FORM OF INDENTURE
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AT&T CAPITAL CORPORATION,
NEWCOURT CREDIT GROUP INC.
AND
THE CHASE MANHATTAN BANK,
AS TRUSTEE
INDENTURE
DATED AS OF MARCH 1, 1999
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TABLE OF CONTENTS
SECTION HEADING PAGE
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RECITALS OF THE COMPANY..........................................................1
ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE...................1
Section 1.01 Definitions..................................................1
Section 1.02 Other Definitions............................................8
Section 1.03 Incorporation by Reference of Trust Indenture Act............9
Section 1.04 Rules of Construction........................................9
ARTICLE II THE SECURITIES..............................................10
Section 2.01 Issuable in Series..........................................10
Section 2.02 Establishment of Terms and Form of Series of Securities.....10
Section 2.03 Execution, Authentication and Delivery......................12
Section 2.04 Registrar and Paying Agent..................................14
Section 2.05 Payment on Securities.......................................15
Section 2.06 Paying Agent to Hold Money in Trust.........................16
Section 2.07 Securityholder Lists; Ownership of Securities...............16
Section 2.08 Transfer and Exchange.......................................16
Section 2.09 Rep1acement Securities .....................................17
Section 2.10 Outstanding Securities .....................................18
Section 2.11 Temporary Securities; Global Securities.....................19
Section 2.12 Cancellation ...............................................20
Section 2.13 Defaulted Interest .........................................21
ARTICLE III REDEMPTION..................................................21
Section 3.01 Notice to Trustee...........................................21
Section 3.02 Selection of Securities to be Redeemed......................21
Section 3.03 Notice of Redemption........................................21
Section 3.04 Effect of Notice of Redemption..............................22
Section 3.05 Deposit of Redemption Price.................................22
Section 3.06 Mandatory and Optional Sinking Funds........................23
ARTICLE IV COVENANTS...................................................25
Section 4.01 Payment of Securities.......................................25
Section 4.02 Reports by the Company and the Guarantor....................25
Section 4.03 Limitations on Liens........................................26
Section 4.04 Statement as to Compliance; Notice of Certain Events of
Default................................ ...............29
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ARTICLE V CONSOLIDATION, MERGER, SALE OR CONVEYANCE...................29
Section 5.01 Consolidation or Merger, etc., on Certain Terms.............29
Section 5.02 Successsor Substituted .....................................30
Section 5.03 Opinion of Counsel to Trustee...............................30
ARTICLE VI REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON
EVENT OF DEFAULT............................................31
Section 6.01 Events of Default; Acceleration of Maturity; Waiver of
Default................................................31
Section 6.02 Collection of Indebtedness by Trustee; Trustee May Prove
Debt...................................................33
Section 6.03 Application of Proceeds.....................................35
Section 6.04 Limitation on Suits by Securityholders......................36
Section 6.05 Powers and Remedies Cumulative; Delay or Omission Not
Waiver of Default......................................36
Section 6.06 Control by Securityholders; Waiver of Defaults..............37
Section 6.07 Right of Court to Require Filing of Undertaking to Pay
Costs..................................................37
ARTICLE VII TRUSTEE.....................................................38
Section 7.01 Duties of Trustee...........................................38
Section 7.02 Rights of Trustee...........................................39
Section 7.03 Individual Rights of Trustee................................39
Section 7.04 Trustee Disclaimer .........................................39
Section 7.05 Notice of Default...........................................39
Section 7.06 Reports by Trustee to Holders...............................39
Section 7.07 Compensation and Indemnity..................................40
Section 7.08 Replacement of Trustee......................................40
Section 7.09 Successor Trustee, Agents by Merger, etc....................42
Section 7.10 Eligibility; Disqualification ..............................42
Section 7.11 Preferential Collection of Claims Against Company...........42
Section 7.12 Authenticating Agent .......................................42
ARTICLE VIII SATISFACTION AND DISCHARGE OF INDENTURE;
DEFEASANCE; UNCLAIMED MONIES................................44
Section 8.01 Satisfaction and Discharge of Indenture.....................44
Section 8.02 Defeasance upon Deposit of Moneys or U.S. Government
Obligations............................................45
Section 8.03 Application of Moneys Deposited.............................46
Section 8.04 Repayment of Moneys Held....................................46
Section 8.05 Return of Moneys Unclaimed for Two Years; Return of
Additional Monies and U.S. Government Obligations......47
Section 8.06 Indemnity for Government Obligations........................47
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ARTICLE IX AMENDMENTS AND WAIVERS......................................48
Section 9.01 Without Consent of Holders..................................48
Section 9.02 With Consent of Holders.....................................48
Section 9.03 Compliance with Trust Indenture Act.........................49
Section 9.04 Revocation and Effect of Consents...........................49
Section 9.05 Notation on or Exchange of Securities.......................49
Section 9.06 Trustee Protected ..........................................49
ARTICLE X MISCELLANEOUS...............................................50
Section 10.01 Trust Indenture Act Controls................................50
Section 10.02 Notices.....................................................50
Section 10.03 Communication by Holders with Other Holders.................51
Section 10.04 Certificate and Opinion as to Conditions Precedent..........51
Section 10.05 Statements Required in Certificate or Opinion...............51
Section 10.06 Legal Holidays..............................................52
Section 10.07 Governing Law ..............................................52
Section 10.08 No Adverse Interpretation of Other Agreements...............52
Section 10.09 No Recourse Against Others..................................52
Section 10.10 When Treasury Securities Disregarded........................52
Section 10.11 Rules by Trustee, Paying Agent, Registrar, Record Dates.....52
Section 10.12 Execution in Counterparts...................................52
Section 10.13 Securities in a Foreign Currency............................53
Section 10.14 Judgment Currency...........................................53
Section 10.15 Forum Selection and Consent to Jurisdiction.................54
SIGNATURE.......................................................................55
EXHIBIT A -- FORM OF PARENT GUARANTEE
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THIS INDENTURE, dated as of March 1, 1999, is entered into by and among
AT&T Capital Corporation, a corporation duly organized and validly existing
under the laws of the State of Delaware (together with its successors and
assigns, the "Company"), Newcourt Credit Group Inc., a corporation duly
organized and validly existing under the laws of Ontario, Canada (together with
its successors and assigns, the "Guarantor") and The Chase Manhattan Bank, a
corporation duly organized and validly existing under the laws of the State of
New York (together with its successors and assigns, the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness ("Securities") as herein
provided.
