EXHIBIT 4A
AT&T CAPITAL CORPORATION,
NEWCOURT CREDIT GROUP INC.
AND
THE CHASE MANHATTAN BANK,
AS TRUSTEE
----------------
INDENTURE
Dated as of April 1, 1998
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Securities
TABLE OF CONTENTS*
PAGE
PARTIES...........................................................................................................1
RECITALS OF THE COMPANY:..........................................................................................1
Purpose of Indenture.....................................................................................1
Compliance with Legal Requirements.......................................................................1
Purpose of and Consideration for Indenture...............................................................1
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE.
SECTION 1.01. Definitions.........................................................................................1
Accounts Receivable......................................................................................1
Affiliate................................................................................................1
Agent....................................................................................................1
Authenticated............................................................................................2
Authorized Newspaper.....................................................................................2
Board of Directors.......................................................................................2
Board Resolution.........................................................................................2
Certificated Security....................................................................................2
Company..................................................................................................2
Company Order............................................................................................2
Consolidated Net Tangible Assets.........................................................................2
Default..................................................................................................3
Depositary...............................................................................................3
Global Security..........................................................................................3
Guarantee................................................................................................3
Guarantor................................................................................................3
Holder or Securityholder.................................................................................3
Indenture................................................................................................3
Internal Procedures......................................................................................3
Newcourt.................................................................................................4
Non-Recourse Debt........................................................................................4
Officer..................................................................................................4
Officers' Certificate....................................................................................4
Opinion of Counsel.......................................................................................4
Original Issue Discount Security.........................................................................4
Principal................................................................................................4
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*The Table of Contents is not part of the Indenture.
i
Registered Security......................................................................................4
Responsible Officer......................................................................................4
Restricted Subsidiary....................................................................................5
SEC......................................................................................................5
Series...................................................................................................5
Securities...............................................................................................5
Statement of Account.....................................................................................5
Subsidiary...............................................................................................5
TIA......................................................................................................5
Trust Indenture Act of 1939..............................................................................5
Trustee..................................................................................................5
Uncertificated Security or Uncertificated Securities.....................................................5
Unregistered Security....................................................................................5
U.S. Government Obligations..............................................................................6
U.S. Person..............................................................................................6
Yield to Maturity........................................................................................6
SECTION 1.02. Other Definitions......................................................................6
SECTION 1.03. Incorporation by Reference of Trust Indenture Act......................................6
SECTION 1.04. Rules of Construction..................................................................7
ARTICLE 2
THE SECURITIES.
SECTION 2.01. Issuable in Series.....................................................................7
SECTION 2.02. Establishment of Terms and Form of Series of Securities................................8
SECTION 2.03. Execution, Authentication and Delivery................................................11
SECTION 2.04. Registrar and Paying Agent............................................................13
SECTION 2.05. Payment on Securities.................................................................14
SECTION 2.06. Paying Agent to Hold Money in Trust...................................................15
SECTION 2.07. Securityholder Lists; Ownership of Securities.........................................15
SECTION 2.08. Transfer and Exchange.................................................................16
SECTION 2.09. Replacement Securities................................................................17
SECTION 2.10. Outstanding Securities................................................................17
SECTION 2.11. Temporary Securities; Global Securities...............................................18
SECTION 2.12. Cancellation..........................................................................20
SECTION 2.13. Defaulted Interest....................................................................20
ARTICLE 3
REDEMPTION.
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
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SECTION 3.06. Mandatory and Optional Sinking Funds..................................................23
ARTICLE 4
COVENANTS
SECTION 4.01. Payment of Securities.................................................................25
SECTION 4.02. Reports by the Company and the Guarantor..............................................26
SECTION 4.03. Limitations on Incurrence of Secured Debt.............................................27
SECTION 4.04. Statement as to Compliance; Notice of Certain Events of Default.......................29
ARTICLE 5
CONSOLIDATION, MERGER, SALE OR CONVEYANCE.
