AT&T CAPITAL CORPORATION,
Issuer,
AND
THE FIRST NATIONAL BANK OF CHICAGO, N.A., Trustee
______________________
INDENTURE
DATED AS OF OCTOBER __, 1996
________________________
__% SUBORDINATED DEBENTURES
DUE 2016
Certain Sections of this Indenture relating to
Sections 310 through 318 of the
Trust Indenture Act of 1939:
Trust Indenture Indenture
Act Section Section
- --------------- ----------
Section 310(a)(1) ................................. 609
(a)(2) ................................. 609
(a)(3) ................................. Not Applicable
(a)(4) ................................. Not Applicable
(b) ................................. 608, 610
Section 311(a) ................................. 613
(b) ................................. 613
Section 312(a) ................................. 701
................................. 702(a)
(b) ................................. 702(b)
(c) ................................. 702(c)
Section 313(a) ................................. 703(a)
(a)(4) ................................. 101, 1004
(b) ................................. 703(a)
(c) ................................. 703(a)
(d) ................................. 703(b)
Section 314(a) ................................. 704
(b) ................................. Not Applicable
(c)(1) ................................. 102
(c)(2) ................................. 102
(c)(3) ................................. Not Applicable
(d) ................................. Not Applicable
(e) ................................. 102
Section 315(a) ................................. 601
(b) ................................. 602
(c) ................................. 601
(d) ................................. 601
(e) ................................. 514
Section 316(a) ................................. 101
(a)(1)(A) ................................. 502
................................. 512
(a)(1)(B) ................................. 513
(a)(2) ................................. Not Applicable
(b) ................................. 508
(c) ................................. 104(c)
Section 317(a)(1) ................................. 503
(a)(2) ................................. 504
(b) ................................. 1003
Section 318(a) ................................. 107
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Note: This reconciliation and tie shall not, for any purpose, be deemed to be
a part of the Indenture.
(i)
TABLE OF CONTENTS
Page
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ARTICLE ONE
Definitions and other Provisions
of General Application......................... 1
SECTION 101. Definitions........................................... 1
SECTION 102. Compliance Certificates and Opinions.................. 10
SECTION 103. Form of Documents Delivered to Trustee................ 10
SECTION 104. Acts of Holders; Record Dates......................... 11
SECTION 105. Notices, Etc., to Trustee and the
Company.......................................... 12
SECTION 106. Notice to Holders; Waiver............................. 12
SECTION 107. Conflict with Trust Indenture Act..................... 13
SECTION 108. Effect of Headings and Table of
Contents......................................... 13
SECTION 109. Successors and Assigns................................ 13
SECTION 110. Separability Clause................................... 13
SECTION 111. Benefits of Indenture................................. 14
SECTION 112. GOVERNING LAW......................................... 14
SECTION 113. Legal Holidays........................................ 14
ARTICLE TWO
Security Forms............................. 14
SECTION 201. Forms Generally....................................... 14
SECTION 202. Form of Face of Security.............................. 15
SECTION 203. Form of Reverse of Security........................... 17
SECTION 204. Form of Trustee's Certificate of
Authentication................................... 20
ARTICLE THREE
The Securities............................. 20
SECTION 301. Title and Terms....................................... 20
SECTION 302. Denominations.................................... 22
SECTION 303. Execution, Authentication, Delivery and
Dating........................................... 22
SECTION 304. Temporary Securities.................................. 22
SECTION 305. Registration, Registration of Transfer
and Exchange.................................... 23
SECTION 306. Mutilated, Destroyed, Lost and Stolen
Securities...................................... 24
SECTION 307. Payment of Interest; Interest Rights
Preserved....................................... 25
SECTION 308. Persons Deemed Owners................................. 26
SECTION 309. Cancellation.......................................... 26
SECTION 310. Computation of Interest............................... 27
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Note: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
(i)
Page
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ARTICLE FOUR
Satisfaction and Discharge....................... 27
SECTION 401. Satisfaction and Discharge of Indenture............... 27
SECTION 402. Application of Trust Money............................ 28
ARTICLE FIVE
Remedies................................ 28
SECTION 501. Events of Default..................................... 28
SECTION 502. Acceleration of Maturity; Rescission
and Annulment................................... 29
SECTION 503. Collection of Indebtedness and Suits
for Enforcement by Trustee...................... 30
SECTION 504. Trustee May File Proofs of Claim...................... 31
SECTION 505. Trustee May Enforce Claims Without
Possession of Securities........................ 32
SECTION 506. Application of Money Collected........................ 32
SECTION 507. Limitation on Suits................................... 32
SECTION 508. Unconditional Right of Holders to
Receive Principal and Interest.................. 33
SECTION 509. Restoration of Rights and Remedies.................... 33
SECTION 510. Rights and Remedies Cumulative........................ 34
SECTION 511. Delay or Omission Not Waiver.......................... 34
SECTION 512. Control by Holders.................................... 34
SECTION 513. Waiver of Past Defaults............................... 34
SECTION 514. Undertaking for Costs................................. 35
ARTICLE SIX
The Trustee.............................. 35
SECTION 601. Certain Duties and Responsibilities................... 35
SECTION 602. Notice of Defaults.................................... 35
SECTION 603. Certain Rights of Trustee............................. 36
SECTION 604. Not Responsible for Recitals or
Issuance of Securities.......................... 37
SECTION 605. May Hold Securities................................... 37
SECTION 606. Money Held in Trust................................... 37
SECTION 607. Compensation and Reimbursement........................ 38
SECTION 608. Disqualification; Conflicting Interests............... 38
SECTION 609. Corporate Trustee Required; Eligibility............... 38
SECTION 610. Resignation and Removal; Appointment of
Successor....................................... 39
SECTION 611. Acceptance of Appointment by Successor................ 40
SECTION 612. Merger, Conversion, Consolidation or
Succession to Business.......................... 40
SECTION 613. Preferential Collection of Claims
Against Company................................. 41
ARTICLE SEVEN
Holders' Lists and Reports by Trustee................. 41
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Note: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
(ii)
Page
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SECTION 701. Company to Furnish Trustee Names and
Addresses of Holders............................ 41
SECTION 702. Preservation of Information;
Communications to Holders....................... 41
SECTION 703. Reports by Trustee.................................... 42
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease.......... 42
SECTION 801. Company May Consolidate,
Etc., Only on Certain Terms..................... 42
SECTION 802. Successor Substituted................................. 43
ARTICLE NINE
Supplemental Indentures........................ 44
SECTION 901. Supplemental Indentures Without Consent
of Holders...................................... 44
SECTION 902. Supplemental Indentures with Consent of
Holders......................................... 44
SECTION 903. Execution of Supplemental Indentures.................. 45
SECTION 904. Effect of Supplemental Indentures..................... 45
SECTION 905. Conformity with Trust Indenture Act................... 46
ARTICLE TEN
Covenants; Representations and Warranties............... 46
SECTION 1001. Payment of Principal and Interest.................... 46
SECTION 1002. Maintenance of Office or Agency...................... 46
SECTION 1003. Money for Security Payments to Be Held
in Trust........................................ 46
SECTION 1004. Reports by the Company .............................. 47
SECTION 1005. Limitations on Incurrence of Secured
Debt............................................ 47
SECTION 1006. Limitations on Incurrence of Senior
Indebtedness.]................................... 50
SECTION 1007. Statement as to Compliance; Notice of
Certain Events of Default....................... 50
ARTICLE ELEVEN
Subordination of Securities.......................... 51
SECTION 1101. Securities Subordinate to Senior
Indebtedness.................................... 51
SECTION 1102. Payment Over of Proceeds upon
Dissolution, etc................................ 51
SECTION 1103. No Payment When Senior Indebtedness in
Default......................................... 53
SECTION 1104. Payment Permitted If No Default...................... 53
SECTION 1105. Subrogation to Rights of Holders of
Senior Indebtedness............................. 53
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Note: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
(iii)
Page
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SECTION 1106. Provisions Solely to Define Relative
Rights........................................... 54
SECTION 1107. Trustee to Effectuate Subordination.................. 54
SECTION 1108. No Waiver of Subordination Provisions................ 55
Section 1109. Notice to Trustee.................................... 55
SECTION 1110. Reliance on Judicial Order or
Certificate of Liquidating Agent................. 56
SECTION 1111. Rights of Trustee as a Holder of
Senior Indebtedness; Preservation of
Trustee's Rights................................. 56
SECTION 1112. Article Applicable to Paying Agents.................. 57
SECTION 1101. Guarantee; Status of Guarantee....................... 57
SECTION 1102. Execution of Guarantee............................... 58
SECTION 1103. Form of Notation of Guarantee........................ 59
ARTICLE TWELVE
Redemption of Securities............................. 61
SECTION 1201. Optional Redemption.................................. 61
SECTION 1202. Applicability of Article............................. 61
SECTION 1203. Authorization for Redemption; Notice
to Trustee...................................... 61
SECTION 1204. Selection by Trustee of Securities to
Be Redeemed..................................... 62
SECTION 1205. Notice of Redemption................................. 62
SECTION 1206. Deposit of Redemption Price.......................... 63
SECTION 1207. Securities Payable on Redemption Date................ 63
SECTION 1208. Securities Redeemed in Part.......................... 63
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Note: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
(iv)
INDENTURE, dated as of October __, 1996, from AT&T Capital
Corporation, a corporation duly organized and validly existing under the laws of
the State of Delaware (the "Company"), to The First National Bank of Chicago,
N.A. (the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance of its ___% Subordinated Debentures due
2016 (the "Securities") as herein provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed as
follows for the equal and ratable benefit of the Holders of the Securities:
ARTICLE ONE
Definitions and other Provisions
of General Application
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles; and
(4) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
"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
2
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.
"Act", when used with respect to any Holder, has the meaning
specified in Section 104.
"Additional Interest" means interest that shall accrue on any
interest on the Securities that is in arrears for more than one quarter or not
paid during an Extension Period, which in either case shall accrue at the rate
of __% per annum compounded quarterly.
"Affiliate" of any specified Person means any other Person directly
or indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Board of Directors" means either the board of directors of the
Company or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
certification, and delivered to the Trustee.
"Business Day" means a day other than a day on which banking
institutions in the City of New York are authorized or required by law to close.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934, or,
if at any time after the execution of this instrument such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
3
"Company Request" or "Company Order" means a written request or
order signed in the name of the Company by its Chairman, a Vice Chairman, its
President or a Vice President and delivered to the Trustee.
"Consolidated EBIT" means, for any period, the sum of (i)
Consolidated Net Income for such period plus (ii) to the extent deducted in
determining such Consolidated Net Income, the sum of Consolidated Interest
Expense and the provision for income tax for such period.
