conclusively rely on the delivery to it of a written notice by a Person representing himself to be a holder of Senior Indebtedness (or a trustee on behalf of such holder) to establish that such a notice has been given by a holder of Senior Indebtedness or a trustee on behalf of any such holder. In the event that such Trustee determines in good faith that further evidence is required with respect to the right of any Person as a holder of Senior Indebtedness (or a trustee on behalf of such holder) to participate in any payment or distribution pursuant to this Article Fourteen, such Trustee may request such Person to furnish evidence to the reasonable satisfaction of such Trustee as to the amount of Senior Indebtedness held by such Person (or the amount of Senior Indebtedness as to which such Person is trustee), the extent to which such Person is entitled to participate in such payment or distribution and any other facts pertinent to the rights of such Person under this Article Fourteen and, if such evidence is not furnished, such Trustee may defer any payment to such Person pending judicial determination as to the right of such Person to receive such payment. SECTION 1410. Reliance on Judicial Order or Certificate of Liquidating Agent. Upon any payment or distribution of assets of the Company referred to in this Article Fourteen, the Trustee for the Securities of each series, subject to the provisions of Section 603, and the Holders shall be entitled to conclusively rely upon any order or decree entered by any court of competent jurisdiction in which such insolvency, bankruptcy, receivership, liquidation, reorganization, dissolution, winding-up or similar case or proceeding is pending, or a certificate of the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee for the benefit of creditors, agent or other person making such payment or distribution, delivered to such Trustee or to the Holders, for the purpose of ascertaining the Persons entitled to participate in such payment or distribution, the holders of Senior Indebtedness and other Indebtedness of the Company, the amount thereof or payable thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto or to this Article. SECTION 1411. Rights of Trustee as a Holder of Senior Indebtedness; Preservation of Trustee's Rights. The Trustee for the Securities of each series in its individual capacity shall be entitled to all the rights set forth in this Article Fourteen with respect to any Senior Indebtedness which may at any time be held by it, to the same extent as any other holder of Senior Indebtedness, and nothing in this Indenture shall deprive such Trustee of any of its rights as such holder. Nothing in this Article Fourteen shall apply to claims of, or payments to, such Trustee under or pursuant to Section 607. 82 SECTION 1412. Article Applicable to Paying Agents. In case at any time any Paying Agent other than the Trustee for the Securities of such series shall have been appointed by the Company or, in the case of Guaranteed Securities, the Guarantor, and be then acting hereunder, the term "Trustee" as used in this Article Fourteen shall in such case (unless otherwise expressly stated or the context otherwise requires) be construed as extending to and including such Paying Agent within its meaning as fully for all intents and purposes as if such Paying Agent were named in this Article Fourteen in addition to or in place of such Trustee; provided, however, that Section 1412 shall not apply to the Company, the Guarantor (in case of Guaranteed Securities) or any Affiliate of the Company if it acts as Paying Agent. SECTION 1413. No Suspension of Remedies. Nothing contained in this Article Fourteen shall limit the right of the Trustee for the Securities of any series or the Holders of Securities of any series to take any action to accelerate the maturity of such Securities pursuant to Article Five or to pursue any rights or remedies hereunder or under applicable law, subject to the rights, if any, under this Article Fourteen of the holders, from time to time, of Senior Indebtedness. Nothing contained in this Indenture or in any of the Securities shall (a) affect the obligation of the Company to make, or prevent the Company, from making, at any time except as provided in Sections 1402 and 1403, payments of principal of, or premium, if any, or interest, if any, on or sinking fund payments, if any, with respect to the Securities or (b) prevent the application by the Trustee for the Securities of any series of any moneys deposited with it hereunder to the payment of or on account of the principal of, or premium, if any, or interest, if any, on, the Securities, unless such Trustee shall have received at its Corporate Trust Office written notice of any event prohibiting the making of such payment more than two Business Days prior to the date fixed for such payment. SECTION 1414. Other Subordination Provisions. Securities of any series may include such other subordination provisions, including payment blockage provisions upon defaults other than payment defaults, and definitions of "Senior Indebtedness" and "Designated Senior Indebtedness" as may be provided in the supplemental indenture or provided in or pursuant to the Board Resolution or Officer's Certificate under which such series of Securities is issued or in the form of Security for such series. ARTICLE FIFTEEN SUBORDINATION OF GUARANTEES Unless otherwise set forth in the supplemental indenture, Board Resolution or Officer's Certificate pursuant to Section 301 establishing the terms of a series of Guaranteed Securities, the Guarantee of such series of Guaranteed Securities shall be subject to the following provisions: 83 SECTION 1501. Agreement to Subordinate. The Guarantor, for itself, its successors and assigns, covenants and agrees, and each Holder of Guaranteed Securities by his acceptance thereof, likewise covenants and agrees, that the payment of the principal of (and premium, if any) and interest, if any, on each and all of the Guaranteed Securities pursuant to the Guarantee is hereby expressly subordinated, to the extent and in the manner hereinafter set forth, in right of payment to the prior payment in full in cash or cash equivalents or, as acceptable to the holders of Guarantor Senior Indebtedness, in any other manner, of all amounts payable under all existing and future Guarantor Senior Indebtedness. This Article Fifteen shall constitute a continuing offer to all Persons who, in reliance upon such provisions, become holders of, or continue to hold Guarantor Senior Indebtedness; and such provisions are made for the benefit of the holders of Guarantor Senior Indebtedness; and such holders are made obligees hereunder and they or each of them may enforce such provisions. SECTION 1502. Payment Over of Proceeds upon Dissolution, etc. In the event of (a) any insolvency or bankruptcy case or proceeding, or any receivership, liquidation, reorganization or other similar case or proceeding in connection therewith, relating to the Guarantor or to its assets, or (b) any liquidation, dissolution or other winding-up of the Guarantor, whether voluntary or involuntary and whether or not involving insolvency or bankruptcy, or (c) any assignment for the benefit of creditors or any other marshalling of assets or liabilities of the Guarantor then and in any such event (subject to the power of a court of competent jurisdiction to make other equitable provision reflecting the rights conferred in this Indenture upon the Guarantor Senior Indebtedness and the holders thereof with respect to the Guaranteed Securities and the Holders thereof by a lawful plan of reorganization under applicable bankruptcy law): (1) the holders of Guarantor Senior Indebtedness shall be entitled to receive payment in full, in cash or cash equivalents or, as acceptable to the holders of Guarantor Senior Indebtedness, in any other manner, of all Guarantor Senior Indebtedness (including principal, premium, if any and interest, if any, and including, in the case of Designated Guarantor Senior Indebtedness, any interest accruing subsequent to the filing of a petition for bankruptcy at the rate provided for in the documentation governing such Designated Guarantor Senior Indebtedness, to the extent that such interest is an allowed claim under applicable law), or provision shall be made for such payment, before the Holders of the Guaranteed Securities are entitled to receive any payment or distribution of any kind or character (excluding securities of the Guarantor or any other person that are equity securities or are expressly subordinated in right of payment to all Guarantor Senior Indebtedness that may at the time be outstanding, to substantially the same extent as, or to a greater extent than, the Securities as provided in this Article; such securities are hereinafter collectively referred to as "Permitted Guarantor Junior Securities") on account of principal of, premium, if any, or interest on the Securities; 84 (2) any payment or distribution of assets of the Guarantor, of any kind or character, whether in cash, property or