XXXXXXX AND XXXXXX
DRAFT OF FEBRUARY 15, 1999
FORM OF INDENTURE
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NEWCOURT CREDIT GROUP INC.,
AT&T CAPITAL CORPORATION
AND
THE CHASE MANHATTAN BANK,
AS TRUSTEE
INDENTURE
DATED AS OF FEBRUARY 15, 1999
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TABLE OF CONTENTS
SECTION HEADING PAGE
RECITALS OF THE COMPANY....................................................................................... 1
ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE.............................................1
Section 1.01. Definitions............................................................................1
Section 1.02 Other Definitions......................................................................8
Section 1.03. Incorporation by Reference of Trust Indenture Act......................................8
Section 1.04. Rules of Construction..................................................................9
ARTICLE II THE SECURITIES.........................................................................9
Section 2.01. Issuable in Series.....................................................................9
Section 2.02. Establishment of Terms and Form of Series of Securities...............................10
Section 2.03. Execution, Authentication and Delivery................................................12
Section 2.04. Registrar and Paying Agent............................................................14
Section 2.05. Payment on Securities.................................................................14
Section 2.06. Paying Agent to Hold Money in Trust...................................................16
Section 2.07. Securityholder Lists; Ownership of Securities.........................................16
Section 2.08. Transfer and Exchange.................................................................16
Section 2.09. Replacement Securities................................................................18
Section 2.10. Outstanding Securities................................................................18
Section 2.11 Temporary Securities; Global Securities...............................................19
Section 2.12. Cancellation..........................................................................20
Section 2.13. Defaulted Interest....................................................................21
ARTICLE III REDEMPTION............................................................................21
Section 3.01. Notice to Trustee.....................................................................21
Section 3.02. Selection of Securities to be Redeemed................................................21
Section 3.03. Notice of Redemption..................................................................21
Section 3.04. Effect of Notice of Redemption........................................................22
Section 3.05. Deposit of Redemption Price...........................................................23
Section 3.06. Mandatory and Optional Sinking Funds..................................................23
ARTICLE IV COVENANTS.............................................................................25
Section 4.01. Payment of Securities.................................................................25
Section 4.02. Reports by the Company and the Guarantor..............................................26
Section 4.03. Limitations on Liens..................................................................27
Section 4.04 Statement as to Compliance; Notice of Certain Events of Default.......................30
ARTICLE V CONSOLIDATION, MERGER, SALE OR CONVEYANCE.............................................31
Section 5.01. Consolidation or Merger, etc., on Certain Terms.......................................31
Section 5.02 Successor Substituted.................................................................31
Section 5.03. Opinion of Counsel to Trustee.........................................................32
ARTICLE VI REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT.......................32
Section 6.01. Events of Default; Acceleration of Maturity; Waiver of Default........................32
Section 6.02. Collection of Indebtedness by Trustee; Trustee May Prove Debt.........................34
Section 6.03. Application of Proceeds...............................................................36
Section 6.04. Limitation on Suits by Securityholders................................................37
Section 6.05. Powers and Remedies Cumulative; Delay or Omission Not Waiver
of Default........................................................................37
Section 6.06. Control by Securityholders; Waiver of Defaults........................................38
Section 6.07. Right of Court to Require Filing of Undertaking to Pay Costs..........................38
ARTICLE VII TRUSTEE...............................................................................39
Section 7.01. Duties of Trustee.....................................................................39
Section 7.02. Rights of Trustee.....................................................................40
Section 7.03. Individual Rights of Trustee..........................................................40
Section 7.04. Trustee Disclaimer....................................................................40
Section 7.05. Notice of Default.....................................................................40
Section 7.06. Reports by Trustee to Holders.........................................................41
Section 7.07. Compensation and Indemnity............................................................41
Section 7.08. Replacement of Trustee................................................................41
Section 7.09. Successor Trustee, Agents by Xxxxxx, etc..............................................43
Section 7.10. Eligibility; Disqualification.........................................................43
Section 7.11. Preferential Collection of Claims Against Company.....................................43
Section 7.12. Authenticating Agent..................................................................44
ARTICLE VIII SATISFACTION AND DISCHARGE OF INDENTURE; DEFEASANCE; UNCLAIMED
MONIES................................................................................45
Section 8.01. Satisfaction and Discharge of Indenture...............................................45
Section 8.02. Defeasance upon Deposit of Moneys or U.S. Government
Obligations.......................................................................46
Section 8.03. Application of Moneys Deposited.......................................................47
Section 8.04. Repayment of Moneys Held..............................................................48
Section 8.05. Return of Moneys Unclaimed for Two Years; Return of Additional
Monies and U.S. Government Obligations............................................48
Section 8.06. Indemnity for Government Obligations..................................................48
ARTICLE IX AMENDMENTS AND WAIVERS................................................................49
Section 9.01. Without Consent of Holders............................................................49
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Section 9.02. With Consent of Holders...............................................................49
Section 9.03. Compliance with Trust Indenture Act...................................................50
Section 9.04. Revocation and Effect of Consents.....................................................50
Section 9.05. Notation on or Exchange of Securities.................................................50
Section 9.06. Trustee Protected.....................................................................51
ARTICLE X MISCELLANEOUS.........................................................................51
Section 10.01. Trust Indenture Act Controls..........................................................51
Section 10.02. Notices...............................................................................51
Section 10.03. Communication by Holders with Other Holders...........................................52
Section 10.04. Certificate and Opinion as to Conditions Precedent....................................52
Section 10.05. Statements Required in Certificate or Opinion.........................................52
Section 10.06. Legal Holidays........................................................................53
Section 10.07. Governing Law.........................................................................53
Section 10.08. No Adverse Interpretation of Other Agreements.........................................53
Section 10.09. No Recourse Against Others............................................................53
Section 10.10. When Treasury Securities Disregarded..................................................53
Section 10.11. Rules by Trustee, Paying Agent, Registrar, Record Dates...............................53
Section 10.12. Execution in Counterparts.............................................................54
Section 10.13. Securities in a Foreign Currency......................................................54
Section 10.14. Judgment Currency.....................................................................54
Section 10.15. Forum Selection and Consent to Jurisdiction...........................................55
SIGNATURE........................................................................................................56
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THIS INDENTURE, dated as of February 15, 1999, is entered into by and
among Newcourt Credit Group Inc., a corporation duly organized and validly
existing under the laws of Ontario, Canada (together with its successors and
assigns, the "Company"), AT&T Capital Corporation, a corporation duly organized
and validly existing under the laws of the State of Delaware (together with its
successors and assigns, the "Guarantor"), and The Chase Manhattan Bank, a
corporation duly organized and validly existing under the laws of the State of
New York (together with its successors and assigns, 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 ("Securities") as herein
provided.
The Guarantor has duly authorized the execution and delivery of this
Indenture to provide for its Subsidiary Guarantee relating to the Securities of
certain Series.
All things necessary to make this Indenture a valid agreement of the
Company and the Guarantor, in accordance with its terms, have been done.
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed as
follows for the equal and ratable benefit of the Holders of the Securities:
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01. Definitions.
"Accounts Receivable" mean (i) any accounts receivable (whether or not
earned by performance), chattel paper, instruments, documents, general
intangibles, trade acceptances, any other rights to receive installment, rental
or other payments for, or relating to amounts due or to become due on account
of, equipment or goods sold or leased or to be sold or leased or services
rendered or to be rendered or funds advanced or loaned or to be advanced or
loaned and other rights to payment of any kind, (ii) any proceeds of any of the
foregoing and (iii) any interest in any property or asset of any kind (whether
of the obligor under such Accounts Receivable or any other person) securing the
payment of any item listed in clause (i) hereof.
"Acquired Financing Assets" means assets (including, but not limited
to, securities and receivables) of any Person the acquisition of which was
financed in accordance with the Company credit policies and procedures manual
approved from time to time by the Board of Directors of the Company.
"Affiliate" means any person directly or indirectly controlling or
controlled by, or under direct or indirect common control with, the Company or
the Guarantor, as the case may be.
"Agent" means any Paying Agent or Registrar.
"Authenticated" means (a) with respect to a Certificated Security, one
which has been duly authenticated by manual signature of an authorized officer
of the Trustee or an authenticating agent; and (b) with respect to an
Uncertificated Security, one in respect of which the Trustee or authenticating
agent has completed all Internal Procedures. "Authenticate," "Authenticating,"
and "Authentication" have the appropriate correlative meanings.
"Authorized Newspaper" means a newspaper of general circulation, in the
official language of the country of publication or in the English language,
customarily published on each business day. Whenever successive weekly
publications in an Authorized Newspaper are required hereunder they may be made
(unless otherwise expressly provided herein) on the same or different days of
the week and in the same or different Authorized Newspapers.
"Board of Directors" means the Board of Directors of the Company or the
Guarantor, as the case may be, or any duly authorized committee thereof.
"Board Resolution" means a copy of a resolution of the Board of
Directors, certified by the Secretary, an Assistant Secretary or any other
Officer of the Company or the Guarantor, as the case may be, to have been
adopted by the Board of Directors of the Company or the Guarantor, as the case
may be, and to be in full force and effect on the date of the certificate, and
delivered to the Trustee.
"Capitalized Lease" means any lease the obligation for Rentals with
respect to which is required to be capitalized on a consolidated balance sheet
of the lessee and its subsidiaries in accordance with GAAP.
"Capitalized Rentals" of any Person shall mean as of the date of any
determination thereof the amount at which the aggregate Rentals due and to
become due under all Capitalized Leases under which such Person is a lessee
would be reflected as a liability on a consolidated balance sheet of such
Person.
"Certificated Security" or "Certificated Securities" means a Registered
Security, Registered Securities, Unregistered Security or Unregistered
Securities of any Series evidenced by a writing or writings substantially in the
form established as provided in Section 2.02(a) hereof.
"Company" means Newcourt until a successor replaces it subject to the
provisions of Article V and thereafter means the successor.
"Company Order" means an order signed by any Officer of the Company.
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"Consolidated Net Tangible Assets" means, at the date of any
determination, the total assets appearing on the consolidated balance sheet of
the Company and its Restricted Subsidiaries as at the end of the most recent
fiscal quarter of the Company for which such balance sheet is available,
prepared in accordance with generally accepted accounting principles, less (a)
all current liabilities (obligations whose liquidation is reasonably expected to
occur within twelve months), (b) investments in and advances to Subsidiaries
other than Restricted Subsidiaries or other entities accounted for on the equity
method of accounting and (c) Intangible Assets.
"Debt" of any Person shall mean and include all obligations of such
Person for money borrowed or which have been incurred in connection with the
acquisition of assets which in accordance with GAAP shall be classified upon a
balance sheet of such Person as liabilities of such Person, and in any event
shall include, without duplication, all (i) Capitalized Rentals and (ii)
Guaranties of obligations of others of the character referred to in this
definition.
"Default" means any event which is, or after notice or passage of time
or both would be, an Event of Default.
"Depositary" means, (i) with respect to Global Securities of any Series
which are offered for sale solely outside of the United States, a common
depositary for Xxxxxx Guaranty Trust Company of New York, Brussels office,
operator of the Euroclear System, and Centrale de Livraison de Valeurs
Mobilieres, S.A., and (ii) with respect to Global Securities of any Series which
are offered for sale in the United States, a clearing agency registered under
the Securities Exchange Act of 1934, or any successor thereto, which shall in
either case be designated by the Company pursuant to either Section 2.02 or 2.11
(provided, that unless otherwise so designated, the Depositary for purposes of
clause (ii) shall be The Depository Trust Company).
"GAAP" means generally accepted accounting principles.
"Global Security" means, with respect to any Series of Securities
issued hereunder, a Security, which may be a Registered or an Unregistered
Security, executed by the Company and authenticated and delivered by the Trustee
to the Depositary or pursuant to the Depositary's instruction, all in accordance
with this Indenture including Section 2.11 and pursuant to a Company Order, and
which shall represent, and shall be denominated in an amount equal to the
aggregate principal amount of, all of the outstanding Securities of such Series
or a portion thereof, in either case having the same terms, including, without
limitation, the same issue date, date or dates on which principal is due,
interest rate or method of determining interest, and, in the case of Original
Issue Discount Securities, which have the same issue price. "Global Security"
shall include any temporary global Security and any permanent global Security.
"Guaranties" by any Person shall mean all obligations (other than
endorsements in the ordinary course of business of negotiable instruments for
deposit or collection) of such Person guaranteeing, or in effect guaranteeing,
any Indebtedness, dividend or other obligation of any other Person (the "Primary
Obligor") in any manner, whether directly or indirectly, including, without
limitation, all obligations incurred through an agreement, contingent or
otherwise, by such Person: (i) to purchase such Indebtedness or obligation or
any property or assets
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constituting security therefor, (ii) to advance or supply funds (x) for the
purchase or payment of such Indebtedness or obligation, (y) to maintain working
capital or other balance sheet condition or otherwise to advance or make
available funds for the purchase or payment of such Indebtedness or obligation,
(iii) to lease property or to purchase capital stock or other property or
services primarily for the purpose of assuring the owner of such Indebtedness or
obligation of the ability of the Primary Obligor to make payment of the
Indebtedness or obligation, or (iv) otherwise to assure the owner of the
Indebtedness or obligation of the Primary Obligor against loss in respect
thereof. For the purposes of all computations made under this Indenture, a
Guaranty in respect of any Debt shall be deemed, without duplication, to be
Indebtedness equal to the principal amount of such Debt which has been
guaranteed, and a Guaranty in respect of any other obligation or liability or
any dividend shall be deemed to be Indebtedness equal to the maximum aggregate
amount of such obligation, liability or dividend.
"Guarantor" means AT&T Capital Corporation until a successor replaces
it subject to the provisions of Article V and thereafter means the successor.
"Holder" or "Securityholder" means a bearer of an Unregistered Security
or of a coupon appertaining thereto or a person in whose name a Registered
Security is registered on the Registrar's books.
"Indebtedness" of any Person shall mean and include all obligations of
such Person which in accordance with GAAP shall be classified upon a balance
sheet of such Person as liabilities of such Person, and in any event shall
include all (i) obligations of such Person for borrowed money or which has been
incurred in connection with the acquisition of property or assets, (ii)
obligations secured by any Lien upon property or assets owned by such Person,
even though such Person has not assumed or become liable for the payment of such
obligations, (iii) obligations created or arising under any conditional sale or
other title retention agreement with respect to property acquired by such
Person, notwithstanding the fact that the rights and remedies of the seller,
lender or lessor under such agreement in the event of default are limited to
repossession or sale of property, (iv) the face amount of all letters of credit
issued for the account of such Person and all drafts drawn thereunder, (v)
Capitalized Rentals and (vi) Guaranties of obligations of others of the
character referred to in this definition.
"Indenture" means this Indenture as amended or supplemented from time
to time and shall include the forms and terms of particular Series of Securities
established as contemplated hereunder.
"Intangible Assets" means the value (net of any applicable reserves),
as shown on or reflected in the Company's balance sheet, of: (i) all trade
names, trademarks, licenses, patents, copyrights and goodwill; (ii) organization
and development costs; (iii) deferred charges (other than prepaid items such as
insurance, taxes, interest, commissions, rents and similar items and tangible
assets being amortized); and (iv) unamortized debt discount and expense, less
unamortized premium.
"Internal Procedures" means in respect of the making of any one or more
changes in or deletions of any one or more entries in the books or records kept
for the purpose of indicating the
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registered Holder of a Security at any time (including without limitation,
original issuance or registration of any transfer of ownership) the minimum
number of the Trustee's or authenticating agent's internal procedures customary
at such time for the action taken to be complete under the operating procedures
followed at the time by the Trustee or authenticating agent, as the case may be,
it being understood that neither preparation nor issuance, nor delivery to nor
receipt by holders of Statements of Account shall constitute part of such
procedures for any purpose of this definition.
"Lien" means any interest in property securing an obligation owed to,
or a claim by, a Person other than the owner of the property, whether such
interest is based on the common law, statute or contract, and including but not
limited to the security interest lien arising from a mortgage, encumbrance,
pledge, conditional sale or trust receipt or a lease, consignment or bailment
for security purposes. The term "Lien" shall include reservations, exceptions,
encroachments, easements, rights-of-way, covenants, conditions, restrictions,
leases and other title exceptions and encumbrances (including, with respect to
shares, shareholder agreements, voting trust agreements, buy-back agreements and
all similar arrangements) affecting property. For purposes of the Indenture, the
Company or any Restricted Subsidiary shall be deemed to be the owner of any
property which it has acquired or holds subject to a conditional sale agreement,
Capitalized Lease or other arrangement pursuant to which title to the property
has been retained by or vested in some other Person for security purposes and
such retention or vesting shall constitute a Lien.
"Newcourt" means Newcourt Credit Group Inc., a corporation organized
under the laws of Ontario, Canada.
"Non-Recourse Debt" of the Company or any Restricted Subsidiary means
any Debt of the Company or such Restricted Subsidiary, as the case may be, which
is secured by any Lien on, or payable solely from the income and proceeds of,
any property (including, without limiting the generality of such term, any
Intangible Assets), shares of stock, other equity interests or debt of the
Company or such Restricted Subsidiary, as the case may be, and which is not a
general obligation of the Company or such Restricted Subsidiary, as the case may
be.