SECTION 5.01. Consolidation or Merger, etc., on Certain Terms.......................................29
SECTION 5.02. Successor Corporation Substituted.....................................................30
SECTION 5.03. Opinion of Counsel to Trustee.........................................................30
ARTICLE 6
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT.
SECTION 6.01. Events of Default; Acceleration of Maturity; Waiver of Default........................31
SECTION 6.02. Collection of Indebtedness by Trustee; Trustee May Prove Debt.........................33
SECTION 6.03. Application of Proceeds...............................................................35
SECTION 6.04. Limitation on Suits by Securityholders................................................36
SECTION 6.05. Powers and Remedies Cumulative; Delay or Omission, Not Waiver of
Default...............................................................................37
SECTION 6.06. Control by Securityholders; Waiver of Defaults........................................37
SECTION 6.07. Right of Court to Require Filing of Undertaking to Pay Costs..........................38
ARTICLE 7
TRUSTEE
SECTION 7.01. Duties of Trustee.....................................................................38
SECTION 7.02. Rights of Trustee.....................................................................39
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................................................................42
SECTION 7.09. Successor Trustee, Agents by Merger, etc..............................................43
SECTION 7.10. Eligibility; Disqualification.........................................................43
SECTION 7.11. Preferential Collection of Claims Against Company.....................................44
SECTION 7.12. Authenticating Agent..................................................................44
iii
ARTICLE 8
SATISFACTION AND DISCHARGE OF INDENTURE; DEFEASANCE;
UNCLAIMED MONIES.
SECTION 8.01. Satisfaction and Discharge of Indenture...............................................47
SECTION 8.02. Defeasance upon Deposit of Moneys or U.S. Government Obligations......................48
SECTION 8.03. Application of Moneys Deposited.......................................................49
SECTION 8.04. Repayment of Moneys Held..............................................................50
SECTION 8.05. Return of Moneys Unclaimed for Two Years; Return of Additional
Moneys and U.S. Government Obligations................................................50
SECTION 8.06. Indemnity for Government Obligations..................................................51
ARTICLE 9
AMENDMENTS AND WAIVERS.
SECTION 9.01. Without Consent of Holders............................................................51
SECTION 9.02. With Consent of Holders...............................................................51
SECTION 9.03. Compliance with Trust Indenture Act...................................................53
SECTION 9.04. Revocation and Effect of Consents.....................................................53
SECTION 9.05. Notation on or Exchange of Securities.................................................53
SECTION 9.06. Trustee Protected.....................................................................53
ARTICLE 10
MISCELLANEOUS.
SECTION 10.01. Trust Indenture Act Controls..........................................................53
SECTION 10.02. Notices...............................................................................54
SECTION 10.03. Communication by Holders with Other Holders...........................................55
SECTION 10.04. Certificate and Opinion as to Conditions Precedent....................................55
SECTION 10.05. Statements Required in Certificate or Opinion.........................................55
SECTION 10.06. Legal Holidays........................................................................56
SECTION 10.07. Governing Law.........................................................................56
SECTION 10.08. No Adverse Interpretation of Other Agreements.........................................56
SECTION 10.09. No Recourse Against Others............................................................56
SECTION 10.10. When Treasury Securities Disregarded..................................................57
SECTION 10.11. Rules by Trustee, Paying Agent, Registrar, Record Dates...............................57
SECTION 10.12. Execution in Counterparts.............................................................57
SECTION 10.13. Securities in a Foreign Currency......................................................57
SECTION 10.14. Judgment Currency.....................................................................58
SIGNATURES AND SEALS
ACKNOWLEDGEMENTS
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CROSS-REFERENCE TABLE**
Trust Indenture
Act of 1939 Indenture
Section Section
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310(a).................................................................7.10
310(b).................................................................7.10
310(c)..................................................................N/A
311(a).................................................................7.11
311(b).................................................................7.11
311(c)..................................................................N/A
312(a).................................................................2.07
312(b)................................................................10.03
312(c)................................................................10.03
313(a).................................................................7.06
313(b).................................................................7.06
313(c).................................................................4.02
314(a)...........................................................4.02, 4.04
314(b)..................................................................N/A
314(c)................................................................10.04
314(d)..................................................................N/A
314(e)................................................................10.05
314(f)..................................................................N/A
315(a).................................................................7.01
315(b).................................................................7.05
315(c).................................................................7.01
315(d).................................................................7.01
315(e).................................................................6.07
316(a)...........................................................6.06, 9.02
316(b).................................................................9.02
316(c)................................................................10.11
317(a).................................................................6.02
317(b).................................................................2.06
318(a)................................................................10.01
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**The Cross-Reference Table is not part of the Indenture.