securities (excluding Permitted Guarantor Junior Securities), by set-off or otherwise, to which the Holders of the Guaranteed Securities or the Trustee for the Guaranteed Securities of such series would be entitled but for the provisions of this Article Fifteen shall be paid by the liquidating trustee or agent or other person making such payment or distribution, whether a trustee in bankruptcy, a receiver or liquidating trustee or otherwise, directly to the holders of Guarantor Senior Indebtedness or their representative or representatives or to the trustee or trustees under any indenture under which any instruments evidencing any of such Guarantor Senior Indebtedness may have been issued, ratably according to the aggregate amounts remaining unpaid on account of the Guarantor Senior Indebtedness held or represented by each, to the extent necessary to make payment in full, in cash or cash equivalents or, as acceptable to the holders of Guarantor Senior Indebtedness, in any other manner, of all Guarantor Senior Indebtedness remaining unpaid, after giving effect to any concurrent payment or distribution to or for the holders of such Guarantor Senior Indebtedness; and (3) in the event that, notwithstanding the foregoing provisions of this Section 1502, the Trustee for any series of Guaranteed Securities or the Holder of any Guaranteed Security shall have received any payment or distribution of assets of the Guarantor, of any kind or character, whether in cash, property or securities, in respect of the Guarantee before all Guarantor Senior Indebtedness is paid in full, in cash or cash equivalents or, as acceptable to the holders of Guarantor Senior Indebtedness, in any other manner, or payment thereof provided for, then and in such event such payment or distribution (excluding Permitted Guarantor Junior Securities) shall be paid over or delivered forthwith to the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or other Person making payment or distribution of assets of the Guarantor for application to the payment of all Guarantor Senior Indebtedness remaining unpaid, ratably as aforesaid, to the extent necessary to pay all Guarantor Senior Indebtedness in full, in cash or cash equivalents or, as acceptable to the holders of Guarantor Senior Indebtedness, in any other manner, after giving effect to any concurrent payment or distribution to or for the holders of Guarantor Senior Indebtedness. The consolidation of the Guarantor with, or the merger of the Guarantor with or into, another person or the liquidation or dissolution of the Guarantor following the conveyance, transfer, lease or other disposition of its properties and assets substantially as an entirety to another Person upon the terms and conditions set forth in Article Eight hereof shall not be deemed a dissolution, winding-up, liquidation, reorganization, assignment for the benefit of creditors or marshalling of assets and liabilities of the Guarantor for the purposes of this Article Fifteen if the Person formed by such consolidation or the surviving entity of such merger or the Person which acquires by conveyance, transfer, lease or other disposition such properties and assets substantially as an entirety, as the case may be, shall, as a part of such consolidation, merger, conveyance, transfer, lease or other disposition, comply with the conditions set forth in such Article Eight. 85 SECTION 1503. No Payment on Securities in Event of Default on Guarantor Senior Indebtedness. No payment by the Guarantor on account of principal of, or premium, if any, sinking funds or interest, if any, on the Guaranteed Securities pursuant to the Guarantee shall be made unless full payment of amounts then due for the principal of, and premium, if any, sinking funds and interest, if any, on Guarantor Senior Indebtedness has been made or duly provided for in money or money's worth. SECTION 1504. Trustee's Relation to Guarantor Senior Indebtedness. With respect to the holders of Guarantor Senior Indebtedness, the Trustee for each series of Guaranteed Securities undertakes to perform or to observe only such of its covenants and obligations as are specifically set forth in this Article Fifteen, and no implied covenants or obligations with respect to the holders of Guarantor Senior Indebtedness shall be read into this Indenture against such Trustee. The Trustee for each series of Guaranteed Securities shall not be deemed to owe any fiduciary duty to the holders of Guarantor Senior Indebtedness and such Trustee shall not be liable to any holder of Guarantor Senior Indebtedness if it shall mistakenly pay over or deliver to Holders of Securities, the Company, the Guarantor or any other Person moneys or assets to which any holder of Senior Indebtedness shall be entitled by virtue of this Article Fifteen or otherwise. SECTION 1505. Subrogation to Rights of Holders of Guarantor Senior Indebtedness. Upon the payment in full of all Guarantor Senior Indebtedness, the Holders of the Guaranteed Securities shall be subrogated to the rights of the holders of such Guarantor Senior Indebtedness to receive payments and distributions of cash, property and securities applicable to the Guarantor Senior Indebtedness until the principal of, premium, if any, and interest, if any, on the Guaranteed Securities shall be paid in full in cash or cash equivalents. For purposes of such subrogation, no payments or distributions to the holders of Guarantor Senior Indebtedness of any cash, property or securities to which the Holders of the Guaranteed Securities or the Trustee for such series of Guaranteed Securities would be entitled except for the provisions of this Article Fifteen, and no payments over pursuant to the provisions of this Article Fifteen to the holders of Guarantor Senior Indebtedness by Holders of the Guaranteed Securities or such Trustee shall, as among the Guarantor, the creditors of the Guarantor other than holders of Guarantor Senior Indebtedness, and the Holders of the Guaranteed Securities, be deemed to be a payment or distribution by the Guarantor to or on account of the Guarantor Senior Indebtedness. SECTION 1506. Provisions Solely To Define Relative Rights. The provisions of this Article Fifteen are and are intended solely for the purpose of defining the relative rights of the Holders of the Guaranteed Securities on the one hand and the holders of Guarantor Senior Indebtedness on the other hand. Nothing contained in this Article Fifteen or elsewhere in this Indenture or in the Guaranteed Securities or Guarantee is intended to or shall (a) impair, as among the Guarantor, its creditors other than holders of Guarantor Senior Indebtedness and the Holders of the Guarantor Securities, the obligation of the Guarantor, which is absolute and unconditional, to guarantee the payment to the Holders of the Guaranteed 86 Securities of the principal of, premium, if any, and interest, if any, on the Guaranteed Securities as and when the same shall become due and payable in accordance with their terms; or (b) affect the relative rights of the Holders of the Guaranteed Securities and creditors of the Guarantor other than the holders of Guarantor Senior Indebtedness; or (c) prevent the Trustee for the Guaranteed Securities of such series or the Holder of any Guaranteed Security from exercising all remedies otherwise permitted by applicable law upon a Default or an Event of Default under this Indenture, subject to the rights, if any, under this Article Fifteen of the holders of Senior Indebtedness (1) in any case, proceeding, dissolution, liquidation or other winding up, assignment for the benefit of creditors or other marshalling of assets and liabilities of the Guarantor, referred to in Section 1502, to receive, pursuant to and in accordance with such Section, cash, property and securities otherwise payable or deliverable to such Trustee or such Holder, or (2) under the conditions specified in Section 1503, to prevent any payment prohibited by such Section or enforce their rights pursuant to Section 1503. The failure to make a payment on account of principal of, or premium, if any, or interest, if any, on, or sinking funds, if any, in respect of any Guaranteed Securities pursuant to the Guarantee of any series by reason of any provision of this Article Fifteen shall not be construed as preventing the occurrence of a Default or an Event of Default with respect of the Guaranteed Securities of such series. SECTION 1507. Trustee To Effectuate Subordination. Each Holder of a Guaranteed Security by such Holder's acceptance thereof authorizes and directs the Trustee for the Guaranteed Securities of such series on such Holder's behalf to take such action as may be necessary or appropriate to effectuate the subordination provided in this Article Fifteen and appoints such Trustee his attorney-in-fact for any and all such purposes, including, in the event of any dissolution, winding-up, liquidation or reorganization of the Guarantor, whether in bankruptcy, insolvency, receivership proceedings or otherwise, the timely filing of a claim for the unpaid balance of the Indebtedness of