"Officer" means the Chairman of the Board of Directors, any
Vice-Chairman of the Board of Directors, the Chief Executive Officer, the
President, any Vice-President (whether or not designated by a number or numbers,
or a word or words added before or after the title Vice-President), the Chief
Financial Officer, the Treasurer, any Assistant Treasurer, the Secretary or the
Controller of the Company or the Guarantor, as the case may be.
"Officer's Certificate" means a certificate signed by any Officer of
the Company or the Guarantor, as the case may be.
"Opinion of Counsel" means a written opinion of legal counsel who is
reasonably acceptable to the Trustee. The counsel may be an employee of or
counsel to the Company, the Guarantor or the Trustee.
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"Original Issue Discount Security" means any Security which provides
for an amount less than the stated principal amount thereof to be due and
payable upon declaration of acceleration of the maturity thereof pursuant to
Section 6.01.
"Person" means an individual, partnership, limited liability company,
corporation, trust, joint venture, joint stock company, association,
unincorporated organization or other entity.
"principal" whenever used with reference to the Securities or any
portion thereof, shall be deemed to include "premium, if any."
"Purchase Money Obligations" means Liens created to secure the payment
of the purchase price incurred in connection with the acquisition of real or
personal assets (other than Acquired Financing Assets) useful and intended to be
used in carrying on the business of the Company or a Restricted Subsidiary,
including Liens existing on such assets at the time of acquisition by the
Company or a Restricted Subsidiary of any business entity then owning such
assets, whether or not such existing Liens were given to secure the payment of
the purchase price of such assets to which they attach so long as they were not
incurred, extended or renewed in contemplation of such acquisition, provided
that (A) the Lien attaches solely to such assets acquired or purchased, (B) at
the time of acquisition of such assets, the aggregate amount remaining unpaid on
all Debt secured by Liens on such assets whether or not assumed by the Company
or a Restricted Subsidiary shall not exceed an amount equal to the lesser of the
total purchase price or fair market value at the time of acquisition of such
assets, and (C) any such Lien shall be created contemporaneously with, or within
120 days after, the acquisition of such property.
"Registered Security" means any Security issued hereunder and
registered as to principal and interest by the Registrar.
"Rentals" shall mean and include as of the date of any determination
thereof all fixed payments (including as such all payments which the lessee is
obligated to make to the lessor on termination of the lease or surrender of the
property) payable by the Company or a Restricted Subsidiary, as lessee or
sublessee under a lease of real or personal property, but shall be exclusive of
any amounts required to be paid by the Company or a Restricted Subsidiary
(whether or not designated as rents or additional rents) on account of
maintenance, repairs, insurance, taxes and similar charges. Fixed rents under
any so-called "percentages leases" shall be computed solely on the basis of the
minimum rents, if any, required to be paid by the lessee regardless of sales
volume or gross revenues.
"Responsible Officer" when used with respect to the Trustee, shall mean
the chairman or any vice-chairman of the board of directors, the executive
committee of the board of directors or trust committee, the president, any
vice-president, the cashier, the secretary, the treasurer, any trust officer,
any second or assistant vice-president or any other officer or assistant officer
of the Trustee customarily performing 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 his knowledge of and familiarity
with a particular subject.
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"Restricted Subsidiary" means each Subsidiary of the Company organized
under the laws of any State of the United States or the District of Columbia or
Canada, no substantial portion of the business of which is carried on outside of
the United States or Canada; provided that each Drop-Down Subsidiary (as defined
in Section 5.01) shall be a Restricted Subsidiary.
"SEC" means the Securities and Exchange Commission.
"Secured Subordinated Debt" means Subordinated Debt of any Person which
is secured by a Lien.
"Series" or "Series of Securities" means a series of Securities.
"Securities" means the debentures, notes or other obligations of the
Company that have been Authenticated under this Indenture.
"Statement of Account" means a statement containing the information
required by law, and such other information as the Company or the Trustee or the
authenticating agent may provide, to be sent to Holders of Uncertificated
Securities at the intervals and other times required by law or otherwise
determined to be appropriate by the Company or the Trustee or the authenticating
agent.
"Subordinated Debt" means and includes any Debt of any Person which is
subordinated in right of payment to the Debt (other than Unsecured Subordinated
Debt) of such Person provided, however, that so long as no default has occurred
and is continuing under any such Debt of such Person, such Person may make
payments in connection with such Subordinated Debt as such payments become due.
"Subsidiary" means any corporation more than 50% of the outstanding
voting stock of which is owned, directly or indirectly, by any Person and/or by
one or more other Subsidiaries (including the Guarantor). For purposes of such
definition, "voting stock" means stock ordinarily having voting power for the
election of directors, whether at all times or only so long as no senior class
of stock has such voting power by reason of any contingency.
"Subsidiary Guarantee" means the agreement of the Guarantor executed in
connection with a particular Series of Securities.
"TIA" means the Trust Indenture Act of 1939.
"Trust Indenture Act of 1939" means (except as herein otherwise
expressly provided) the Trust Indenture Act of 1939 (15 U.S.C. 'SS''SS'
7aaa-7bbbb) as amended, as in force at the date of this Indenture as originally
executed.
"Trustee" means the party named as such in this Indenture until a
successor replaces it and thereafter means the successor and if, at any time,
there is more than one Trustee, "Trustee" as used with respect to the Securities
of any Series shall mean the Trustee with respect to that Series.
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"Uncertificated Security" or "Uncertificated Securities" means any
Security or Securities which is or are not a Certificated Security or
Securities.
"Unregistered Security" means any Security issued hereunder which is
not a Registered Security.
"Unsecured Subordinated Debt" means all Subordinated Debt of any Person
other than Secured Subordinated Debt.
"U.S. Government Obligations" means:
(i) direct obligations of the United States of
America for the payment of which the full faith and credit of the
United States of America is pledged; or
(ii) obligations of a person controlled or supervised
by and acting as an agency or instrumentality of the United States of
America, the payment of which is unconditionally guaranteed as a full
faith and credit obligation by the United States of America.
"Yield to Maturity" means the yield to maturity, calculated by the
Company at the time of issuance of a Series of Securities or at the time of
issuance of the Securities of a Series or portion thereof, or, if applicable, at
the most recent determination of interest on such Series or Securities in
accordance with accepted financial practice.
Section 1.02 Other Definitions.
TERM SECTION
"Asset Drop-Down" 5.01
"Drop-Down Subsidiary" 5.01
"Event of Default" 6.01
"Legal Holiday" 10.06
"Paying Agent" 2.04
"Registrar" 2.04
Section 1.03. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture. The following
TIA terms used in this Indenture have the following meanings:
"Commission" means the SEC.
"Indenture Securities" means the Securities.
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"Indenture Security Holder" means a Holder or a Securityholder.
"Indenture to be so Qualified" means this Indenture.
"Indenture Trustee" or "Institutional Trustee" means the
Trustee.
"Obligor" on the indenture securities means the Company and
the Guarantor or any other obligor on the indenture securities.
All other terms used in this Indenture that are defined by the TIA, defined by
TIA reference to another statute or defined by SEC rule under TIA have the
meanings assigned to them therein.
Section 1.04. Rules of Construction. Unless the context otherwise
requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with generally accepted accounting
principles, and, except as may otherwise be 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 in Canada, with respect to the
Company or any entity organized under the laws of Canada, and in the
United States with respect to the Guarantor or any entity organized
under the laws of the United States at the date of such computation;
(3) "or" is not exclusive; and
(4) words in the singular include the plural, and
words in the plural include the singular.
ARTICLE II
THE SECURITIES
Section 2.01. 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 may be Registered Securities and Unregistered Securities within a
Series, and the Unregistered Securities may be subject to such restrictions, and
contain such legends, as may be required by United States and any applicable
foreign laws and regulations. Securities of a Series need not be identical but
may differ with respect to maturity date, interest rate, redemption price,
denominations, original issue date, issue price, and as to other terms.
Securities of different Series may differ in any respect; provided that all
Series of Securities shall be equally and ratably entitled to the benefits of
this Indenture.
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Section 2.02. Establishment of Terms and Form of Series of Securities.
(a) At or prior to the issuance of any Series of Securities, the following shall
be established either by or pursuant to a Board Resolution or by an indenture
supplemental hereto:
(1) the title of the Securities of the Series (which
title shall distinguish the Securities of the Series from the
Securities of any other Series and from any other securities issued by
the Company);
(2) any limit upon the aggregate principal amount of
the Securities of the Series which may be Authenticated and delivered
under this Indenture (which limit shall not pertain to Securities
Authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Securities of the Series pursuant to
Section 2.08, 2.09, 2.11, 3.05 or 9.05);
(3) the date or dates on which the principal of the
Securities of the Series is payable, or whether the Securities of the
Series are due upon demand by the Holder;
(4) the rate or rates at which the Securities of the
Series shall bear interest, if any, or the method of calculating such
rate or rates of interest, the date or dates from which such interest
shall accrue, the dates on which such interest shall be payable and,
with respect to Registered Securities, the record date for the interest
payable on any interest payment date;
(5) the place or places where the principal of and
interest on Registered and Unregistered, if any, Securities of the
Series shall be payable;
(6) the period or periods within which, the price or
prices at which, and the terms and conditions upon which, Securities of
the Series may be redeemed, in whole or in part, at the option of the
Company;
(7) the obligation, if any, of the Company to redeem
or purchase Securities of the Series pursuant to any sinking fund or
analogous provisions or upon the happening of a specified event or at
the option of a Holder thereof and the period or periods within which,
the price or prices at which, and the terms and conditions upon which,
Securities of the Series shall be redeemed or purchased, in whole or in
part, pursuant to such obligation;
(8) if in other than denominations of $1,000 and any
integral multiple thereof, the denominations in which Securities of the
Series shall be issuable;
(9) if other than the principal amount thereof, the
portion of the principal amount of Securities of the Series which shall
be payable upon declaration of acceleration of the maturity thereof
pursuant to Section 6.01;
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(10) whether Securities of the Series shall be
issuable as Registered Securities or Unregistered Securities (with or
without interest coupons), or both, whether if such Security is a
Registered Security such Security shall be a Certificated Security or
an Uncertificated Security, and any restrictions applicable to the
payment, offering, sale or delivery of Unregistered Securities and
whether, and the terms upon which, Unregistered Securities of a Series
may be exchanged for Registered Securities of the same Series and vice
versa;
(11) whether and under what circumstances the Company
will pay additional amounts on the Securities of that Series held by
any Person in respect of taxes or similar charges withheld or deducted
and, if so, whether the Company will have the option to redeem such
Securities rather than pay such additional amounts;
(12) the form of the Securities (or forms thereof if
Unregistered and Registered Securities shall be issuable in such
Series, including such legends as may be required by United States laws
or regulations, the form of any coupons or temporary global Security
which may be issued and the forms of any certificates which may be
required hereunder or under United States laws or regulations in
connection with the offering, sale, delivery or exchange of
Unregistered Securities);
(13) the coin or currency in which the Securities of
the Series are denominated, including multiple currency units;
(14) if other than the coin or currency in which the
Securities of the Series are denominated, the coin or currency in which
payment of the principal of, premium, if any, or interest on the
Securities of the Series shall be payable;
(15) if the amount of payments of principal of,
premium, if any, or interest on the Securities of the Series may be
determined with reference to one or more indices the manner in which
such amounts shall be determined;
(16) whether Securities of the Series are issuable
as, or exchangeable for, one or more Global Securities and, in such
case, the terms upon which interests in such Global Security or Global
Securities shall be exchangeable by the Company or the Holder thereof
for definitive Securities (if other than as set forth in Section 2.11),
and the identity of the Depositary for such Series (if other than The
Depository Trust Company); and
(17) any other terms of the Series (which terms shall
not be inconsistent with the provisions of this Indenture) including
any terms which may be required by or advisable under United States
laws or regulations or advisable in connection with the marketing of
Securities of that Series.
(b) If the terms and form or forms of any Series of Securities are
established by or pursuant to a Board Resolution, the Company shall deliver a
copy of such Board Resolution to the Trustee at or prior to the issuance of such
Series with (1) the form or forms of Security which
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have been approved attached thereto, or (2) if such Board Resolution authorizes
a specific Officer or Officers to approve the terms and form or forms of the
Securities, a certificate of such Officer or Officers approving the terms and
form or forms of Security with such form or forms of Securities attached
thereto; provided that if such Security is to be an Uncertificated Security,
then no such form of Security need be delivered to the Trustee and in lieu
thereof the Company shall deliver to the Trustee a summary statement of the
principal terms and conditions of such Uncertificated Securities, to the extent
not already set forth pursuant to a Board Resolution establishing such Series of
Uncertificated Securities. Such Board Resolution or certificate may provide
general terms or parameters for Securities of any Series and may provide that
the specific terms of particular Securities of a Series may be determined in
accordance with or pursuant to the Company Order referred to in Section 2.03(d)
hereof.
Section 2.03. Execution, Authentication and Delivery. (a) Certificated
Securities shall be executed on behalf of the Company by its Chairman of the
Board of Directors, the Vice-Chairman of the Board of Directors, the Chief
Executive Officer, the President, a Vice-President, the Chief Financial Officer,
the Treasurer, or an Assistant Treasurer and attested by its Secretary or an
Assistant Secretary. Signatures shall be manual or facsimile. The coupons of
Unregistered Securities shall bear the facsimile signature of the Treasurer or
an Assistant Treasurer of the Company.
(b) If an Officer, an Assistant Treasurer or an Assistant Secretary
whose signature is on a Certificated Security or coupon no longer holds that
office at the time the Certificated Security is Authenticated, the Certificated
Security or coupon shall be valid nevertheless.
(c) A Security shall not be valid until Authenticated by the manual
signature of the Trustee or an authenticating agent and no coupon shall be valid
until the Security to which it appertains has been so Authenticated. Such
signature shall be conclusive evidence that the Security has been Authenticated
under this Indenture. Each Unregistered Security shall be dated the date of its
original issuance and each Registered Security shall be dated the date of its
Authentication. Notwithstanding the foregoing, an Uncertificated Security shall
be valid when Authenticated by the Trustee or authenticating agent.
(d) The Trustee shall Authenticate and deliver Securities of any Series
for original issue from time to time in the aggregate principal amount
established for such Series pursuant to such procedures acceptable to the
Trustee and to such recipients as may be specified from time to time by a
Company Order; provided that in the case of Uncertificated Securities of any
Series there shall be no delivery requirement. The maturity date, original issue
date, interest rate and any other terms of the Securities of such Series shall
be determined by or pursuant to such Company Order and procedures. If provided
for in such procedures, such Company Order may authorize Authentication and
delivery pursuant to oral instructions from the Company or its duly authorized
agent, which instructions shall be promptly confirmed in writing.
The Trustee may conclusively rely on the documents and opinion
delivered pursuant to Section 2.02 and this Section 2.03, as applicable (unless
revoked by superseding comparable documents or opinions) as to the authorization
of the Board of Directors of any Securities
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delivered hereunder, the form thereof and the legality, validity, binding effect
and enforceability thereof.
If the form and terms or general terms of the Securities of any Series
have been established by or pursuant to one or more Board Resolutions as
permitted by Section 2.02, in Authenticating such Securities, and accepting the
additional responsibilities under this Indenture in relation to such Securities,
the Trustee shall be entitled to receive, and (subject to Section 7.01) shall be
fully protected in relying upon, an Opinion of Counsel stating,
(1) the form and terms or general terms, as
applicable, of such Securities have been established in conformity with
the provisions of this Indenture;
(2) that Securities in such form, when completed as
to specific terms substantially in accordance with the Board Resolution
establishing such form or any actions taken pursuant thereto (the
records of which actions shall have been evidenced as provided in such
Board Resolution), when Authenticated in accordance with the Indenture,
all in the manner and subject to any conditions specified in such
Opinion of Counsel, will constitute valid and legally binding
obligations of the Company, enforceable in accordance with their terms,
subject to bankruptcy, insolvency, reorganization and other laws of
general applicability relating to or affecting the enforcement of
creditors' rights and to general equity principles; and
(3) if the Guarantor has Guaranteed the Securities of
such Series, the Subsidiary Guarantee in respect of such Securities
constitutes a valid and legally binding obligation of the Guarantor,
enforceable in accordance with its 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.
If the terms and form or forms of such Securities have been
established by or pursuant to a Board Resolution as permitted by
Section 2.02, the Trustee shall not be required to Authenticate such
Securities if the issue of such Securities pursuant to this Indenture
will adversely affect the Trustee's own rights, duties, or immunities
under the Securities and this Indenture or otherwise in a manner which
is not reasonably acceptable to the Trustee.
Notwithstanding the foregoing, until the Company has delivered
an Officer's Certificate to the Trustee and the Registrar stating that,
as a result of the action described in such notice, the Company would
not suffer adverse consequences under the provisions of United States
law or regulations in effect at the time of the delivery of
Unregistered Securities, (i) delivery of Unregistered Securities will
be made only outside the United States and its possessions and (ii)
Unregistered Securities will be released in definitive form whether in
the form of a Global Security or otherwise to the person entitled to
physical delivery thereof only upon presentation of a certificate in
the form prescribed by the Company and set forth in or annexed to such
Officer's Certificate.
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(e) The aggregate principal amount of Securities of any Series
outstanding at any time may not exceed any limit upon the maximum principal
amount for such Series set forth in the Board Resolution (or certificate of an
Officer or Officers) or supplemental indenture pursuant to Section 2.02.