"Consolidated Interest Expense" means, for any period, the interest
expense of the Company and its Consolidated Subsidiaries determined on a
consolidated basis for such period.
"Consolidated Net Income" means, for any period, the net income
(loss) (calculated (a) before preferred and common stock dividends and (b)
exclusive of the effect of any extraordinary or other materials non-recurring
gain or loss outside the ordinary course of business) of the Company and its
Consolidated Subsidiaries, determined on a consolidated basis for such period.
"Consolidated Net Tangible Assets" means, at the date of any
determination, the total assets appearing on the consolidated balance sheet of
the Company and any Restricted Subsidiaries as at the end of the most recent
fiscal quarter of the Company for which such balance sheet is available,
prepared in accordance with generally accepted accounting principles, less (a)
all current liabilities (obligations whose 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 the
Company's balance sheet, of: (i) all trade names, trademarks, licenses, patents,
copyrights and goodwill; (ii) organization and development costs; (iii) deferred
charges (other than prepaid items such as insurance, taxes, interest,
commissions, rents and similar items and tangible assets being amortized); and
(iv) unamortized debt discount and expense, less unamortized premium.
"Corporate Trust Office" means the principal office of the Trustee
in New York, New York, at which at any particular time its corporate trust
business shall be administered and which at the date of this Indenture is 153
West 53rd Street, New York, New York 10019.
"Defaulted Interest" has the meaning specified in Section 307.
"Event of Default" has the meaning specified in Section 501.
4
"Extension Period" has the meaning specified in Section 301.
"Federal Bankruptcy Code" means the Bankruptcy Act of Title 11 of
the United States Code, as amended from time to time.
"General Partner" means the Company, in its capacity as general
partner of the Partnership.
"Holder" means a Person in whose name a Security is registered in
the Security Register.
"Indenture" means this instrument as originally executed or as it
may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
including, for all purposes of this instrument and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively.
"Interest Payment Date", when used with respect to any installment
of interest on a Security, means the date specified in such Security as the
fixed date on which an installment of interest with respect to the Securities is
due and payable.
"Limited Partnership Agreement" means the Amended and Restated
Agreement of Limited Partnership, dated as of October __, 1996, of the
Partnership, as amended, modified or otherwise supplemented from time to time.
"Maturity", when used with respect to any Security, means the date
on which the original of such Security becomes due and payable as therein or
herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption or otherwise.
"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 1006) 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.
"Officers' Certificate" means a certificate signed by (i) the
Chairman, a Vice Chairman, the President, a Vice President, or the Treasurer of
the Company and (ii) the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee; provided, however, that such certificate may be signed
by two of the officers or directors listed in clause (i) above in
5
lieu of being signed by one of such officers or directors listed in such clause
(i) and one of the officers listed in clause (ii) above. One of the officers
signing an Officer's Certificate given pursuant to Section 1004 shall be the
principal executive, financial or accounting officer of the Company. Any
Officers' Certificate delivered with respect to compliance with a condition or
covenant provided for in this Indenture shall include:
(a) a statement that each officer signing the Officers' Certificate
has read the covenant or condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the Officers'
Certificate;
(c) a statement that each such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such
officer to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such officer,
such condition or covenant has been complied with.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company, and who shall be acceptable to the Trustee.
"Outstanding", when used with respect to Securities, means, as of
the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except: (i) Securities theretofore cancelled by
the Trustee or delivered to the Trustee for cancellation; (ii) Securities for
whose payment or redemption money in the necessary amount has been theretofore
deposited with the Trustee or any Paying Agent (other than the Company) in trust
or set aside and segregated in trust by the Company (if the Company shall act as
its own Paying Agent) for the Holders of such Securities; provided that, if such
Securities are to be redeemed, notice of such redemption has been duly given
pursuant to this Indenture or provision therefor satisfactory to the Trustee has
been made; and (iii) Securities which have been paid pursuant to Section 401, or
in exchange for or in lieu of which other Securities have been authenticated and
delivered pursuant to this Indenture, other than any such Securities in respect
of which there shall have been presented to the Trustee proof satisfactory to it
that such Securities are held by a bona fide purchaser in whose hands such
Securities are valid obligations of the Company.
"Partnership" means Capita Preferred Funding, L.P., a Delaware
limited partnership, and any successor thereto.
6
"Partnership Investment Company Event" means that the General
Partner shall have requested and received an opinion of nationally recognized
independent legal counsel experienced in such matters to the effect that as a
result of the occurrence on or after the date hereof of a change in law or
regulation or a change in interpretation or application of law or regulation by
any legislative body, court, governmental agency or regulatory authority, the
Partnership is or will be considered an "investment company" which is required
to be registered under the Investment Company Act of 1940.
"Partnership Preferred Securities" means the __% limited partnership
interests, liquidation amount $25 per Partnership Preferred Security, issued
pursuant to the Limited Partnership Agreement.
"Partnership Special Event" means either a Partnership Investment
Company Event or a Partnership Tax Event.
"Partnership Tax Event" means that the Company, as the general
partner of the Partnership, shall have requested and received an opinion of
nationally recognized independent tax counsel experienced in such matters to the
effect that there has been a Tax Action which affects any of the events
described in (i) through (iii) below and that there is more than an
insubstantial risk that (i) the Partnership is, or will be subject to United
States federal income tax with respect to income accrued or received on the
Affiliate Investment Instruments or the Eligible Debt Securities (each as
defined in the Limited Partnership Agreement), (ii) the Partnership is, or will
be subject to more than a de minimis amount of other taxes, duties or other
governmental charges or (iii) interest payable by one or more of the obligors
with respect to the Affiliate Investment Instruments to the Partnership is not,
or will not be, deductible by the Company for United States federal income tax
purposes.
"Paying Agent" means any Person authorized by the Company to pay the
principal of or interest on any Securities on behalf of the Company which shall
initially be The First National Bank of Chicago, N.A.
"Person" means any individual, corporation, partnership, joint
venture, trust, limited liability company or corporation, unincorporated
organization or government or any agency or political subdivision thereof.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that evidenced
by such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 306 in exchange for or in
lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to
7
evidence the same debt as the mutilated, destroyed, lost or
stolen Security.
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Regular Record Date" for the interest payable on any Interest
Payment Date means the Business Day next preceding such Interest Payment Date.
"Representative" means an indenture trustee or other trustee, agent
or representative for an issue of Senior Indebtedness.
"Responsible Officer", when used with respect to the Trustee, means
the chairman or any vice-chairman of the board of directors, the chairman or any
vice-chairman of the executive committee of the board of directors, the chairman
of the trust committee, the president, any vice president, the secretary, any
assistant secretary, the treasurer, any assistant treasurer, the cashier, any
assistant cashier, any trust officer or assistant trust officer, the controller
or any assistant controller or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.
"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 1005) shall be a Restricted Subsidiary.
"Securities" has the meaning specified in the Recitals to this
instrument.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Senior Indebtedness" means the principal of, premium, if any,
interest on and any other payment due pursuant to any of the following, whether
outstanding at the date hereof or hereafter incurred, created or assumed: (i)
all indebtedness of the Company (other than any obligations to trade creditors)
evidenced by notes, debentures, bonds or other securities sold by the Company
for money borrowed and capitalized lease obligations;
8
(ii) all indebtedness of others of the kinds described in the preceding clause
(i) assumed or guaranteed in any manner by the Company or in effect guaranteed
by the Company; and (iii) all renewals, extensions or refundings of indebtedness
of the kinds described in either of the preceding clauses (i) or (ii), unless,
in the case of any particular indebtedness, capitalized lease obligation,
guarantee, renewal, extension or refunding, the instrument creating or
evidencing the same or the assumption or guarantee of the same expressly
provides that such indebtedness, renewal, extension or refunding is subordinated
to or is pari passu with the Securities.
"Special Record Date" for the payment of any Defaulted Interest
means a date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or any
installment of interest thereon, means the date specified in such Security as
the fixed date on which the principal, together with any accrued and unpaid
interest (including Additional Interest), of such Security or such installment
of interest is due and payable.
"Subsidiary" means any Person a majority of the equity ownership or
the Voting Stock of which is at the time owned, directly or indirectly, by the
Company or by one or more other Subsidiaries, or by the Company and one or more
other Subsidiaries. For the purposes of this definition, "voting stock" means
stock which ordinarily has 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.
"Tax Action" means that there has been (a) an amendment to, change
in or announced proposed change in the laws (or any regulations thereunder) of
the United States or any political subdivision or taxing authority thereof or
therein, (b) a judicial decision interpreting, applying, or clarifying such laws
or regulations, (c) an administrative pronouncement or action that represents an
official position (including a clarification of an official position) of the
governmental authority or regulatory body making such administrative
pronouncement or taking such action, or (d) a threatened challenge asserted in
connection with an audit of the Company or any of its Subsidiaries, the
Partnership, or the Trust, or a threatened challenge asserted in writing in
connection with any other taxpayer that has raised capital through the issuance
of securities that are substantially similar to the Securities, the Partnership
Preferred Securities, or the Trust Preferred Securities, which amendment or
change is adopted or which decision or pronouncement is announced or which
action, clarification or challenge occurs on or after the date of this
Indenture.
9
"Trust" means Capita Preferred Trust, a Delaware business trust, and
any successor thereto.
"Trust Agreement" has the meaning specified in the first paragraph
of this instrument.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean such successor Trustee.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
force at the date as of which this instrument was executed; provided, however,
that in the event the Trust Indenture Act of 1939 is amended after such date,
"Trust Indenture Act" means, to the extent required by any such amendment, the
Trust Indenture Act of 1939 as so amended.
"Trust Preferred Securities" means the __% Trust Originated
Preferred Securities, liquidation amount $25 per Trust Preferred Security,
issued pursuant to the Trust Agreement.
"Vice President", when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title "vice president".
SECTION 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to
take any action under any provision of this Indenture, the Company shall furnish
to the Trustee such certificates and opinions as may be required under the Trust
Indenture Act. Each such certificate or opinion shall be given in the form of an
Officers' Certificate, if to be given by an officer of the Company, or an
Opinion of Counsel, if to be given by counsel, and shall comply with the
requirements of the Trust Indenture Act and any other requirement set forth in
this Indenture.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by,
or covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a
10
certificate or opinion of, or representations by, counsel, unless such officer
knows, or in the exercise of reasonable care should know, that the certificate
or opinion or representations with respect to the matters upon which his
certificate or opinion is based are erroneous. Any such certificate or opinion
of counsel may be based, insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an officer or officers of the
Company stating that the information with respect to such factual matters is in
the possession of the Company, unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form any instrument.