the Company owing to such Holder in the form required in such proceedings and the causing of such claim to be approved. If such Trustee does not file such a claim prior to 30 days before the expiration of the time to file such a claim, the holders of Guarantor Senior Indebtedness, or any Guarantor Senior Representative, may file such a claim on behalf of Holders of the Guaranteed Securities. SECTION 1508. No Waiver of Subordination Provisions. (a) No right of any present or future holder of any Guarantor Senior Indebtedness to enforce subordination as herein provided shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Guarantor or by any act or failure to act, in good faith, by any such holder, or by any non-compliance by the Guarantor with the terms, provisions and covenants of this Indenture, regardless of any knowledge thereof any such holder may have or be otherwise charged with. (b) Without limiting the generality of Section 1508(a), the holders of Guarantor Senior Indebtedness may, at any time and from time to time, without the consent of or notice to the Trustee for the Guaranteed Securities of any series or the Holders of the Guaranteed Securities, without incurring responsibility to the Holders of the Guaranteed 87 Securities and without impairing or releasing the subordination provided in this Article Fifteen or the obligations hereunder of the Holders of the Guaranteed Securities to the holders of Guarantor Senior Indebtedness, do any one or more of the following: (1) change the manner, place or terms of payment or extend the time of payment of, or renew or alter, Guarantor Senior Indebtedness or any instrument evidencing the same or any agreement under which Senior Indebtedness is outstanding; (2) sell, exchange, release or otherwise deal with any property pledged, mortgaged or otherwise securing Guarantor Senior Indebtedness; (3) release any Person liable in any manner for the collection or payment of Guarantor Senior Indebtedness; and (4) exercise or refrain from exercising any rights against the Guarantor and any other Person; provided, however, that in no event shall any such actions limit the right of the Holders of the Guaranteed Securities of any series to take any action to accelerate the maturity of such Guaranteed Securities pursuant to Article Five hereof or to pursue any rights or remedies hereunder or under applicable laws if the taking of such action does not otherwise violate the terms of this Indenture. SECTION 1509. Notices to Trustee. (a) The Guarantor shall give prompt written notice to the Trustee for the Securities of each series of any fact known to the Guarantor which would prohibit the making of any payment to or by such Trustee in respect of the Guaranteed Securities by the Guarantor under the Guarantee pursuant to this Article Fifteen. Failure to give such notice shall not affect the subordination of the Guarantee to Guarantor Senior Indebtedness. Notwithstanding the provisions of this Article Fifteen or any other provisions of this Indenture, neither the Trustee for the Guaranteed Securities of any series nor any Paying Agent (other than the Guarantor) shall be charged with knowledge of the existence of any Guarantor Senior Indebtedness or of any event which would prohibit the making of any payment of moneys to or by such Trustee or such Paying Agent, unless and until such Trustee or such Paying Agent shall have received (in the case of such Trustee, at its Corporate Trust Office) written notice thereof from the Guarantor or from the holder of any Guarantor Senior Indebtedness or from the trustee for any such holder, together with proof satisfactory to such Trustee or such Paying Agent, as the case may be, of such holding of Guarantor Senior Indebtedness or of the authority of such trustee; provided, however, that if at least two Business Days prior to the date upon which by the terms hereof any such moneys may become payable for any purpose (including, without limitation, the payment of either the principal of, or premium, if any, or interest, if any, on any Guaranteed Security) such Trustee shall not have received with respect to such moneys the notice provided for in this Section 1509, then, anything herein contained to the contrary notwithstanding, such Trustee shall have full power and authority to receive such moneys and to apply the same to the purpose for which they were received, and shall not be affected by any notice to the contrary, which may be received by it within two Business Days prior to such date. (b) Subject to the provisions of Section 603, the Trustee for the Guaranteed Securities of each series shall be entitled to conclusively rely on the delivery to it of a written notice by a Person representing himself to be a holder of Guarantor Senior Indebtedness (or a trustee on behalf of such holder) to establish that such a notice has 88 been given by a holder of Guarantor Senior Indebtedness or a trustee on behalf of any such holder. In the event that such Trustee determines in good faith that further evidence is required with respect to the right of any Person as a holder of Guarantor Senior Indebtedness (or a trustee on behalf of such holder) to participate in any payment or distribution pursuant to this Article Fifteen, such Trustee may request such Person to furnish evidence to the reasonable satisfaction of such Trustee as to the amount of Guarantor Senior Indebtedness held by such Person (or the amount of Guarantor Senior Indebtedness as to which such Person is trustee), the extent to which such Person is entitled to participate in such payment or distribution and any other facts pertinent to the rights of such Person under this Article Fifteen and, if such evidence is not furnished, such Trustee may defer any payment to such Person pending judicial determination as to the right of such Person to receive such payment. SECTION 1510. Reliance on Judicial Order or Certificate of Liquidating Agent. Upon any payment or distribution of assets of the Guarantor referred to in this Article Fifteen, the Trustee for the Guaranteed Securities of each series, subject to the provisions of Section 603, and the Holders shall be entitled to conclusively rely upon any order or decree entered by any court of competent jurisdiction in which such insolvency, bankruptcy, receivership, liquidation, reorganization, dissolution, winding-up or similar case or proceeding is pending, or a certificate of the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee for the benefit of creditors, agent or other person making such payment or distribution, delivered to such Trustee or to the Holders, for the purpose of ascertaining the Persons entitled to participate in such payment or distribution, the holders of Guarantor Senior Indebtedness and other Indebtedness of the Guarantor, the amount thereof or payable thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto or to this Article. SECTION 1511. Rights of Trustee as a Holder of Guarantor Senior Indebtedness; Preservation of Trustee's Rights. The Trustee for the Guaranteed Securities of each series in its individual capacity shall be entitled to all the rights set forth in this Article Fifteen with respect to any Guarantor Senior Indebtedness which may at any time be held by it, to the same extent as any other holder of Guarantor Senior Indebtedness, and nothing in this Indenture shall deprive such Trustee of any of its rights as such holder. Nothing in this Article Fifteen shall apply to claims of, or payments to, such Trustee under or pursuant to Section 607. SECTION 1512. No Suspension of Remedies. Nothing contained in this Article Fifteen shall limit the right of the Trustee for the Guaranteed Securities of any series or the Holders of Guaranteed Securities of any series to take any action to accelerate the maturity of such Guaranteed Securities pursuant to Article Five or to pursue any rights or remedies hereunder or under applicable law, subject to the rights, if any, under this Article Fifteen of the holders, from time to time, of Guarantor Senior Indebtedness. Nothing contained in this Indenture or in any of the Guaranteed Securities shall (a) affect the obligation of the Guarantor to pay, or prevent the Guarantor from paying, at any time except 89 as provided in Sections 1502 and 1503, payments of principal of, or premium, if any, or interest, if any, on or sinking fund payments, if any, with respect to the Guaranteed Securities pursuant to the Guarantee or (b) prevent the application by the Trustee for the Guaranteed Securities of any series of any moneys deposited with it hereunder in respect of the Guarantee to the payment of or on account of the principal of, or premium, if any, or interest, if any, on, the Guaranteed Securities, unless such Trustee shall have received at its Corporate Trust Office written notice of any event prohibiting the making of such payment more than two Business Days prior to the date fixed for such payment. SECTION 1513. Other Subordination Provisions. Guaranteed Securities of any series may include such other subordination provisions with respect to the