The Guarantor has duly authorized the execution and delivery of this
Indenture to provide for its Parent Guarantee relating to the Securities.
All things necessary to make this Indenture a valid agreement of the
Company and the Guarantor, in accordance with its terms, have been done.
For and in consideration of the premises and the purchase of the Securities
by the Holders thereof, it is mutually covenanted and agreed as follows for the
equal and ratable benefit of the Holders of the Securities:
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01. Definitions.
"Accounts Receivable" mean (i) any accounts receivable (whether or not
earned by performance), chattel paper, instruments, documents, general
intangibles, trade acceptances, any other rights to receive installment, rental
or other payments for, or relating to amounts due or to become due on account
of, equipment or goods sold or leased or to be sold or leased or services
rendered or to be rendered or funds advanced or loaned or to be advanced or
loaned and other rights to payment of any kind, (ii) any proceeds of any of the
foregoing and (iii) any interest in any property or asset of any kind (whether
of the obligor under such Accounts Receivable or any other person) securing the
payment of any item listed in clause (i) hereof.
"Acquired Financing Assets" means assets (including, but not limited to,
securities and receivables) of any Person the acquisition of which was financed
in accordance with the Guarantor's credit policies and procedures manual
approved from time to time by the Board of Directors of the Guarantor.
"Affiliate" means any person directly or indirectly controlling or
controlled by, or under direct or indirect common control with, the Company or
the Guarantor, as the case may be.
"Agent" means any Paying Agent or Registrar.
"Authenticated" means (a) with respect to a Certificated Security, one
which has been duly authenticated by manual signature of an authorized officer
of the Trustee or an authenticating agent; and (b) with respect to an
Uncertificated Security, one in respect of which the Trustee or authenticating
agent has completed all Internal Procedures. "Authenticate," "Authenticating,"
and "Authentication" have the appropriate correlative meanings.
"Authorized Newspaper" means a newspaper of general circulation, in the
official language of the country of publication or in the English language,
customarily published on each business day. Whenever successive weekly
publications in an Authorized Newspaper are required hereunder they may be made
(unless otherwise expressly provided herein) on the same or different days of
the week and in the same or different Authorized Newspapers.
"Board of Directors" means the Board of Directors of the Company or the
Guarantor, as the case may be, or any duly authorized committee thereof.
"Board Resolution" means a copy of a resolution of the Board of Directors,
certified by the Secretary, an Assistant Secretary or any other Officer of the
Company or the Guarantor, as the case may be, to have been adopted by the Board
of Directors of the Company or the Guarantor, as the case may be, and to be in
full force and effect on the date of the certificate, and delivered to the
Trustee.
"Capitalized Lease" means any lease the obligation for Rentals with respect
to which is required to be capitalized on a consolidated balance sheet of the
lessee and its subsidiaries in accordance with GAAP.
"Capitalized Rentals" of any Person shall mean as of the date of any
determination thereof the amount at which the aggregate Rentals due and to
become due under all Capitalized Leases under which such Person is a lessee
would be reflected as a liability on a consolidated balance sheet of such
Person.
"Certificated Security" or "Certificated Securities" means a Registered
Security, Registered Securities, Unregistered Security or Unregistered
Securities of any Series evidenced by a writing or writings substantially in the
form established as provided in Section 2.02(a) hereof.
"Company" means AT&T Capital Corporation until a successor replaces it
subject to the provisions of Article V and thereafter means the successor.
"Company Order" means an order signed by any Officer of the
Company.
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"Consolidated Net Tangible Assets" means, at the date of any determination,
the total assets appearing on the consolidated balance sheet of the Guarantor
and its Restricted Subsidiaries as at the end of the most recent fiscal quarter
of the Guarantor for which such balance sheet is available, prepared in
accordance with generally accepted accounting principles, less (a) all current
liabilities (obligations whose liquidation is reasonably expected to occur
within twelve months), (b) investments in and advances to Subsidiaries other
than Restricted Subsidiaries or other entities accounted for on the equity
method of accounting and (c) Intangible Assets.