(f) The form of the Trustee's Certificate of Authentication to appear
on Certificated Securities shall read as follows:
"This is one of the Certificated Securities of the Series
designated therein referred to in the within-mentioned
Indenture. The Chase Manhattan Bank, as Trustee By
Authorized Officer"
(g) The Company and the Guarantor hereby acknowledge that the failure
to endorse the Subsidiary Guarantee, if any, on Certificated Securities shall
not affect or impair validity or enforceability of such Subsidiary Guarantee.
Section 2.04. Registrar and Paying Agent. The Company shall maintain in
the Borough of Manhattan, The City of New York, State of New York, an office or
agency where Registered Securities may be presented for registration of transfer
or for exchange ("Registrar") and an office or agency where (subject to Sections
2.05 and 2.08) Securities may be presented for payment or for exchange ("Paying
Agent"). With respect to any Series of Securities issued in whole or in part as
Unregistered Securities, the Company shall maintain one or more Paying Agents
located outside the United States and its possessions and shall maintain such
Paying Agents for a period of two years after the principal of such Unregistered
Securities has become due and payable. During any period thereafter for which it
is necessary in order to conform to United States tax law or regulations, the
Company will maintain a Paying Agent outside the United States and its
possession to which the Unregistered Securities or coupons appertaining thereto
may be presented for payment and will provide the necessary funds therefor to
such Paying Agent with reasonable notice. The Registrar shall keep a register
with respect to each Series of Securities issued in whole or in part as
Registered Securities and to their transfer and exchange. The Company may
appoint one or more co-Registrars and one or more additional Paying Agents for
each Series of Securities and the Company may terminate the appointment of any
co-Registrar or Paying Agent at any time upon written notice. The term
"Registrar" includes any co-Registrar, except that any co-Registrar shall not
keep the register. The term "Paying Agent" includes any additional Paying Agent.
The Company shall notify the Trustee of the name and address of any Agent not a
party to this Indenture. If the Company fails to maintain a Registrar or Paying
Agent, the Trustee shall act as such.
The Company initially appoints the Trustee as Registrar and
Paying Agent.
Section 2.05. Payment on Securities. (a) Subject to the following
provisions, the Company will pay to the Trustee the amounts of principal of and
interest on the Securities at the times and for the purposes set forth herein
and in the text or provided for in the terms of the Securities for each Series,
and the Company hereby authorizes and directs the Trustee from funds so paid
to it to make or cause to be made payment of the principal of and interest, if
any, on the Securities and coupons of each Series as set forth herein and in the
text or provided for in the
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terms of such Securities and coupons. Except as otherwise provided with respect
to any Series of Securities, the Trustee will arrange directly with any Paying
Agent for the payment, or the Trustee will make payment, from funds furnished
by the Company, of the principal of and interest, if any, on the Securities and
coupons of each Series by check in the currency in which the Securities are
payable.
(b) Except as otherwise provided with respect to a Series of
Securities, interest, if any, on Registered Securities of a Series shall be paid
on each interest payment date for such Series to the Holder thereof at the close
of business on the relevant record dates specified in the Securities of such
Series. The Company may pay such interest by check mailed to such Xxxxxx's
address as it appears on the register for Securities of such Series. Principal
of Registered Securities that are Certificated Securities shall be payable only
against presentation and surrender thereof at the office of the Paying Agent in
New York, unless the Company shall have otherwise instructed the Trustee in
writing. Principal of Registered Securities that are Uncertificated Securities
shall be paid by check payable to the Holder mailed to its address as shown on
the books of the Registrar, unless the Company shall have otherwise instructed
the Trustee in writing. If a payment date is a Legal Holiday at a place of
payment, payment may be made at such place on the next succeeding day that is
not a Legal Holiday, and no interest shall accrue for the intervening period,
except in the case of interest (other than interest payable at maturity) payable
on any Security that bears interest at a floating rate, in which case interest
shall accrue for such intervening period.
(c) To the extent provided in the Securities of a Series, (i) payments
with respect to which coupons have been issued by the Company shall be paid only
against presentation and surrender of the coupons as they mature and (ii)
original issue discount (as defined in Section 1273 of the Internal Revenue Code
of 1986, as amended), if any, on Unregistered Securities with respect to which
coupons have not been issued shall be paid only against presentation and
surrender of such Securities; in either case at the office of a Paying Agent
located outside of the United States and its possessions, unless the Company
shall have otherwise instructed the Trustee in writing. Principal of
Unregistered Securities shall be paid only against presentation and surrender
thereof as provided in the Securities of a Series. If at the time a payment of
principal of or interest, if any, or original issue discount, if any, on an
Unregistered Security or coupon shall become due, the payment of the full amount
so payable at the office or offices of all the Paying Agents outside the United
States and its possessions is illegal or effectively precluded because of the
impositions of exchange controls or other similar restrictions on the payment of
such amount in the applicable currency, then the Company may instruct the
Trustee to make such payments at the office of a Paying Agent located in the
United States, provided that provision for such payment in the United States
would not cause such Unregistered Security to be treated as a
"registration-required obligation" under United States law and regulations.
(d) The Company acknowledges that, for the purposes of the Interest Act
(Canada), (i) whenever any interest or fee applicable to the Securities of any
Series is calculated using a rate based on a year of 360 days or 365 days, such
rate determined pursuant to such calculation, when expressed as an annual rate,
is equivalent to (x) the applicable rate based on a year of 360 days or 365
days, as the case may be, (y) multiplied by the actual number of days in the
calendar year in which the period for such interest or fee is payable (or
compounded) ends, and (z) divided by 360
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or 365, as the case may be; (ii) the principle of deemed reinvestment of
interest does not apply to any interest calculation in respect of the Securities
of any Series; and (iii) the rates of interest stipulated in respect of the
Securities of each Series are intended to be nominal rates and not effective
rates or yields.
Section 2.06. Paying Agent to Hold Money in Trust. The Company shall
require each Paying Agent other than the Trustee to agree in writing that the
Paying Agent will hold in trust, for the benefit of Securityholders of any or
all Series of Securities, or the Trustee, all money held by the Paying Agent for
the payment of principal or interest on such Series of Securities, and that the
Paying Agent will notify the Trustee of any default by the Company in making any
such payment and, while any such default continues, the Trustee may require a
Paying Agent to pay all money held by it to the Trustee. If the Company or any
of its Subsidiaries acts as Paying Agent, it shall segregate the money held by
it for the payment of principal or interest on any Series of Securities and hold
such money as a separate trust fund. The Company at any time may require a
Paying Agent to pay all money held by it to the Trustee. Upon so doing, the
Paying Agent shall have no further liability for the money so paid.
Section 2.07. Securityholder Lists; Ownership of Securities. (a) The
Trustee shall preserve in as current a form as is reasonably practicable the
most recent list available to it of the names and addresses of Holders of each
Series of Securities. If the Trustee is not the Registrar, the Company shall
furnish to the Trustee semi-annually on or before the last day of June and
December in each year, and at such other times as the Trustee may request in
writing, a list, in such form and as of such date as the Trustee may reasonably
require, containing all the information in the possession or control of the
Registrar, the Company or any of its Paying Agents other than the Trustee as to
the names and addresses of Holders of each such Series of Securities. If there
are Unregistered Securities of any Series outstanding, even if the Trustee is
the Registrar, the Company shall furnish to the Trustee such a list containing
such information with respect to Holders of such Unregistered Securities only.
(b) Ownership of Registered Securities of a Series shall be proved by
the register for such Series kept by the Registrar. Ownership of Unregistered
Securities may be proved by the production of such Unregistered Securities or by
a certificate or affidavit executed by the Person holding such Unregistered
Securities or by a depository with whom such Unregistered Securities have been
deposited, if the certificate or affidavit is satisfactory to the Trustee. The
Company, the Trustee and any agent of the Company or the Trustee may treat the
bearer of any Unregistered Security or coupon and the Person in whose name a
Registered Security is registered as the absolute owner thereof for all
purposes.
(c) None of the Company, the Guarantor, the Trustee, any Paying Agent
or the Registrar will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial interests in a
Global Security or for maintaining, supervising or reviewing any records
relating to such beneficial interests.
Section 2.08. Transfer and Exchange. (a) Where Registered Securities of
a Series (other than Securities which, pursuant to the Board Resolution or
supplemental indenture establishing the terms of the Series to which the
Securities belong, are not transferable) are presented to the
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Registrar with a request to register their transfer or to exchange them for an
equal principal amount of Registered Securities of the same Series, date of
maturity, interest rate, and original issue date of other authorized
denominations, the Registrar shall register the transfer or make the exchange if
its requirements for such transactions are met.
(b) If both Registered and Unregistered Securities are authorized for a
Series of Securities and the terms of such Securities permit, (i) Unregistered
Securities may be exchanged for an equal principal amount of Registered or
Unregistered Securities of the same Series, date of maturity, interest rate, and
original issue date in any authorized denominations upon delivery to the
Registrar (or a Paying Agent, if the exchange is for Unregistered Securities) of
the Unregistered Security with all unmatured coupons and all matured coupons in
default appertaining thereto and if all other requirements of the Registrar (or
such Paying Agent) and such Securities for such exchange are met, and (ii)
Registered Securities may be exchanged for an equal principal amount of
Unregistered Securities of the same Series, date of maturity, interest rate, and
original issue date in any authorized denominations (except that any coupons
appertaining to such Unregistered Securities which have matured and have been
paid shall be detached) upon delivery to the Registrar of the Registered
Securities and if all other requirements of the Registrar (or such Paying Agent)
and such Securities for such exchange are met.
Notwithstanding the foregoing, the exchange of Unregistered Securities
for Registered Securities or Registered Securities for Unregistered Securities
will be subject to the satisfaction of the provisions of United States law and
regulations in effect at the time of such exchange, and no exchange of
Registered Securities for Unregistered Securities will be made until the Company
has notified the Trustee and the Registrar that, as a result of such exchange,
the Company would not suffer adverse consequences under such law or regulations.
(c) To permit registrations of transfers and exchanges, the Trustee
shall Authenticate Securities upon surrender of Securities for registration of
transfer or for exchange as provided in this Section. The Company will not make
any charge for any registration of transfer or exchange but may require the
payment by the party requesting such registration of transfer or exchange of a
sum sufficient to cover any tax or other governmental charge payable in
connection therewith.
(d) Neither the Company nor the Registrar shall be required (i) to
issue, register the transfer of or exchange Securities of any Series for the
period of 15 days immediately preceding the selection of any such Securities to
be redeemed, or (ii) to register the transfer of or exchange Securities of any
Series selected, called or being called for redemption as a whole or the portion
being redeemed of any such Securities selected, called or being called for
redemption in part.
(e) Unregistered Securities or any coupons appertaining thereto shall
be transferable by delivery.
(f) If the Securities of any Series are subject to restrictions on
transfer, the Trustee shall, prior to any transfer of such Securities, receive
information from the Holder of such Securities and/or the prospective transferee
thereof acceptable to the Company.
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Section 2.09. Replacement Securities. (a) If a mutilated Security or a
Security with a mutilated coupon appertaining to it is surrendered to the
Trustee, the Company shall issue and the Trustee shall authenticate a
replacement Registered Security, if such surrendered Security was a Registered
Security, or a replacement Unregistered Security with coupons corresponding to
the coupons appertaining to the surrendered Security, if such surrendered
Security was an Unregistered Security, of the same Series, date of maturity,
interest rate, and original issue date if the Trustee's requirements are met.
(b) If the Holder of a Security claims that the Security or any coupon
appertaining thereto has been lost, destroyed or wrongfully taken, the Company
shall issue and the Trustee shall authenticate a replacement Registered
Security, if such Xxxxxx's claim pertains to a Registered Security, or a
replacement Unregistered Security with coupons corresponding to the coupons
appertaining to the lost, destroyed or wrongfully taken Unregistered Security or
the Unregistered Security to which such lost, destroyed or wrongfully taken
coupon appertains, if such Xxxxxx's claim pertains to an Unregistered Security,
of the same Series, date of maturity, interest rate, and original issue date, if
the Trustee's requirements are met; provided, however, that the Trustee, the
Company or the Guarantor may require any such Holder to provide to the Trustee,
the Company or the Guarantor security or indemnity sufficient in the judgment of
the Company, the Guarantor and the Trustee to protect the Company, the
Guarantor, the Trustee, any Agent or any authenticating agent from any loss
which any of them may suffer if a Security is replaced. The Company may charge
the party requesting a replacement Security for its expenses in replacing a
Security.
(c) Every replacement Security is an additional obligation of the
Company.
Section 2.10. Outstanding Securities. (a) Securities outstanding at any
time are all Securities Authenticated by the Trustee or an authenticating agent
except for those cancelled by it, those Certificated Securities delivered to it
for cancellation, those Uncertificated Securities for which the Trustee or the
Registrar has received valid cancellation instructions and those Securities
described in this Section as not outstanding.
(b) If a Security is replaced pursuant to Section 2.09, it ceases to be
outstanding until the Trustee receives proof satisfactory to it that the
replaced Security is held by a bona fide purchaser.
(c) If the Paying Agent holds on a redemption date or maturity date
money sufficient to pay all amounts due on Securities of such Series, they shall
cease to be outstanding and interest on them shall cease to accrue.
(d) Any acquisition of any Security by the Company or an Affiliate
shall not operate as a redemption or satisfaction of the indebtedness
represented by such Security unless and until the same is cancelled and
delivered to the Trustee or surrendered to the Trustee for cancellation.
(e) In determining whether the Holders of the requisite principal
amount of outstanding Securities of any Series have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, or whether
sufficient funds are available for redemption or for any other
-18-
purpose, the principal amount of an Original Issue Discount Security that shall
be deemed to be outstanding for such purposes shall be the amount of the
principal thereof that would be due and payable as of the date of such
determination upon a declaration of acceleration of the maturity thereof
pursuant to Section 6.01.
Section 2.11 Temporary Securities; Global Securities. (a) Until
definitive Registered Securities of any Series are ready for delivery, the
Company may prepare and execute and the Trustee shall authenticate temporary
Registered Securities of such Series. Temporary Registered Securities of any
Series shall be substantially in the form of definitive Registered Securities of
such Series but may have variations that the Company considers appropriate for
temporary Securities. Every temporary Registered Security shall be executed by
the Company and authenticated by the Trustee, and registered by the Registrar,
upon the same conditions, and with like effect, as a definitive Registered
Security. Without unreasonable delay, the Company shall prepare and the Trustee
shall authenticate definitive Registered Securities of the same Series, date of
maturity, interest rate, and original issue date in exchange for temporary
Registered Securities. All references herein to "definitive Registered
Securities" shall be deemed to apply equally to permanent global Registered
Securities.
(b) Until definitive or permanent global Unregistered Securities of any
Series are ready for delivery, the Company may prepare and execute and the
Trustee shall authenticate one or more temporary Unregistered Securities, which
may have coupons attached or which may be in the form of a single temporary
global Unregistered Security of that Series. The temporary Unregistered Security
or Securities of any Series shall be substantially in the form approved by or
pursuant to a Board Resolution and shall be delivered outside the United States
and its possessions to such Person or Persons as the Company shall direct
against such certification as the Company may from time to time prescribe by or
pursuant to a Board Resolution. The temporary Unregistered Security or
Securities of a Series shall be executed by the Company and authenticated by the
Trustee upon the same conditions, and with like effect, as a definitive
Unregistered Security of such Series, except as provided herein or therein. A
temporary Unregistered Security or Securities shall be exchangeable for
definitive or permanent global Unregistered Securities at the time and on the
conditions, if any, specified in the temporary Security.
(c) Upon any exchange of a part of a temporary or permanent global
Unregistered Security of a Series for definitive or permanent global
Unregistered Securities of such Series, the temporary or permanent global
Unregistered Security, as the case may be, shall be endorsed by the Trustee or
an authenticating agent for the Trustee to reflect the reduction of its
principal amount by an amount equal to the aggregate principal amount of
definitive or permanent Unregistered Securities, as the case may be, of such
Series so exchanged and endorsed. Upon any exchange of a part of a temporary or
permanent global Registered Security of a Series for definitive or permanent
global Registered Securities of such Series, the temporary or permanent global
Registered Security, as the case may be, shall be endorsed by the Trustee or an
authenticating agent for the Trustee to reflect the reduction of its principal
amount by an amount equal to the aggregate principal amount of definitive or
permanent Registered Securities, as the case may be, of such Series so exchanged
and endorsed.
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(d) If the Company shall establish pursuant to Section 2.02 that the
Securities of a particular Series are to be issued as one or more Global
Securities, then the Company shall execute and the Trustee shall, in accordance
with Section 2.03 and the Company Order delivered to the Trustee thereunder,
authenticate and deliver to the Depositary or pursuant to the Depositary's
instruction one or more Global Securities. Each Global Security shall bear a
legend substantially to the following effect: "Except as otherwise provided in
Section 2.11 of the Indenture, this Security may be transferred, in whole but
not in part, only to another nominee of the Depositary or to a successor
Depositary or to a nominee of such successor Depositary."
(e) Notwithstanding any other provision of this Section 2.11 or of
Section 2.08, except for exchanges of Global Securities as provided in Section
2.11(c), a Global Security may be transferred, in whole but not in part and in
the manner provided in Section 2.08, only to another nominee of the Depositary
for such Series, or to a Successor Depositary for such Series selected or
approved by the Company or to a nominee of such successor Depositary.