Guarantee, including payment blockage provisions upon defaults other than payment defaults, and definitions of "Guarantor Senior Indebtedness" and "Designated Guarantor Senior Indebtedness" as may be provided in the supplemental indenture or provided in or pursuant to the Board Resolution or Officer's Certificate under which such series of Guaranteed Securities is issued or in the form of Guaranteed Security and the Guarantee endorsed thereon for such series. IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed and their respective corporate seals to be hereunto affixed and attested, all as of the day and year first above written. [Seal] INGERSOLL-RAND COMPANY LIMITED, as the Company By:_______________________________ Title: Attest: Title: [Seal] INGERSOLL-RAND COMPANY, as the Guarantor By:_______________________________ Title: Attest: By:_______________________________ Title: Attest: [Seal] WELLS FARGO BANK MINNESOTA, N.A., as Trustee By:_______________________________ Title: Attest: STATE OF NEW YORK ) ) ss.: COUNTY OF NEW YORK ) On the ___ day of _________, 2002 before me personally came __________________, to me known, who, being by me duly sworn, did depose and say that he is ____________________ of Ingersoll-Rand Company Limited, one of the corporations described in and which executed the foregoing instrument; that he knows the seal of said corporation; that the seal affixed to said instrument is such corporate seal; that it was so affixed by authority of the Board of Directors of said corporation and that he signed his or her name thereto by like authority. ------------------------------- STATE OF NEW YORK ) ) ss.: COUNTY OF NEW YORK ) On the ___ day of _________, 2002 before me personally came __________________, to me known, who, being by me duly sworn, did depose and say that he is __________________ of Ingersoll-Rand Company, one of the corporations described in and which executed the foregoing instrument; that he knows the seal of said corporation; that the seal affixed to said instrument is such corporate seal; that it was so affixed by authority of the Board of Directors of said corporation and that he signed his or her name thereto by like authority. ------------------------------- STATE OF NEW YORK ) ) ss.: COUNTY OF NEW YORK ) On the ___ day of __________, 2002 before me personally came _________________, to me known, who, being by me duly sworn, did depose and say that he is _________________ of Wells Fargo Bank Minnesota, N.A., one of the corporations described in and which executed the foregoing instrument; that he knows the seal of said corporation; that the seal affixed to said instrument is such corporate seal; that it was so affixed by authority of the Board of Directors of said corporation, and that he signed his or her name thereto by like authority. --------------------------------- EX-5.1 6 exhibit5-1.txt OPINION RE: LEGALITY Exhibit 5.1 May 17, 2002 Ingersoll-Rand Company Limited Clarendon House 2 Church Street Hamilton, HM 11 Bermuda Ingersoll-Rand Company 200 Chestnut Ridge Road Woodcliff Lake, New Jersey 07677 Ladies and Gentlemen: I am Senior Vice President and General Counsel of Ingersoll-Rand Company Limited, a Bermuda company (the "Company"), and of Ingersoll-Rand Company, a New Jersey corporation (the "Guarantor"), and have acted as counsel for the Company and the Guarantor in connection with the Registration Statement on Form S-3 (the "Registration Statement") filed by the Company and the Guarantor with the Securities and Exchange Commission (the "Commission") under the Securities Act of 1933, as amended (the "Act"), relating to (i) Class A common shares of the Company, par value $1.00 per share (the "Common Shares"); (ii) warrants to purchase Common Shares (the "Common Share Warrants"); (iii) Preference Shares of the Company, par value $.001 per share (the "Preference Shares"), which may be represented by depositary shares (the "Depositary Shares") evidenced by depositary receipts (the "Depositary Receipts"); (iv) warrants to purchase Preference Shares (the "Preference Share Warrants"); (v) debt securities of the Company, which may be either senior ("Senior Debt Securities") or subordinated (the "Subordinated Debt Securities") (collectively the "Debt Securities"); (vi) warrants to purchase Debt Securities (the "Debt Security Warrants" and collectively with the Common Share Warrants and the Preference Share Warrants, the "Securities Warrants"); (vii) guarantees of the Guarantor which may be issued in connection with the Debt Securities (the "Guarantees"); (viii) contracts for the purchase and sale of Common Shares or Preference Shares (the "Purchase Contracts"); (ix) Share Purchase Units (the "Share Purchase Units") of the Company, consisting of a Purchase Contract and either Debt Securities or debt obligations of third parties, including U.S. Treasury Securities (the "Third Party Debt Securities"), securing the holder's obligation to purchase the Common Shares or the Preference Shares under the Purchase Contract; and (x) Common Shares, Preference Shares, Debt Securities and Guarantees which may be issued upon exercise of Securities Warrants or Purchase Contracts, whichever is applicable. The Common Shares, the Preference Shares, the Depositary Shares, the Debt Securities, the Guarantees, the Purchase Contracts, the Securities Warrants and the Share 2 Purchase Units are hereinafter referred to collectively as the "Securities." The Securities may be issued and sold or delivered from time to time as set forth in the Registration Statement, any amendment thereto, the prospectus contained therein (the "Prospectus") and supplements to the Prospectus (the "Prospectus Supplements") and pursuant to Rule 415 under the Act for an aggregate initial offering price not to exceed $1,800,000,000 or the equivalent thereof in one or more foreign currencies or composite currencies. The Senior Debt Securities and the Guarantees thereof will be issued under an Indenture (the "Senior Indenture") among the Company, the Guarantor and the senior indenture trustee (the "Senior Trustee"). The Subordinated Debt Securities and the Guarantees thereof will be issued under an Indenture (the "Subordinated Indenture") among the Company, the Guarantor and the subordinated indenture trustee (the "Subordinated Trustee"). The Senior Indenture and the Subordinated Indenture are hereinafter referred to collectively as the "Indentures." The Purchase Contracts will be issued pursuant to a Purchase Contract Agreement (the "Purchase Contract Agreement") between the Company and the purchase contract agent (the "Purchase Contract Agent"). The Depositary Shares will be issued pursuant to a deposit agreement (the "Deposit Agreement") between the Company and the depositary agent (the "Depositary Agent"). The Common Share Warrants will be issued under a Common Share Warrant Agreement (the "Common Share Warrant Agreement") between the Company and the common share warrant agent. The Preference Share Warrants will be issued under the Preference Share Warrant Agreement (the "Preference Share Warrant Agreement") between the Company and the preference share warrant agent. The senior Debt Security Warrants will be issued under a Senior Debt Security Warrant Agreement (the "Senior Debt Security Warrant Agreement") among the Company, the senior debt security warrant agent and the Senior Trustee. The subordinated Debt Security Warrants will be issued under a Subordinated Debt Security Warrant Agreement (the "Subordinated Debt Security Warrant Agreement") among the Company, the subordinated debt security warrant agent and the Subordinated Trustee. The Common Share Warrant Agreement, the Preference Share Warrant Agreement, the Senior Debt Security Warrant Agreement and the Subordinated Debt Security Warrant Agreement are hereinafter referred to collectively as the "Warrant Agreements." Each party to a Warrant Agreement other than the Company is referred to hereinafter as a "Counterparty." I have examined, or supervised the examination of, the Registration Statement and the forms of the Indentures, which have been filed with the Commission as exhibits to the Registration Statement. I have also examined, or supervised the examination of, the originals, or duplicates or certified or conformed copies, of such records, agreements, instruments and other documents and have made such other and further investigations as I have deemed relevant and 3 necessary in connection with the opinions expressed herein. As to questions of fact material to this opinion, I have relied upon certificates of public officials and of officers and representatives of the Company and the Guarantor. In rendering the opinions set forth below, I have assumed the genuineness of all signatures, the legal capacity of natural persons, the authenticity of all documents submitted to me as originals, the conformity to original documents of all documents submitted to me as duplicates or certified or conformed copies, and the authenticity of the originals of such latter documents. I also have assumed that: (1) at the time of execution, authentication, issuance