SECTION 104. Acts of Holders; Record Dates.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 601) conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing or the authority of the Person executing the same, may also be proved in
any other manner which the Trustee deems sufficient.
(c) The Company may, in the circumstances permitted by the Trust
Indenture Act, fix any day as the record date for the purpose of determining the
Holders entitled to give or take any request, demand, authorization, direction,
notice, consent,
11
waiver or other action, or to vote on any action, authorized or permitted to be
given or taken by Holders. If not set by the Company prior to the first
solicitation of a Holder made by any Person in respect of any such action, or,
in the case of any such vote, prior to such vote, the record date for any such
action or vote shall be the 30th day (or, if later, the date of the most recent
list of Holders required to be provided pursuant to Section 701) prior to such
first solicitation or vote, as the case may be. With regard to any record date,
only the Holders on such date (or their duly designated proxies) shall be
entitled to give or take, or vote on, the relevant action.
(d) The ownership of Securities shall be proved by the Security
Register.
(e) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future Holder
of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made upon
such Security.
SECTION 105. Notices, Etc., to Trustee and the Company.
Any request, demand, authorization, direction, notice, consent,
waiver or Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed in writing
to or with the Trustee at its Corporate Trust Office, Attention: Corporate
Trust Trustee Administration, or
(2) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to the Company
addressed to it at the address of its principal office specified below or
at any other address previously furnished in writing to the Trustee by the
Company.
If to the Company to:
AT&T Capital Corporation
44 Whippany Road
Morristown, NJ 07962-1963
Attention: Treasurer
12
SECTION 106. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event,
such notice shall be sufficiently given (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to each Holder
affected by such event, at his address as it appears in the Security Register,
not later than the latest date (if any), and not earlier than the earliest date
(if any), prescribed for the giving of such notice. In any case where notice to
Holders is given by mail, neither the failure to mail such notice, nor any
defect in a notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders. Where this Indenture
provides for notice in any manner, such notice may be waived in writing by the
Person entitled to receive such notice, either before or after the event, and
such waiver shall be the equivalent of such notice. Waivers of notice by Holders
shall be filed with the Trustee, but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
SECTION 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a
provision of the Trust Indenture Act that is required under such Act to be a
part of and govern this Indenture, the latter provision shall control. If any
provision of this Indenture modifies or excludes any provision of the Trust
Indenture Act that may be so modified or excluded, the latter provision shall be
deemed to apply to this Indenture as so modified or to be excluded, as the case
may be.
SECTION 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents
are for convenience only and shall not affect the construction hereof.
SECTION 109. Successors and Assigns.
The Company will have the right at all times to assign any of its
rights or obligations under this Indenture to a direct or indirect wholly-owned
Subsidiary, provided that, in the event of any such assignment, the Company will
remain liable for all such obligations. Subject to the foregoing, this Indenture
is binding upon and inures to the benefit of the parties hereto and their
respective successors and assigns. This Indenture may not otherwise be assigned
by the parties hereto.
13
SECTION 110. Separability Clause.
In case any provision in this Indenture or in the Securities shall
be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
SECTION 111. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder, the holders of Senior Indebtedness, the holders of Preferred
Securities (to the extent provided herein) and the Holders of Securities, any
benefit or any legal or equitable right, remedy or claim under this Indenture.
SECTION 112. GOVERNING LAW.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or
Stated Maturity of any Security shall not be a Business Day, then
(notwithstanding any other provision of this Indenture or of the Securities)
payment of interest or principal of the Securities shall be made on the next
succeeding day which is a Business Day (and without any interest or other
payment in respect of any such delay) except that, if such Business Day is in
the next succeeding calendar year, such payment of interest or principal of the
Securities, as the case may be, shall be made on the immediately preceding
Business Day, in each case, with the same force and effect as if made on the
Interest Payment Date or Redemption Date, or at the Stated Maturity.
ARTICLE TWO
Security Forms
SECTION 201. Forms Generally.
The Securities and the Trustee's certificates of authentication
shall be in substantially the forms set forth in this Article, with such
appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture, and may have such letters, numbers or
other marks of identification and such legends or endorsements placed thereon as
may be required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such Securities,
as evidenced by their execution of the Securities.
14
The definitive Securities shall be printed, lithographed or engraved
or produced by any combination of these or other methods, all as determined by
the officers executing such Securities, as evidenced by their execution of such
Securities.
SECTION 202. Form of Face of Security.
AT&T CAPITAL CORPORATION
__% Subordinated Debenture,
Due 2016
No. _____________ $________
AT&T CAPITAL CORPORATION, a corporation duly organized and existing
under the laws of the State of Delaware (herein called the "Company", which term
includes any successor corporation under the Indenture hereinafter referred to),
for value received, hereby promises to pay to ________________, or registered
assigns, the principal sum of ________ DOLLARS ($________) on ____________ __,
2016 and to pay interest on said principal sum from ___________ __, 1996 or from
the most recent interest payment date (each such date, an "Interest Payment
Date") to which interest has been paid or duly provided for, quarterly (subject
to deferral as set forth herein) in arrears on March 31, June 30, September 30
and December 31 of each year, commencing December 31, 1996, at the rate of __%
per annum plus Additional Interest, if any, until the principal hereof shall
have become due and payable, and on any overdue principal. The amount of
interest payable for any period will be computed on the basis of twelve 30-day
months and a 360-day year. In the event that any date on which interest is
payable on this Security is not a Business Day, then a payment of the interest
payable on such date will be made on the next succeeding day which is a Business
Day (and without any interest or other payment in respect of any such delay),
except that, if such Business Day is in the next succeeding calendar year, such
payment shall be made on the immediately preceding Business Day, in each case
with the same force and effect as if made on the date the payment was originally
payable. A "Business Day" shall mean any day other than a day on which banking
institutions in the City of New York are authorized or required by law to remain
closed. The interest installment so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in the Indenture,
be paid to the Person in whose name this Security (or one or more Predecessor
Securities, as defined in the Indenture) is registered at the close of business
on the Regular Record Date for such interest installment, which shall be the
close of business on the Business Day next preceding such Interest Payment Date.
Any such interest installment not so punctually paid or duly provided for shall
forthwith cease to be payable to the Holder on such Regular Record Date and may
either be paid to the Person in whose name this security (or one or more
Predecessor
15
Securities) is registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest to be fixed by the Trustee, notice
whereof shall be given to Holders of Securities not less than 10 days prior to
such Special Record Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Securities may be listed, and upon such notice as may be required by such
exchange, all as more fully provided in said Indenture.
The Company shall have the right at any time during the term of this
Security, from time to time, to extend the interest payment period of such
Security for up to six consecutive quarters (an "Extension Period"), during
which periods interest will compound quarterly and the Company shall have the
right to make partial payments of interest on any Interest Payment Date, and at
the end of which Extension Period the Company shall pay all interest then
accrued and unpaid (together with Additional Interest thereon to the extent that
payment of such interest is permitted by applicable law). Prior to the
termination of any such Extension Period, the Company may further extend the
interest payment period, provided that such Extension Period together with all
such previous and further extensions thereof shall not exceed six consecutive
quarters or extend beyond the Maturity of this Security. Upon the termination of
any such Extension Period and upon the payment of all accrued and unpaid
interest and any Additional Interest then due, the Company may select a new
Extension Period, subject to the foregoing requirements. No interest shall be
due and payable during an Extension Period except at the end thereof. The
Company shall give the Holder of this Security and the Trustee notice of its
selection of an Extension Period at least one Business Day prior to the earlier
of (i) the Interest Payment Date or (ii) the date Capita Preferred Trust is
required to give notice to the New York Stock Exchange or other applicable
self-regulatory organization or to holders of the Trust Preferred Securities of
the record date or the date such distributions are payable, but in any event not
less than one Business Day prior to such record date.
Payment of the principal of and interest on this Security will be
made at the office or agency of the Company maintained for that purpose in New
York, New York, in such coin or currency of the United States of America as at
the time of payment is legal tender for payment of public and private debts;
provided, however, that at the option of the Company payment of interest may be
made (i) by check mailed to the address of the Person entitled thereto as such
address shall appear in the Security Register or (ii) by wire transfer in
immediately available funds at such place and to such account as may be
designated by the Person entitled thereto as specified in the Security Register.
The indebtedness evidenced by this Security is, to the extent
provided in the Indenture, subordinate and subject in
16
right of payment to the prior payment in full of all Senior Indebtedness, and
this Security is issued subject to the provisions of the Indenture with respect
thereto. Each Holder of this Security, by accepting the same, (a) agrees to and
shall be bound by such provisions, (b) authorizes and directs the Trustee on his
behalf to take such action as may be necessary or appropriate to effectuate the
subordination so provided and (c) appoints the Trustee his attorney-in-fact for
any and all such purposes. Each Holder hereof, by his acceptance hereof, waives
all notice of the acceptance of the subordination provisions contained herein
and in the Indenture of each holder of Senior Indebtedness, whether now
outstanding or hereafter incurred, and waives reliance by each such holder upon
said provisions.
Reference is hereby made to the further provisions of the Indenture
summarized on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, AT&T Capital Corporation has caused this
instrument to be duly executed under its corporate seal.
Dated: ________, 1996
AT&T CAPITAL CORPORATION
By:_________________________________________
Name:
Title:
Attest:
______________________
SECTION 203. Form of Reverse of Security.
This Security is one of a duly authorized issue of Securities of the
Company, designated as its __% Subordinated Debentures Due 2016 (herein called
the "Securities"), limited in aggregate principal amount to $_____________
issued under an Indenture, dated as of __________ __, 1996 (herein called the
"Indenture"), between the Company and The First National Bank of Chicago, N.A.,
as Trustee (herein called the "Trustee", which term includes any successor
trustee under the Indenture), to which Indenture and all indentures supplemental
thereto reference
17
is hereby made for a statement of the respective rights, limitations of rights,
duties and immunities thereunder of the Trustee, the Company and the Holders of
the Securities, and of the terms upon which the Securities are, and are to be,
authenticated and delivered.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
At any time on or after September 30, 2006, the Company shall have
the right, subject to the terms and conditions of Article Twelve of the
Indenture, to redeem this Security at the option of the Company, without premium
or penalty, in whole or in part, at a Redemption Price equal to 100% of the
principal amount to be redeemed plus accrued but unpaid interest, including any
Additional Interest, if any, to the Redemption Date. If a Partnership Special
Event shall occur and be continuing, the Company shall have the right, subject
to the terms and conditions of Article Twelve of the Indenture, to redeem this
Security, without premium or penalty, in whole but not in part, at a Redemption
Price equal to 100% of the principal amount thereof plus accrued but unpaid
interest, including any Additional Interest, if any, to the Redemption Date. Any
redemption pursuant to this paragraph will be made upon not less than 30 nor
more than 60 days' notice, at the Redemption Price. If the Securities are only
partially redeemed by the Company, the Securities will be redeemed pro rata, by
lot or in such other manner as the Trustee shall deem appropriate and fair in
its discretion and that may provide for the selection of a portion or portions
(equal to twenty-five U.S. dollars ($25) or any integral multiple thereof) of
the principal amount of any Security.