(f) If at any time the Depositary for a Series of Securities notifies
the Company that it is unwilling or unable to continue as Depositary for such
Series or, with respect to a Depositary for such Series or, with respect to a
Depositary contemplated by clause (ii) of the definition thereof, if at any time
the Depositary for such Series shall no longer be registered or in good standing
under the Securities Exchange Act of 1934, as amended, or other applicable
statute or regulation and, in any such case, a successor Depositary for such
Series is not appointed by the Company within 90 days after the Company receives
such notice or becomes aware of such condition, as the case may be, this Section
2.11 shall no longer be applicable to the Securities of such Series and the
Company will execute, and the Trustee will authenticate and deliver in
accordance with a Company Order, Securities of such Series in definitive
registered form without coupons, or in definitive bearer form with coupons, as
applicable, in authorized denominations, and in an aggregate principal amount
equal to the principal amount of the Global Security of such Series in exchange
for such Global Security.
(g) With the prior written consent of the Company with respect to a
Series of Registered Securities, the 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 of like tenor and terms and in
definitive form on such terms as are acceptable to the Company and such
Depositary. Thereupon the Company shall execute, and the Trustee shall
authenticate and deliver, without service charge, (i) to each Person specified
by such Depositary (pursuant to instructions from its direct or indirect
participants or otherwise) a new Security or Securities of the same Series, of
like tenor and terms and of any authorized denomination as requested by such
Person in aggregate principal amount equal to and in exchange for such Person's
beneficial interest in the Global Security; and (ii) in the event the principal
amount of the surrendered Global Security exceeds the aggregate principal amount
of Securities delivered to Holders pursuant to the preceding clause (i), to such
Depositary a new Global Security of like tenor and terms and in an aggregate
principal amount equal to such excess.
Section 2.12. Cancellation. The Company at any time may deliver
Certificated Securities and coupons to the Trustee for cancellation. The
Registrar and the Paying Agent shall forward to the Trustee any Certificated
Securities and coupons surrendered to them, for registration of
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transfer, or for exchange or payment. The Trustee shall cancel all Certificated
Securities and coupons surrendered for registration of transfer, or for
exchange, payment or cancellation and may dispose of cancelled Certificated
Securities and coupons as the Company directs; provided, however, that any
Unregistered Certificated Securities of a Series delivered to the Trustee for
exchange prior to maturity shall be retained by the Trustee for reissue as
provided herein or in the Certificated Securities of such Series. The Company
may not issue new Certificated Securities of a Series to replace Certificated
Securities of such Series that it has paid or delivered to the Trustee for
cancellation.
Section 2.13. Defaulted Interest. If the Company defaults on a payment
of interest on a Series of Securities, the Company or the Guarantor shall pay
the defaulted interest as provided in such Securities or in any lawful manner
not inconsistent with the requirements of any securities exchange on which such
Securities may be listed and acceptable to the Trustee.
ARTICLE III
REDEMPTION
Section 3.01. Notice to Trustee. The Company may, with respect to any
Series of Securities, reserve the right to redeem and pay the Series of
Securities or any part thereof, or may covenant to redeem and pay the Series of
Securities or any part thereof, before maturity at such time and on such terms
as provided for in such Securities. If a Series of Securities is redeemable and
the Company wants or is obligated to redeem all or part of the Series of
Securities pursuant to the terms of such Securities, it shall notify the Trustee
of the redemption date and the principal amount of the Series of Securities to
be redeemed. The Company shall give 60 days advance notice to the Trustee before
the redemption date or such lesser notice as shall be satisfactory to the
Trustee.
Section 3.02. Selection of Securities to be Redeemed. Upon notice that
less than all the Securities of a Series are to be redeemed, the Trustee shall
thereupon select the Securities of the Series to be redeemed in such manner as
the Trustee shall deem fair and appropriate, such selection to be made from
Securities of the Series that are outstanding and that have not previously been
called for redemption. Securities of the Series and portions of them selected by
the Trustee shall be in amounts of $1,000 or integral multiples of $1,000 or,
with respect to Securities of any Series issuable in other denominations
pursuant to Section 2.02(a)(8), in amounts equal to the minimum principal
denomination for each such Series and integral multiples thereof. Provisions of
the Indenture that apply to Securities of a Series called for redemption also
apply to portions of Securities of that Series called for redemption. The
Trustee shall promptly notify the Company in writing of the Securities selected
for redemption and, in the case of any Securities selected for partial
redemption, the principal amount thereof to be redeemed.
Section 3.03. Notice of Redemption. (a) At least 30 days but not more
than 90 days before a redemption date, the Company shall mail a notice of
redemption by first-class mail to each Holder of Registered Securities that are
to be redeemed.
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(b) If Unregistered Securities are to be redeemed, notice of redemption
shall be published in an Authorized Newspaper in the City of New York, and if
such Securities to be redeemed are listed on the London Stock Exchange, London,
and, if such Securities to be redeemed are listed on the Luxembourg Stock
Exchange, Luxembourg, once in each of four successive calendar weeks, the first
publication to be not less than 30 nor more than 90 days before the redemption
date.
(c) All notices shall identify the Series of Securities to be redeemed
and shall state:
(1) the redemption date;
(2) the redemption price;
(3) if less then all the outstanding Securities of a
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) the name and address of the Paying Agent;
(5) the Securities of the Series called for
redemption and that all unmatured coupons, if any, appertaining thereto
must be surrendered to the Paying Agent to collect the redemption
price;
(6) that interest on Securities of the Series called
for redemption ceases to accrue on and after the redemption date; and
(7) if redemption is for a mandatory or optional
sinking fund payment.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at its expense.
Section 3.04. Effect of Notice of Redemption. Once notice of redemption
is mailed or published, Securities of a Series called for redemption become due
and payable on the redemption date. Upon surrender to the Paying Agent of such
Securities together with all unmatured coupons, if any, appertaining thereto,
such Securities will be paid at the redemption price plus accrued interest to
the redemption date, but regular installments of interest due on or prior to the
redemption date will be payable, in the case of Unregistered Securities, to the
bearers of the coupons for such interest upon surrender thereof, and, in the
case of Registered Securities (except as otherwise provided with respect to the
Securities of a Series), to the Holders of such Securities of record at the
close of business on the relevant record dates; provided that in the case of
Securities that are Uncertificated Securities, no such surrender shall be
required, and the redemption price shall be paid to the Holders of such
Uncertificated Securities of record at the close of business on the redemption
date (except as otherwise provided with respect to the Securities of a Series).
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Section 3.05. Deposit of Redemption Price. On or before the redemption
date, the Company shall deposit with the Trustee money sufficient to pay the
redemption price of and (unless the redemption date shall be an interest payment
date) interest accrued to the redemption date on all Securities to be redeemed
on that date.
Upon surrender of a Certificated Security that is redeemed in part, the
Company shall issue and the Trustee shall authenticate for the Holder of that
Security a new Security or Securities of the same Series, the same form and the
same date of maturity, interest rate, and original issue date in authorized
denominations equal in aggregate principal amount to the unredeemed portion of
the Security surrendered.
Section 3.06. Mandatory and Optional Sinking Funds. The minimum amount
of any sinking fund payment provided for by the terms of any Series of
Securities is herein referred to as a "mandatory sinking fund payment," and any
payment in excess of such minimum amount provided for by the terms of any Series
of Securities is herein referred to as an "optional sinking fund payment." The
date on which a sinking fund payment is to be made is herein referred to as the
"sinking fund payment date."
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 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 the Trustee for cancellation pursuant
to Section 2.12, (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 the Trustee
at the sinking fund redemption price specified in such Securities.
On or before the sixtieth day next preceding each sinking fund payment
date for any Series, the Company will deliver to the Trustee a written statement
signed by an Officer of the Company (a) specifying the portion of the mandatory
sinking fund payment to be satisfied by payment of cash and the portion to be
satisfied by credit of Securities of such Series, (b) stating that none of the
Securities of such Series has theretofore been so credited, (c) stating that no
defaults in the payment of interest or Events of Default with respect to such
Series have occurred (which have not been waived or cured) and are continuing,
(d) stating whether or not the Company intends to exercise its right to make an
optional sinking fund payment with respect to such Series and, if so, specifying
the amount of such optional sinking fund payment which the Company intends to
pay on or before the next succeeding sinking fund payment date, and (e)
specifying such sinking fund payment date. Any Securities of such Series to be
credited and required to be delivered to the Trustee in order for the Company to
be entitled to credit therefor as aforesaid which have not theretofore been
delivered to the Trustee shall be delivered for cancellation pursuant to Section
2.12 to the Trustee with such written statement (or reasonably promptly
thereafter if acceptable to the Trustee). Such written statement shall be
irrevocable and upon its receipt by the Trustee the Company shall become
unconditionally obligated to make all
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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 sixtieth 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 thereof and (ii) that the
Company will make no optional sinking fund payment with respect to such Series
as provided in this Section.
If the sinking fund payment or payments (mandatory or optional or both)
to be made in cash on the next succeeding sinking fund payment date plus any
unused balance of any preceding sinking fund payments made in cash shall exceed
$50,000 (or a lesser sum if the Company shall so request) with respect to the
Securities of any particular Series, such cash shall be applied on the next
succeeding sinking fund payment date to the redemption of Securities of such
Series at the sinking fund redemption price together with accrued interest to
the date fixed for redemption. If such amount shall be $50,000 or less and the
Company makes no such request, then it shall be carried over until a sum in
excess of $50,000 is available. The Trustee shall select, in the manner provided
in Section 3.02, for redemption on such sinking fund payment date a sufficient
principal amount of Securities of such Series to absorb said cash, as nearly as
may be possible, and shall (if requested in writing by the Company) inform the
Company of the serial numbers of the Securities of such Series (or portions
thereof) so selected. Securities of any Series which are (a) owned by the
Company or an entity known by the Trustee to be directly or indirectly
controlling or controlled by or under direct or indirect common control with the
Company, as shown by the Security register, and not known to the Trustee to have
been pledged or hypothecated by the Company or any such entity or (b) identified
in an Officer's Certificate at least 60 days prior to the sinking fund payment
date as being beneficially owned by, and not pledged or hypothecated by, the
Company or an entity directly or indirectly controlling or controlled by or
under direct or indirect common control with the Company shall be excluded from
Securities of such Series eligible for selection for redemption. The Trustee, in
the name and at the expense of the Company (or the Company, if it shall so
request the Trustee in writing) shall cause notice of redemption of the
Securities of such Series to be given in substantially the manner provided in
Section 3.03 (and with the effect provided in Section 3.04) for the redemption
of Securities of such Series in part at the option of the Company. The amount of
any sinking fund payments not so applied or allocated to the redemption of
Securities of such Series shall be added to the next cash sinking fund payment
for such Series and, together with such payment, shall be applied in accordance
with the provisions of this Section. Any and all sinking fund moneys held on the
stated maturity date of the Securities of any particular Series (or earlier, if
such maturity is accelerated), which are not held for the payment or redemption
of particular Securities of such Series shall be applied, together with other
moneys, if necessary, sufficient for the purpose, to the payment of the
principal of, and interest on, the Securities of such Series at maturity.
At least one business day before each sinking fund payment date, the
Company shall pay to the Trustee in cash or shall otherwise provide for the
payment of all interest accrued to the date fixed for redemption on Securities
to be redeemed on the next following sinking fund payment date.
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The Trustee shall not redeem or cause to be redeemed any Securities of
a Series with sinking fund moneys or mail any notice of redemption of Securities
for such Series by operation of the sinking fund during the continuance of a
default in payment of interest on such Securities or of any Event of Default
except that, where the mailing of notice of redemption of any Securities shall
theretofore have been made, the 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 Six and held for the payment of all such Securities. In
case such Event of Default shall have been waived as provided in Section 6.06 or
the default cured on or before the sixtieth day preceding the sinking fund
payment date in any year, 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 IV
COVENANTS
Section 4.01. Payment of Securities. The Company shall pay the principal
of and interest on the Securities on the dates and in the manner provided herein
and in the Securities. An installment of principal or interest shall be
considered paid on the date it is due if the Trustee or Paying Agent holds on
that date money designated for and sufficient to pay the installment. If the
Securities of a Series provide for the payment of additional amounts as
contemplated by Section 2.02(a)(11), at least 10 days prior to the first
interest payment date with respect to that Series of Securities (or if the
Securities of that Series will not bear interest prior to maturity, the first
day on which a payment of principal is made), and at least 10 days prior to each
date of payment of principal or interest if there has been any change with
respect to the matters set forth in the below-mentioned Officer's Certificate,
the Company will furnish the Trustee and the Company's principal Paying Agent or
Paying Agents, if other than the Trustee, with an Officer's Certificate
instructing the Trustee and such Paying Agent or Paying Agents whether such
payment of principal of and interest on the Securities of that Series shall be
made to Holders of Securities of that Series or any related coupons without
withholding for or on account of any tax, assessment or other governmental
charge described in the Securities of the Series. If any such withholding shall
be required, then (a) such Officer's Certificate shall specify by country the
amount, if any, required to be withheld on such payments to such Holders of
Securities or coupons, and the Company will pay to the Trustee or such Paying
Agent such additional amounts as may be required pursuant to the terms
applicable to such Series, and (b) the Company may, at its option, redeem the
Securities of such Series at a redemption price equal to the principal amount of
such Securities plus unpaid accrued interest to the date of redemption, if any.
The Company shall retain the right to redeem any Securities pursuant to the
immediately preceding sentence, notwithstanding the fact that the Company may
have made payments of such additional amounts. The date of any such redemption
shall be not earlier than the interest payment date immediately preceding the
date on which the Company did or will become obligated to pay such additional
amounts. Whether the conditions precedent to the right of the Company to redeem
the
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Securities of such Series pursuant to the immediately preceding sentences have
occurred shall be determined by the Company on the basis of such relevant
evidence as shall be available to the Company and on the basis of the laws,
regulations or administrative or assessing policies of any relevant taxation
authority in effect on the date of such determination or to become effective as
of the next succeeding interest payment date following the date of redemption or
any time prior to such date. Prior to a redemption of any Securities under this
provision, the Company shall certify to the Trustee that it has made or will be
required to make such a payment of such additional amounts with respect to such
Securities, and the Trustee shall within fifteen (15) days of its receipt of
such notification give a notice of redemption of such Securities to each Holder
thereof. Any such redemption shall not occur less than thirty (30) days after
such notice is sent to the Holders of such Securities. Notwithstanding any other
provision in this Indenture concerning the timing of the giving of notice of
redemption, if any terms of the Securities of any Series or the agreements
relating thereto (including this Indenture) which require such additional
amounts to be paid in respect of such Securities become unlawful by virtue of
legislation or order of a court, board or commission, the Company shall so
certify to the Trustee on or promptly following the Company's receipt of notice
thereof, shall become obligated to redeem such Securities and shall cause notice
to be given by the Trustee to each Holder of such Securities of their redemption
at their principal amount plus unpaid interest, if any, on the first interest
payment date for such Securities on or after forty-five (45) days after such
certification, but not prior to the interest payment date immediately preceding
the interest payment date on which such additional amounts would otherwise
become due, and no such additional amounts shall be paid in the interim.
The Company shall (i) make such withholding or deduction and (ii) remit
the full amount deducted or withheld to the relevant authority in accordance
with applicable law. The Company shall furnish to the Trustee, within 30 days
after the date the payment of any taxes so withheld or deducted is due pursuant
to applicable law, certified copies of tax receipts evidencing such payment by
the Company. The Company covenants to indemnify the Trustee and any Paying Agent
for, and to hold them harmless against, any loss, liability or expense
reasonably incurred without negligence or bad faith on their part arising out of
or in connection with actions taken or omitted by any of them in reliance on any
Officer's Certificate furnished pursuant to this Section.
Section 4.02. Reports by the Company and the Guarantor. The Company and
the Guarantor covenant:
(a) to file with the Trustee, within 15 days after
the Company or the Guarantor is required to file the same with the SEC
or the Ontario Securities Commission, as applicable, copies of the
annual reports and of the information, documents and other reports (or
copies of such portions of any of the foregoing as the SEC or the
Ontario Securities Commission, as applicable, may from time to time by
rules and regulations prescribe) which the Company or the Guarantor may
be required to file with the SEC pursuant to Section 13 or Section
15(d) of the Securities Exchange Act of 1934, as amended, or the
Ontario Securities Commission, as applicable; or, if the Company or the
Guarantor is not required to file information, documents or reports
pursuant to either of such sections of the Securities Exchange Act of
1934, as amended, then to file with the Trustee and the SEC, in
accordance with rules and regulations
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prescribed from time to time by the SEC, 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, as
amended, 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;
(b) to file with the SEC and the Ontario Securities
Commission, as applicable, in accordance with the rules and regulations
prescribed from time to time by the SEC and the Ontario Securities
Commission, as applicable, and the Trustee such additional information,
documents, and reports with respect to compliance by the Company and
the Guarantor with the conditions and covenants provided for in this
Indenture as may be required from time to time by such rules and
regulations;
(c) to transmit by mail to all Holders of Registered
Securities, as the names and addresses of such Holders appear on the
register for each Series of Securities, and to such Holders of
Unregistered Securities as have, within the two years preceding such
transmission, filed their names and addresses with the Trustee for that
purpose, within 30 days after the filing thereof with the Trustee, and
to all Holders whose names appear on the list furnished to the Trustee
by the Company under Section 2.07(a), such summaries of any
information, documents and reports required to be filed by the Company
and the Guarantor pursuant to subsections (a) and (b) of this Section
4.02 as may be required by rules and regulations prescribed from time
to time by the SEC and the Ontario Securities Commission, as
applicable; and
(d) in the case of Uncertificated Securities for
which the Trustee does not act as Registrar, to file with the Trustee
at the time it files the annual or quarterly reports required to be
filed pursuant to paragraph (a) hereof or at such other times as the
Trustee may reasonably request, a statement of the aggregate amount of
such Uncertificated Securities issued and outstanding hereunder.