v
THIS INDENTURE, dated as of April 1, 1998, is entered into by and among
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 "Company"), Newcourt Credit Group Inc., a corporation duly
organized and validly existing under the laws of Ontario, Canada (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 Guarantee relating the Securities.
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 1
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.
"Affiliate" means any person directly or indirectly controlling or
controlled by, or under direct or indirect common control with, the Company.
"Agent" means any Paying Agent or Registrar.
1
"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 any
duly authorized committee thereof.
"Board Resolution" means a copy of a resolution of the Board of Directors,
certified by the Secretary or an Assistant Secretary of the Company to have been
adopted by the Board of Directors and to be in full force and effect on the date
of the certificate, and delivered to the Trustee.
"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 AT&T Capital Corporation until a successor replaces it
subject to the provisions of Article 5 and thereafter means the successor.
"Company Order" means an order signed by two Officers or by any Officer and
an Assistant Treasurer or an Assistant Secretary of the Company.
"Consolidated Net Tangible Assets" means, at the date of any determination,
the total assets appearing on the consolidated balance sheet of the Guarantor as
at the end of the most recent fiscal quarter of the Guarantor for which such
balance sheet is available, prepared in accordance with generally accepted
accounting principles, less (a) all current liabilities (obligations whose
liquidity 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. "Intangible Assets" means the value (net of any applicable reserves), as
shown on or reflected in Newcourt's consolidated 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.
2
"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.
"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.
"Guarantee" means the agreement of the Guarantor in the form attached
hereto as Exhibit A.
"Guarantor" means Newcourt or any permitted successor or assign.
"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.
"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.
"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 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
3
to nor receipt by holders of Statements of Account shall constitute part of such
procedures for any purpose of this definition.
"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
indebtedness for borrowed money of the Company or such Restricted Subsidiary, as
the case may be, which is secured by any lien (as such term is used in Section
4.03) 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, the Secretary or the Controller of the Company or the
Guarantor, as the case may be.
"Officers' Certificate" means a certificate signed by two officers or by
any officer and an Assistant Treasurer or an Assistant Secretary 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 Guarantor, the Company or the Trustee.
"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, 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 "any premium, if any."
"Registered Security" means any Security issued hereunder and registered as
to principal and interest by the Registrar.
"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.
4
"Restricted Subsidiary" means each Subsidiary of the Company organized
under the laws of any State of the United States or the District of Columbia, no
substantial portion of the business of which is carried on outside of the United
States; provided that each Drop-Down Subsidiary (as defined in Section 5.01)
shall be a Restricted Subsidiary.
"SEC" means the Securities and Exchange Commission.
"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 law or otherwise determined
to be appropriate by the Company or the Trustee or the authenticating agent.
"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 Company). 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.
"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.
"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.
5
"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 or America.
"U.S. Person" means a citizen, national or resident of the United States, a
corporation, partnership or other entity created or organized in or under the
laws of the United States or any political subdivision thereof, or an estate or
trust whose income from sources without the United States is includible in gross
income for United States federal income tax purposes regardless of its
connection with the conduct of a trade or business within the United States.