In the event of redemption of this Security in part only, a new
Security or Securities for the unredeemed portion hereof will be issued in the
name of the Holder hereof upon the cancellation hereof.
If an Event of Default with respect to the Securities shall occur
and be continuing, the principal of the Securities may be declared due and
payable in the manner, with the effect and subject to the conditions provided in
the Indenture.
The Indenture contains provisions for satisfaction and discharge at
any time of the entire indebtedness of this Security upon compliance by the
Company with certain conditions set forth in the Indenture.
The Indenture contains provisions permitting the Company and the
Trustee, with the consent of Holders of not less than a majority in principal
amount of the Outstanding Securities, to modify the Indenture in a manner
affecting the rights of the Holders of the Securities; provided that no such
modification may, without the consent of the Holder of each
18
Outstanding Security, (i) extend the fixed maturity of the Securities, or reduce
the principal amount thereof, or reduce the rate or extend the time of payment
of interest thereon, or reduce any premium payable upon the redemption thereof,
or (ii) reduce the percentage of principal amount of the Securities, the Holders
of which are required to consent to any such modification of the Indenture. The
Indenture also contains provisions permitting Holders of specified percentages
in principal amount of the Securities at the time Outstanding, on behalf of the
Holders of all Securities, to waive compliance by the Company with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Holder of this Security
shall be conclusive and binding upon such Holder and upon all future Holders of
this Security and of any Security issued upon the registration of transfer
hereof or in exchange herefor or in lieu hereof, whether or not notation of such
consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and
interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in New York, New York, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities,
of authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees. No service charge shall be
made for any such registration of transfer or exchange, but the Company may
require payment of a sum sufficient to cover any tax or other governmental
charge payable in connection therewith.
Prior to due presentment of this security for registration of
transfer, the Company, the Trustee and any of their respective agents may treat
the Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security shall be overdue, and neither the
Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
The Securities are issuable only in registered form without coupons
in denominations of $25 and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth, Securities are
exchangeable for a like aggregate principal amount of Securities of a different
19
authorized denomination, as requested by the Holder surrendering
the same.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS
OF LAWS PRINCIPLES THEREOF.
SECTION 204. Form of Trustee's Certificate of Authentication.
This is one of the Securities referred to in the within-mentioned
Indenture.
THE FIRST NATIONAL BANK OF CHICAGO, N.A.,
as Trustee
By:______________________________________
Authorized Signatory
ARTICLE THREE
The Securities
SECTION 301. Title and Terms.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is limited to $___________,
except for Securities authenticated and delivered upon registration of transfer
of, or in exchange for, or in lieu of, other securities pursuant to Section 303,
304, 305, 306, 906 or 1208.
The Securities shall be known and designated as the "___%
Subordinated Debentures Due 2016" of the Company. Their Stated Maturity shall be
_________ __, 2016, and they shall bear interest at the rate of ___% per annum,
from _________ __, 1996 or from the most recent Interest Payment Date to which
interest has been paid or duly provided for, as the case may be, payable
quarterly (subject to deferral as set forth herein), in arrears, on March 31,
June 30, September 30 and December 31 of each year, commencing December 31, 1996
until the principal thereof is paid or made available for payment. Interest will
compound quarterly and will accrue at the rate of ___% per annum on any interest
installment in arrears for more than one quarter or during an extension of an
interest payment period as set forth below in this Section 301. In the event
that any date on which interest is payable on the Securities is not a Business
Day, then a payment of the interest payable on such date will be made on the
next succeeding day which is a Business Day (except that, if such Business Day
is in the next succeeding calendar year, such Interest Payment Date shall be the
immediately preceding Business Day) (and without any interest or other payment
in respect of any such delay).
20
The Company shall have the right, at any time during the term of the
Securities, from time to time to extend the interest payment period for up to
six consecutive quarters (the "Extension Period") during which period interest
will compound quarterly and the Company shall have the right to make partial
payments of interest on any Interest Payment Date, and at the end of which
Extension Period the Company shall pay all interest then accrued and unpaid
thereon (together with Additional Interest at the rate specified for the
Securities to the extent permitted by applicable law). Prior to the termination
of any such Extension Period, the Company may further extend the interest
payment period, provided that such Extension Period together with all such
previous and further extensions thereof shall not exceed six consecutive
quarters or extend beyond the Maturity of the Securities. Upon the termination
of any Extension Period and upon the payment of all accrued and unpaid interest
and any Additional Interest then due, the Company may select a new Extension
Period, subject to the foregoing requirements. No interest shall be due and
payable during an Extension Period, except at the end thereof. The Company shall
give Capita Preferred Trust, Capita Preferred Funding, L.P. and the Trustee
notice of its selection of such Extension Period subject to the above
requirements at least one Business Day prior to the earlier of (i) the Interest
Payment Date or (ii) the date Capita Preferred Trust is required to give notice
to the New York Stock Exchange or other applicable self-regulatory organization
or to holders of the Trust Preferred Securities of the record date or the date
such distributions are payable, but in any event not less than one Business Day
prior to such record date.
The principal of and interest on the Securities shall be payable at
the office or agency of the Company in the United States maintained for such
purpose and at any other office or agency maintained by the Company for such
purpose in such coin or currency of the United States of America as at the time
of payment is legal tender for payment of public and private debts; provided,
however, that at the option of the Company payment of interest may be made (i)
by check mailed to the address of the Person entitled thereto as such address
shall appear in the Security Register or (ii) by wire transfer in immediately
available funds at such place and to such account as may be designated by the
Person entitled thereto as specified in the Security Register.
The Securities shall be subordinated in right of payment to Senior
Indebtedness as provided in Article Eleven.
The Securities shall be redeemable as provided in Article Twelve.
21
SECTION 302. Denominations.
The Securities shall be issuable only in registered form, without
coupons, and only in denominations of $25 and any integral multiple thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its
Chairman, one of its Vice Chairman, its President or one of its Vice Presidents,
under its corporate seal reproduced thereon attested by its Secretary or one of
its Assistant Secretaries. The signature of any of these officers on the
securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery
of this Indenture, the Company may deliver Securities executed by the Company to
the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities; and the Trustee in accordance
with such Company Order shall authenticate and deliver such Securities as in
this Indenture provided and not otherwise.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder.
SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities, the Company may
execute, and upon Company Order the Trustee shall authenticate and deliver,
temporary Securities which are printed, lithographed, typewritten, mimeographed
or otherwise produced, in any authorized denomination, substantially of the
tenor of the definitive Securities in lieu of which they are issued and with
such appropriate insertions, omissions, substitutions and other variations as
the officers executing such Securities may determine, as evidenced by their
execution of such Securities.
22
If temporary Securities are issued, the Company will cause
definitive Securities to be prepared without unreasonable delay. After the
preparation of definitive Securities, the temporary Securities shall be
exchangeable for definitive Securities upon surrender of the temporary
Securities at any office or agency of the Company designated pursuant to Section
1002, without charge to the Holder. Upon surrender for cancellation of any one
or more temporary Securities the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like principal amount of
definitive Securities of authorized denominations. Until so exchanged the
temporary Securities shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities.
SECTION 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office of
the Trustee a register (the register maintained in such office and in any other
office or agency designated pursuant Section 1002 being herein sometimes
collectively referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Securities and of transfers of Securities. The Trustee is hereby
appointed "Security Registrar" for the purpose of registering Securities and
transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security at an
office or agency of the Company designated pursuant to Section 1002 for such
purpose, the Company shall execute, and the Trustee shall authenticate and
deliver, in the name of the designated transferee or transferees, one or more
new Securities of any authorized denominations and of a like aggregate principal
amount.
At the option of the Holder, Securities may be exchanged for other
Securities of any authorized denominations and of a like aggregate principal
amount, upon surrender of the Securities to be exchanged at such office or
agency. Whenever any Securities are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and deliver, the Securities
which the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or excess of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer
or for exchange shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied
23
by a written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed, by the Holder thereof or his attorney duly
authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 906 or 1208 not involving any transfer.
If the Securities are to be redeemed in part, the Company will not
be required to issue, register the transfer of or exchange any Securities during
a period beginning at the opening of business 15 days before the day of mailing
of a notice of redemption of any such Securities that may be selected for
redemption and ending at the close of business on the day of such mailing,
except the unredeemed portion of any such Securities being redeemed in part.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of like tenor and principal amount and bearing a number
not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any security
and (ii) such security or indemnity as may be required by them to save each of
them and any agent of either of them harmless, then, in the absence of notice to
the Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and the Trustee shall authenticate and
deliver, in lieu of any such destroyed, lost or stolen Security, a new Security
of like tenor and principal amount and bearing a number not contemporaneously
outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security issued pursuant to this Section in lieu of any
destroyed, lost or stolen Security shall constitute
24
an original additional contractual obligation of the Company, whether or not the
destroyed, lost or stolen Security shall be at any time enforceable by anyone,
and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Interest on any Security which is payable, and is punctually paid or
duly provided for, on any Interest Payment Date shall be paid to the Person in
whose name that Security (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date for such interest.
Any interest on any Security which is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date (herein called
"Defaulted Interest") shall forthwith cease to be payable to the Holder on the
relevant Regular Record Date by virtue of having been such Holder, and such
Defaulted Interest may be paid by the Company, at its election in each case, as
provided in Clause (1) or (2) below:
(1) the Company may elect to make payment of any Defaulted Interest
to the Persons in whose names the Securities (or their respective
Predecessor Securities) are registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The Company shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be paid
on each Security and the date of the proposed payment, and at the same
time the Company shall deposit with the Trustee an amount of money equal
to the aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee for such
deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled to
such Defaulted Interest as in this Clause provided. Thereupon the Trustee
shall fix a Special Record Date for the payment of such Defaulted Interest
which shall be not more than 15 days and not less than 10 days prior to
the date of the proposed payment and not less than 10 days after the
receipt by the Trustee of the notice of the proposed payment. The Trustee
shall promptly notify the Company of such Special Record Date and, in the
name and at the expense of the Company, shall cause notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor to
be mailed, first-class postage prepaid, to each Holder at his address as
it appears in the Security Register, not less
25
than 10 days prior to such Special Record Date. Notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor
having been so mailed, such Defaulted Interest shall be paid to the
Persons in whose names the Securities (or their respective Predecessor
Securities) are registered at the close of business on such Special Record
Date and shall no longer be payable pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted Interest in any
other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities may be listed, and, if so
listed, upon such notice as may be required by such exchange, if, after
notice given by the Company to the Trustee of the proposed payment
pursuant to this clause, such manner of payment shall be deemed
practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue (including in each such case Additional Interest),
which were carried by such other Security.