and delivery of the Senior Debt Securities, the Senior Indenture will be the valid and legally binding obligation of the Senior Trustee; (2) at the time of execution, authentication, issuance and delivery of the Subordinated Debt Securities, the Subordinated Indenture will be the valid and legally binding obligation of the Subordinated Trustee; (3) at the time of execution, issuance and delivery of the Receipts, the Deposit Agreement will be the valid and legally binding obligation of the Depositary Agent; (4) at the time of execution, issuance and delivery of the Purchase Contracts, the Purchase Contract Agreement will be the valid and legally binding obligation of the Purchase Contract Agent; (5) at the time of execution, countersignature, issuance and delivery of any Securities Warrants, the related Warrant Agreement will be the valid and legally binding obligation of each Counterparty thereto; and (6) the Company is validly existing under the laws of Bermuda. I have assumed further that at the time of execution, authentication, issuance and delivery of the Indentures, the Debt Securities and the Guarantees, the Indentures will have been duly authorized, executed and delivered by the Guarantor. I have assumed further that (1) at the time of execution, authentication, issuance and delivery of the Indentures, the Debt Securities and the Guarantees, the Indentures will have been duly authorized, executed and delivered by the Company in accordance with its Memorandum of Association and Bye-laws and the laws of Bermuda, (2) execution, delivery and performance by the Company of the Indentures and the Debt Securities will not violate the laws of Bermuda or any other applicable laws and (3) execution, delivery and performance by the Company of the Indentures and the Debt Securities and the Guarantees do not constitute a breach or violation of any agreement or instrument which is binding upon Company. I have assumed further that (1) at the time of execution, issuance and delivery of the Purchase Contracts, the Purchase Contract Agreement will have been duly authorized, executed and delivered by the Company in accordance with its Memorandum of Association and Bye-laws and the laws of Bermuda, (2) execution, delivery and performance by the Company of the Purchase Contract Agreement and Purchase Contracts will not violate the laws of Bermuda or any other applicable laws and (3) execution, delivery and performance by the Company of the Purchase Contract Agreement and Purchase Contracts do not constitute a breach or violation of any agreement or instrument which is binding upon the Company. 4 I have assumed further that (1) at the time of execution, issuance and delivery of the Receipts, the Deposit Agreement will have been duly authorized, executed and delivered by the Company in accordance with its Memorandum of Association and Bye-laws and the laws of Bermuda, (2) execution, delivery and performance by the Company of the Deposit Agreement and Receipts will not violate the laws of Bermuda or any other applicable laws and (3) execution, delivery and performance by the Company of the Deposit Agreement and Receipts do not constitute a breach or violation of any agreement or instrument which is binding upon the Company. I have assumed further that (1) at the time of execution, countersignature, issuance and delivery of any Securities Warrants, the related Warrant Agreement will have been duly authorized, executed and delivered by the Company in accordance with its Memorandum of Association and Bye-laws and the laws of Bermuda, (2) execution, delivery and performance by the Company of such Warrant Agreement and Securities Warrants will not violate the laws of Bermuda or any other applicable laws and (3) execution, delivery and performance by the Company of such Warrant Agreement and Securities Warrants do not constitute a breach or violation of any agreement or instrument which is binding upon the Company. Based upon the foregoing, and subject to the qualifications and limitations stated herein, I am of the opinion that: 1. With respect to the Debt Securities, assuming (a) the taking of all necessary corporate action to authorize and approve the issuance and terms of any Debt Securities, the terms of the offering thereof and related matters by the Board of Directors of the Company, a duly constituted and acting committee of such Board or duly authorized officers of the Company (such Board of Directors, committee or authorized officers being referred to herein as the "Board") and (b) the due execution, authentication, issuance and delivery of such Debt Securities, upon payment of the consideration therefor provided for in the applicable definitive purchase, underwriting or similar agreement approved by the Board and otherwise in accordance with the provisions of the applicable Indenture and such agreement, such Debt Securities will constitute valid and legally binding obligations of the Company enforceable against the Company in accordance with their terms. 2. With respect to the Guarantees, assuming (a) the taking of all necessary corporate action to authorize and approve the issuance and terms of the Guarantees and related matters by the Board of Directors of the Guarantor, a duly constituted and acting committee of such Board or duly authorized officers of the Guarantor, (b) the due execution, authentication, issuance and delivery of the Debt Securities underlying such Guarantees, upon payment of the consideration therefor provided for in the applicable definitive purchase, underwriting or similar agreement approved by the Board and otherwise in accordance with the provisions of the applicable Indenture and such agreement and (c) the due execution, issuance and delivery of such Guarantees, such 5 Guarantees will constitute valid and legally binding obligations of the Guarantor enforceable against the Guarantor in accordance with their terms. 3. With respect to the Receipts, assuming (a) the taking by the Board of all necessary corporate action to authorize and approve the issuance and terms of the Preference Shares, (b) the Preference Shares have been duly authorized and validly issued and are fully paid, (c) the terms of the Depositary Shares and of their issuance and sale have been duly established in conformity with the terms of the Deposit Agreement, (d) the due issuance and delivery of the Preference Shares, upon payment of the consideration therefore provided for in the applicable definitive purchase, underwriting or similar agreement approved by the Board and (e) Receipts evidencing the Depositary Shares are duly issued against the deposit of the Preference Shares in accordance with the Deposit Agreement, such Receipts will be validly issued and entitle the holders thereof to the rights specified in the Deposit Agreement. 4. With respect to the Purchase Contracts, assuming (a) the taking of all necessary corporate action by the Board to authorize and approve the issuance and terms of the Purchase Contracts, the terms of the offering thereof, the execution and delivery of the Purchase Contract Agreement and related matters and (b) the due execution, issuance and delivery of the Purchase Contracts, upon payment of the consideration for such Purchase Contracts provided for in the applicable definitive purchase, underwriting or similar agreement approved by the Board and otherwise in accordance with the provisions of the applicable Purchase Contract Agreement and such agreement, the Purchase Contracts will constitute valid and legally binding obligations of the Company enforceable against the Company in accordance with their terms. 5. With respect to the Securities Warrants, assuming (a) the taking of all necessary corporate action by the Board to authorize and approve the issuance and terms of the Securities Warrants, the terms of the offering thereof, the execution and delivery of a related Warrant Agreement and related matters and (b) the due execution, countersignature, issuance and delivery of such Securities Warrants, upon payment of the consideration for such Securities Warrants provided for in the applicable definitive purchase, underwriting or similar agreement approved by the Board and otherwise in accordance with the provisions of the applicable Warrant Agreement and such agreement, such Securities Warrants will constitute valid and legally binding obligations of the Company enforceable against the Company in accordance with their terms. 