"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.
6
"indenture securities" means the Securities.
"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 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 2
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.
7
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 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.
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
8
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;
(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 of 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 a
person who is not a U.S. 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
9
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, and the identity of the Depositary for
such Series; 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 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 of 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.
10
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, under its
corporate seal reproduced thereon 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 Order and procedures. If provided for in such procedures,
such 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 delivered hereunder, the form thereof and
the legality, validity, binding effect and enforceability thereof.
If the form and 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,
11
(1) the form and general terms 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) the Guarantee in respect of the 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 Officers'
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 Officers'
Certificate.
(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:
12
"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 Guarantee on Certificated Securities shall not affect or impair
validity or enforceability of such 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, any 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 Untied 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 terminated 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.
13
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 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 may 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 Holder'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
14
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.
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 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 a subsidiary 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.
15
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 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.
16
(e) Unregistered Securities or any coupons appertaining thereto shall be
transferable by delivery.
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 Holder'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 Holder'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 Uncertified
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.
17
(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 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 possession 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
18
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.
(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
19
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 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.
20
ARTICLE 3
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 sixty
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.
(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.
21
(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 authorized 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
23
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 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 Officers'
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,
24
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.
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 4
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 and any premium is
made), and at least 10 days prior to each date of payment of principal and any
premium or interest if there has been any change with respect to the matters set
forth in the below-mentioned Officers' Certificate, the Company will furnish the
Trustee and the Company's principal Paying Agent or Paying Agents, if other than
the Trustee, with an Officers' Certificate instructing the Trustee and such
Paying Agent or Paying Agents whether such
25
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 who are not
U.S. Persons 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 such Officers' 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. 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 Officers' 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, 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 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, if the Company or the Guarantor is not
required to file information, documents or reports pursuant to either of such
sections, then to file with the Trustee and the SEC, in accordance with rules
and regulations 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 Trustee and the SEC, in accordance with the rules and
regulations prescribed from time to time by the SEC, 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)
26
and (b) of this Section 4.02 as may be required by rules and regulations
prescribed from time to time by the SEC; 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.
SECTION 4.03. Limitations on Incurrence of Secured Debt.
(a) The Company will not, nor will it permit any Restricted Subsidiary to,
incur, issue, assume or guarantee any indebtedness for money borrowed ("debt")
secured by any pledge, mortgage, security interest or lien ("lien") on any
property or assets of the Company or any Restricted Subsidiary, or on any shares
of stock or debt of any Restricted Subsidiary, without effectively providing
that the principal of, premium, if any, and interest, if any, on the Securities
of each Series (together with, if the Company so determines, any other debt of
the Company or such Restricted Subsidiary, which is not subordinated to the
Securities of each Series) shall be secured equally and ratably with (or prior
to) such debt, so long as any such debt shall be so secured, unless, after
giving effect thereto, the aggregate amount of all such secured debt of the
Guarantor would not exceed 10% of Consolidated Net Tangible Assets of the
Guarantor; provided, however, that (i) any recourse provided by the Company or
any Restricted Subsidiary in connection with any sale, transfer or other
disposition by the Company or any Restricted Subsidiary of Accounts Receivable
or of any Restricted Subsidiary substantially all the assets of which are
Accounts Receivable which constitutes a "sale" under generally accepted
accounting principles (as in effect at the time of such sale, transfer or other
disposition) shall not, in any event, constitute debt and (ii) no Asset Drop
Down (as defined in Section 5.01) shall, in any event, constitute a lien; and
provided further that neither the satisfaction and discharge of any debt
pursuant to Section 8.01 of this Indenture or pursuant to any similar provision