SECTION 308. Persons Deemed Owners.
Prior to due presentment of a Security for registration of transfer,
the Company, the Trustee and any agent of any of them shall treat the Person in
whose name such Security is registered as the owner of such Security for the
purpose of receiving payment of principal of and (subject to Section 307)
interest (including Additional Interest) on such Security and for all other
purposes whatsoever, whether or not such Security be overdue, and neither the
Company, the Trustee nor any agent of them shall be affected by notice to the
contrary.
SECTION 309. Cancellation.
All Securities surrendered for payment, redemption, registration of
transfer or exchange shall, if surrendered to any Person other than the Trustee,
be delivered to the Trustee and shall be promptly cancelled by it. The Company
may at any time deliver to the Trustee for cancellation any Securities
previously authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and all Securities so delivered shall be
promptly cancelled by the Trustee. No Securities shall be authenticated in lieu
of or in exchange for any Securities cancelled as provided in this Section,
except as expressly permitted by this Indenture. All cancelled Securities held
by the Trustee shall be disposed of as directed by a Company Order.
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SECTION 310. Computation of Interest.
Interest on the Securities shall be computed on the basis of a
360-day year of twelve 30-day months.
ARTICLE FOUR
Satisfaction and Discharge
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall cease to be of further effect (except as to any
surviving rights of registration of transfer or exchange of Securities herein
expressly provided for), and the Trustee, on demand of and at the expense of the
Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered
(other than (i) Securities which have been destroyed, lost or stolen
and which have been replaced or paid as provided in Section 306 and
(ii) Securities for whose payment money has theretofore been
deposited in trust or segregated and held in trust by the Company
and thereafter repaid to the Company or discharged from such trust,
as provided in Section 1003) have been delivered to the Trustee for
cancellation; or
(B) all such Securities not theretofore delivered
to the Trustee for cancellation
(i) have become due and payable,
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) are to be called for redemption within one
year under arrangements satisfactory to the Trustee for the
giving of notice of redemption by the Trustee in the name, and
at the expense, of the Company
and the Company, in the case of (i), (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee as trust funds
in trust for the purpose and amount sufficient to pay and discharge
the entire indebtedness on such Securities not theretofore delivered
to the Trustee for cancellation, for principal and interest
(including Additional Interest) to the date of such deposit (in the
case of Securities
27
which have become due and payable) or to the Stated
Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all
other sums payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge
of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 607 and, if money shall
have been deposited with the Trustee pursuant to subclause (B) of Clause (1) of
this Section, the obligations of the Trustee under Section 402 and the last
paragraph of Section 1003 shall survive.
SECTION 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all
money deposited with the Trustee pursuant to Section 401 shall be held in trust
and applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal and interest for
whose payment such money has been deposited with the Trustee. The Trustee shall
not invest money deposited with it pending distribution of such amounts.
ARTICLE FIVE
Remedies
SECTION 501. Events of Default.
"Event of Default", wherever used herein, means any one of the
following events that has occurred and is continuing (whatever the reason for
such Event of Default and whether it shall be voluntary or involuntary or be
effected by operation of law or pursuant to any judgment, decree or order of any
court or any order, rule or regulation of any administrative or governmental
body):
(1) failure for 90 days to pay any interest on the Securities,
including any Additional Interest in respect thereof, when due (subject to
the deferral of any due date in the case of an Extension Period); or
28
(2) failure to pay any principal on the Securities when due whether
at Stated Maturity, upon redemption by declaration or otherwise; or
(3) failure to observe or perform in any material respect any other
covenant herein for 90 days after written notice of such failure
(specified as a "Notice of Default"), requiring the Company to remedy the
same shall have been given to the Company by the Trustee or the holders of
at least 25% in principal amount of the Outstanding Securities; or
(4) a court or governmental agency having jurisdiction in the
premises shall enter a decree or order for relief in respect of the
Company 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 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
(5) the Company shall commence a voluntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect, or
consent to the entry of an order for relief in an involuntary case under
any such law, or consent to the appointment or taking possession by a
receiver, liquidator, assignee, custodian, trustee, sequestrator (or
similar official) of the Company or for all or substantially all of its
property or make any general assignment for the benefit of creditors; or
the Company shall admit in writing its inability to pay its debts
generally as they become due.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default occurs and is continuing, then and in every
such case the Trustee or the Holders of not less than 25% in aggregate principal
amount of the Outstanding Securities shall have the right to declare the
principal of and the interest on all the Securities (including any Additional
Interest) and any other amounts payable hereunder to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee if given
by Holders) and to enforce any and all other rights of Holders of Securities as
creditors with respect to the Securities. Upon any such declaration such
principal and all accrued interest shall become immediately due and payable.
At any time after such a declaration of acceleration has been made
and before a judgment or decree for payment of the money due has been obtained
by the Trustee as hereinafter provided in this Article, the Holders of a
majority in principal
29
amount of the Outstanding Securities, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if:
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay,
(A) all overdue interest (including any Additional Interest)
on all Securities,
(B) the principal of any Securities which have became due
otherwise than by such declaration of acceleration and interest
thereon at the rate borne by the Securities, and
(C) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel;
and
(2) all Events of Default, other than the non-payment of the
principal of Securities which have become due solely by such declaration
of acceleration, have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any
right consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if
(1) default is made in the payment of any interest (including any
Additional Interest) on any Security when such interest becomes due and
payable and such default continues for a period of 90 days (subject to the
deferral of any due and payable interest in the case of an Extension
Period), or
(2) default is made in the payment of the principal of any Security
at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal and interest (including any Additional Interest), at
the rate borne by the Securities, and, in addition thereto, such further amount
as shall be sufficient to cover the costs and expenses of collection, including
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel.
30
If an Event of Default occurs and is continuing, the Trustee may in
its discretion proceed to protect and enforce its rights and the rights of the
Holders by such appropriate judicial proceedings as the Trustee shall deem most
effective to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the Company, its
property or its creditors, the Trustee shall be entitled and empowered, by
intervention in such proceeding or otherwise, to take any and all actions
authorized under the Trust Indenture Act in order to have claims of the Holders
and the Trustee allowed in any such proceeding. In particular, the Trustee shall
be authorized to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same; and any custodian,
receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Holder to make such
payments to the Trustee and, in the event that the Trustee shall consent to the
making of such payments directly to the holders, to pay to the Trustee any
amount due it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 607.
No provision of this Indenture shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding.
SECTION 505. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without the possession
of any of the Securities or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall be brought in
its own name as trustee of an express trust, and any recovery of judgment shall,
after provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
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SECTION 506. Application of Money Collected.
Subject to Article Eleven, any money collected by the Trustee
pursuant to this Article shall be applied in the following order, at the date or
dates fixed by the Trustee and, in case of the distribution of such money on
account of principal or interest (including any Additional Interest), upon
presentation of the Securities and the notation thereon of the payment if only
partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section
607;
SECOND: To the payment of the amounts then due and unpaid for
principal of and interest (including any Additional Interest) on the
Securities in respect of which or for the benefit of which such money has
been collected, ratably, without preference or priority of any kind,
according to the amounts due and payable on such Securities for principal
and interest (including any Additional Interest), respectively; and
THIRD: The balance, if any, to the Company.
SECTION 507. Limitation on Suits.
No Holder of any Security shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the Trustee
of a continuing Event of Default;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default in its own name
as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Securities;
32
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture to affect, disturb or prejudice the rights of any other Holders,
or to obtain or to seek to obtain priority or preference over any other Holders
or to enforce any right under this Indenture, except in the manner herein
provided and for the equal and ratable benefit of all the Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal and Interest.
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of and (subject to Section 307) interest
(including any Additional Interest) on such Security on the respective Stated
Maturities (subject to the deferral of any due date in the case of an Extension
Period) expressed in such Security (or, in the case of redemption, on the
Redemption Date) and to institute suit for the enforcement of any such payment,
and such rights shall not be impaired without the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders shall
be restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities in the last paragraph
of Section 306, no right or remedy herein conferred upon or reserved to the
Trustee or to the Holders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
33
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Security
to exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default or
an acquiescence therein. Every right and remedy given by this Article or by law
to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case
may be.
SECTION 512. Control by Holders.
The Holders of a majority in principal amount of the Outstanding
Securities 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, provided that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture; and
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
SECTION 513. Waiver of Past Defaults.
Subject to Section 902, the Holders of not less than a majority in
principal amount of the Outstanding Securities may on behalf of the Holders of
all the Securities waive any past default hereunder and its consequences, except
a default
(1) in the payment of the principal of or interest (including any
Additional Interest) on any Security (unless such default has been cured
and a sum sufficient to pay all matured installments of interest and
principal due otherwise than by acceleration have been deposited with the
Trustee); or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Security affected.
Upon any such waiver, such default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
SECTION 514. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any
34
action taken, suffered or omitted by it as Trustee, a court may require any
party litigant in such court to file an undertaking to pay the costs of such
suit, and may assess costs against any such party litigant, in the manner and to
the extent provided in the Trust Indenture Act; provided, that neither this
Section nor the Trust Indenture Act shall be deemed to authorize any court to
require such an undertaking or to make such an assessment in any suit instituted
by the Company or the Trustee or in any suit for the enforcement of the right to
receive the principal of and interest (including any Additional Interest) on any
Security.
ARTICLE SIX
The Trustee
SECTION 601. Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee shall be as provided
by the Trust Indenture Act. Notwithstanding the foregoing, no provision of this
Indenture shall require the Trustee to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of its duties hereunder,
or in the exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it. Whether or not therein
expressly so provided, every provision of this Indenture relating to the conduct
or affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section.
SECTION 602. Notice of Defaults.
The Trustee shall give the Holders notice of any default hereunder
as and to the extent provided by the Trust Indenture Act; provided, however,
that in the case of any default of the character specified in Section 501(3), no
such notice to Holders shall be given until at least 30 days after the
occurrence thereof. For the purpose of this Section, the term "default" means
any event which is, or after notice or lapse of time or both would become, an
Event of Default.
SECTION 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or presented
by the proper party or parties;
35
(b) any request or direction of the Company mentioned herein shall
be sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of
bad faith on its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel of its choice and the
written advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such
Holders shall have offered to the Trustee reasonable security or indemnity
against the costs, expenses and liabilities which might be incurred by it
in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see fit,
and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and
premises of the Company, personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder; and
(h) the Trustee shall not be liable for any action taken, suffered,
or omitted to be taken by it in good faith and reasonably believed by it
to be authorized or within the discretion or rights or powers conferred
upon it by this Indenture.