(e) so long as any outstanding Securities are
"restricted securities" within the meaning of Rule 144(a)(3) under the
Securities Act of 1933, as amended, to either (i) file the reports and
other information with respect to the Company and the Guarantor with
the SEC specified in Section 13 or 15(d) of the Securities Exchange Act
of 1934, as amended, in the time and manner specified in such Sections,
or (ii) in the event that they are not subject to Section 13 or 15(d)
of the Securities Exchange Act of 1934, as amended, make available to
Holders of such Securities and prospective purchasers of such
Securities designated by such Holders, upon request of prospective
purchasers, the information required to be delivered pursuant to Rule
144A(d)(4) under the Securities Act of 1933, as amended, to permit
compliance with Rule 144A in connection with resales of such
Securities.
Section 4.03. Limitations on Liens. The Company will not, nor will it
permit any Restricted Subsidiary to, create or incur, or suffer to be incurred
or to exist, any Lien on its or their property or assets, whether now owned or
hereafter acquired, or upon any income or profits therefrom, or transfer any
property for the purpose of subjecting the same to the payment of
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obligations in priority to the payment of its or their general creditors, or
acquire or agree to acquire, or permit any Restricted Subsidiary to acquire, any
property or assets upon conditional sales agreements or other title retention
devices, without thereupon expressly securing the due and punctual payment of
the principal of and the interest on the Securities of each Series equally and
ratably with any and all other obligations and indebtedness secured by such
Lien, so long as any such other obligations and indebtedness shall be so
secured, and the Company covenants that if and when any such Lien is created,
the Securities of each Series will be so secured thereby. Notwithstanding the
foregoing, this Section shall neither limit nor be deemed or construed as
limiting the right of the Company or any Restricted Subsidiary to create or
incur, or suffer to be incurred or to exist, any one or more of the following
Liens:
(a) Liens for property taxes and assessments or governmental
charges or levies which are not yet due and payable, or the amount,
applicability or validity thereof is being contested by the Company or
any Restricted Subsidiary on a timely basis in good faith and in
appropriate proceedings, and the Company or such Restricted Subsidiary
has established adequate reserves therefor in accordance with GAAP on
the books of the Company or such Restricted Subsidiary, or the
nonpayment of all such taxes, assessments, charges and levies in the
aggregate would not reasonably be expected to have a materially adverse
effect on the business, operations, affairs, financial condition,
properties or assets of the Company and its Restricted Subsidiaries
taken as a whole and Liens securing claims or demands of mechanics and
materialmen in each case incurred in the ordinary course of business
for sums not yet due and payable or the non-payment of which would not
reasonably be expected, individually or in the aggregate, to have a
materially adverse effect on the business, operations, affairs,
financial condition, properties or assets of the Company and its
Restricted Subsidiaries taken as a whole;
(b) Liens of or resulting from any judgment or award, the
time for the appeal or petition for rehearing of which shall not have
expired, or in respect of which the Company or a Restricted Subsidiary
shall at any time in good faith be prosecuting an appeal or proceeding
for a review and in respect of which a stay of execution pending such
appeal or proceeding for review shall have been secured;
(c) Liens incidental to the conduct of business or the
ownership of properties and assets (including Liens in connection with
worker's compensation, unemployment insurance and other like laws,
warehousemen's and solicitors' liens and statutory landlords' liens)
and Liens to secure the performance of bids, tenders or trade
contracts, or to secure statutory obligations, surety or appeal bonds
or other Liens of like general nature incurred in the ordinary course
of business and not in connection with the borrowing of money; provided
in each case, the obligation secured is not overdue or, if overdue, is
being contested in good faith by appropriate actions or proceedings;
(d) Minor survey exceptions, or minor encumbrances, easements
or reservations, or rights of others for rights-of-way, utilities and
other similar purposes, or zoning or other restrictions as to the use
of real properties, which are necessary for the conduct of the
activities of the Company and the Restricted Subsidiaries or which
customarily exist on properties of corporations engaged in similar
activities and similarly
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situated and which do not in any event materially impair their use in
the operation of the business of the Company and the Restricted
Subsidiaries;
(e) Liens securing Debt of a Restricted Subsidiary to the
Company or to another Restricted Subsidiary;
(f) Purchase Money Obligations;
(g) Liens on Acquired Financing Assets to secure Secured
Subordinated Debt of the Company or the Restricted Subsidiaries arising
in connection with the acquisition of such Acquired Financing Assets;
(h) Liens securing Non-Recourse Debt of the Company or the
Restricted Subsidiaries;
(i) Liens created or incurred after December 15, 1998 upon
any property (the "Substitute Property") concurrently with the release
of a comparable Lien on other property (the "Released Property"),
provided that (A) the fair market value of the Substitute Property
shall not exceed the fair market value of the Released Property by more
than 110%, (B) the character and use of the Substitute Property shall
be substantially equivalent to the character and use of the Released
Property, and (C) such substitution shall be without increase in the
principal amount of the Debt remaining unpaid as of the date of such
substitution which is to be secured by the Lien on such Substitute
Property and such remaining unpaid principal amount of such Debt shall
not exceed the aggregate fair market value of such Substitute Property
and any other property securing such Debt;
(j) Liens on property of, or on any shares of stock or debt
of, any corporation existing at the time such corporation becomes a
Restricted Subsidiary;
(k) Liens on property, shares of stock, other equity
interests, or debt existing at the time of acquisition or repossession
thereof by the Company or any Restricted Subsidiary;
(l) Liens on physical property (or any Accounts Receivable
arising in connection with the lease thereof), shares of stock, other
equity interests, or Debt acquired (or, in the case of physical
property, constructed) after December 15, 1998 by the Company or any
Restricted Subsidiary, which liens are created prior to, at the time
of, or within one year after such acquisition (or, in the case of
physical property, the completion of such construction or commencement
of commercial operation of such property, whichever is later) to secure
any Debt issued, incurred, assumed or guaranteed prior to, at the time
of, or within one year after such acquisition (or such completion or
commencement, whichever is later) or to secure any other debt issued,
incurred, assumed or guaranteed at any time thereafter for the purpose
of refinancing all or any part of such Debt;
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(m) Liens on Accounts Receivable of the Company or any
Restricted Subsidiary arising from or in connection with transactions
entered into by the Company or such Restricted Subsidiary after
December 15, 1998 or on Accounts Receivable acquired by the Company or
such Restricted Subsidiary after such date from others which liens are
created prior to, at the time of, or after such Accounts Receivable
arise or are acquired (i) as a result of any guarantee, repurchase or
other contingent (direct or indirect) or recourse obligation of the
Company or such Restricted Subsidiary in connection with the
discounting, sale, assignment, transfer or other disposition of such
Accounts Receivable or any interest therein, or (ii) to secure or
provide for the payment of all or any part of the investment of the
Company or such Restricted Subsidiary in any such Accounts Receivable
(whether or not such Accounts Receivable are the Accounts Receivable on
which such liens are created) or the purchase price thereof or to
secure any debt (including, without limitation, Non-Recourse Debt)
issued, incurred, assumed or guaranteed for the purpose of financing or
refinancing all or any part of such investment or purchase price;
(n) any extension, renewal, or replacement of any Lien
permitted by the preceding subsections (f), (g), (i), (j), (k) (l) and
(m) hereof in respect of the same property theretofore subject to such
Lien in connection with the extension, renewal or refinancing of the
Debt secured thereby; provided that (A) such Lien shall attached solely
to the same such property or Substitute Property, and (B) such
extension, renewal or refinancing of such Debt shall be without
increase in the principal remaining unpaid as of the date of such
extension, renewal or refinancing;
(o) Any other Liens (other than the Liens described in
clauses (a) - (n)) which in the aggregate relate to Debt the aggregate
amount of which does not exceed 10% of Consolidated Net Tangible
Assets; and
(p) any Lien approved by the Holders holding a majority in
principal amount of the outstanding Securities of each Series.
Section 4.04 Statement as to Compliance; Notice of Certain Events of
Default. The Company and the Guarantor will, within 120 days after the close of
each fiscal year, commencing with the first fiscal year following the issuance
of Securities of any Series under this Indenture, file with the Trustee a
certificate of the principal executive officer, the principal financial officer
or the principal accounting officer of each of the Company and the Guarantor,
covering the period from the date of issuance of such Securities to the end of
the fiscal year in which such Securities were issued, in the case of the first
such certificate, and covering the preceding fiscal year in the case of each
subsequent certificate, and stating whether or not, to the knowledge of the
signers, the Company and Guarantor, as applicable has complied with all
conditions and covenants on its part contained in this Indenture, and, if the
signers have obtained knowledge of any default by the Company or Guarantor in
the performance, observance or fulfillment of any such condition or covenant,
specifying each such default and the nature thereof. For the purpose of this
Section 4.04, compliance shall be determined without regard to any grace period
or requirement of notice provided pursuant to the terms of this Indenture.
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ARTICLE V
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
Section 5.01. Consolidation or Merger, etc., on Certain Terms. The
Company and the Guarantor each covenants that it will not merge or consolidate
with any other Person or sell or convey all, or substantially all of its assets
to any Person (other than such a sale or conveyance to a Subsidiary or any
successor thereto (such a sale or conveyance being called an "Asset
Drop-Down")), unless (i) either the Company or the Guarantor shall be the
continuing corporation or Person or the successor corporation or the Person
which acquires by sale or conveyance substantially all the assets of the Company
or the Guarantor (if other than the Guarantor or the Company) shall expressly
assume the due and punctual payment of the principal of and interest, if any, on
all the Securities, according to their tenor, and the due and punctual
performance and observance of all of the covenants and conditions of this
Indenture and, if applicable, each Subsidiary Guarantee to be performed or
observed by the Company and the Guarantor, by supplemental indenture in form
satisfactory to the Trustee, executed and delivered to the Trustee by such
corporation or Person, and, if applicable, execution and delivery of a Guaranty
relating to the Securities that are Guaranteed by the Guarantor, each
substantially in the form of the related Subsidiary Guarantee, and (ii) the
Company, the Guarantor or such successor corporation or Person, as the case may
be, shall not, immediately after such merger or consolidation, or such sale or
conveyance, be in default in the performance of any such covenant or condition.
In the event of any Asset Drop-Down after the date of this Indenture, any
subsequent sale or conveyance of assets by a Subsidiary to which assets were
transferred in such Asset Drop-Down (a "Drop-Down Subsidiary") will be deemed to
be a sale or conveyance of assets by the Company or the Guarantor, as applicable
for purposes of this Section 5.01.
Section 5.02 Successor Substituted. In case of any such consolidation,
merger, sale or conveyance, and following such an assumption by the successor
Person, such Person shall succeed to and be substituted for the Company or the
Guarantor, as applicable, with the same effect as if it had been named herein
and in each Subsidiary Guarantee. With respect to any successor to the Company,
such successor Person may cause to be signed, and may issue either in its own
name or in the name of the Company prior to such succession any or all of the
Securities issuable hereunder which theretofore shall not have been signed by
the Company and delivered to the Trustee; and, upon the order of such successor
Person instead of the Company and subject to all the terms, conditions and
limitations in this Indenture prescribed, the Trustee shall authenticate and
shall deliver any Securities which previously shall have been signed and
delivered by the officers of the Company to the Trustee for authentication, and
any Securities which such successor Person thereafter shall cause to be signed
and delivered to the Trustee for that purpose. All of the Securities so issued
shall in all respects have the same legal rank and benefit under this Indenture
as the Securities theretofore or thereafter issued in accordance with the terms
of this Indenture as though all of such Securities had been issued at the date
of the execution hereof.
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In case of any such consolidation, merger, sale, lease or conveyance
such changes in phraseology and form (but not in substance) may be made in the
Securities thereafter to be issued as may be appropriate.
In the event of any such sale or conveyance (other than a conveyance by
way of lease) the Company, the Guarantor or any successor Person which shall
theretofore have become such in the manner described in this Article shall be
released and discharged from all obligations and covenants under this Indenture.
Section 5.03. Opinion of Counsel to Trustee. The Trustee, subject to the
provisions of Sections 7.01 and 7.02, may receive an Opinion of Counsel,
prepared in accordance with Section 10.04, as conclusive evidence that any such
consolidation, merger, sale, lease or conveyance, any such assumption, and any
such release and discharge complies with the applicable provisions of this
Indenture.
ARTICLE VI
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
Section 6.01. Events of Default; Acceleration of Maturity; Waiver of
Default. In case one or more of the following events shall have occurred and be
continuing with respect to the Securities of any Series ("Events of Default"):
(a) default in the payment of any installment of interest upon any of
the Securities of that Series as and when the same shall become due and payable,
and continuance of such default for a period of 90 days; or
(b) default in the payment of the principal of any of the Securities of
that Series as and when the same shall become due and payable either at
maturity, upon redemption, or otherwise (except as may be otherwise provided in
the Board Resolution or supplemental indenture establishing the terms of the
Securities of such Series); or
(c) failure on the part of the Company or the Guarantor duly to observe
or perform any other of the covenants or agreements on the part of the Company
or the Guarantor in the Securities of that Series, in this Indenture contained
or in any supplemental indenture under which the Securities of that Series have
been issued, for a period of 90 days after the date on which written notice of
such failure (specified as a "Notice of Default"), requiring the Company or the
Guarantor to remedy the same, shall have been given to the Company and the
Guarantor by the Trustee or to the Company, the Guarantor and the Trustee by the
Holders of at least twenty-five percent in aggregate principal amount of the
Securities of that Series at the time outstanding; or
(d) a court or governmental agency having jurisdiction in the premises
shall enter a decree or order for relief in respect of the Company or the
Guarantor in an involuntary case under
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any applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, or appointing a receiver, liquidator, assignee, custodian, trustee,
sequestrator (or similar official) of the Company or the Guarantor or for all or
substantially all of its property or ordering the winding up or liquidation of
its affairs, and such decree or order shall remain unstayed and in effect for a
period of 90 consecutive days; or
(e) the Company or the Guarantor shall commence a voluntary case under
any applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, or consent to the entry of an order for relief in an involuntary case
under any such law, or consent to the appointment or taking possession by a
receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar
official) of the Company or the Guarantor or for all or substantially all of its
property or make any general assignment for the benefit of creditors; or the
Company or the Guarantor shall admit in writing its inability to pay its debts
generally as they become due; or
(f) any other Event of Default provided in the applicable resolution of
the Board of Directors or in the supplemental indenture under which such Series
of Securities is issued, as the case may be, as contemplated by Section 2.02;
then and in each and every such case, unless the principal of all the Securities
of that Series shall have already become due and payable, either the Trustee or
the Holders of not less than twenty-five percent in aggregate principal amount
of the Securities of that Series then outstanding hereunder, by notice in
writing to the Company and the Guarantor (and to the Trustee if given by
Securityholders), may declare the principal (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 the Securities of
that Series to be due and payable immediately, and upon any such declaration the
same (or, in the case of Original Issue Discount Securities, such specified
amount) shall become and shall be immediately due and payable, anything in this
Indenture, in any supplemental indenture under which the Securities of that
Series have been issued or in the Securities of that Series contained to the
contrary notwithstanding. This provision, however, is subject to the condition
that if, at any time after the principal of the Securities of that Series (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)
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 or the Guarantor shall pay, or shall deposit
with the Trustee a sum sufficient to pay, all matured installments of interest
upon all the Securities of that Series and the principal of any and all
Securities of that Series which shall have become due otherwise than by
declaration, with interest upon such principal and (to the extent that payment
of such interest is enforceable under applicable law) upon any overdue
installments of interest at the same rate of interest or Yield to Maturity (in
the case of Original Issue Discount Securities) specified in the Securities of
that Series, to the date of such payment or deposit, and such amount as shall be
sufficient to cover reasonable compensation to the Trustee, its agents and
counsel, and all other expenses and liabilities incurred, and all advances made,
by the Trustee except as a result of its negligence or bad faith, and if any and
all defaults under this Indenture with respect to the Securities of that Series,
other than the nonpayment of the principal of and interest on the Securities of
that Series which shall have become due by declaration, shall have been
remedied; then and in every such case the Holders of a majority in aggregate
principal
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amount of the Securities of that Series then outstanding by written notice to
the Company, the Guarantor and to the Trustee may waive all defaults and rescind
and annul such declaration and its consequences; but no such waiver or
rescission or annulment shall extend to or shall affect any subsequent default
or shall 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.
In case the Trustee shall have proceeded to enforce any right under
this Indenture and such proceedings shall have been discontinued or abandoned
because of such waiver or rescission or annulment or for any other reason or
shall have been determined adversely to the Trustee, then and in every such case
the Company, the Guarantor, the Trustee and the Holders of the Securities shall
be restored respectively to their former positions and rights hereunder, and all
rights, remedies and powers of the Company, the Guarantor, the Trustee and the
Holders of the Securities shall continue as though no such proceedings had been
taken.