in any other indenture or instrument governing any debt, nor the defeasance of
any debt pursuant to Section 8.02 of this Indenture or pursuant to any similar
provision in any other indenture or instrument governing any debt, shall be
deemed the incurrence, issue, assumption or guarantee of debt secured by a lien
for purposes of this Section 4.03(a). 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 incur, issue, assume or guarantee
any debt secured by any one or more of the following: (1) 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; (2) 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; (3) 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 the date of this Indenture
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
27
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; (4) 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 the date of this Indenture 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 within one year after such
Accounts Receivable arise or are acquired or, if later, the completion of the
delivery or installation of the equipment or goods or the rendering of the
services or the advancement or loaning of funds relating thereto (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; (5) liens in favor of the Guarantor or any Guarantor's
Subsidiaries; (6) liens in favor of the United States of America or any State
thereof or the District of Columbia, or any agency, department or other
instrumentality thereof, to secure progress, advance or other payments pursuant
to any contract or provision of any statute; (7) liens securing the performance
of letters of credit, bids, tenders, sales contracts, purchase agreements,
leases, surety and performance bonds, and other similar obligations not incurred
in connection with the borrowing of money; (8) liens to secure Non-Recourse Debt
in connection with the Company or any Restricted Subsidiary engaging in any
leveraged or single-investor or other lease transactions, whether (in the case
of liens on or relating to leases or groups of leases or the particular
properties subject thereto) such liens be on the particular properties subject
to any leases involved in any of such transactions and/or the rental or other
payments or rights under such leases or, in the case of any group of related or
unrelated leases, on the properties subject to the leases comprising such group
and/or on the rental or other payments or rights under such leases, or on any
direct or indirect interest therein, and whether (in any case) (i) such liens
be created prior to, at the time of, or at any time after the entering into of
such lease transactions and/or (ii) such leases be in existence prior to, or be
entered into by the Company or such Restricted Subsidiary at the time of or at
any time after, the purchase or other acquisition by the Company or such
Restricted Subsidiary of the properties subject to such leases; and (9) any
extension, renewal or replacement (or successive extensions, renewals or
replacements), in whole or in part, of any of the foregoing; provided, however,
that any such extension, renewal or replacement shall be limited to all or a
part of the property or assets which secured the lien so extended, renewed or
replaced (plus improvements on such property).
(b) The Company may omit in any particular instance to comply with any
covenant or condition set forth in Section 4.03(a) with respect to the
Securities of any Series if
28
before or after the time for such compliance the holders of a majority in
aggregate principal amount of the Securities of such Series at the time
outstanding shall, by action of such Securityholders in accordance with this
Indenture, either waive such compliance in such instance or generally waive
compliance with such covenant or conditions, but no such waiver shall extend to
or affect (x) any other Series of Securities or (y) such covenant or condition
except to the extent so expressly waived, and, until such waiver shall become
effective, the obligations of the Company and duties of the Trustee in respect
of any such covenant or condition shall remain in full force and effect.
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.
ARTICLE 5
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 corporation 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 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 be a corporation
organized under the laws of the United States of America or any State thereof or
of Canada or any province or territory thereof and shall expressly assume the
due and punctual payment of the principal of, premium, if any, 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 to be performed or observed by the Company, by supplemental indenture
in form satisfactory to the Trustee, executed and
29
delivered to the Trustee by such corporation, and (ii) the Company or such
successor corporation, 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 for purposes of this Section 5.01.
SECTION 5.02. Successor Corporation Substituted.
In case of any such consolidation, merger, sale or conveyance, and
following such an assumption by the successor corporation, such successor
corporation 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.
With respect to any successor to the Company, such successor corporation 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 corporation 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 corporation 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.
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 corporation 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.
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ARTICLE 6
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 any applicable federal or
state 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
31
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
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
32
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 covenants 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 premium, if any) and interest, with interest upon any overdue principal
(and premium, if any) 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 the Company or 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
33
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 provided by law out of the property of the
Company or the Guarantor or other obliger 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 or state 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) , premium, if
any, 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
34
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 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 premium, if any) 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;
35
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
premium, if any) and interest, with interest on the overdue principal (and
premium, if any) , 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 premium, if any) and interest or Yield to Maturity
without preference or priority of principal (and premium, if any) over
interest 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 premium, if any)
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.