36
SECTION 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and the Trustee assumes no responsibility for their correctness.
The Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Securities. The Trustee shall not be accountable for the use
or application by the Company of Securities or the proceeds thereof.
SECTION 605. May Hold Securities.
The Trustee, any Paying Agent, any Security Registrar, or any other
agent of the Company, in its individual or any other capacity, may become the
owner or pledgee of Securities and, subject to Sections 608 and 613, may
otherwise deal with the Company with the same rights it would have if it were
not Trustee, Paying Agent, Security Registrar, or such other agent. Money held
by the Trustee in trust hereunder shall not be invested by the Trustee pending
distribution thereof to the holders of the Securities.
SECTION 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed in writing with the Company.
SECTION 607. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time such reasonable
compensation as the Company and the Trustee shall from time to time agree
in writing for all services rendered by it hereunder (which compensation
shall not be limited by any provision of law in regard to the compensation
of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision
of this Indenture (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad
faith; and
(3) to indemnify the Trustee for, and to hold it harmless against,
any and all loss, damage, claim, liability
37
or expense, including taxes (other than taxes based on the income of the
Trustee) incurred without negligence or bad faith on its part, arising out
of or in connection with the acceptance or administration of this trust,
including the costs and expenses of defending itself against any claim or
liability in connection with the exercise or performance of any of its
powers or duties hereunder.
The provisions of this Section shall survive the termination of this
Indenture.
SECTION 608. Disqualification; Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within
the meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by and subject to
the provisions of, the Trust Indenture Act and this Indenture.
SECTION 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be a
Person that is eligible pursuant to the Trust Indenture Act to act as such and
has a combined capital and surplus of at least $50,000,000 and has its Corporate
Trust Office in New York, New York, if such Person publishes reports of
condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such Person shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time the Trustee shall cease to be eligible in accordance
with the provisions of this Section, it shall resign immediately in the manner
and with the effect hereinafter specified in this Article.
SECTION 610. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 611.
(b) The Trustee may resign at any time by giving written notice
thereof to the Company. If an instrument of acceptance by a successor Trustee
shall not have been delivered to the Trustee within 30 days after the giving of
such notice of resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may be removed at any time by Act of the Holders of
a majority in principal amount of the Outstanding Securities, delivered to the
Trustee and to the Company.
38
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608 after written
request therefor by the Company or by any Holder who has been a bona fide
Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609 and
shall fail to resign after written request therefor by the Company or by
any such Holder, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee, or (ii) subject to Section 514, any Holder who has been a bona fide
Holder of a Security for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, the
Company, by a Board Resolution, shall promptly appoint a successor Trustee. If,
within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding Securities
delivered to the Company and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment, become the
successor Trustee and supersede the successor Trustee appointed by the Company.
If no successor Trustee shall have been so appointed by the Company or the
Holders and accepted appointment in the manner hereinafter provided, any Holder
who has been a bona fide Holder of a Security for at least six months may, on
behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor Trustee.
(f) The Company shall give notice of each resignation and each
removal of the Trustee and each appointment of a successor Trustee to all
Holders in the manner provided in Section 106. Each notice shall include the
name of the successor Trustee and the address of its Corporate Trust Office.
SECTION 611. Acceptance of Appointment by Successor.
Every successor Trustee appointed hereunder shall execute,
acknowledge and deliver to the Company and to the
39
retiring Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and such
successor Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee;
provided that, on request of the Company or the successor Trustee, such retiring
Trustee shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and trusts of the
retiring Trustee and shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder. Upon
request of any such successor Trustee, the Company shall execute any and all
instruments for more fully and certainly vesting in and confirming to such
successor Trustee all such rights, powers and trusts.
No successor Trustee shall accept its appointment unless at the time
of such acceptance such successor Trustee shall be qualified and eligible under
this Article.
SECTION 612. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities.
SECTION 613. Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the
Company, the Trustee shall be subject to the provisions of the Trust Indenture
Act regarding the collection of claims against the Company (or any such other
obligor).
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ARTICLE SEVEN
Holders' Lists and Reports by Trustee
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee
(a) semiannually, not later than the last day of June and December
in each year, a list, in such form as the Trustee may reasonably require,
of the names and addresses of all Holders as of a date not more than 15
days prior to the delivery thereof who were not Holders at the date of the
Company had previously provided such list (or, in the case of the initial
provision of such list, at the date of issuance of the Securities), and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a
list of similar form and content as of a date not more than 15 days prior
to the time such list is furnished;
excluding from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
SECTION 702. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders contained in the most
recent list furnished to the Trustee as provided in Section 701 and the names
and addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Securities, and the
corresponding rights and duties of the Trustee, shall be as provided by the
Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the Trustee
nor any agent of any of them shall be held accountable by reason of any
disclosure of information as to names and addresses of Holders made pursuant to
the Trust Indenture Act.
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SECTION 703. Reports by Trustee.
(a) The Trustee shall transmit to Holders such reports concerning
the Trustee and its actions under this Indenture as may be required pursuant to
the Trust Indenture Act at the times and in the manner provided pursuant
thereto.
(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange upon
which the Securities are listed, and with the Company. The Company will notify
the Trustee when the Securities are listed on any stock exchange.
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms.
The Company 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 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 (if other than the Company shall be
a corporation organized under the laws of the United States of America or any
State 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 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 801.
SECTION 802. Successor 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, with the same
effect as if it had
42
been named herein. 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 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.
ARTICLE NINE
Supplemental Indentures
SECTION 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by
a Board Resolution, and the Trustee, at any time and from time to time, may
enter into one or more indentures supplemental hereto, in form satisfactory to
the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company and
the assumption by any such successor of the covenants of the Company
herein and in the Securities;
(2) to add to the covenants of the Company for the benefit of the
Holders, or to surrender any right or power herein or in the Securities
conferred upon the Company;
(3) to cure any ambiguity or to correct any provision herein which
may be defective or inconsistent with any other provision herein;
43
(4) to comply with the requirements of the Commission in order to
effect or maintain the qualification of this Indenture under the Trust
Indenture Act, as contemplated by Section 905 or otherwise;
(5) to evidence and provide the acceptance of the appointment of a
successor Trustee hereunder; or
(6) to make any other change that does not adversely affect the
rights of any Holder.
SECTION 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities, by Act of said Holders delivered
to the Company and the Trustee, the Company, when authorized by a Board
Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders under this Indenture;
provided, however, that no such supplemental indenture shall, without the
consent of the Holder of each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any
installment of interest (including any Additional Interest) on, any
Security, or reduce the principal amount thereof or the rate of interest
thereon, or change the place of payment where, or the coin or currency in
which, any Security or interest thereon is payable, or impair the right to
institute suit for the enforcement of any such payment on or after the
Stated Maturity thereof (or, in the case of redemption, on or after the
Redemption Date), or modify the provisions of this Indenture with respect
to the subordination of the Securities in a manner adverse to the Holders,
(2) reduce the percentage in principal amount of the Outstanding
Securities, the consent of whose Holders is required for any such
supplemental indenture, or the consent of whose Holders in required for
any waiver (of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided for in this
Indenture, or
(3) modify any of the provisions of this Section or Section 513,
except to increase any such percentage or to provide that certain other
provisions of this Indenture cannot be modified or waived without the
consent of the Holder of each Outstanding Security affected thereby.
It shall not be necessary for any Act of Holders under this Section
to approve the particular form of any proposed
44
supplemental indenture, but it shall be sufficient if such Act shall approve the
substance thereof.
SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act.
ARTICLE TEN
Covenants; Representations and Warranties
SECTION 1001. Payment of Principal and Interest.
The Company will duly and punctually pay the principal of and
interest on the Securities in accordance with the terms of the Securities and
this Indenture.
SECTION 1002. Maintenance of Office or Agency.
The Company will maintain in the United States an office or agency
where Securities may be presented or surrendered for payment, where Securities
may be surrendered for registration of transfer or exchange, where Securities
may be surrendered for conversion and where notices and demands to or upon the
Company in respect of the Securities and this Indenture may be served. The
Company will give prompt written notice to the Trustee of the location, and any
change in the location, of such office or agency. If at any time the Company
shall fail to maintain any
45
such required office or agency or shall fail to furnish the Trustee with the
address thereof, such presentations, surrenders, notices and demands may be made
or served at the Corporate Trust Office of the Trustee, and the Company hereby
appoints the Trustee as its agent to receive all such presentations, surrenders,
notices and demands.
The Company may also from time to time designate one or more other
offices or agencies (in the United States) where the Securities may be presented
or surrendered for any or all such purposes and may from time to time rescind
such designations; provided, however, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an office
or agency in the United States for such purposes. The Company will give prompt
written notice to the Trustee of any such designation or rescission and of any
change in the location of any such other office or agency.
SECTION 1003. Money for Security Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent, it
will, on or at the option of the Company before each due date of the principal
of or interest on any of the Securities, segregate and hold in trust for the
benefit of the Persons entitled thereto a sum sufficient to pay the principal or
interest so becoming due until such sums shall be paid to such Persons or
otherwise disposed of as herein provided and will promptly notify the Trustee of
its action or failure so to act.
Whenever the Company shall have one or more Paying Agents, it will,
on or prior to each due date of the principal of or interest on any Securities,
deposit with a Paying Agent a sum sufficient to pay such amount, such sum to be
held as provided by the Trust Indenture Act, and (unless such Paying Agent is
the Trustee) the Company will promptly notify the Trustee of its action or
failure so to act.
Any money deposited with the Trustee or any Paying Agent, or then
held by the Company, in trust for the payment of the principal of or interest on
any Security and remaining unclaimed for two years after such principal or
interest has become due and payable shall be paid to the Company on Company
Request, or (if then held by the Company) shall be discharged from such trust;
and the Holder of such Security shall thereafter, as an unsecured general
creditor, look only to the Company for payment thereof, and all liability of the
Trustee or such Paying Agent with respect to such trust money, and all liability
of the Company as trustee thereof, shall thereupon cease.
SECTION 1004. Reports by the Company.
The Company shall file with the Trustee and the Commission, and
transmit to Holders, such information, documents
46
and other reports, and such summaries thereof, as may be required pursuant to
the Trust Indenture Act at the times and in the manner provided pursuant to such
Act; provided that any such information, documents or reports required to be
filed with the Commission pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 shall be filed with the Trustee within 15 days after the
same is so required to be filed with the Commission. Delivery of such reports,
information and documents to the Trustee is for informational purposes only and
the Trustee's receipt of such shall not constitute constructive notice of any
information contained therein or determinable from information contained
therein, including the Company's compliance with any of its covenants hereunder
(as to which the Trustee is entitled to rely exclusively on Officers'
Certificates).