"Debt" of any Person shall mean and include all obligations of such Person
for money borrowed or which have been incurred in connection with the
acquisition of assets which in accordance with GAAP shall be classified upon a
balance sheet of such Person as liabilities of such Person, and in any event
shall include, without duplication, all (i) Capitalized Rentals and (ii)
Guaranties of obligations of others of the character referred to in this
definition.
"Default" means any event which is, or after notice or passage of time or
both would be, an Event of Default.
"Depositary" means, (i) with respect to Global Securities of any Series
which are offered for sale solely outside of the United States, a common
depositary for Morgan Guaranty Trust Company of New York, Brussels office,
operator of the Euroclear System, and Centrale de Livraison de Valeurs
Mobilieres, S.A., and (ii) with respect to Global Securities of any Series which
are offered for sale in the United States, a clearing agency registered under
the Securities Exchange Act of 1934, or any successor thereto, which shall in
either case be designated by the Company pursuant to either Section 2.02 or 2.11
(provided, that unless otherwise designated, the Depositary for purposes of
clause (ii) shall be The Depository Trust Company).
"GAAP" means generally accepted accounting principles.
"Global Security" means, with respect to any Series of Securities issued
hereunder, a Security, which may be a Registered or an Unregistered Security,
executed by the Company and authenticated and delivered by the Trustee to the
Depositary or pursuant to the Depositary's instruction, all in accordance with
this Indenture including Section 2.11 and pursuant to a Company Order, and which
shall represent, and shall be denominated in an amount equal to the aggregate
principal amount of, all of the outstanding Securities of such Series or a
portion thereof, in either case having the same terms, including, without
limitation, the same issue date, date or dates on which principal is due,
interest rate or method of determining interest, and, in the case of Original
Issue Discount Securities, which have the same issue price. "Global Security"
shall include any temporary global Security and any permanent global Security.
"Guaranties" by any Person shall mean all obligations (other than
endorsements in the ordinary course of business of negotiable instruments for
deposit or collection) of such Person guaranteeing, or in effect guaranteeing,
any Indebtedness, dividend or other obligation of any other Person (the "Primary
Obligor") in any manner, whether directly or indirectly, including, without
limitation, all obligations incurred through an agreement, contingent or
otherwise, by such Person: (i) to purchase such Indebtedness or obligation or
any property or assets
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constituting security therefor, (ii) to advance or supply funds (x) for the
purchase or payment of such Indebtedness or obligation, (y) to maintain working
capital or other balance sheet condition or otherwise to advance or make
available funds for the purchase or payment of such Indebtedness or obligation,
(iii) to lease property or to purchase capital stock or other property or
services primarily for the purpose of assuring the owner of such Indebtedness or
obligation of the ability of the Primary Obligor to make payment of the
Indebtedness or obligation, or (iv) otherwise to assure the owner of the
Indebtedness or obligation of the Primary Obligor against loss in respect
thereof. For the purposes of all computations made under this Indenture, a
Guaranty in respect of any Debt shall be deemed, without duplication, to be
Indebtedness equal to the principal amount of such Debt which has been
guaranteed, and a Guaranty in respect of any other obligation or liability or
any dividend shall be deemed to be Indebtedness equal to the maximum aggregate
amount of such obligation, liability or dividend.
"Guarantor" means Newcourt Credit Group Inc. until a successor replaces it
subject to the provisions of Article V and thereafter means the successor.
"Holder" or "Securityholder" means a bearer of an Unregistered Security or
of a coupon appertaining thereto or a person in whose name a Registered Security
is registered on the Registrar's books.
"Indebtedness" of any Person shall mean and include all obligations of such
Person which in accordance with GAAP shall be classified upon a balance sheet of
such Person as liabilities of such Person, and in any event shall include all
(i) obligations of such Person for borrowed money or which has been incurred in
connection with the acquisition of property or assets, (ii) obligations secured
by any Lien upon property or assets owned by such Person, even though such
Person has not assumed or become liable for the payment of such obligations,
(iii) obligations created or arising under any conditional sale or other title
retention agreement with respect to property acquired by such Person,
notwithstanding the fact that the rights and remedies of the seller, lender or
lessor under such agreement in the event of default are limited to repossession
or sale of property, (iv) the face amount of all letters of credit issued for
the account of such Person and all drafts drawn thereunder, (v) Capitalized
Rentals and (vi) Guaranties of obligations of others of the character referred
to in this definition.
"Indenture" means this Indenture as amended or supplemented from time to
time and shall include the forms and terms of particular Series of Securities
established as contemplated hereunder.
"Intangible Assets" means the value (net of any applicable reserves), as
shown on or reflected in the Guarantor's balance sheet, of: (i) all trade names,
trademarks, licenses, patents, copyrights and goodwill; (ii) organization and
development costs; (iii) deferred charges (other than prepaid items such as
insurance, taxes, interest, commissions, rents and similar items and tangible
assets being amortized); and (iv) unamortized debt discount and expense, less
unamortized premium.
"Internal Procedures" means in respect of the making of any one or more
changes in or deletions of any one or more entries in the books or records kept
for the purpose of indicating the
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registered Holder of a Security at any time (including without limitation,
original issuance or registration of any transfer of ownership) the minimum
number of the Trustee's or authenticating agent's internal procedures customary
at such time for the action taken to be complete under the operating procedures
followed at the time by the Trustee or authenticating agent, as the case may be,
it being understood that neither preparation nor issuance, nor delivery to nor
receipt by holders of Statements of Account shall constitute part of such
procedures for any purpose of this definition.