6. With respect to the Share Purchase Units, assuming (a) the taking of all necessary corporate action by the Board to authorize and approve (1) the issuance and terms of the Share Purchase Units, (2) the execution, delivery and terms of the Purchase Contract Agreement with respect to the Purchase Contracts which are a component of the 6 Share Purchase Units, the terms of the offering thereof and related matters and (3) the issuance and terms of the Debt Securities which are a component of the Share Purchase Units, the terms of the offering thereof and related matters, (b) the taking of all necessary corporate action to authorize and approve the issuance and terms of the Third Party Debt Securities which are a component of the Share Purchase Units and related matters by the board of directors of each third party, a duly constituted or acting committee of such board or a duly authorized officer or officers of each third party and (c) the due execution, authentication, in the case of such Debt Securities and Third Party Debt Securities, issuance and delivery of (1) the Share Purchase Units, (2) such Purchase Contracts, (3) such Debt Securities and (4) such Third Party Debt Securities, in each case upon the payment of the consideration therefor provided for in the applicable definitive purchase, underwriting or similar agreement approved by the Board and in accordance with the provisions of the applicable Purchase Contract Agreement, in the case of such Purchase Contracts, the applicable Indenture, in the case of such Debt Securities, and the applicable indenture, in the case of such Third Party Debt Securities, such Share Purchase Units will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms. My opinions set forth in paragraphs 1 through 6 above are subject to the effects of (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, (ii) general equitable principles (whether considered in a proceeding in equity or at law), (iii) an implied covenant of good faith and fair dealing and (iv) the effects of the possible judicial application of foreign laws or foreign governmental or judicial action affecting creditors' rights. I am a member of the Bar of the State of New York and the Bar of the State of New Jersey, and I do not express any opinion herein concerning any law other than the law of the State of New York, the law of the State of New Jersey and the Federal law of the United States. I hereby consent to the filing of this opinion letter as Exhibit 5 to the Registration Statement and to the use of my name under the caption "Legal Matters" in the Prospectus included in the Registration Statement. Very truly yours, /s/ Patricia Nachtigal Patricia Nachtigal, Esq. EX-5.2 7 exh5_2.txt FORM OF BERMUDA OPINION Exhibit 5.2 May 17, 2002 Ingersoll-Rand Company Limited Clarendon House 2 Church Street Hamilton, HM 11 Bermuda Ingersoll-Rand Company 200 Chestnut Ridge Road Woodcliff Lake, New Jersey 07677 Ladies and Gentlemen: We have acted as special legal counsel in Bermuda to Ingersoll-Rand Company Limited, a Bermuda company (the "Company") in connection with the Registration Statement on Form S-3 (the "Registration Statement") filed on the date hereof by the Company with the Securities and Exchange Commission (the "Commission") under the Securities Act of 1933, as amended (the "Act"), relating to (i) Class A common shares of the Company, par value $1.00 per share (the "Common Shares"); (ii) warrants to purchase Common Shares (the "Common Share Warrants"); (iii) Preference Shares of the Company, par value $.001 per share (the "Preference Shares"), which may be represented by depositary shares (the "Depositary Shares") evidenced by depositary receipts (the "Depositary Receipts"); (iv) warrants to purchase Preference Shares (the "Preference Share Warrants"); (v) debt securities, which may be either senior ("Senior Debt Securities") or subordinated (the "Subordinated Debt Securities") (collectively the "Debt Securities"); (vi) warrants to purchase Debt Securities (the "Debt Security Warrants;" and collectively with the Common Share Warrants and the Preference Share Warrants, the "Securities Warrants"); (vii) guarantees of the Guarantor which may be issued in connection with the Debt Securities (the "Guarantees"); (viii) contracts for the purchase and sale of Common Shares or Preference Shares (the "Purchase Contracts"); (ix) Share Purchase Units (the "Share Purchase Units") of the Company, consisting of a Purchase Contract and either Debt Securities or debt obligations of third parties, including U.S. Treasury Securities (the "Third Party Debt Securities"), securing the holder's obligation to purchase the Common Shares or the Preference Shares under the Purchase Contract; and (x) Common Shares, Preference Shares, Debt Securities and Guarantees which may be issued upon exercise of Securities Warrants or Purchase Contracts, whichever is applicable. The Common Shares, the Preference Shares, the Depositary Shares, the Debt Securities, the Guarantees, the Purchase Contracts, the Securities Page 2 of 3 Legal Opinion to Ingersoll-Rand Company Limited 17 May, 2002 Warrants and the Share Purchase Units are hereinafter referred to collectively as the "Securities." The Common Shares and the Preference Shares are hereinafter sometimes referred to collectively as the "Shares." We have examined the Registration Statement (but excluding the exhibits and schedules thereto unless specifically referred to herein). We have also reviewed and have relied upon the memorandum of association and the bye-laws of the Company, a certified copy of resolutions passed at a meeting of the Company's board of directors held on 1 May, 2002 (referred to herein as the "Minutes"), correspondence on behalf of the Company with the Bermuda Monetary Authority (the "BMA") whereby the BMA has granted certain permissions, inter alia, for the issue (and subsequent transfer) of the Company's securities (subject to conditions expressed in such correspondence), and such other documents and made such enquiries as to questions of Bermuda law as we have deemed necessary in order to render the opinions set forth below. We have assumed: (a) the genuineness and authenticity of all signatures and the conformity to the originals of all copies (whether or not certified) of all documents examined by us and the authenticity and completeness of the originals from which such copies were taken; (b) the accuracy and completeness of all factual representations made in the Registration Statement and other documents reviewed by us; (c) that the resolutions contained in the Minutes remain in full force and effect and have not been rescinded or amended; (d) that upon the issue of the Securities, in each case, the Company will receive money or money's worth at least equal to the value of the Securities then being issued and that none of the Securities will be issued for less than par value (if any); (e) that there is no provision of the law of any jurisdiction, other than Bermuda, which would have any implication in relation to the opinions expressed herein; and (f) that the issue and transfer of the Securities will comply at all times with the permissions obtained from the BMA and that, the Common Shares will at all such times be listed on the New York Stock Exchange, Inc. "Non-assessability" is not a legal concept under Bermuda law, but when we describe the Shares as being "non-assessable" herein we mean, subject to any contrary provision in any agreement between the Company and any one of its members holding any of the Shares (but only with respect to such member), that no further sums are payable with respect to the holding of such Shares and the member shall not be bound by an alteration in the Memorandum of Association or the Bye-laws of the Company after the date upon which it became a member if and so far as the alteration requires such member to take or subscribe for additional Shares or in any way Page 3 of 3 Legal Opinion to Ingersoll-Rand Company Limited 17 May, 2002 increases its liability to contribute to the share capital of, or otherwise pay money to, the Company. We have made no investigation of and express no opinion in relation to the laws of any jurisdiction other than Bermuda. This opinion is to be governed by and construed in accordance with the laws of Bermuda and is limited to and is given on the basis of the current law and practice in Bermuda. This opinion is not to be relied upon in respect of any matter other than the issue of the Securities, as described in the Registration Statement. Based upon the foregoing, and subject to the qualifications and limitations stated herein, we are of the opinion that: 1. The Company has taken all corporate action required to authorize the adoption and filing of the Registration Statement; and 2. Upon due authorization by the Company of the Securities for issuance as contemplated by the Registration Statement and the issuance and delivery of Securities by the Company for payment in accordance with the terms of issuance of such Securities in an amount at least equal to the par value (if any) of such Securities, the Securities will be validly issued and, in the case of an issue of Common Shares and/or Preference Shares, will be fully paid and non-assessable. We consent to the filing of this opinion letter as Exhibit 5 to the Registration Statement and to the use of our name under the caption "Legal Matters" in the Prospectus included in 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 of 1933, as amended. Yours sincerely, /s/ Conyers Dill & Pearman Conyers Dill & Pearman EX-23.3 8 exh23_3.txt CONSENT OF INDEPENDENT ACCOUNTANTS EXHIBIT 23.3 CONSENT OF INDEPENDENT ACCOUNTANTS We hereby consent to the incorporation by reference in