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EXHIBIT 4.4
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ASSOCIATES FIRST CAPITAL CORPORATION
AND
THE CHASE MANHATTAN BANK,
Trustee
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INDENTURE
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Dated as of September 1, 1998
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Junior Subordinated Debt Securities
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INDENTURE, dated as of September 1, 1998, between ASSOCIATES
FIRST CAPITAL CORPORATION, a Delaware corporation (the "Company"), and The
Chase Manhattan Bank, a New York Banking corporation, as Trustee (the
"Trustee").
RECITALS OF THE COMPANY
The Company is authorized to borrow money for its corporate
purposes and to issue debentures, notes or other evidences of indebtedness
therefor; and for its corporate purposes, the Company has determined to make
and issue its debentures, notes or other evidences of indebtedness to be issued
in one or more series (the "Securities"), as hereinafter provided, including,
without limitation, Securities issued to evidence loans made to the Company of
the proceeds from the issuance by one or more Associates Trusts (as defined
below) of trust securities in such Associates Trusts, up to such principal
amount or amounts as may from time to time be authorized by or pursuant to the
authority granted in one or more resolutions of the Board of Directors.
All things necessary to make this Indenture a valid agreement of
the Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That, in consideration of the premises and of the mutual
covenants herein contained and of the purchase and acceptance of the Securities
by the holders thereof and of the sum of One Dollar to the Company duly paid by
the Trustee at or before the ensealing and delivery of these presents, and for
other valuable consideration, the receipt whereof is hereby acknowledged, and
in order to declare the terms and conditions upon which the Securities are to
be issued, IT IS HEREBY COVENANTED, DECLARED AND AGREED, by and between the
parties hereto, that all the Securities are to be executed, authenticated and
delivered subject to the further covenants and conditions hereinafter set
forth; and the Company, for itself and its successors, does hereby covenant and
agree to and with the Trustee and its successors in said trust, for the benefit
of those who shall hold the Securities, or any of them, as follows:
PARAGRAPH A. INCORPORATION BY REFERENCE
Articles One through Fifteen, other than clauses (i) and (ii) of
Section 12.01(g)(4), the second paragraph of Section 8.01 and the first
paragraph of Section 15.01, of the Associates First Capital Corporation
Standard Multiple-Series Indenture Provisions dated as of September 1, 1998
(herein called the "Standard Provisions"), are hereby incorporated herein by
reference with the same force and effect as though fully set out herein.
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PARAGRAPH B. ADDITIONAL PROVISIONS
The following provisions, which constitute part of this
Indenture, are numbered to conform with the format of the Standard Provisions:
Section 1.01 Certain Definitions.
* * *
Associates Trust:
"Associates Trust" shall mean a statutory business trust created
under Delaware law pursuant to a trust agreement executed by the Company, as
depositor of such Associates Trust, and the trustees of such Associates Trust
named therein and pursuant to a certificate of trust filed with the Delaware
Secretary of State, which Associates Trust exists for the purposes of (i)
issuing and selling its trust securities, (ii) using the proceeds from the sale
of such trust securities to acquire a series of Securities issued by the
Company under this Indenture and (iii) engaging in only those other activities
necessary, convenient or incidental thereto.
Section 3.01. Amount Unlimited; Issuable in Series.
* * *
(20) any provisions relating to extending or shortening the date
on which the principal and premium, if any, of the Securities of such series is
payable;
(21) any provisions relating to the deferral of payment of any
interest;
(22) if other than as set forth herein, the relative degree, if
any, to which the Securities of such series shall be subordinated to other
series of Securities in right of payment, whether Outstanding or not;
(23) any addition to or change in the covenants set forth in
Article X which applies to Securities of such series;
(24) if such Securities are to be issued to an Associates Trust,
the forms of the related trust agreement and guarantee agreement relating
thereto; and
(25) the additions or changes, if any, to this Indenture with
respect to the Securities of such series as shall be necessary to permit or
facilitate the issuance of such Securities to an Associates Trust.
Section 6.02. Other Covenants. The Company --
* * *
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Costs and Expenses of Associates Trust:
(13) As borrower, agrees to pay all debts and obligations
(other than with respect to the Trust Securities) and all costs and expenses of
the applicable Associates Trust (including, but not limited to, all costs and
expenses relating to the organization of the applicable Associates Trust, the
fees and expenses of the Property Trustee, the Delaware Trustee and the
Administrative Trustee and all costs and expenses relating to the operation of
the applicable Associates Trust (other than with respect to the Trust
Securities)) and to pay any and all taxes, duties, assessments or other
governmental charges of whatever nature (other than United States withholding
taxes) imposed by the United States or any other taxing authority, so that the
net amounts received and retained by the applicable Associates Trust after
paying such fees, expenses, debts and obligations will be equal to the amounts
the applicable Associates Trust would have received and retained had no such
fees, expenses, debts and obligations been incurred by or imposed on the
applicable Associates Trust. The foregoing obligations of the Company are for
the benefit of, and shall be enforceable by, any person to whom such fees,
expenses, debts and obligations are owed (each, a "Creditor"), whether or not
such Creditor has received notice thereof. Any such Creditor may enforce such
obligations of the Company directly against the Company, and the Company
irrevocably waives any right or remedy to require that any such Creditor take
any action against the applicable Associates Trust or any other person before
proceeding against the Company. The Company shall execute such additional
agreements as may be necessary to give full effect to the foregoing.