"Lien" means any interest in property securing an obligation owed to, or a
claim by, a Person other than the owner of the property, whether such interest
is based on the common law, statute or contract, and including but not limited
to the security interest lien arising from a mortgage, encumbrance, pledge,
conditional sale or trust receipt or a lease, consignment or bailment for
security purposes. The term "Lien" shall include reservations, exceptions,
encroachments, easements, rights-of-way, covenants, conditions, restrictions,
leases and other title exceptions and encumbrances (including, with respect to
shares, shareholder agreements, voting trust agreements, buy-back agreements and
all similar arrangements) affecting property. For purposes of the Indenture, the
Guarantor or any Restricted Subsidiary shall be deemed to be the owner of any
property which it has acquired or holds subject to a conditional sale agreement,
Capitalized Lease or other arrangement pursuant to which title to the property
has been retained by or vested in some other Person for security purposes and
such retention or vesting shall constitute a Lien.
"Newcourt" means Newcourt Credit Group Inc., a corporation organized under
the laws of Ontario, Canada.
"Non-Recourse Debt" of the Guarantor or any Restricted Subsidiary means any
Debt of the Guarantor or such Restricted Subsidiary, as the case may be, which
is secured by any Lien on, or payable solely from the income and proceeds of,
any property (including, without limiting the generality of such term, any
Intangible Assets), shares of stock, other equity interests or debt of the
Guarantor or such Restricted Subsidiary, as the case may be, and which is not a
general obligation of the Guarantor or such Restricted Subsidiary, as the case
may be.
"Officer" means the Chairman of the Board of Directors, any Vice-Chairman
of the Board of Directors, the Chief Executive Officer, the President, any
Vice-President (whether or not designated by a number or numbers, or a word or
words added before or after the title Vice-President), the Chief Financial
Officer, the Treasurer, any Assistant Treasurer, the Secretary or the Controller
of the Company or the Guarantor, as the case may be.
"Officer's Certificate" means a certificate signed by any Officer of the
Company or the Guarantor, as the case may be.
"Opinion of Counsel" means a written opinion of legal counsel who is
reasonably acceptable to the Trustee. The counsel may be an employee of or
counsel to the Guarantor, the Company or the Trustee.
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"Original Issue Discount Security" means any Security which provides for an
amount less than the stated principal amount thereof to be due and payable upon
declaration of acceleration of the maturity thereof pursuant to Section 6.01.
"Parent Guarantee" means the agreement of the Guarantor in the form
attached hereto as Exhibit A.
"Person" means an individual, partnership, limited liability company,
corporation, trust, joint venture, joint stock company, association,
unincorporated organization or other entity.
"principal" whenever used with reference to the Securities or any portion
thereof, shall be deemed to include "premium, if any."
"Purchase Money Obligations" means Liens created to secure the payment of
the purchase price incurred in connection with the acquisition of real or
personal assets (other than Acquired Financing Assets) useful and intended to be
used in carrying on the business of the Guarantor or a Restricted Subsidiary,
including Liens existing on such assets at the time of acquisition by the
Guarantor or a Restricted Subsidiary of any business entity then owning such
assets, whether or not such existing Liens were given to secure the payment of
the purchase price of such assets to which they attach so long as they were not
incurred, extended or renewed in contemplation of such acquisition, provided
that (A) the Lien attaches solely to such assets acquired or purchased, (B) at
the time of acquisition of such assets, the aggregate amount remaining unpaid on
all Debt secured by Liens on such assets whether or not assumed by the Guarantor
or a Restricted Subsidiary shall not exceed an amount equal to the lesser of the
total purchase price or fair market value at the time of acquisition of such
assets, and (C) any such Lien shall be created contemporaneously with, or within
120 days after, the acquisition of such property.
"Registered Security" means any Security issued hereunder and registered
as to principal and interest by the Registrar.
"Rentals" shall mean and include as of the date of any determination
thereof all fixed payments (including as such all payments which the lessee is
obligated to make to the lessor on termination of the lease or surrender of the
property) payable by the Guarantor or a Restricted Subsidiary, as lessee or
sublessee under a lease of real or personal property, but shall be exclusive of
any amounts required to be paid by the Guarantor or a Restricted Subsidiary
(whether or not designated as rents or additional rents) on account of
maintenance, repairs, insurance, taxes and similar charges. Fixed rents under
any so-called "percentages leases" shall be computed solely on the basis of the
minimum rents, if any, required to be paid by the lessee regardless of sales
volume or gross revenues.
"Responsible Officer" when used with respect to the Trustee, shall mean the
chairman or any vice-chairman of the board of directors, the executive committee
of the board of directors or trust committee, the president, any vice-president,
the cashier, the secretary, the treasurer, any trust officer, any second or
assistant vice-president or any other officer or assistant officer of the
Trustee customarily performing functions similar to those performed by the
persons who at the
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time shall be such officers, respectively, or to whom any corporate trust matter
is referred because of his knowledge of and familiarity with a particular
subject.