Section 6.02. Collection of Indebtedness by Trustee; Trustee May Prove
Debt. The Company and the Guarantor covenant that (1) in the case default shall
be made in the payment of any installment of interest on any of the Securities
of any Series, as and when the same shall become due and payable, and such
default shall have continued for a period of 90 days, or (2) in case default
shall be made in the payment of the principal of any of the Securities of any
Series when the same shall have become due and payable, whether upon maturity or
upon redemption or upon declaration or otherwise -- then, upon demand of the
Trustee, the Company or the Guarantor will pay to the Trustee, for the benefit
of the Holders of the Securities of such Series, the whole amount that then
shall have become due and payable on all Securities of such Series for principal
and interest, with interest upon any overdue principal and (to the extent that
payment of such interest is enforceable under applicable law) upon any overdue
installments of interest at the same rate as the rate of interest or Yield to
Maturity (in the case of Original Issue Discount Securities) specified in the
Securities of such Series, and, in addition thereto, such further amount as
shall be sufficient to cover reasonable compensation to the Trustee, its agents
and counsel, and all other expenses and liabilities incurred, and all advances
made, by the Trustee except as a result of its negligence or bad faith.
In case both the Company and the Guarantor shall fail forthwith to pay
such amounts upon such demand, the Trustee, in its own name and as trustee of an
express trust, shall be entitled and empowered to institute any action or
proceedings at law or in equity for the collection of the sums so due and
unpaid, and may prosecute any such action or proceedings to judgment or final
decree and may enforce any such judgment or final decree against the Company or
the Guarantor or other obligor upon such Securities and collect in the manner
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provided by law out of the property of the Company or the Guarantor or other
obligor upon such Securities wherever situated the moneys adjudged or decreed to
be payable.
In case there shall be pending proceedings relative to the Company or
the Guarantor or any other obligor upon the Securities under Title 11 of the
United States Code or any other applicable federal, state or other bankruptcy,
insolvency or other similar law, or in case a receiver, assignee or trustee in
bankruptcy or reorganization, liquidator, sequestrator or similar official shall
have been appointed for or taken possession of the Company or the Guarantor or
its property or such other obligor, or in case of any other judicial proceedings
relative to the Company or the Guarantor or other obligor upon the Securities of
any Series, or to the creditors or property of the Company, the Guarantor or
such other obligor, the Trustee, irrespective of whether the principal of any
Securities shall then be due and payable as therein expressed or by declaration
or otherwise and irrespective of whether the Trustee shall have made any demand
pursuant to the provisions of this Section 6.02, shall be entitled and
empowered, by intervention in such proceedings or otherwise, (a) to file and
prove a claim or claims for the whole amount of principal (or, if the Securities
of any Series are Original Issue Discount Securities, such portion of the
principal amount as may be specified in the terms of such Series), and interest
paid and unpaid in respect of the Securities of any Series and to file such
other papers or documents as may be necessary or advisable in order to have the
claims of the Trustee (including any claim for reasonable compensation to the
Trustee, its agents and counsel, and for reimbursement of all expenses and
liabilities incurred, and all advances made, by the Trustee except as a result
of its negligence or bad faith) and of the Securityholders allowed in any
judicial proceedings relative to the Company, the Guarantor or other obligor
upon the Securities of any Series, or to the creditors or property of the
Company, the Guarantor or such other obligor, (b) unless prohibited by
applicable law and regulations, to vote on behalf of the Holders of the
Securities of any Series in any election of a trustee or a standby trustee in
arrangement, reorganization, liquidation or other bankruptcy or insolvency
proceedings or person performing similar functions in comparable proceedings,
and (c) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute all amounts received with
respect to the claims of the Securityholders and of the Trustee on their behalf
and any receiver, assignee, liquidator, custodian, trustee or other similar
official is hereby authorized by each of the Securityholders to make payments to
the Trustee and, in the event that the Trustee shall consent to the making of
payments directly to the Securityholders, to pay the Trustee such amount as
shall be sufficient to cover reasonable compensation to the Trustee, its agents
and counsel, and all other expenses and liabilities incurred, and all advances
made, by the Trustee except as a result of its negligence or bad faith.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or vote for or accept or adopt on behalf of any
Securityholder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities of any Series or the rights of any Holder
thereof, or to authorize the Trustee to vote in respect of the claim of any
Securityholder in any such proceeding except, as aforesaid, to vote for the
election of a trustee in bankruptcy or similar person.
All rights of action and to assert claims under this Indenture, or
under any of the Securities of any Series or coupons appertaining thereto, may
be enforced by the Trustee without
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the possession of any of the Securities of such Series or of any coupons
appertaining thereto or the production thereof in any trial or other proceedings
relative thereto, and any recovery of judgment shall be for the ratable benefit
of the holders of the Securities or coupons appertaining to such Securities in
respect of which such action was taken.
In any proceedings brought by the Trustee (and also any proceedings
involving the interpretation of any provision of this Indenture to which the
Trustee shall be a party) the Trustee shall be held to represent all the Holders
of the Securities or coupons appertaining to such Securities in respect to which
such action was taken, and it shall not be necessary to make any Holders of such
Securities or coupons parties to any such proceedings.
In the case of an Event of Default hereunder the Trustee may in its
discretion proceed to protect and enforce the rights vested in it by this
Indenture by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any of such rights, either at law or in
equity or in bankruptcy or otherwise, whether for the specific enforcement of
any covenant or agreement contained in this Indenture, or in aid of the exercise
of any power granted in this Indenture, or otherwise, and the Trustee may
enforce any other legal or equitable right vested in the Trustee by this
Indenture or by law.
Section 6.03. Application of Proceeds. Any moneys collected by the
Trustee pursuant to Section 6.02 in respect of any Series shall be applied in
the order following, at the date or dates fixed by the Trustee and in case of
the distribution of such moneys on account of principal or interest, upon
presentation (except in the case of Uncertificated Securities) of the several
Securities and coupons, if any, appertaining to such Securities in respect of
which moneys have been collected and stamping thereon the payment if only
partially paid, and upon surrender thereof if fully paid:
First: The Trustee for amounts due under Section 7.07;
Second: In case the principal of the Securities of such Series
in respect of which moneys have been collected shall not have become due, to the
payment of interest 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 the Trustee) upon the overdue
installments of interest, at the same rate as the rate of interest or Yield to
Maturity (in the case of Original Issue Discount Securities) specified in the
Securities of such Series, such payments to be made ratably to the persons
entitled thereto;
Third: In case the principal of the Securities of such Series in
respect of which moneys have been collected shall have become due by declaration
or otherwise, to the payment of the whole amount then owing and unpaid upon all
of the Securities of such Series for principal and interest, with interest on
the overdue principal, and (to the extent that such interest has been collected
by the Trustee) upon overdue installments of interest, at the same rate as the
rate of interest or Yield to Maturity (in the case of Original Issue Discount
Securities) specified in the Securities of such Series, and in the 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 or Yield to Maturity without preference or priority of principal over
interest
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or Yield to Maturity, or 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 interest or Yield to Maturity; and
Fourth: To the Company.
Section 6.04. Limitation on Suits by Securityholders. No Holder of any
Security of any Series or any coupon appertaining thereto shall have any right
by virtue or by availing of any provision of this Indenture to institute any
action or proceeding at law or in equity or in bankruptcy or otherwise upon or
under or with respect to this Indenture, or for the appointment of a receiver,
trustee, liquidator, custodian or other similar official or for any other remedy
hereunder, unless such Holder previously shall have given to the Trustee written
notice of an Event of Default and unless also the Holders of not less than
twenty-five percent in aggregate principal amount of the Securities of such
Series then outstanding shall have made written request upon the Trustee to
institute such action or proceedings in its own name as trustee hereunder and
shall have offered to the Trustee such reasonable indemnity, as it may require
against the costs, expenses, and liabilities to be incurred therein or thereby
and the Trustee, for 60 days after its receipt of such notice, request and offer
of indemnity, shall have failed to institute any such action or proceedings and
no direction inconsistent with such written request shall have been given to the
Trustee pursuant to Section 6.06; it being understood and intended and being
expressly covenanted by the taker and Holder of every Security or coupon with
every other taker and Holder and the Trustee that no one or more Holders of
Securities of any Series or coupons appertaining thereto shall have any right in
any manner whatever by virtue or by availing of any provision of this Indenture
to affect, disturb or prejudice the rights of any other Holder of Securities or
coupons of such Series, or to obtain or seek to obtain priority over or
preference to any other such Holder, or to enforce any right under this
Indenture, except in the manner herein provided and for the equal, ratable and
common benefit of all Holders of Securities of the applicable Series and
coupons, if any, appertaining thereto. For the protection and enforcement of the
provisions of this Section 6.04, each and every Securityholder and the Trustee
shall be entitled to such relief as can be given either at law or in equity.
Notwithstanding any other provision in this Indenture or any provision
of any Security, the right of any Holder of any Security to receive payment of
the principal of and interest on such Security, on or after the respective due
dates expressed in such Security, or any redemption date, and the right of any
Holder of a coupon to receive payment of interest due as provided in such
coupon, or to institute suit for the enforcement of any such payment on or after
such respective due dates or redemption dates, shall not be impaired or affected
without the consent of such holder.
Section 6.05. Powers and Remedies Cumulative; Delay or Omission Not
Waiver of Default. All powers and remedies given by this Article VI to the
Trustee or to the Securityholders or the Holders of any coupons shall, to the
extent permitted by law, be deemed cumulative and not exclusive of any thereof
or of any other powers and remedies available to the Trustee or the
Securityholders or the Holders of any coupons, by judicial proceedings or
otherwise, to enforce the performance or observance of the covenants and
agreements contained in this Indenture, and no delay or omission of the Trustee
or of any Holder of the Securities or
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coupons in exercising any right or power accruing upon any Event of Default
occurring and continuing as aforesaid shall impair any such right or power or
shall be construed to be a waiver of any such default or an acquiescence
therein; and, subject to the provisions of Section 6.04, every power and remedy
given by this Article VI or by law to the Trustee or to the Securityholders or
the Holders of any coupons may be exercised from time to time, and as often as
shall be deemed expedient, by the Trustee or by the Securityholders or the
Holders of any coupons.
Section 6.06. Control by Securityholders; Waiver of Defaults. The
Holders of a majority in aggregate principal amount of the Securities of each
Series affected (with each Series voting as a separate class) at the time
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 Securities of
such Series by this Indenture; provided that such direction shall not be
otherwise than in accordance with law and the provisions of this Indenture and
provided further that (subject to the provisions of Section 7.01) the Trustee
shall have the right to decline to follow any such direction if the Trustee,
being advised by counsel, shall determine that the action or proceeding so
directed may not lawfully be taken or if the Trustee in good faith by its board
of directors, the executive committee, or a trust committee of directors or
Responsible Officers of the Trustee shall determine that the action or
proceedings so directed would involve the Trustee in personal liability or if
the Trustee in good faith shall so determine that the actions or forebearances
specified in or pursuant to such direction would be unduly prejudicial to the
interests of Holders of the Securities of all Series so affected not joining in
the giving of said direction, it being understood that (subject to Section 7.01)
the Trustee shall have no duty to ascertain whether or not such actions or
forebearances are unduly prejudicial to such Holders. Nothing in this Indenture
shall impair the right of the Trustee in its discretion to take any action
deemed proper by the Trustee and which is not inconsistent with such direction
or directions by Securityholders. Prior to the declaration of the maturity of
the Securities of any Series as provided in Section 6.01, the Holders of a
majority in aggregate principal amount of the Securities of such Series at the
time outstanding may on behalf of the Holders of all the Securities of such
Series waive any past default hereunder with respect to such Series and its
consequences, except a default in the payment of the principal of or interest on
any of the Securities of such Series. In the case of any such waiver, the
Company, the Guarantor, the Trustee and the holders of the Securities of such
Series shall be restored to their former positions and rights hereunder,
respectively; but no such waiver shall extend to any subsequent or other default
or impair any right consequent thereon.
Section 6.07. Right of Court to Require Filing of Undertaking to Pay
Costs. All parties to this Indenture agree, and each Holder of any Security or
coupon appertaining thereto, by such Xxxxxx's acceptance thereof shall be deemed
to have agreed, that any court may in its discretion require, in any suit for
the enforcement of any right or remedy under this Indenture, or in any suit
against the Trustee for any action taken 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 6.07 shall not apply to
any suit instituted by the Trustee, to any suit instituted by any
Securityholder, or group of Securityholders of any
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Series, holding in the aggregate more than ten percent in principal amount of
the Securities of such Series outstanding, or to any suit instituted by any
Securityholder for the enforcement of the payment of the principal of or
interest on any Security on or after the due date expressed in such Security.
ARTICLE VII
TRUSTEE
Section 7.01. Duties of Trustee. (a) If an Event of Default has occurred
and is continuing, the Trustee shall exercise its rights and powers under this
Indenture and use the same degree of care and skill in their exercise as a
prudent person would exercise or use under the circumstances in the conduct of
his own affairs.
(b) Except during the continuance of an Event of Default:
(1) The Trustee need perform only those duties that
are specifically set forth in this Indenture, and no implied covenants
or obligations shall be read into this Indenture against the Trustee.
(2) In the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Indenture. However, the Trustee shall examine the certificates and
opinions to determine whether or not they conform to the requirements
of this Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that
(1) This paragraph does not limit the effect of
paragraph (b) of this Section.
(2) The Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless it is
proved that the Trustee was negligent in ascertaining the pertinent
facts.
(3) The Trustee shall not be liable with respect to
any action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 6.06.
(d) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b) and (c) of this Section.
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(e) The Trustee may refuse to perform any duty or exercise any right or
power unless it receives indemnity satisfactory to it against any loss,
liability or expense.
(f) The Trustee shall not be liable for interest on any money received
by it except as the Trustee may agree with the Company. Money held in trust by
the Trustee need not be segregated from other funds except to the extent
required by law.
Section 7.02. Rights of Trustee. (a) The Trustee may rely on any
document believed by it to be genuine and to have been signed or presented by
the proper person. The Trustee need not investigate any fact or matter stated in
the document.
(b) Before the Trustee acts or refrains from acting, it may consult
with counsel or require an Officer's Certificate or an Opinion of Counsel. The
Trustee shall not be liable for any action it takes or omits to take in good
faith in reliance on a Board Resolution, the written advice of counsel
reasonably acceptable to the Trustee, a certificate of an Officer or Officers
delivered pursuant to Section 2.02(b), an Officer's Certificate or an Opinion of
Counsel.
(c) The Trustee may act through agents and shall not be responsible for
the misconduct or negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits to
take in good faith which it believes to be authorized or within its rights or
powers.
(e) Unless otherwise specifically provided, any demand, request,
direction or notice from the Company or the Guarantor shall be sufficient if
signed by an Officer of the Company or the Guarantor, as the case may be.
Section 7.03. Individual Rights of Trustee. The Trustee in its
individual or any other capacity may become the owner or pledgee of Securities
and may otherwise deal with the Company or an Affiliate with the same rights it
would have if it were not Trustee. Any Agent may do the same with like rights.
However, the Trustee is subject to Sections 7.10 and 7.11.
Section 7.04. Trustee Disclaimer. The Trustee makes no representation as
to the validity or adequacy of this Indenture, the Securities or any Subsidiary
Guarantee. It shall not be accountable for the Company's use of the proceeds
from the Securities or for moneys paid over to the Company pursuant to this
Indenture, and it shall not be responsible for any statement in the Securities
other than its certificate of authentication.
Section 7.05. Notice of Default. If a Default occurs and is continuing
with respect to the Securities of any Series and it is known to the Trustee, the
Trustee shall mail to each Holder of a Security of that Series entitled to
receive reports pursuant to Section 4.02(c) (and, if Unregistered Securities of
that Series are outstanding, shall cause to be published at least once in an
Authorized Newspaper in The City of New York, and, if such Securities are listed
on the London Stock Exchange, London, and, if such Securities are listed on The
Luxembourg Stock Exchange, Luxembourg) notice of the Default within 90 days
after it occurs. Except in the case of a Default in payment on the Securities of
any Series, the Trustee may withhold the notice if and so long as
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its Corporate Trust Committee or a committee of its Responsible Officers in good
faith determines that withholding such notice is in the interests of
Securityholders of that Series.
Section 7.06. Reports by Trustee to Holders. (a) Within 60 days after
each anniversary date of the first issue of Securities, the Trustee shall mail
to each Securityholder, if any, entitled to receive reports pursuant to Section
4.02(c) a brief report dated as of such date that complies with XXX 'SS'313(a)
(but if no event described in TIA 'SS'313(a) has occurred within the twelve
months preceding such date, no report need be transmitted). Commencing at such
time, the Trustee also shall comply with XXX 'SS'313(b).
(b) At the time that it mails such a report to Securityholders, the
Trustee shall file a copy of that report with the SEC and with each stock
exchange on which the Securities are listed. The Company shall provide written
notice to the Trustee when the Securities of any Series are listed on any stock
exchange.
Section 7.07. Compensation and Indemnity. (a) The Company shall pay to
the Trustee from time to time reasonable compensation for its services. The
Trustee's compensation shall not be limited by any law on compensation of a
trustee of an express trust. The Company shall reimburse the Trustee upon
request for all reasonable out-of-pocket expenses incurred by it in connection
with the performance of its duties under this Indenture. Such expenses shall
include the reasonable compensation and expenses of the Trustee's agents and
counsel.
(b) The Company shall indemnify the Trustee against any loss or
liability incurred by it arising out of or in connection with its acceptance or
administration of the trust or trusts hereunder. The Trustee shall notify the
Company promptly of any claim for which it may seek indemnity. The Company shall
defend the claim and the Trustee shall cooperate in the defense. The Trustee may
have separate counsel and the Company shall pay the reasonable fees and expenses
of such counsel. The Company need not pay for any settlement made without its
consent.