this Registration Statement on Form S-3 of our reports dated February 5, 2002 relating to the financial statements and financial statement schedule, which appear in Ingersoll-Rand Company Limited's Annual Report on Form 10-K for the year ended December 31, 2001. We also consent to the reference to us under the heading "Experts" in such Registration Statement. /s/ PricewaterhouseCoopers LLP Florham Park, NJ May 16, 2002 EX-24.1 9 exh24_1.txt POWER OF ATTORNEY EXHIBIT 24.1 POWER OF ATTORNEY ----------------- Each person whose signature appears below authorizes Herbert L. Henkel, Timothy R. McLevish and Patricia Nachtigal, or any of them, to execute in the name of each such person who is then an officer or director of Ingersoll-Rand Company Limited (the "Company") and to file a Registration Statement on Form S-3 relating to the Company's common shares, preference shares, share purchase contracts, share purchase units, depositary shares, debt securities, warrants and securities exchangeable for or convertible into securities of the Company or third parties and guarantees by Ingersoll-Rand Company, and any amendments thereto (and any additional Registration Statement related thereto permitted by Rule 462(b) promulgated under the Securities Act of 1933 (and all further amendments including post-effective amendments thereto) in each case necessary or advisable to enable the Company to comply with the Securities Act of 1933, as amended, and any rules, regulations and requirements of the Securities and Exchange Commission, in respect thereof, in connection with the registration of the securities which are the subject of such Registration Statements, which amendments may make such changes in such Registration Statements as such attorney may deem appropriate. SIGNATURES Pursuant to the requirements of the Securities Act of 1933, as amended, this Power of Attorney has been signed by the following persons in the capacities indicated on May 17, 2002. Signature Title --------- ----- /s/ Herbert L. Henkel Chairman, President, - -------------------------------------- Chief Executive Officer and Director (Herbert L. Henkel) (Principal Executive Officer) /s/ Timothy R. McLevish Senior Vice President and Chief - -------------------------------------- Financial Officer (Timothy R. McLevish) (Principal Financial Officer) /s/ Steven R. Shawley Vice President and Controller - -------------------------------------- (Principal Accounting Officer) (Steven R. Shawley) /s/ Ann C. Berzin Director - -------------------------------------- (Ann C. Berzin) /s/ Peter C. Godsoe Director - -------------------------------------- (Peter C. Godsoe) /s/ Constance J. Horner Director - -------------------------------------- (Constance J. Horner) /s/ H. William Lichtenberger Director - -------------------------------------- (H. William Lichtenberger) /s/ Theodore E. Martin Director - -------------------------------------- (Theodore E. Martin) /s/ Patricia Nachtigal Director - -------------------------------------- (Patricia Nachtigal) /s/ Orin R. Smith Director - -------------------------------------- (Orin R. Smith) /s/ Richard J. Swift Director - -------------------------------------- (Richard J. Swift) /s/ Tony L. White Director - -------------------------------------- (Tony L. White) EX-24.2 10 exh24_2.txt POWER OF ATTORNEY EXHIBIT 24.2 POWER OF ATTORNEY ----------------- Each person whose signature appears below authorizes Herbert L. Henkel, Timothy R. McLevish and Patricia Nachtigal, or any of them, to execute in the name of each such person who is then an officer or director of Ingersoll-Rand Company (the "Company") and to file a Registration Statement on Form S-3 relating to guarantees by the Company (which such Registration Statement also includes common shares, preference shares, share purchase contracts, share purchase units, depositary shares, debt securities, warrants and exchangeable and convertible securities of Ingersoll-Rand Company Limited), and any amendments thereto (and any additional Registration Statement related thereto permitted by Rule 462(b) promulgated under the Securities Act of 1933 (and all further amendments including post-effective amendments thereto) in each case necessary or advisable to enable the Company to comply with the Securities Act of 1933, as amended, and any rules, regulations and requirements of the Securities and Exchange Commission, in respect thereof, in connection with the registration of the securities which are the subject of such Registration Statements, which amendments may make such changes in such Registration Statements as such attorney may deem appropriate. SIGNATURES Pursuant to the requirements of the Securities Act of 1933, as amended, this Power of Attorney has been signed by the following persons in the capacities indicated on May 17, 2002. Signature Title --------- ----- /s/ Herbert L. Henkel President and Chief Executive - -------------------------------------- Officer (Principal Executive (Herbert L. Henkel) Officer) /s/ Timothy R. McLevish Senior Vice President and Chief - -------------------------------------- Financial Officer (Timothy R. McLevish) (Principal Financial Officer) /s/ Steven R. Shawley Vice President and Controller - -------------------------------------- (Principal Accounting Officer) (Steven R. Shawley) /s/ Ronald G. Heller Director - -------------------------------------- (Ronald G. Heller) /s/ Patricia Nachtigal Director - -------------------------------------- (Patricia Nachtigal) /s/ Gerald E. Swimmer Director - -------------------------------------- (Gerald E. Swimmer) EX-25.1 11 exh25_1.txt STATEMENT OF ELIGIBILITY - DEBT SECURITIES Exhibit 25.1 =============================================================================== SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 -------------------- FORM T-1 STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939 OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE -------------------- |_| CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(b)(2) WELLS FARGO BANK MINNESOTA, NATIONAL ASSOCIATION (Exact name of trustee as specified in its charter) -------------------- A U.S. National Banking Association 41-1592157 (Jurisdiction of incorporation or (I.R.S. Employer Identification No.) organization if not a U.S. national bank) Sixth Street and Marquette Avenue 55479 Minneapolis, Minnesota (Zip code) (Address of principal executive offices) Stanley S. Stroup, General Counsel WELLS FARGO BANK MINNESOTA, NATIONAL ASSOCIATION Sixth Street and Marquette Avenue Minneapolis, Minnesota 55479 (612) 667-1234 (Agent for Service) -------------------- INGERSOLL-RAND COMPANY LIMITED (Exact name of obligor as specified in its charter) -------------------- Bermuda N/A (State or other jurisdiction of (I.R.S. Employer Identification No.) incorporation or organization) Clarendon House 2 Church Street (Zip code) Hamilton, HM 11 Bermuda (Address of principal executive offices) --------------------- Debt Securities (Title of the indenture securities) =============================================================================== Item 1. General Information. Furnish the following information as to the trustee: (a) Name and address of each examining or supervising authority to which it is subject. Comptroller of the Currency Treasury Department Washington, D.C. Federal Deposit Insurance Corporation Washington, D.C. The Board of Governors of the Federal Reserve System Washington, D.C. (b) Whether it is authorized to exercise corporate trust powers. The trustee is authorized to exercise corporate trust powers. Item 2. Affiliations with Obligor. If the obligor is an affiliate of the trustee, describe each such affiliation. None with respect to the trustee. No responses are included for Items 3-14 of this Form T-1 because the obligor is not in default as provided under Item 13. Item 15. Foreign Trustee. Not applicable. Item 16. List of Exhibits. List below all exhibits filed as a part of this Statement of Eligibility. Wells Fargo Bank incorporates by reference into this Form T-1 the exhibits attached hereto. Exhibit 1. a. A copy of the Articles of Association of the trustee now in effect.*** Exhibit 2. a. A copy of the certificate of authority of the trustee to commence business issued June 28, 1872, by the Comptroller of the Currency to The Northwestern National Bank of Minneapolis.* b. A copy of the certificate of the Comptroller of the Currency dated January 2, 1934, approving the consolidation of The Northwestern National Bank of Minneapolis and The Minnesota Loan and Trust Company of Minneapolis, with the surviving entity being titled Northwestern National Bank and Trust Company of Minneapolis.* c. A copy of the certificate of the Acting Comptroller of the Currency dated January 12, 1943, as to change of corporate title of Northwestern National Bank and Trust Company of Minneapolis to Northwestern National Bank of Minneapolis.* d. A copy of the letter dated May 12, 1983 from the Regional Counsel, Comptroller of the Currency, acknowledging receipt of notice of name change effective May 1, 1983 from Northwestern National Bank of Minneapolis to Norwest Bank Minneapolis, National Association.