"Restricted Subsidiary" means the Company and each Subsidiary of the
Guarantor organized under the laws of any State of the United States or the
District of Columbia or Canada, no substantial portion of the business of which
is carried on outside of the United States or Canada; provided that each
Drop-Down Subsidiary (as defined in Section 5.01) shall be a Restricted
Subsidiary.
"SEC" means the Securities and Exchange Commission.
"Secured Subordinated Debt" means Subordinated Debt of any Person which is
secured by a Lien.
"Series" or "Series of Securities" means a series of Securities.
"Securities" means the debentures, notes or other obligations of the
Company that have been Authenticated under this Indenture.
"Statement of Account" means a statement containing the information
required by law, and such other information as the Company or the Trustee or the
authenticating agent may provide, to be sent to Holders of Uncertificated
Securities at the intervals and other times required by law or otherwise
determined to be appropriate by the Company or the Trustee or the authenticating
agent.
"Subordinated Debt" means and includes any Debt of any Person which is
subordinated in right of payment to the Debt (other than Unsecured Subordinated
Debt) of such Person provided, however, that so long as no default has occurred
and is continuing under any such Debt of such Person, such Person may make
payments in connection with such Subordinated Debt as such payments become due.
"Subsidiary" means any corporation more than 50% of the outstanding voting
stock of which is owned, directly or indirectly, by any Person and/or by one or
more other Subsidiaries (including the Company). For purposes of such
definition, "voting stock" means stock ordinarily having voting power for the
election of directors, whether at all times or only so long as no senior class
of stock has such voting power by reason of any contingency.
"TIA" means the Trust Indenture Act of 1939.
"Trust Indenture Act of 1939" means (except as herein otherwise expressly
provided) the Trust Indenture Act of 1939 (15 U.S.C. "SS""SS" 7aaa-7bbbb), as
amended, as in force at the date of this Indenture as originally executed.
"Trustee" means the party named as such in this Indenture until a successor
replaces it and thereafter means the successor and if, at any time, there is
more than one Trustee, "Trustee"
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as used with respect to the Securities of any Series shall mean the Trustee with
respect to that Series.
"Uncertificated Security" or "Uncertificated Securities" means any Security
or Securities which is or are not a Certificated Security or Securities.
"Unregistered Security" means any Security issued hereunder which is not a
Registered Security.
"Unsecured Subordinated Debt" means all Subordinated Debt of any Person
other than Secured Subordinated Debt.
"U.S. Government Obligations" means:
(i) direct obligations of the United States of America for the payment
of which the full faith and credit of the United States of America is
pledged; or
(ii) obligations of a person controlled or supervised by and acting as
an agency or instrumentality of the United States of America, the payment
of which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America.
"U.S. Person" means a citizen, national or resident of the United States, a
corporation, partnership or other entity created or organized in or under the
laws of the United States or any political subdivision thereof, or an estate
whose income from sources without the United States is includible in gross
income for United States federal income tax purposes regardless of its
connection with the conduct of a trade or business within the United States or a
trust if (i) a court within the United States is able to exercise primary
jurisdiction over the administration of the trust and (ii) one or more United
States persons have the authority to control all substantial decisions of the
trust.
"Yield to Maturity" means the yield to maturity, calculated by the Company
at the time of issuance of a Series of Securities or at the time of issuance of
the Securities of a Series or portion thereof, or, if applicable, at the most
recent determination of interest on such Series or Securities in accordance with
accepted financial practice.
Section 1.02 Other Definitions.
TERM SECTION
"Asset Drop-Down" 5.01
"Drop-Down Subsidiary" 5.01
"Event of Default" 6.01
"Legal Holiday" 10.06
"Paying Agent" 2.04
"Registrar" 2.04
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Section 1.03. Incorporation by Reference of Trust Indenture Act. Whenever
this Indenture refers to a provision of the TIA, the provision is incorporated
by reference in and made a part of this Indenture. The following TIA terms used
in this Indenture have the following meanings:
"Commission" means the SEC.
"Indenture Securities" means the Securities.
"Indenture Security Holder" means a Holder or a
Securityholder.
"Indenture to be so Qualified" means this Indenture.
"Indenture Trustee" or "Institutional Trustee" means
the Trustee.
"Obligor" on the indenture securities means the Company and the
Guarantor or any other obligor on the indenture securities.
All other terms used in this Indenture that are defined by the TIA, defined by
TIA reference to another statute or defined by SEC rule under TIA have the
meanings assigned to them therein.
Section 1.04. Rules of Construction. Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned
to it in accordance with generally accepted accounting principles, and,
except as may otherwise be herein expressly provided, the term "generally
accepted accounting principles" with respect to any computation required or
permitted hereunder shall mean such accounting principles as are generally
accepted in Canada, with respect to the Guarantor or any entity organized
under the laws of Canada, and in the United States with respect to the
Company or any entity organized under the laws of the United States at the
date of such computation;
(3) "or" is not exclusive; and
(4) words in the singular include the plural, and words in the plural
include the singular.
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ARTICLE II
THE SECURITIES
Section 2.01. Issuable in Series. The aggregate principal amount of
Securities which may be Authenticated and delivered under this Indenture is
unlimited. The Securities may be issued in one or more Series.