36
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, premium, if any 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 Six 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 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 6 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
37
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 Holder'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 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 premium, if any) or interest
on any Security on or after the due date expressed in such Security.
ARTICLE 7
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:
38
(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.
(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 Officers' 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
39
written advice of counsel reasonably acceptable to the Trustee, a certificate of
an Officer or Officers delivered pursuant to Section 2.02(b), an Officers'
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 shall be sufficient if signed by an Officer of the
Company.
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 Section 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 the 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 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.
40
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 TIA 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 TIA
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 state or federal bankruptcy, insolvency or related law.
41
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.
(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
42
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).
(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 ro 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 Merger, 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
43
time required thereby, except that there shall be excluded from the operation of
TIA 'SS' 310(b)(1) all indentures of the Company 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 Company and The Chase
Manhattan Bank (formerly known as Chemical Bank), as Trustee, and the Indenture
dated as of June 1, 1992, as amended between the Company and The Chase Manhattan
Bank (formerly known as Chemical Bank), as Trustee and the Indenture dated as of
July 1, 1993, as amended, between the Company and The Chase Manhattan Bank
(formerly known as Chemical Bank). Nothing herein shall prevent the Trustee from
filing with the SEC the application referred to in the penultimate paragraph of
TIA 'SS' 310(b).
SECTION 7.11. Preferential Collection of Claims Against Company.
The Trustee if 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.
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.
44
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 hereof 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.
45
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"
46
ARTICLE 8
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 premium, if any) 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 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 (and
premium, if any, on) 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 (and premium, if any) 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
47
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;
(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
48
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
Guarantee 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
49
which such moneys have been deposited with the Trustee, of all sums due, and to
become due thereon for principal and interest.
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
Moneys 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 (and
premium, if any) 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 (and premium, if any) 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.
50
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.
ARTICLE 9
AMENDMENTS AND WAIVERS.
SECTION 9.01. Without Consent of Holders.
The Company, the Guarantor and the Trustees 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 5; 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
51
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 or
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;
(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.
52
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 Holder'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.
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 10
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.
53
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 :
AT&T Capital Corporation
00 Xxxxxxxx Xxxx
Xxxxxxxxxx, XX
00000-0000
if to the Trustee to:
The Chase Manhattan Bank
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Corporate Trustee
Administration Department
if to the Guarantor to:
Newcourt Credit Group Inc.
BCE Place
000 Xxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx
Xxxxxx X0X0X0
(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 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.
54
(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 Officers' Certificate stating that, in the opinion of the signers,
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;
55
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of 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.
56
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 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
57
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 Officers'
Certificate. For purposes of this Section 10.13, Market Exchange Rate shall mean
the noon United States dollar buying rate for that currently for cable transfers
quoted in New York City 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 New York City 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 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
58
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.
59
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
-------------------------------
Treasurer
Attest:
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Assistant Secretary
THE CHASE MANHATTAN BANK
By
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Vice President
Attest:
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Assistant Trust Officer
NEWCOURT CREDIT GROUP INC.
By
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Attest:
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Assistant Secretary
00
XXXXX XX XXX XXXXXX )
) ss.: Morristown, N.J.
COUNTY OF XXXXXX )
On the ____ day of March, 1998, 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 Treasurer 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.
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Notary Public
00
XXXXX XX XXX XXXX )
) ss.:
COUNTY OF NEW YORK )
On the ____ day of March, 1998, before me personally came Xxxxxxx X.
XxXxxxxxx, to me known, who, being by me duly sworn, did depose and say that
he resides at _______________, that he is a Vice President 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.
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Notary Public
00
XXXXX XX XXX XXXXXX )
) ss.: Morristown, N.J.
COUNTY OF XXXXXX )
On the ___ day of March, 1998, 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.
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Notary Public
63