SECTION 1005. Limitations on Incurrence of Secured Debt.
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 (together with, if the Company so determines, any other debt of the
Company or such Restricted Subsidiary, which is not subordinated to the
Securities) 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 Company and its
Restricted Subsidiaries would not exceed 10% of Consolidated Net Tangible Assets
of the Company and its Restricted Subsidiaries; 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 shall, in any event, constitute a lien; and provided,
further, that the satisfaction and discharge of any debt pursuant to Section 401
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 1005.
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
47
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 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 (x) 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 (y) 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
Company or any Restricted Subsidiary; (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
48
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 tho 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) (x)
such liens be created prior to, at the time of, or at any time after the
entering into of such lease transactions and/or (y) 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).
SECTION 1006. Limitations on Incurrence of Senior Indebtedness.
The Company shall not incur any additional Senior Indebtedness
unless at the date of incurrence the ratio of Consolidated EBIT to Consolidated
Interest Expense for the four immediately preceding consecutive fiscal quarters,
shall be at least 1.25 to 1; provided, that if, at any date of determination,
the Company's long-term unsecured senior indebtedness is rated by at least one
nationally recognized statistical rating organization in one of its generic
rating categories which signifies investment grade, then the foregoing
limitation shall not be applicable at such date; provided, further, that the
Company and its Subsidiaries shall in any event be entitled to incur each and
all of the following: (i) existing indebtedness outstanding under, or available
to be borrowed by the Company under, one or more commercial bank credit
facilities (including the Company's Credit Agreements, each dated as of
September 16, 1996, among the Company, the banks listed therein and Morgan
Guaranty Trust Company of New York, as agent) not in excess of $1,800,000,000;
(ii) additional indebtedness in an aggregate principal amount not to exceed $100
million at any one time outstanding; and (iii) any indebtedness of the Company
or any Subsidiary issued in exchange for, or the net proceeds of which are used
to refinance or refund, then outstanding indebtedness permitted hereunder in an
amount not to exceed the amount so refinanced or refunded.
SECTION 1007. Statement as to Compliance; Notice of Certain Events of Default.
The Company will, within 120 days after the close of each fiscal
year, commencing with the first fiscal year following the issuance of Securities
under this Indenture, file with the Trustee a certificate of the principal
executive officer, the principal financial officer or the principal accounting
officer
49
of the Company 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 signer, the Company has complied with all conditions and
covenants on its part contained in this Indenture, and, if the signer has
obtained knowledge of any default by the Company 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 1007, compliance shall
be determined without regard to any grace period or requirement of notice
provided pursuant to the terms of this Indenture.
ARTICLE ELEVEN
Subordination of Securities
SECTION 1101. Securities Subordinate to Senior Indebtedness.
The Company covenants and agrees, and each Holder of a Security, by
his acceptance thereof, likewise covenants and agrees, that, notwithstanding
anything to the contrary contained herein, to the extent and in the manner
hereinafter set forth in this Article, the indebtedness represented by the
Securities and the payment of the principal of and premium, if any, and interest
on each and all of the Securities are hereby expressly made subordinate and
subject in right of payment to the prior payment in full in cash or cash
equivalents of all Senior Indebtedness (including any interest accruing after
the occurrence of an Event of Default under Section 501(4) or (5)).
SECTION 1102. Payment Over of Proceeds upon Dissolution, etc.
In the event of (a) any insolvency or bankruptcy case or proceeding,
or any receivership, liquidation, reorganization or other similar case or
proceeding in connection therewith, relative to the Company or to its creditors,
as such, or to its assets, or (b) any liquidation, dissolution or other winding
up of the Company, whether voluntary or involuntary and whether or not involving
insolvency or bankruptcy, or (c) any assignment for the benefit of creditors or
any other marshalling of assets and liabilities of the Company, then and in any
such event:
(1) the holders of Senior Indebtedness shall be entitled to receive
payment in full in cash or cash equivalents of all amounts due or to
become due on or in respect of all Senior Indebtedness, or provision shall
be made for such payment in cash or cash equivalents, before the Holders
of the Securities are entitled to receive any payment on account of
principal of (or premium, if any) or interest on the Securities; and
50
(2) any payment or distribution of assets of the Company of any kind
or character, whether in cash, property or securities, by set-off or
otherwise, to which the Holders or the Trustee would be entitled but for
the provisions of this Article Eleven, including any such payment or
distribution which may be payable or deliverable by reason of the payment
of any other indebtedness of the Company being subordinated to the payment
of the Securities (except for any such payment or distribution of
securities which (i) are unsecured, (ii) have an average life and final
maturity no shorter than the average life and final maturity of the
Securities and (iii) are subordinated, to at least the same extent as the
Securities, to the payment of all Senior Indebtedness then outstanding),
shall be paid by the liquidating trustee or agent or other person making
such payment or distribution, whether a trustee in bankruptcy, a receiver
or liquidating trustee or otherwise, directly to the holders of Senior
Indebtedness or their Representative or Representatives or to the trustee
or trustees under any indenture under which any instruments evidencing any
of such Senior Indebtedness may have been issued, ratably according to the
aggregate amounts remaining unpaid on account of the principal of, and
premium, if any, and interest on, and other amounts due on or in
connection with, the Senior Indebtedness to the extent necessary to make
payment in full in cash or cash equivalents of all Senior Indebtedness
remaining unpaid, after giving effect to any concurrent payment or
distribution to the holders of such Senior Indebtedness; and
(3) in the event that, notwithstanding the foregoing provisions of
this Section, the Trustee or the Holder of any Security shall have
received any such payment or distribution of assets of the Company of any
kind or character, whether in cash, property or securities, including any
such payment or distribution which may be payable or deliverable by reason
of the payment of any other indebtedness of the Company being subordinated
to the payment of the Securities, before all Senior Indebtedness is paid
in full or payment thereof provided for, then and in such event such
payment or distribution shall be paid over or delivered forthwith to the
trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee,
agent or other Person making payment or distribution of assets of the
Company for application to the payment of all Senior Indebtedness
remaining unpaid to the extent necessary to pay all Senior Indebtedness in
full in cash or cash equivalents, after giving effect to any concurrent
payment or distribution to or for the holders of Senior Indebtedness.
The consolidation of the Company with, or the merger of the Company
into, another corporation or the liquidation or dissolution of the Company
following the conveyance, transfer or lease of its properties and assets
substantially as an entirety
51
to another corporation upon the terms and conditions set forth in Article Eight
shall not be deemed a dissolution, winding up, liquidation, reorganization,
assignment for the benefit of creditors or marshalling of assets and liabilities
of the Company for the purposes of this Section if the corporation formed by
such consolidation or into which the Company is merged or the corporation which
acquires by conveyance, transfer or lease such properties and assets
substantially as an entirety, as the case may be, shall, as a part of such
consolidation, merger, conveyance, transfer or lease, comply with the conditions
set forth in Article Eight.
SECTION 1103. No Payment When Senior Indebtedness in Default.
No payment of principal (including redemption payments), premium, if
any, or interest on the Securities may be made (i) if any Senior Indebtedness is
not paid when due, (ii) if any applicable grace period with respect to such
payment default on Senior Indebtedness has ended and such default has not been
cured or waived or ceased to exist, or (iii) if the maturity of any Senior
Indebtedness of the Company has been accelerated because of a default.
In the event that, notwithstanding the foregoing, the Company shall
make any payment to the Trustee or the Holder of any Security prohibited by the
foregoing provisions of this Section, then and in such event such payment shall
be received and held in trust for the holders of Senior Indebtedness and shall
be paid over or delivered to the Representative of Senior Indebtedness then
outstanding to the extent necessary to pay in full in cash or cash equivalents
all Senior Indebtedness.
The provisions of this Section shall not apply to any payment with
respect to which Section 1102 would be applicable.
SECTION 1104. Payment Permitted If No Default.
Nothing contained in this Article or elsewhere in this Indenture or
in any of the Securities shall prevent the Company, at any time except during
the pendency of any case, proceeding, dissolution, liquidation or other winding
up, assignment for the benefit of creditors or other marshalling of assets and
liabilities of the Company referred to in Section 1102 or under the conditions
described in Section 1103, from making payments at any time of principal of (and
premium, if any) or interest on the Securities.
SECTION 1105. Subrogation to Rights of Holders of Senior Indebtedness.
Subject to the payment in full of all Senior Indebtedness, the
Holders of the Securities shall be subrogated (equally and ratably with the
holders of all indebtedness of the Company which by its express terms is
subordinated to Senior
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Indebtedness of the Company to the same extent as the Securities are
subordinated and which is entitled to like rights of subrogation) to the rights
of the holders of such Senior Indebtedness to receive payments and distributions
of cash, property and securities applicable to the Senior Indebtedness until the
principal of (and premium, if any) and interest on the Securities shall be paid
in full. For purposes of such subrogation, no payments or distributions to the
holders of Senior Indebtedness of any cash, property or securities to which the
Holders of the Securities or the Trustee would be entitled except for the
provisions of this Article, and no payments over pursuant to the provisions of
this Article to the holders of Senior Indebtedness by Holders of the Securities
or the Trustee, shall, as among the Company, its creditors other than holders of
Senior Indebtedness, and the Holders of the Securities, be deemed to be a
payment or distribution by the Company to or on account of the Senior
Indebtedness.
SECTION 1106. Provisions Solely to Define Relative Rights.
The provisions of this Article are and are intended solely for the
purpose of defining the relative rights of the Holders of the Securities on the
one hand and the holders of Senior Indebtedness on the other hand. Nothing
contained in this Article or elsewhere in this Indenture or in the Securities is
intended to or shall (a) impair, as among the Company, its creditors other than
holders of Senior Indebtedness and the Holders of the Securities, the obligation
of the Company, which is absolute and unconditional, to pay to the Holders of
the Securities the principal of (and premium, if any) and interest on the
Securities as and when the same shall become due and payable in accordance with
their terms; or (b) affect the relative rights against the Company of the
Holders of the Securities and creditors of the Company other than the holders of
Senior Indebtedness; or (c) prevent the Trustee or the Holder of any Security
from exercising all remedies otherwise permitted by applicable law upon default
under this Indenture, subject to the express limitations set forth in Article
Five and to the rights, if any, under this Article of the holders of Senior
Indebtedness (1) in any case, proceeding, dissolution, liquidation or other
winding up, assignment for the benefit of creditors or other marshalling of
assets and liabilities of the Company referred to in Section 1102, to receive,
pursuant to and in accordance with such Section, cash, property and securities
otherwise payable or deliverable to the Trustee or such Holder, or (2) under the
conditions specified in Section 1103, to prevent any payment prohibited by such
Section.