There may be Registered Securities and Unregistered Securities within a
Series and the Unregistered Securities may be subject to such restrictions, and
contain such legends, as may be required by United States and any applicable
foreign laws and regulations. Securities of a Series need not be identical but
may differ with respect to maturity date, interest rate, redemption price,
denominations, original issue date, issue price, and as to other terms.
Securities of different Series may differ in any respect; provided that all
Series of Securities shall be equally and ratably entitled to the benefits of
this Indenture.
Section 2.02. Establishment of Terms and Form of Series of Securities. (a)
At or prior to the issuance of any Series of Securities, the following shall be
established either by or pursuant to a Board Resolution or by an indenture
supplemental hereto:
(1) the title of the Securities of the Series (which title shall
distinguish the Securities of the Series from the Securities of any other
Series and from any other securities issued by the Company);
(2) any limit upon the aggregate principal amount of the Securities of
the Series which may be Authenticated and delivered under this Indenture
(which limit shall not pertain to Securities Authenticated and delivered
upon registration of transfer of, or in exchange for, or in lieu of, other
Securities of the Series pursuant to Section 2.08, 2.09, 2.11, 3.05 or
9.05);
(3) the date or dates on which the principal of the Securities of the
Series is payable, or whether the Securities of the Series are due upon
demand by the Holder;
(4) the rate or rates at which the Securities of the Series shall bear
interest, if any, or the method of calculating such rate or rates of
interest, the date or dates from which such interest shall accrue, the
dates on which such interest shall be payable and, with respect to
Registered Securities, the record date for the interest payable on any
interest payment date;
(5) the place or places where the principal of and interest on
Registered and Unregistered, if any, Securities of the Series shall be
payable;
(6) the period or periods within which, the price or prices at which,
and the terms and conditions upon which, Securities of the Series may be
redeemed, in whole or in part, at the option of the Company;
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(7) the obligation, if any, of the Company to redeem or purchase
Securities of the Series pursuant to any sinking fund or analogous
provisions or upon the happening of a specified event or at the option of a
Holder thereof and the period or periods within which, the price or prices
at which, and the terms and conditions upon which, Securities of the Series
shall be redeemed or purchased, in whole or in part, pursuant to such
obligation;
(8) if in other than denominations of $1,000 and any integral multiple
thereof, the denominations in which Securities of the Series shall be
issuable;
(9) if other than the principal amount thereof, the portion of the
principal amount of Securities of the Series which shall be payable upon
declaration of acceleration of the maturity thereof pursuant to Section
6.01;
(10) whether Securities of the Series shall be issuable as Registered
Securities or Unregistered Securities (with or without interest coupons),
or both, whether if such Security is a Registered Security such Security
shall be a Certificated Security or an Uncertificated Security, and any
restrictions applicable to the payment, offering, sale or delivery of
Unregistered Securities and whether, and the terms upon which, Unregistered
Securities of a Series may be exchanged for Registered Securities of the
same Series and vice versa;
(11) whether and under what circumstances the Company will pay
additional amounts on the Securities of that Series held by a person who is
not a U.S. Person in respect of taxes or similar charges withheld or
deducted and, if so, whether the Company will have the option to redeem
such Securities rather than pay such additional amounts;
(12) the form of the Securities (or forms thereof if Unregistered and
Registered Securities shall be issuable in such Series, including such
legends as may be required by United States laws or regulations, the form
of any coupons or temporary global Security which may be issued and the
forms of any certificates which may be required hereunder or under United
States laws or regulations in connection with the offering, sale, delivery
or exchange of Unregistered Securities);
(13) the coin or currency in which the Securities of the Series are
denominated, including multiple currency units;
(14) if other than the coin or currency in which the Securities of the
Series are denominated, the coin or currency in which payment of the
principal of, premium, if any, or interest on the Securities of the Series
shall be payable;
(15) if the amount of payments of principal of, premium, if any, or
interest on the Securities of the Series may be determined with reference
to one or more indices the manner in which such amounts shall be
determined;
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(16) whether Securities of the Series are issuable as, or exchangeable
for, one or more Global Securities and, in such case, the terms upon which
interests in such Global Security or Global Securities shall be
exchangeable by the Company or the Holder thereof for definitive Securities
(if other than as set forth in Section 2.11), and the identity of the
Depositary for such Series (if other than The Depository Trust Company);
and
(17) any other terms of the Series (which terms shall not be
inconsistent with the provisions of this Indenture) including any terms
which may be required by or advisable under United States laws or
regulations or advisable in connection with the marketing of Securities of
that Series.
(b) If the terms and form or forms of any Series of Securities are
established by or pursuant to a Board Resolution, the Company shall deliver a
copy of such Board Resolution to the Trustee at or prior to the issuance of such
Series with (1) the form or forms of Security which have been approved attached
thereto, or (2) if such Board Resolution authorizes a specific Officer or
Officers to approve the terms and form or forms of the Securities, a certificate
of such Officer or Officers approving the terms and form or forms of Security
with such form or forms of Securities attached thereto; provided that if such
Security is to be an Uncertificated Security, then no such form of Security need
be delivered to the Trustee and in lieu thereof the Company shall deliver to the
Trustee a summary statement of the principal terms and conditions of such
Uncertificated Securities, to the extent not already set forth pursuant to a
Board Resolution establishing such Series of Uncertificated Securities. Such
Board Resolution or certificate may provide general terms or parameters for
Securities of any Series and may provide that the specific terms of particular
Securities of a Series may be determined in accordance with or pursuant to the
Company Order referred to in Section 2.03(d) hereof.