Section 6.03. Waiver.
The following clause shall be added to the end of Section 6.03:
; provided that, in the case of Securities of a series issued to
an Associates Trust, so long as any of the related preferred
securities of such Associates Trust remains outstanding, no such
waiver may be made without the prior consent of the holders of
not less than 66 2/3% of the aggregate liquidation amount of such
preferred securities then outstanding.
Section 8.01. Events of Default; Effect Thereof.
The following paragraph replaces the second paragraph of Section
8.01:
If an Event of Default with respect to Securities of any series
at the time outstanding shall have occurred and be continuing, then and in each
and every such case, unless the principal of all the Securities of such series
shall have already become due and payable, either the Trustee for such series
or the holders of not less than 25% in aggregate principal amount of the
Securities of such series then Outstanding hereunder (or, in the case of the
Securities of a series issued to an Associates Trust, so long as any of the
related preferred securities of such Associates Trust remain outstanding, if,
upon such Event of Default, the Trustee of such series or the Holders of not
less than 25% in aggregate principal amount of the Securities of such series
then Outstanding hereunder fail to declare the principal of all the Securities
of such series to be so immediately due and payable, the holders of 25% in
aggregate liquidation amount of the related
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preferred securities of such Associates Trust then outstanding shall have such
right), by notice in writing to the Company (and to the Trustee if given by the
Holders or the holders of such related preferred securities), may declare the
principal amount (or, if the Securities of such series are Original Issue
Discount Securities, such portion of the principal amount as may be specified
in the terms of that series) of all the Securities of such series to be due and
payable immediately, and upon any such declaration the same shall become and
shall be immediately due and payable, anything in this Indenture or in the
Securities of such series contained to the contrary notwithstanding. This
provision, however, is subject to the condition that if, at any time after the
principal amount (or if the Securities of such series are Original Issue
Discount Securities, such portion of the principal amount as may be specified
in the terms of such series) of the Securities of any series shall have been so
declared due and payable, and before any judgment or decree for the payment of
the moneys due shall have been obtained or entered as hereinafter provided, the
Company shall pay or shall deposit with the Trustee for such series a sum
sufficient to pay in the currency or currency unit in which the Securities of
such series are payable (except as otherwise specified as contemplated by
Section 3.01 for the Securities of such series and except as provided in
Sections 3.11(b), 3.11(e) and 3.11(f) of this Indenture), all matured
installments of interest, if any, upon all the Securities of such series and
(in the currency or currency unit described above) the principal of (and
premium, if any, on) any and all Securities of such series which shall have
become due otherwise than by acceleration (with interest on such principal and
premium, if any, and, so far as payment of the same is enforceable under
applicable law, on overdue installments of interest, at the Overdue Rate
applicable to such series to the date of such payment or deposit) and in
Dollars all amounts payable to the Trustee pursuant to the provisions of
Section 9.07 and any and all defaults under this Indenture with respect to
such series of Securities, other than the nonpayment of principal of and
accrued interest on Securities of such series which shall have become due by
acceleration, shall have been remedied or cured or waived or provision shall
have been made therefor to the satisfaction of the Trustee -- then and in every
such case the Holders of a majority in aggregate principal amount of the
Securities of such series then Outstanding, by written notice to the Company
and to the Trustee, may waive all defaults and its consequences; provided, that
in the case of such Securities of a series issued to an Associates Trust, so
long as any of the related preferred securities of such Associates Trust remain
outstanding, the holders of a majority in aggregate liquidation amount of such
preferred securities shall also have such right to waive all defaults and its
consequences with respect to such Securities, subject to the same conditions
set forth above; but no such waiver or rescission and annulment shall extend to
or shall affect any subsequent default, or shall impair any right consequent
thereon.
Section 8.04. Limitation on Suits on Indenture; No Limitation on
Suits on Securities.
The following clause shall be added to the end of the second
paragraph of Section 8.04:
* * *
; provided, that, in the case of Securities of a series issued to
an Associates Trust, any holder of the related preferred
securities of such Associates Trust shall have the right, upon
the occurrence and continuance of an Event of Default described
in
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Sections 8.01(1) and (2) hereof, to institute a suit directly
against the Company to enforce payment to such holder of the
principal of, and premium, if any, and interest on, the
Securities having a principal amount equal to the aggregate
liquidation amount of such preferred securities held by such
holder.