(c) The Company need not reimburse any expense or indemnify against any
loss or liability incurred by the Trustee through negligence or bad faith.
(d) To secure the payment obligations of the Company pursuant to this
Section, the Trustee shall have a lien prior to the Securities of any Series on
all money or property held or collected by the Trustee, except that held in
trust to pay principal and interest on particular Securities of a Series.
(e) If the Trustee incurs expenses or renders services after an Event
of Default specified in Section 6.01(d) or (e) occurs, such expenses and the
compensation for such services are intended to constitute expenses of
administration under any applicable bankruptcy, insolvency or other similar law.
Section 7.08. Replacement of Trustee. (a) The resignation or removal of
the Trustee and the appointment of a successor Trustee shall become effective
only upon the successor Trustee's acceptance of appointment as provided in this
Section.
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(b) The Trustee may resign with respect to the Securities of any Series
by so notifying the Company. The Holders of a majority in principal amount of
the Securities of any Series may remove the Trustee with respect to that Series
by so notifying the Trustee and the Company and may appoint a successor Trustee
for such Series with the Company's consent. The Company may remove the Trustee
with respect to Securities of any Series if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged a bankrupt or an
insolvent;
(3) a receiver or public officer takes charge of
the Trustee or its property; or
(4) the Trustee becomes incapable of acting.
(c) If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, with respect to Securities of any Series, the
Company shall promptly appoint a successor Trustee for such Series.
(d) If a successor Trustee with respect to the Securities of any Series
does not take office within 30 days after the retiring Trustee resigns or is
removed, the retiring Trustee, the Company or the Holders of a majority in
principal amount of the Securities of the applicable Series may petition any
court of competent jurisdiction for the appointment of a successor Trustee.
(e) If the Trustee with respect to the Securities of any Series fails
to comply with Section 7.10, after request therefor by any Securityholder of the
applicable Series who has been a bona fide Holder of a Security of such Series
for at least six months, then such Holder may petition any court of competent
jurisdiction for the removal of such Trustee and the appointment of a successor
Trustee.
(f) A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon, the
resignation or removal of the retiring Trustee for any Series of Securities
shall become effective, and the successor Trustee shall have all the rights,
powers and duties of the retiring Trustee with respect to all Series of
Securities for which the successor Trustee is to be acting as Trustee under this
Indenture. The retiring Trustee shall promptly transfer all property held by it
as Trustee with respect to such Series of Securities to the successor Trustee
subject to the lien provided for in Section 7.07. The Company shall give notice
of each appointment of a successor Trustee for any Series of Securities by
publishing notice of such event once in an Authorized Newspaper in The City of
New York, and if Securities of that Series are listed on the London Stock
Exchange, London, and if Securities of that Series are listed on the Luxembourg
Stock Exchange, Luxembourg, and by mailing written notice of such event by
first-class mail to the Holders of Securities of such Series entitled to receive
reports pursuant to Section 4.02(c).
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(g) All provisions of this Section 7.08 except subparagraphs (b)(1) and
(e) and the words "subject to the lien provided for in Section 7.07" in
subparagraph (f) shall apply also to any Paying Agent located outside the U.S.
and its possessions as required by Section 2.04.
(h) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) Series, the Company, the
retiring Trustee and such successor Trustee shall execute and deliver a
supplemental indenture wherein such 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, such 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 the Securities of a Series, shall contain such provisions as shall be
deemed necessary or desirable to confirm that the trusteeship for 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 as 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 7.09. Successor Trustee, Agents by Xxxxxx, etc. If the Trustee
or any Agent consolidates with, merges or converts into, or transfers all or
substantially all of its corporate trust business assets to, another
corporation, the successor corporation, without any further act, shall be the
successor Trustee or Agent, as the case may be.
Section 7.10. Eligibility; Disqualification. This Indenture shall always
have a Trustee with respect to each Series of Securities who satisfies the
requirement of TIA 'SS'310(a)(1) and (5). The Trustee shall always have a
combined capital and surplus of at least $100,000,000 as set forth in its most
recent published annual report of condition. The Trustee is subject to
TIA 'SS'310(b) during the period of time required thereby, except that there
shall be excluded from the operation of TIA 'SS'310(b)(1) all indentures of the
Company or the Guarantor now or hereafter existing which may be excluded under
the proviso of TIA 'SS'310(b)(1) including the Indenture dated as of April 9,
1990, as amended between the Guarantor and The Chase Manhattan Bank (formerly
known as Chemical Bank), as Trustee, the Indenture dated as of June 1, 1992,
as amended between the Guarantor and The Chase Manhattan Bank (formerly known
as Chemical Bank), as Trustee, the Indenture dated as of July 1, 1993, as
amended, between the Guarantor and The Chase Manhattan Bank (formerly known as
Chemical Bank), as Trustee, the Indenture dated as of April 1, 1998 among the
Company, the Guarantor and The Chase Manhattan Bank, as Trustee, and the
Indenture dated as of December 15, 1998 between the Company and The Chase
Manhattan Bank, as Trustee. Nothing herein shall prevent the Trustee from filing
with the SEC the application referred to in the penultimate paragraph of
XXX 'SS'310(b).
Section 7.11. Preferential Collection of Claims Against Company. The
Trustee is subject to TIA 'SS'311(a), excluding any creditor relationship
listed in TIA 'SS'311(b). A Trustee who has resigned or been removed shall be
subject to TIA 'SS'311(a) to the extent indicated.
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Section 7.12. Authenticating Agent. The Trustee may appoint an
authenticating agent or agents acceptable to the Company and the Trustee with
respect to the Securities of one or more Series which shall be authorized to act
on behalf of the Trustee to Authenticate Certificated and Uncertificated
Securities of such Series issued upon original issue, exchange, registration of
transfer, partial redemption, conversion or payment or substitution of
Securities pursuant to any provision contained in this Indenture. Securities so
Authenticated shall be entitled to the benefits of this Indenture and shall be
valid and obligatory for all purposes as if Authenticated by the Trustee
hereunder and every reference herein to the Authentication and delivery of
Securities by the Trustee or the Trustee's certificate of Authentication on
Certificated Securities or the issuance of Statements of Account by the Trustee
shall be deemed to include Authentication and delivery on behalf of the Trustee
by an authenticating agent and a certificate of Authentication on Certificated
Securities executed on behalf of the Trustee by an authenticating agent and the
issuance of Statements of Account on behalf of the Trustee by an authenticating
agent. Each authenticating agent shall at all times be a corporation organized
and doing business under the laws of the United States of America or any state
thereof or the District of Columbia and authorized under such laws to act as an
authenticating agent.
Any corporation into which an authenticating agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such authenticating agent
shall be a party, or any corporation succeeding to the corporate agency or all
or substantially all of the business of an authenticating agent, shall continue
to be an authenticating agent, provided that such corporation shall be otherwise
eligible under this Section 7.12, without the execution or filing of any paper
or any further act on the part of the Trustee or the authenticating agent.
An authenticating agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time terminate
the agency of an authenticating agent by giving written notice thereof to such
authenticating agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
authenticating agent shall cease to be eligible in accordance with the
provisions of this Section 7.12, the Trustee may appoint a successor
authenticating agent which shall be acceptable to the Company. Any successor
authenticating agent upon acceptance of its appointment hereunder shall become
vested with all 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 7.12.
The Company agrees to pay to each authenticating agent from time to
time reasonable compensation for its services under this Section 7.12.
The Trustee shall not incur any liability for the appointment by the
Trustee of any authenticating agent or for any misconduct or negligence of any
such authenticating agent, including without limitation, its authentication of
Securities upon original issuance or otherwise. If the Trustee does incur
liability for any such misconduct or negligence of any such authenticating
agent, the Company agrees to indemnify the Trustee for, and hold it harmless
against, any such liability, including the costs and expenses of defending
itself against any liability in connection with such misconduct or negligence of
such authenticating agent.
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If an authenticating agent is appointed with respect to the Securities
of one or more Series pursuant to this Section 7.12, the Certificated Securities
of such Series may have endorsed thereon, in addition to or in lieu of the
Trustee's certificate of Authentication, an alternate certificate of
Authentication in the following form:
This is one of the Certificated Securities of the Series designated
therein referred to in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK, AS TRUSTEE
By ----------------------------------
As Authenticating Agent
By ----------------------------------
Authorized Officer
ARTICLE VIII
SATISFACTION AND DISCHARGE OF INDENTURE; DEFEASANCE;
UNCLAIMED MONIES
Section 8.01. Satisfaction and Discharge of Indenture. If at any time
(a) the Company shall have delivered to the Trustee cancelled or for
cancellation all Securities of any Series theretofore authenticated and all
unmatured coupons, if any, appertaining thereto (other than any Securities of
such Series and coupons appertaining thereto which shall have been destroyed,
lost or stolen and which shall have been replaced or paid as provided in Section
2.09), or (b) in the case of any Series of Securities where the exact amount
(including currency of payment) of principal of and interest due on which can be
determined at the time of making the deposit referred to in clause (ii) below,
(i) all the Securities of such Series and all unmatured coupons appertaining
thereto, not theretofore delivered to the Trustee cancelled or for cancellation
shall have become due and payable, or are by their terms to become due and
payable within one year or are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of redemption,
and (ii) the Company or the Guarantor shall deposit or cause to be deposited
with the Trustee as trust funds the entire amount in cash sufficient to pay at
maturity or upon redemption all such Securities not theretofore delivered to the
Trustee cancelled or for cancellation, including principal and interest due or
to become due to such date of maturity or date fixed for redemption, as the case
may be, or (c) in the case of any Series of Securities which have a floating or
variable rate of interest that cannot exceed a specified or determinable maximum
rate of interest, (i) all the Securities of such Series and all unmatured
coupons appertaining thereto, not theretofore delivered to the Trustee cancelled
or for cancellation shall have become due and payable, or are by their terms to
become due and payable within one year or are to be called for redemption within
one year under arrangements satisfactory to the Trustee for the giving of notice
of redemption, and (ii) the Company or the Guarantor shall deposit or cause to
be deposited with the Trustee as trust funds the entire amount in cash
sufficient to pay
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each installment of interest on such Series of Securities not theretofore
delivered to the Trustee for cancellation at the applicable specified or
determined maximum rate of interest thereon on the dates such installments of
interest are due and sufficient to pay the principal of the Securities of such
Series not theretofore delivered to the Trustee for cancellation at maturity or
upon redemption, but excluding, however, in each of the foregoing cases, the
amount of any moneys for the payment of principal of or interest on the
Securities (1) theretofore deposited with the Trustee and repaid by the Trustee
to the Company in accordance with the provisions of Section 8.05, or (2) paid to
any state or to the District of Columbia pursuant to its unclaimed property or
similar laws, and if in either case the Company or the Guarantor shall also pay
or cause to be paid all other sums payable hereunder by the Company or the
Guarantor, then this Indenture shall cease to be of further effect with respect
to the Securities of such Series (except as to the provisions applicable to
transfers and exchanges of Securities of such Series and any coupons
appertaining thereto), and the Trustee, on demand of and at the cost and expense
of the Company, shall execute proper instruments acknowledging satisfaction of
and discharging this Indenture with respect to the Securities of such Series.
The Company agrees to reimburse the Trustee for any costs or expenses thereafter
reasonably and properly incurred by the Trustee in connection with this
Indenture or the Securities.
Section 8.02. Defeasance upon Deposit of Moneys or U.S. Government
Obligations. In the case of any Series of Securities, the exact amounts
(including the currency of payment) of principal of and interest due on which
can be determined at the time of making the deposit referred to in clause (1)
below, at the Company's option, either (i) the Company and the Guarantor shall
be deemed to have been Discharged (as defined below) from its obligations with
respect to the Securities of such Series and coupons, if any, appertaining
thereto or (ii) the Company and the Guarantor shall cease to be under any
obligation to comply with any term, provision or condition set forth in Sections
4.03 and 5.01 with respect to the Securities of such Series at any time after
the applicable conditions set forth below have been satisfied:
(1) the Company or the Guarantor shall have deposited or caused
to be deposited irrevocably with the 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 and coupons
appertaining thereto (i) money in an amount, or (ii) in the case of any
Series of Securities the payments on which may only be made in U.S.
dollars, 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, money in an amount, or (iii) a combination of (i) and (ii),
sufficient in each case in the opinion of a nationally recognized firm
of independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge each installment
of principal of, and interest on, the outstanding Securities of such
Series and coupons appertaining thereto on the dates such installments
of interest or principal are due;
(2) if the Securities of such Series are then listed on the New
York Stock Exchange, the Company shall have delivered to the Trustee an
Opinion of Counsel to the effect that the Company's exercise of its
option under this paragraph would not cause such Securities to be
delisted;
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(3) no Event of Default or event (including such deposit) which
with notice or lapse of time would become an Event of Default with
respect to the Securities of such Series shall have occurred and be
continuing on the date of such deposit, and no Event of Default under
Section 6.01(d) or (e) shall have occurred by the 91st day after such
deposit in connection with a deposit under clause (1) of this Section
8.02 to Discharge the Company or the Guarantor from its obligations
with respect to the Securities of such Series; and
(4) the Company shall have delivered to the Trustee an opinion
of independent counsel satisfactory to the Trustee to the effect that
Holders of the Securities of such Series and coupons appertaining
thereto will not recognize income, gain or loss for Federal income tax
purposes as a result of the Company's exercise of its option under this
Section 8.02 and will be subject to Federal income tax on the same
amount and in the same manner and at the same time as would have been
the case if such option had not been exercised, which opinion may, but
is not required to, include or be based upon a ruling to that effect
received from or published by the Internal Revenue Service.
"Discharged" means that the Company and the Guarantor shall be deemed
to have paid and discharged the entire indebtedness represented by, and
obligations under, the Securities of such Series and coupons appertaining
thereto and the Subsidiary Guarantee, if any, relating thereto and to have
satisfied all the obligations under this Indenture relating to the Securities of
such Series and coupons appertaining thereto (and the Trustee, at the expense of
the Company, shall execute proper instruments acknowledging the same), except
(A) the rights of holders of the Securities of such Series and coupons
appertaining thereto to receive, from the trust fund described in clause (1)
above, payment of the principal of and the interest on such Securities of such
Series and coupons when such payments are due; (B) the Company's obligations
with respect to such Securities of such Series under Sections 2.04, 2.08, 2.09,
2.11 and 8.03; and (C) the rights, powers, trusts, duties and immunities of the
Trustee hereunder.
This Indenture may be Discharged pursuant to this Section 8.02 with
respect to Securities of a Series which have a floating or variable rate of
interest that cannot exceed a specified or determinable maximum rate of interest
by deposit, in accordance with clause (1) of this Section 8.02, with respect to
the interest payments required to be made on the outstanding Securities of such
Series of money and/or U.S. Government Obligations sufficient (determined in
accordance with clause (1) of this Section 8.02) to pay and discharge each
installment of interest on the outstanding Securities of such Series at the
applicable specified or determined maximum rate of interest thereon on the dates
such installments of interest are due and the satisfaction of all other
requirements of this Section 8.02.
Section 8.03. Application of Moneys Deposited. All moneys deposited with
the Trustee pursuant to Section 8.01 or 8.02 shall be held in trust and applied
by it to the payment, either directly or through any Paying Agent (including the
Company acting as its own Paying Agent), to the Holders of the particular
Securities of such Series and of coupons appertaining thereto for the payment or
redemption of which such moneys have been deposited with the Trustee, of all
sums due, and to become due thereon for principal and interest.
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Section 8.04. Repayment of Moneys Held. In connection with the
satisfaction and discharge of this Indenture with respect to the Securities of
any Series, all moneys then held by any Paying Agent under the provisions of
this Indenture with respect to such Series of Securities shall, upon demand of
the Company, be repaid to it or paid to the Trustee, and thereupon such Paying
Agent shall be released from all further liability with respect to such moneys.
Section 8.05. Return of Moneys Unclaimed for Two Years; Return of
Additional Monies and U.S. Government Obligations. (a) Any moneys deposited with
or paid to the Trustee or any Paying Agent pursuant to any provision of this
Indenture for payment of the principal of or interest on the Securities of any
Series and any coupon appertaining thereto and not applied but remaining
unclaimed for two years after the date upon which the principal of or interest
on such Securities or coupons, as the case may be, shall have become due and
payable, shall be repaid to the Company by the Trustee or such Paying Agent on
demand; and the Holder of any of the Securities of such Series or coupons
appertaining thereto shall thereafter look only to the Company for any payment
which such Holder may be entitled to collect and all liability of the Trustee or
any Paying Agent with respect to such moneys shall thereupon cease; provided,
however, that the Trustee or such Paying Agent, before being required to make
any such repayment with respect to moneys deposited with it for any payment (a)
in respect of Registered Securities of any Series, shall at the expense of the
Company, mail by first-class mail to Holders of such Securities at their
addresses as they shall appear on the Security register, and (b) in respect of
Unregistered Securities of any Series, shall at the expense of the Company cause
to be published once, in an Authorized Newspaper in the Borough of Manhattan,
The City of New York, and if the Securities of such Series are listed on the
London Stock Exchange, once in an Authorized Newspaper in London, and if the
Securities of such Series are listed on the Luxembourg Stock Exchange, once in
an Authorized Newspaper in Luxembourg, notice, that such moneys remain and that,
after a date specified therein, which shall not be less than thirty days from
the date of such mailing or publication, any unclaimed balance of such money
then remaining will be repaid to the Company.