Section 2.03. Execution, Authentication and Delivery. (a) Certificated
Securities shall be executed on behalf of the Company by its Chairman of the
Board of Directors, the Vice-Chairman of the Board of Directors, the Chief
Executive Officer, the President, a Vice-President, the Chief Financial Officer,
the Treasurer, or an Assistant Treasurer, and attested by its Secretary or an
Assistant Secretary. Signatures shall be manual or facsimile. The coupons of
Unregistered Securities shall bear the facsimile signature of the Treasurer or
an Assistant Treasurer of the Company.
(b) If an Officer, an Assistant Treasurer or an Assistant Secretary whose
signature is on a Certificated Security or coupon no longer holds that office at
the time the Certificated Security is Authenticated, the Certificated Security
or coupon shall be valid nevertheless.
(c) A Security shall not be valid until Authenticated by the manual
signature of the Trustee or an authenticating agent and no coupon shall be valid
until the Security to which it appertains has been so Authenticated. Such
signature shall be conclusive evidence that the Security has been Authenticated
under this Indenture. Each Unregistered Security shall be dated the date of its
original issuance and each Registered Security shall be dated the date of its
Authentication. Notwithstanding the foregoing, an Uncertificated Security shall
be valid when Authenticated by the Trustee or authenticating agent.
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(d) The Trustee shall Authenticate and deliver Securities of any Series for
original issue from time to time in the aggregate principal amount established
for such Series pursuant to such procedures acceptable to the Trustee and to
such recipients as may be specified from time to time by a Company Order;
provided that in the case of Uncertificated Securities of any Series there shall
be no delivery requirement. The maturity date, original issue date, interest
rate and any other terms of the Securities of such Series shall be determined by
or pursuant to such Company Order and procedures. If provided for in such
procedures, such Company Order may authorize Authentication and delivery
pursuant to oral instructions from the Company or its duly authorized agent,
which instructions shall be promptly confirmed in writing.
The Trustee may conclusively rely on the documents and opinion delivered
pursuant to Section 2.02 and this Section 2.03, as applicable (unless revoked by
superseding comparable documents or opinions) as to the authorization of the
Board of Directors of any Securities delivered hereunder, the form thereof and
the legality, validity, binding effect and enforceability thereof.
If the form and terms general terms of the Securities of any Series have
been established by or pursuant to one or more Board Resolutions as permitted by
Section 2.02, in Authenticating such Securities, and accepting the additional
responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive, and (subject to Section 7.01) shall be
fully protected in relying upon, an Opinion of Counsel stating,
(1) the form and terms or general terms, as applicable, of such
Securities have been established in conformity with the provisions of this
Indenture;
(2) that Securities in such form, when completed as to specific terms
substantially in accordance with the Board Resolution establishing such
form or any actions taken pursuant thereto (the records of which actions
shall have been evidenced as provided in such Board Resolution), when
Authenticated in accordance with the Indenture, all in the manner and
subject to any conditions specified in such Opinion of Counsel, will
constitute valid and legally binding obligations of the Company,
enforceable in accordance with their terms, subject to bankruptcy,
insolvency, reorganization and other laws of general applicability relating
to or affecting the enforcement of creditors' rights and to general equity
principles; and
(3) the Parent Guarantee constitutes a valid and legally binding
obligation of the Guarantor, enforceable in accordance with its terms,
subject to bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting the enforcement of creditors' rights
and to general equity principles.
If the terms and form or forms of such Securities have been established by
or pursuant to a Board Resolution as permitted by Section 2.02, the Trustee
shall not be required to Authenticate such Securities if the issue of such
Securities pursuant to this Indenture will adversely affect the Trustee's own
rights, duties, or immunities under the Securities and this Indenture or
otherwise in a manner which is not reasonably acceptable to the Trustee.
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Notwithstanding the foregoing, until the Company has delivered an Officer's
Certificate to the Trustee and the Registrar stating that, as a result of the
action described in such notice, the Company would not suffer adverse
consequences under the provisions of United States law or regulations in effect
at the time of the delivery of Unregistered Securities, (i) delivery of
Unregistered Securities will be made only outside the United States and its
possessions and (ii) Unregistered Securities will be released in definitive form
whether in the form of a Global Security or otherwise to the person entitled to
physical delivery thereof only upon presentation of a certificate in the form
prescribed by the Company and set forth in or annexed to such Officer's
Certificate.
(e) The aggregate principal amount of Securities of any Series outstanding
at any time may not exceed any limit upon the maximum principal amount for such
Series set forth in the Board Resolution (or certificate of an Officer or
Officers) or supplemental indenture pursuant to Section 2.02.
(f) The form of the Trustee's Certificate of Authentication to appear on
Certificated Securities shall read as follows:
"This is one of the Certificated Securities of the Series designated
therein referred to in the within-mentioned Indenture. The Chase
Manhattan Bank, as Trustee By Authorized Officer"
(g) The Company and the Guarantor hereby acknowledge that the failure to
endorse the Parent Guarantee on Certificated Securities shall not affect or
impair validity or enforceability of the Parent Guarantee.