Section 9.07. Compensation and Reimbursement.
* * *
(h) When Trustee incurs expenses or renders
services in connection with an Event of Default specified
in Section 8.01(4) or Section 8.01(5), such expenses
(including the fees and expenses of its counsel) and the
compensation for such services are intended to constitute
expenses of administration under any bankruptcy or
insolvency law or any law affecting creditors rights
generally.
In the event that the Trustee is also acting
as Paying Agent or Registrar hereunder, the rights and
protections afford to the Trustee hereunder shall also be
afforded to such paying Agent or Registrar.
Section 9.15. Other Matters Concerning the Trustee.
At the date of this Indenture, the Corporate Trust Office of the
Trustee is located at 000 Xxxx 00xx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000,
Attn: Corporate Trust Department. Anything in Section 6.02(1) to the contrary
notwithstanding, the office or agency of the Company in the Borough of
Manhattan, The City of New York, where Securities of any series may be
presented or surrendered for payment, where Securities of such 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 such series and
this Indenture may be served, shall initially be the corporate trust facility
of the Trustee in the Borough of Manhattan, The City of New York, which at the
date of this Indenture is located at Chase Institutional Trust Window, 0 Xxxxx
Xxxxxxxxx Xxxxx, 0X, Xxx Xxxx, Xxx Xxxx 00000.
Section 12.01. Supplemental Indentures.
The following clause shall be added to the end of paragraph (c):
or, in the case of Securities of a series issued to an Associate
Trust, the interests of the holders of the preferred securities
issued by such Associates Trust so long as such preferred
securities shall remain outstanding.
The following paragraph shall be added to the end of paragraph
(g):
; provided further that, in the case of the Securities of a
series issued to an Associates Trust, so long as any of the
related preferred securities of such Associates Trust remains
outstanding, no such amendment shall be made that
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adversely affects the holders of such preferred securities in any
material respect, and no termination of this Indenture shall
occur, without the prior consent of the holders of not less than
66 2/3% of the aggregate liquidation amount of such preferred
securities then outstanding unless and until the principal (and
premium, if any) of the Securities of such series and all accrued
and unpaid interest thereon have been paid in full; and provided
further that in the case of the Securities of a series issued to
an Associates Trust, so long as any of the related preferred
securities of such Associates Trust remain outstanding, no
amendment shall be made to Section 8.04 of this Indenture without
the prior consent of the holders of each such preferred security
then outstanding unless and until the principal (and premium, if
any) of the Securities of such series and all accrued and unpaid
interest thereon have been paid in full.
* * *
(h) Prior to entering into any supplemental indenture,
the Trustee shall be entitled to receive (i) an opinion of the
Company's corporate counsel addressed to the Trustee as to
matters the Trustee may reasonably request and (ii) an Officer's
Certificate of the Company attesting to such matters as the
Trustee may reasonably request.
Section 14.10. Applicable Law
THIS INDENTURE AND EACH SECURITY FOR ALL PURPOSES SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
Section 15.01. Subordination.
The following paragraph replaces the first paragraph of Section
15.01 of the Standard Provisions:
Section 15.01 Subordination. Anything in this Indenture or the
Securities of any series, or any Coupons appertaining thereto, to the contrary
notwithstanding, the Indebtedness evidenced by the Securities of all series and
any Coupons appertaining thereto shall be subordinate and junior in right of
payment in all respect to all Senior Indebtedness and Subordinated Indebtedness
of the Company, whether outstanding at the date of this Indenture or incurred
after the date of this Indenture. Such Indebtedness of the Company to which
the Securities and any Coupons appertaining thereto are subordinated and junior
is sometimes herein referred to as "Superior Indebtedness".
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IN WITNESS WHEREOF, ASSOCIATES FIRST CAPITAL CORPORATION, has
caused this Indenture to be signed in its corporate name by the Chairman of the
Board, any Vice Chairman, its President or any Vice President, and its
corporate seal to be affixed hereunto, and the same to be attested by the
signature of its Secretary or an Assistant Secretary; and THE CHASE MANHATTAN
BANK in evidence of its acceptance of the trust hereby created, has caused this
Indenture to be signed in its corporate name, and its corporate seal to be
affixed hereunto, and the same to be attested, as of the day and year first
above written.
ASSOCIATES FIRST CAPITAL
CORPORATION
[SEAL]
By:
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Title:
Attest:
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Title:
THE CHASE MANHATTAN BANK,
as Trustee
[SEAL]
By:
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Title:
Attest:
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Title:
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