* e. A copy of the letter dated January 4, 1988 from the Administrator of National Banks for the Comptroller of the Currency certifying approval of consolidation and merger effective January 1, 1988 of Norwest Bank Minneapolis, National Association with various other banks under the title of "Norwest Bank Minnesota, National Association."* f. A copy of the letter dated July 10, 2000 from the Administrator of National Banks for the Comptroller of the Currency certifying approval of consolidation effective July 8, 2000 of Norwest Bank Minnesota, National Association with various other banks under the title of "Wells Fargo Bank Minnesota, National Association."**** Exhibit 3. A copy of the authorization of the trustee to exercise corporate trust powers issued January 2, 1934 by the Federal Reserve Board.* Exhibit 4. Copy of By-laws of the trustee as now in effect.*** Exhibit 5. Not applicable. Exhibit 6. The consent of the trustee required by Section 321(b) of the Act. Exhibit 7. A copy of the latest report of condition of the trustee published pursuant to law or the requirements of its supervising or examining authority.** Exhibit 8. Not applicable. Exhibit 9. Not applicable. * Incorporated by reference to exhibit number 25 filed with registration statement number 33-66026. ** Incorporated by reference to exhibit number 25 filed with registration statement number 333-84722. *** Incorporated by reference to exhibit T3G filed with registration statement number 022-22473. **** Incorporated by reference to exhibit number 25.1 filed with registration statement number 001-15891. SIGNATURE Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the trustee, Wells Fargo Bank Minnesota, National Association, a national banking association organized and existing under the laws of the United States of America, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of Columbia and State of Maryland on the 17th day of May, 2002. WELLS FARGO BANK MINNESOTA, NATIONAL ASSOCIATION By: /s/ Curtis H. Clicquennoi -------------------------------------------- Curtis H. Clicquennoi Vice President Exhibit 6 May 17, 2002 Securities and Exchange Commission Washington, D.C. 20549 Gentlemen: In accordance with Section 321(b) of the Trust Indenture Act of 1939, as amended, the undersigned hereby consents that reports of examination of the undersigned made by Federal, State, Territorial, or District authorities authorized to make such examination may be furnished by such authorities to the Securities and Exchange Commission upon its request therefor. Very truly yours, WELLS FARGO BANK MINNESOTA, NATIONAL ASSOCIATION /s/ Curtis H. Clicquennoi --------------------------- Curtis H. Clicquennoi Vice President EX-25.2 12 exh25_2.txt SUBORDINATED DEBT SECURITIES Exhibit 25.2 =============================================================================== SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 -------------------- FORM T-1 STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939 OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE -------------------- |_| CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(b)(2) WELLS FARGO BANK MINNESOTA, NATIONAL ASSOCIATION (Exact name of trustee as specified in its charter) -------------------- A U.S. National Banking Association 41-1592157 (Jurisdiction of incorporation or (I.R.S. Employer Identification No.) organization if not a U.S. national bank) Sixth Street and Marquette Avenue 55479 Minneapolis, Minnesota (Zip code) (Address of principal executive offices) Stanley S. Stroup, General Counsel WELLS FARGO BANK MINNESOTA, NATIONAL ASSOCIATION Sixth Street and Marquette Avenue Minneapolis, Minnesota 55479 (612) 667-1234 (Agent for Service) -------------------- INGERSOLL-RAND COMPANY LIMITED (Exact name of obligor as specified in its charter) -------------------- Bermuda N/A (State or other jurisdiction of (I.R.S. Employer Identification No.) incorporation or organization) Clarendon House 2 Church Street Hamilton, HM 11 Bermuda (Address of principal executive offices) (Zip code) --------------------- Subordinated Debt Securities (Title of the indenture securities) =============================================================================== Item 1. General Information. Furnish the following information as to the trustee: (a) Name and address of each examining or supervising authority to which it is subject. Comptroller of the Currency Treasury Department Washington, D.C. Federal Deposit Insurance Corporation Washington, D.C. The Board of Governors of the Federal Reserve System Washington, D.C. (b) Whether it is authorized to exercise corporate trust powers. The trustee is authorized to exercise corporate trust powers. Item 2. Affiliations with Obligor. If the obligor is an affiliate of the trustee, describe each such affiliation. None with respect to the trustee. No responses are included for Items 3-14 of this Form T-1 because the obligor is not in default as provided under Item 13. Item 15. Foreign Trustee. Not applicable. Item 16. List of Exhibits. List below all exhibits filed as a part of this Statement of Eligibility. Wells Fargo Bank incorporates by reference into this Form T-1 the exhibits attached hereto. Exhibit 1. a. A copy of the Articles of Association of the trustee now in effect.*** Exhibit 2. a. A copy of the certificate of authority of the trustee to commence business issued June 28, 1872, by the Comptroller of the Currency to The Northwestern National Bank of Minneapolis.* b. A copy of the certificate of the Comptroller of the Currency dated January 2, 1934, approving the consolidation of The Northwestern National Bank of Minneapolis and The Minnesota Loan and Trust Company of Minneapolis, with the surviving entity being titled Northwestern National Bank and Trust Company of Minneapolis.* c. A copy of the certificate of the Acting Comptroller of the Currency dated January 12, 1943, as to change of corporate title of Northwestern National Bank and Trust Company of Minneapolis to Northwestern National Bank of Minneapolis.* d. A copy of the letter dated May 12, 1983 from the Regional Counsel, Comptroller of the Currency, acknowledging receipt of notice of name change effective May 1, 1983 from Northwestern National Bank of Minneapolis to Norwest Bank Minneapolis, National Association.* e. A copy of the letter dated January 4, 1988 from the Administrator of National Banks for the Comptroller of the Currency certifying approval of consolidation and merger effective January 1, 1988 of Norwest Bank Minneapolis, National Association with various other banks under the title of "Norwest Bank Minnesota, National Association."* f. A copy of the letter dated July 10, 2000 from the Administrator of National Banks for the Comptroller of the Currency certifying approval of consolidation effective July 8, 2000 of Norwest Bank Minnesota, National Association with various other banks under the title of "Wells Fargo Bank Minnesota, National Association."**** Exhibit 3. A copy of the authorization of the trustee to exercise corporate trust powers issued January 2, 1934 by the Federal Reserve Board.* Exhibit 4. Copy of By-laws of the trustee as now in effect.*** Exhibit 5. Not applicable. Exhibit 6. The consent of the trustee required by Section 321(b) of the Act. Exhibit 7. A copy of the latest report of condition of the trustee published pursuant to law or the requirements of its supervising or examining authority.** Exhibit 8. Not applicable. Exhibit 9. Not applicable. * Incorporated by reference to exhibit number 25 filed with registration statement number 33-66026. ** Incorporated by reference to exhibit number 25 filed with registration statement number 333-84722. *** Incorporated by reference to exhibit T3G filed with registration statement number 022-22473. **** Incorporated by reference to exhibit number 25.1 filed with registration statement number 001-15891. SIGNATURE Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the trustee, Wells Fargo Bank Minnesota, National Association, a national banking association organized and existing under the laws of the United States of America, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of Columbia and State of Maryland on the 17th day of May, 2002. WELLS FARGO BANK MINNESOTA, NATIONAL ASSOCIATION By: /s/ Curtis H. Clicquennoi ------------------------- Curtis H. Clicquennoi Vice President Exhibit 6 May 17, 2002 Securities and Exchange Commission Washington, D.C. 20549 Gentlemen: In accordance with Section 321(b) of the Trust Indenture Act of 1939, as amended, the undersigned hereby consents that reports of examination of the undersigned made by Federal, State, Territorial, or District authorities authorized to make such examination may be furnished by such authorities to the Securities and Exchange Commission upon its request therefor. Very truly yours, WELLS FARGO BANK MINNESOTA, NATIONAL ASSOCIATION /s/ Curtis H. Clicquennoi --------------------------- Curtis H. Clicquennoi Vice President -----END PRIVACY-ENHANCED MESSAGE-----