(b) Any moneys or U.S. Government Obligations remaining on deposit with
the Trustee pursuant to Section 8.01 or 8.02 with respect to Securities of a
Series (including Securities of a Series which have a floating or variable rate
of interest that cannot exceed a specified or determinable maximum rate of
interest) shall, after payment of all amounts of principal of and interest on
and other amounts due with respect to the outstanding Securities of such Series,
be promptly remitted by the Trustee to the Company.
Section 8.06. Indemnity for Government Obligations. The Company shall
pay and shall indemnify the Trustee and each Securityholder of each Series in
respect of which the deposit shall have been made against any tax, fee or other
charge imposed on or assessed against deposited U.S. Government Obligations or
the principal and interest received on such obligations.
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ARTICLE IX
AMENDMENTS AND WAIVERS
Section 9.01. Without Consent of Holders. The Company, the Guarantor
and the Trustee may enter into one or more supplemental indentures without
consent of any Securityholder for any of the following purposes:
(1) to cure any ambiguity, defect or inconsistency herein or in the
Securities of any Series or to make any other change, provided no such action
shall adversely affect the rights of any Securityholder; or
(2) to comply with Article V; or
(3) to secure the Securities pursuant to Section 4.03; or
(4) to provide for Uncertificated Securities in addition to or in place
of Certificated Securities; or
(5) to provide for the issuance of and establish the form and terms and
conditions of Securities of any Series as provided in Section 2.02, to establish
the form of any certifications required to be furnished pursuant to the terms of
this Indenture or any Series of Securities, or to add to the rights of the
Holders of any Series of Securities, or to surrender any right or power
conferred on the Company.
Section 9.02. With Consent of Holders. (a) With the written consent of
the Holders of a majority in principal amount of the outstanding Securities of
each Series affected by such supplemental indenture (with each Series voting as
a class), the Company, the Guarantor and the Trustee may enter into a
supplemental indenture to add any provisions to or to change or eliminate any
provisions of this Indenture or of any supplemental indenture or to modify, in
each case in any manner not covered by Section 9.01, the rights of the
Securityholders of each such Series. The Holders of a majority in principal
amount of the outstanding Securities of each Series affected by such waiver
(with each Series voting as a class), by notice to the Trustee, may waive
compliance by the Company or the Guarantor with any provision of this Indenture,
any supplemental indenture or the Securities of any such Series; but no such
waiver shall extend to or affect (x) any other Series of Securities or (y) such
provision except to the extent so expressly waived, and, until such waiver shall
become effective, the obligations of the Company and the Guarantor and duties of
the Trustee in respect to any such provision shall remain in full force and
effect, provided, however, without the consent of each Securityholder affected,
an amendment or waiver may not:
(1) reduce the amount of Securities whose Holders must
consent to an amendment or waiver;
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(2) change the rate of or change the time for payment of
interest on any Security;
(3) change the principal of or change the fixed maturity of
any Security;
(4) waive a Default in the payment of the principal of or
interest on any Security;
(5) make any Security payable in money other than that stated
in the Security; or
(6) make any changes in Sections 6.04 (last paragraph), 6.06
(third sentence), or the proviso in the last sentence of Section
9.02(a).
(b) It is not necessary under this Section 9.02 for the Securityholders
to consent to the particular form of any proposed supplemental indenture, but it
is sufficient if they consent to the substance thereof.
(c) Promptly after the execution by the Company, the Guarantor and the
Trustee of any supplemental indenture pursuant to the provisions of this Section
9.02, the Company shall transmit by mail a notice, setting forth in general
terms the substance of such supplemental indenture, to all Holders of Registered
Securities, as the names and addresses of such Holders appear on the register
for each Series of Securities, and to such Holders of Unregistered Securities
that are entitled to receive reports pursuant to Section 4.02(c). Any failure of
the Company to mail such notice, or any defect therein, shall not, however, in
any way impair or affect the validity of any such supplemental indenture.
Section 9.03. Compliance with Trust Indenture Act. Every amendment to
this Indenture or the Securities of one or more Series shall be set forth in a
supplemental indenture that complies with the TIA as then in effect.
Section 9.04. Revocation and Effect of Consents. Until an amendment,
direction or waiver becomes effective, a consent to it by a Holder of a Security
is a continuing consent by the Holder and every subsequent Holder of a Security
or portion of a Security that evidences the same debt as the consenting Xxxxxx's
Security, even if notation of the consent is not made on any Security. However,
any such Holder (or, if no record date has been established for the solicitation
of consents, any subsequent Holder) may revoke the consent as to his Security or
portion of a Security if the Trustee receives the notice of revocation before
the date the amendment, direction or waiver becomes effective. After an
amendment or waiver becomes effective, it shall bind ever Securityholder of each
Series affected by such amendment or waiver.
Section 9.05. Notation on or Exchange of Securities. The Trustee may, at
the direction of the Company, place an appropriate notation about an amendment
or waiver on any Security of any Series thereafter authenticated. The Company in
exchange for Securities of that Series may issue, and the Trustee shall
authenticate, new Securities of that Series that reflect the amendment or
waiver.
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Section 9.06. Trustee Protected. The Trustee need not sign any
supplemental indenture that adversely affects its rights, duties, obligations
and standard of care hereunder.
ARTICLE X
MISCELLANEOUS
Section 10.01. Trust Indenture Act Controls. If and to the extent that
any provision of this Indenture limits, qualifies or conflicts with the duties
imposed by, or with another provision (an "incorporated provision") included in
this Indenture by operation of, Sections 310 to 318, inclusive of the Trust
Indenture Act of 1939, such imposed duties or incorporated provision shall
control.
Section 10.02. Notices. (a) Unless otherwise herein provided, any
notice or communication by the Company, the Guarantor or the Trustee to any of
the other is duly given if in writing and delivered in person or mailed by
first-class mail:
if to the Company to :
Newcourt Credit Group Inc.
BCE Place 000 Xxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx, Xxxxxx X0X0X0
if to the Trustee to:
The Chase Manhattan Bank
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Capital Markets Fiduciary Services
if to the Guarantor to:
AT&T Capital Corporation
0 Xxxxxxxx Xxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
(b) The Company, the Guarantor or the Trustee by notice to the other
may designate additional or different addresses for subsequent notices or
communications.
(c) Any notice or communication to Holders of Securities entitled to
received reports pursuant to Section 4.02(c) shall be mailed by first-class mail
to the addresses for Holders of Registered Securities shown on the register kept
by the Registrar and to addresses filed with the Trustee for other Holders.
Failure to so mail a notice or communication or any defect in such
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notice or communication shall not affect its sufficiency with respect to other
Holders of Securities of that or any other Series entitled to receive notice.
(d) If a notice or communication is mailed in the manner provided above
within the time prescribed, it is conclusively presumed to have been duly given,
whether or not the addressee receives it.
(e) If the Company mails a notice or communication to Securityholders,
it shall mail a copy to the Guarantor, the Trustee and to each Agent at the same
time.
(f) If it shall be impractical in the opinion of the Trustee, the
Guarantor or the Company to make any publication of any notice required hereby
in an Authorized Newspaper, any publication or other notice in lieu thereof
which is made or given with the approval of the Trustee shall constitute a
sufficient publication of such notice.
(g) In case, by reason of the suspension of regular mail service, or by
reason of any other cause, it shall be impossible to mail any notice as required
by this Indenture, then such method of notification as shall be made with the
approval of the Trustee shall constitute a sufficient mailing of such notice.
Section 10.03. Communication by Holders with Other Holders.
Securityholders of any Series may communicate pursuant to TIA'SS'312(b) with
other Securityholders of that Series or of all Series with respect to their
rights under this Indenture or under the Securities of that Series or of all
Series. The Company, the Trustee, the Registrar and anyone else shall have the
protection of TIA'SS'312(c).
Section 10.04. Certificate and Opinion as to Conditions Precedent. Upon
any request or application by the Company or the Guarantor to the Trustee to
take any action under this Indenture, the Company or the Guarantor, as the case
may be, shall furnish to the Trustee:
(1) an Officer's Certificate stating that, in the opinion of the
signer, all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with; and
(2) an Opinion of Counsel stating that, in the opinion of such counsel,
all such conditions precedent have been complied with.
Section 10.05. Statements Required in Certificate or Opinion. Each
certificate or opinion with respect to compliance with a condition or covenant
provided for in this Indenture (other than statements delivered pursuant to
Section 4.04) shall include:
(1) a statement that the person making such certificate or opinion has
read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
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(3) a statement that, in the opinion of such person he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and
(4) a statement as to whether or not, in the opinion of such person,
such condition or covenant has been complied with.
Section 10.06. Legal Holidays. A "Legal Holiday" is a Saturday, a Sunday, or a
day on which banking institutions are not required to be open.
Section 10.07. Governing Law. This Indenture, each Security and any
coupons shall be deemed to be a contract made under the laws of the State of New
York, and for all purposes shall be construed in accordance with the laws of
said state.
Section 10.08. No Adverse Interpretation of Other Agreements. This
Indenture may not be used to interpret another indenture, loan or debt agreement
of the Company, the Guarantor or an Affiliate. No such indenture, loan or debt
agreement may be used to interpret this Indenture.
Section 10.09. No Recourse Against Others. No director, officer, employee
or stockholder, as such, of the Company or the Guarantor shall have any
liability for any obligations of the Company or the Guarantor under the
Securities or the Indenture or for any claim based on, in respect of or by
reason of such obligations or their creation. Each Securityholder by accepting a
Security waives and releases all such liability. The waiver and release are part
of the consideration for the issue of the Securities.
Section 10.10. When Treasury Securities Disregarded. In determining
whether the Holders of the required principal amount of Securities have
concurred in any direction, waiver or consent, Securities owned by the Company
or any Affiliate of the Company shall be disregarded, except that for the
purposes of determining whether the Trustee shall be protected in relying on any
such direction, waiver or consent, only Securities which the Trustee knows are
so owned shall be so disregarded. Securities so owned which have been pledged in
good faith shall not be disregarded if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to the
Securities and that the pledgee is not the Company or an Affiliate of the
Company.
Section 10.11. Rules by Trustee, Paying Agent, Registrar, Record Dates.
The Trustee may make reasonable rules for action by or a meeting of
Securityholders. The Paying Agent or Registrar may make reasonable rules for its
functions. The Company may set a record date for purposes of determining the
identity of Holders entitled to vote or consent to any action by vote or consent
authorized or permitted under this Indenture, which record date, in the case of
a consent or vote pursuant to Section 6.06, shall be the later of 10 days prior
to the first solicitation of such consent or the date of the most recent list of
Holders furnished to the Trustee pursuant to Section 2.07 of this Indenture
prior to such solicitation. If a record date is fixed, those persons who were
Holders of Securities at such record date (or their duly designated proxies),
and only those persons, shall be entitled to take such action by vote or consent
or to revoke any vote or consent previously given, whether or not such persons
continue to be Holders after such record
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date. No such vote or consent shall be valid or effective for more than 120 days
after such record date.
Section 10.12. Execution in Counterparts. This Indenture may be
executed in any number of counterparts, each of which shall be an original, but
such counterparts shall together constitute but one instrument.
Section 10.13. Securities in a Foreign Currency. Unless otherwise
specified in a Company Order delivered pursuant to Section 2.03(d) of this
Indenture with respect to a Series of Securities, whenever for purposes of this
Indenture any action may be taken by the Holders of a specified percentage in
aggregate principal amount of Securities of all Series or all Series affected at
the time outstanding and, at such time, there are outstanding Securities of any
Series which are denominated in a coin or currency other than United States
dollars, then the principal amount of Securities of such Series which shall be
deemed to be outstanding for the purpose of taking such action shall be that
amount of United States dollars that could be obtained for such amount at the
Market Exchange Rate, as such rate shall be certified to the Trustee by an
Officer's Certificate. For purposes of this Section 10.13, "Market Exchange
Rate" shall mean the noon United States dollar buying rate for that currency for
cable transfers quoted in The City of New York as certified for customs purposes
by the Federal Reserve Bank of New York; provided, however, in the case of Euros
("Euros"), "Market Exchange Rate" shall mean the rate of exchange determined by
the Commission of the European Communities (or any successor thereof) as
published in the Official Journal of the European Communities (such publication
or any successor publication, the "Journal"). If such Market Exchange Rate is
not available for any reason with respect to such currency, the Company shall
use, in its sole discretion and without liability on its part, (i) such
quotation of the Federal Reserve Bank of New York, or, in the case of Euros, the
rate of exchange as published in the Journal, as the most recent available date
or (ii) quotations or, in the case of Euros, rates of exchange from one or more
major banks in The City of New York or in the country of issue of the currency
in question, which for purposes of the Euros shall be Brussels, Belgium, or such
other quotations or, in the case of Euros, rates of exchange as the Company
shall deem appropriate. The provisions of this paragraph shall apply in
determining the equivalent number of votes which each Holder or proxy shall be
entitled to in respect of Securities of a Series denominated in a currency other
than United States dollars.
All decisions and determinations of the Company regarding the Market
Exchange Rate shall be in its sole discretion and shall, in the absence of
manifest error, be conclusive for all purposes and irrevocably binding upon the
Company, the Trustee and all Holders.
Section 10.14. Judgment Currency. Each of the Company and 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 any sum due in respect of the principal of or interest on
the Securities of any Series (the "Required Currency") into a currency in which
such judgment will be rendered (the "Judgment Currency"), the rate of exchange
used shall be the rate at which in accordance
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with normal banking procedures the Trustee could purchase in The City of New
York the Required Currency with the Judgment Currency on the day on which final
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 the Trustee could purchase
in The City of New York the Required Currency with the Judgment Currency on the
New York Banking Day preceding the day on which final 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 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 not previously
tendered or recovered 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 by law or required by executive order to close.
Section 10.15. Forum Selection and Consent to Jurisdiction. ANY
LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS
INDENTURE, ANY RELATED AGREEMENT OR THE SECURITIES, OR ANY COURSE OF CONDUCT,
COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF THE
COMPANY, THE GUARANTOR OR THE TRUSTEE SHALL BE BROUGHT AND MAINTAINED
EXCLUSIVELY IN THE COURTS OF THE STATE OF NEW YORK OR IN THE UNITED STATES
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK. THE COMPANY, THE GUARANTOR
AND THE TRUSTEE HEREBY EXPRESSLY AND IRREVOCABLY SUBMIT TO THE NON-EXCLUSIVE
JURISDICTION OF ALL FEDERAL AND STATE COURTS OF THE STATE OF NEW YORK FOR THE
PURPOSE OF ANY SUCH LITIGATION AS SET FORTH ABOVE AND IRREVOCABLY AGREE TO BE
BOUND BY ANY JUDGMENT RENDERED THEREBY IN CONNECTION WITH SUCH LITIGATION. EACH
OF THE COMPANY, THE GUARANTOR AND THE TRUSTEE FURTHER IRREVOCABLY CONSENTS TO
THE SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE PREPAID, OR BY PERSONAL
SERVICE WITHIN OR WITHOUT THE STATE OF NEW YORK. EACH OF THE COMPANY, THE
GUARANTOR AND THE TRUSTEE HEREBY EXPRESSLY AND IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY HAVE OR HEREAFTER
MAY HAVE TO THE LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT IN ANY SUCH COURT
REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM. TO THE EXTENT THAT THE COMPANY, THE GUARANTOR OR THE TRUSTEE
HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM JURISDICTION OF ANY COURT OR FROM
ANY LEGAL PROCESS (WHETHER THROUGH SERVICE OR NOTICE, ATTACHMENT PRIOR TO
JUDGMENT, ATTACHMENT IN AID OF EXECUTION OR OTHERWISE) WITH RESPECT TO ITSELF OR
ITS PROPERTY, EACH HEREBY IRREVOCABLY WAIVES SUCH IMMUNITY IN RESPECT OF ITS
OBLIGATIONS UNDER THIS INDENTURE, ANY RELATED AGREEMENT AND THE SECURITIES.
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IN WITNESS WHEREOF, the undersigned have caused this Indenture to be
duly executed as of the date and year first above written.
AT&T CAPITAL CORPORATION
By
THE CHASE MANHATTAN BANK
By
NEWCOURT CREDIT GROUP INC.
By
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STATE OF NEW JERSEY )
) ss.:Parsippany, N.J.
COUNTY OF XXXXXX )
On the ____ day of _____________, 1999, before me personally came
______________, to me known, who, being by me duly sworn, did depose and say
that he resides at _____________, that he is the ___________ of AT&T Capital
Corporation, one of the corporations described in and which executed the above
instrument, and that he signed his name thereto by like authority.
--------------------------------
Notary Public
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the ____ day of ______________, 1999, before me personally came
_________________, to me known, who, being by me duly sworn, did depose and say
that he resides at _______________, that he is a ________________ of The Chase
Manhattan Bank, one of the corporations described in and which executed the
above instrument, and that he signed his name thereto by like authority.
----------------------------------
Notary Public
STATE OF NEW JERSEY )
) ss.:Parsippany, N.J.
COUNTY OF XXXXXX )
On the ___ day of ____________, 1999, before me personally came _____________,
to me known, who, being by me duly sworn, did depose and say that he resides at
__________, that he is the _________ of Newcourt Credit Group Inc., one of the
corporations described in and which executed the above instrument, and that he
signed his name thereto by like authority.
-----------------------------------
Notary Public