SECTION 1107. Trustee to Effectuate Subordination.
Each Holder of a Security by his acceptance thereof authorizes and
directs the Trustee on his behalf to take such action as may be necessary or
appropriate to effectuate the
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subordination provided in this Article and appoints the Trustee his
attorney-in-fact for any and all such purposes.
SECTION 1108. No Waiver of Subordination Provisions.
No right of any present or future holder of any Senior Indebtedness
to enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company
or by any act or failure to act, in good faith, by any such holder, or by any
non-compliance by the Company with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof any such holder may have or be
otherwise charged with.
Without in any way limiting the generality of the foregoing
paragraph, the holders of Senior Indebtedness may, at any time and from time to
time, without the consent of or notice to the Trustee or the Holders of the
Securities, without incurring responsibility to the Holders of the Securities
and without impairing or releasing the subordination provided in this Article or
the obligations hereunder of the Holders of the Securities to the holders of
Senior Indebtedness, do any one or more of the following: (a) change the manner,
place or terms of payment or extend the time of payment of, or renew or alter,
Senior Indebtedness or any instrument evidencing the same or any agreement under
which Senior Indebtedness is outstanding; (b) sell, exchange, release or
otherwise deal with any property pledged, mortgaged or otherwise securing Senior
Indebtedness; (c) release any Person liable in any manner for the collection of
Senior Indebtedness; and (d) exercise or refrain from exercising any rights
against the Company and any other Person.
Section 1109. Notice to Trustee.
The Company shall give prompt written notice to the Trustee of any
fact known to the Company which would prohibit the making of any payment to or
by the Trustee in respect of the Securities. Notwithstanding the provisions of
this Article or any other provision of this Indenture, the Trustee shall not be
charged with knowledge of the existence of any facts which would prohibit the
making of any payments to or by the Trustee in respect of the Securities, unless
and until the Trustee shall have received written notice thereof at the
Corporate Trust Office of the Trustee from the Company or a holder of Senior
Indebtedness or from any trustee, fiduciary or agent therefor; and, prior to the
receipt of any such written notice, the Trustee, subject to the provisions of
Section 602, shall be entitled in all respects to assume that no such facts
exist; provided, however, that if the Trustee shall not have received the notice
provided for in this Section 1109 at least three Business Days prior to the date
upon which by the terms hereof any money may become payable for any purpose
(including, without limitation, the payment of the principal of (and premium, if
any) or interest on any Security), then, anything herein contained to
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the contrary notwithstanding, the Trustee shall have full power and authority to
receive such money and to apply the same to the purpose for which such money was
received and shall not be affected by any notice to the contrary which may be
received by it within three Business Days prior to such date. Nothing in this
Section 1109 shall limit the right of the holders of Senior Indebtedness to
recover payments as contemplated by Section 1102 and 1103.
Subject to the provisions of Section 602, the Trustee shall be
entitled to rely on the delivery to it of a written notice by a Person
representing himself to be a holder of Senior Indebtedness (or a trustee,
fiduciary or agent therefor) to establish that such notice has been given by a
holder of Senior Indebtedness (or a trustee, fiduciary or agent therefor). In
the event that the Trustee determines in good faith that further evidence is
required with respect to the right of any Person as a holder of Senior
Indebtedness to participate in any payment or distribution pursuant to this
Article, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness
held by such Person, the extent to which such Person is entitled to participate
in such payment or distribution and any other facts pertinent to the rights of
such Person under this Article, and if such evidence is not furnished, the
Trustee may defer any payment to such Person pending judicial determination as
to the right of such Person to receive such payment.
SECTION 1110. Reliance on Judicial Order or Certificate of Liquidating Agent.
Upon any payment or distribution of assets of the Company referred
to in this Article, the Trustee, subject to the provisions of Section 602, and
the Holders of the Securities shall be entitled to rely upon any order or decree
entered by any court of competent jurisdiction in which such insolvency,
bankruptcy, receivership, liquidation, reorganization, dissolution, winding up
or similar case or proceeding is pending, or a certificate of the trustee in
bankruptcy, receiver, liquidating trustee, custodian, assignee for the benefit
of creditors, agent or other Person making such payment or distribution,
delivered to the Trustee or to the Holders of Securities, for the purpose of
ascertaining the Persons entitled to participate in such payment or
distribution, the holders of Senior Indebtedness and other indebtedness of the
Company, the amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to this Article.
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SECTION 1111. Rights of Trustee as a Holder of Senior Indebtedness;
Preservation of Trustee's Rights.
The Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article with respect to any Senior Indebtedness which
may at any time be held by it, to the same extent as any other holder of Senior
Indebtedness, and nothing in this Indenture shall deprive the Trustee of any of
its rights as such holder.
Nothing in this Article shall apply to claims of, or payments to,
the Trustee under or pursuant to Section 607.
SECTION 1112. Article Applicable to Paying Agents.
In case at any time any Paying Agent other than the Trustee shall
have been appointed by the Company and be then acting hereunder, the term
"Trustee" as used in this Article shall in such case (unless the context
otherwise requires) be construed as extending to and including such Paying Agent
within its meaning as fully for all intents and purposes as if such Paying Agent
were named in this Article in addition to or in place of the Trustee; provided,
however, that (i) Section 1111 shall not apply to the Company or any Affiliate
of the Company if it or such Affiliate acts as Paying Agent and (ii) any notice
required by this Article Eleven to be given by the holders of, or a
Representative for, Senior Indebtedness need only be given to the Trustee and
not to any Paying Agent.]
ARTICLE TWELVE
Redemption of Securities
SECTION 1201. Optional Redemption.
(a) At any time on or after September 30, 2006, the Company shall
have the right to redeem the Securities, in whole or in part, from time to time,
at a Redemption Price equal to 100% of the principal amount of Securities to be
redeemed plus accrued but unpaid interest, including any Additional Interest, if
any, to the Redemption Date.
(b) If, at any time, a Partnership Tax Event or a Partnership
Investment Company Event (each a "Partnership Special Event") shall occur and be
continuing, the Company may, within 90 days following the occurrence of such
Partnership Special Event, elect to redeem the Securities in whole (but not in
part), upon not less than 30 or more than 60 days' notice at the Redemption
Price, provided that, if at the time there is available to the Company or the
Partnership the opportunity to eliminate, within such 90-day period, the
Partnership Special Event by taking some ministerial action, such as filing a
form or making an election,
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or pursuing some other similar reasonable such measure that in the sole judgment
of the Company has or will cause no adverse effect on the Partnership, the Trust
or the Company, the Company will pursue such measure in lieu of redemption.
SECTION 1202. Applicability of Article.
Redemption of Securities, at the election of the Company as
permitted by Section 1201, shall be made in accordance with such provision and
this Article.
SECTION 1203. Authorization for Redemption; Notice to Trustee.
The election of the Company to redeem Securities pursuant to Section
1201 shall be evidenced by a Board Resolution. In case of any redemption, the
Company shall, at least 30 days and no more than 60 days prior to the Redemption
Date fixed by the Company, notify the Trustee of such Redemption Date and of the
principal amount of Securities to be redeemed and provide a copy of the notice
of redemption given to Holders of Securities to be redeemed pursuant to Section
1204.
SECTION 1204. Selection by Trustee of Securities to Be Redeemed.
If less then all the Securities are to be redeemed (unless such
redemption affects only a single Security), the particular Securities to be
redeemed shall be selected not more than 60 days prior to the Redemption Date by
the Trustee, from the Outstanding Securities not previously called for
redemption, by such method (including pro rata or by lot) as the Trustee shall
deem fair and appropriate and which may provide for the selection for redemption
of portions (equal to $25 or any integral multiple thereof) of the principal
amount of the Securities.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption as aforesaid and, in case of any Securities
selected for partial redemption as aforesaid, the principal amount thereof to be
redeemed.
The provisions of the two preceding paragraphs shall not apply with
respect to any redemption affecting only a single Security, whether such
Security is to be redeemed in whole or in part. In the case of any such
redemption in part, the unredeemed portion of the principal amount of the
Security shall be in an authorized denomination (which shall not be less than
the minimum authorized denomination) for such Security.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
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SECTION 1205. Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption
Date, to each Holder of Securities to be redeemed, at his address appearing in
the Security Register.
All notices of redemption shall identify the Securities to be
redeemed and shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) that on the Redemption Date the Redemption Price will become due
and payable upon each such security to be redeemed and that interest
thereon will cease to accrue on and after said date, and
(4) the place or places where such securities are to be surrendered
for payment of the Redemption Price.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
SECTION 1206. Deposit of Redemption Price.
Prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1003) an amount of
money sufficient to pay the Redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date) accrued interest on, all the Securities
which are to be redeemed on that date.
SECTION 1207. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities
so to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security shall
be paid by the Company at the Redemption Price, together with accrued interest
to the Redemption Date; provided, however, that installments of interest whose
Stated Maturity is on or prior to the Redemption Date shall be payable to the
Holders of such Securities, or one or more Predecessor Securities, registered as
such at the close of business on the
58
relevant Record Dates according to their terms and the provisions of Section
307.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal shall, until paid, bear interest
from the Redemption Date at the rate borne by the Security.
SECTION 1209. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be
surrendered at a place of payment therefor (with, if the Company or the Trustee
so requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder thereof
or his attorney duly authorized in writing), and the Company shall execute, and
the Trustee shall authenticate and deliver to the Holder of such Security
without service charge, a new Security or Securities, of any authorized
denomination as requested by such Holder, in aggregate principal amount equal to
and in exchange for the unredeemed portion of the principal of the Security so
surrendered. The Company may not redeem fewer than all the Outstanding
Securities unless all accrued and unpaid interest (including Additional
Interest) has been paid on such Securities.
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This instrument may be executed in any number of counterparts, each
of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, and their respective corporate seals to be hereunto affixed
and attested, all as of the day and year first above written.
AT&T CAPITAL CORPORATION, as Issuer
By:____________________________
Name:
Title:
Attest:
___________________________
THE FIRST NATIONAL BANK OF CHICAGO,
N.A., as Trustee
By:____________________________
Name:
Title:
Attest:
____________________________
STATE OF NEW YORK )
ss.:
COUNTY OF ________ )
On the ____ day of ________, 1996, before me personally came
________, to me known, who, being by me duly sworn, did depose and say that
he/she is the ________ of [Name of Issuer] [the Guarantor], one of the
corporations described in and which executed the foregoing instrument; and that
he/she signed his/her name thereto by authority of the Board of Directors of
such corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
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