Section 2.04. Registrar and Paying Agent. The Company shall maintain in the
Borough of Manhattan, The City of New York, State of New York, an office or
agency where Registered Securities may be presented for registration of transfer
or for exchange ("Registrar") and an office or agency where (subject to Sections
2.05 and 2.08) Securities may be presented for payment or for exchange ("Paying
Agent"). With respect to any Series of Securities issued in whole or in part as
Unregistered Securities, the Company shall maintain one or more Paying Agents
located outside the United States and its possessions and shall maintain such
Paying Agents for a period of two years after the principal of such Unregistered
Securities has become due and payable. During any period thereafter for which it
is necessary in order to conform to United States tax law or regulations, the
Company will maintain a Paying Agent outside the United States and its
possessions to which the Unregistered Securities or coupons appertaining thereto
may be presented for payment and will provide the necessary funds therefor to
such Paying Agent with reasonable notice. The Registrar shall keep a register
with respect to each Series of Securities issued in whole or in part as
Registered Securities and to their transfer and exchange. The Company may
appoint one or more co-Registrars and one or more additional Paying Agents for
each Series of Securities and the Company may terminate the appointment of any
co-Registrar or Paying Agent at any time upon written notice. The term
"Registrar" includes any co-Registrar, except that any co-Registrar shall not
keep the register. The term "Paying Agent" includes any additional Paying Agent.
The Company shall notify the Trustee of the name
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and address of any Agent not a party to this Indenture. If the Company fails to
maintain a Registrar or Paying Agent, the Trustee shall act as such.
The Company initially appoints the Trustee as Registrar and Paying Agent.
Section 2.05. Payment on Securities. (a) Subject to the following
provisions, the Company will pay to the Trustee the amounts of principal of and
interest on the Securities at the times and for the purposes set forth herein
and in the text or provided for in the terms of the Securities for each Series,
and the Company hereby authorizes and directs the Trustee from funds so paid to
it to make or cause to be made payment of the principal of and interest, if any,
on the Securities and coupons of each Series as set forth herein and in the text
or provided for in the terms of such Securities and coupons. Except as otherwise
provided with respect to any Series of Securities, the Trustee will arrange
directly with any Paying Agent for the payment, or the Trustee will make
payment, from funds furnished by the Company, of the principal of and interest,
if any, on the Securities and coupons of each Series by check in the currency in
which the Securities are payable.
(b) Except as otherwise provided with respect to a Series of Securities,
interest, if any, on Registered Securities of a Series shall be paid on each
interest payment date for such Series to the Holder thereof at the close of
business on the relevant record dates specified in the Securities of such
Series. The Company may pay such interest by check mailed to such Holder's
address as it appears on the register for Securities of such Series. Principal
of Registered Securities that are Certificated Securities shall be payable only
against presentation and surrender thereof at the office of the Paying Agent in
New York, unless the Company shall have otherwise instructed the Trustee in
writing. Principal of Registered Securities that are Uncertificated Securities
shall be paid by check payable to the Holder mailed to its address as shown on
the books of the Registrar, unless the Company shall have otherwise instructed
the Trustee in writing. If a payment date is a Legal Holiday at a place of
payment, payment may be made at such place on the next succeeding day that is
not a Legal Holiday, and no interest shall accrue for the intervening period,
except in the case of interest (other than interest payable at maturity) payable
on any Security that bears interest at a floating rate, in which case interest
shall accrue for such intervening period.
(c) To the extent provided in the Securities of a Series, (i) payments with
respect to which coupons have been issued by the Company shall be paid only
against presentation and surrender of the coupons as they mature and (ii)
original issue discount (as defined in Section 1273 of the Internal Revenue Code
of 1986, as amended), if any, on Unregistered Securities with respect to which
coupons have not been issued shall be paid only against presentation and
surrender of such Securities; in either case at the office of a Paying Agent
located outside of the United States and its possessions, unless the Company
shall have otherwise instructed the Trustee in writing. Principal of
Unregistered Securities shall be paid only against presentation and surrender
thereof as provided in the Securities of a Series. If at the time a payment of
principal of or interest, if any, or original issue discount, if any, on an
Unregistered Security or coupon shall become due, the payment of the full amount
so payable at the office or offices of all the Paying Agents outside the United
States and its possessions is illegal or effectively precluded because of the
impositions of exchange controls or other similar restrictions on the payment of
such amount in the applicable currency, then the Company may
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instruct the Trustee to make such payments at the office of a Paying Agent
located in the United States, provided that provision for such payment in the
United States would not cause such Unregistered Security to be treated as a
"registration-required obligation" under United States law and regulations.
Section 2.06. Paying Agent to Hold Money in Trust. The Company shall
require each Paying Agent other than the Trustee to agree in writing that the
Paying Agent will hold in trust, for the benefit of Securityholders of any or
all Series of Securities, or the Trustee, all money held by the Paying Agent for
the payment of principal or interest on such Series of Securities, and that the
Paying Agent will notify the Trustee of any default by the Company in making any
such payment and, while any such default continues, the Trustee may require a
Paying Agent to pay all money held by it to the Trustee. If the Guarantor or any
of its Subsidiaries acts as Paying Agent, it shall segregate the money held by
it for the payment of principal or interest on any Series of Securities and hold
such money as a separate trust fund. The Company at any time may require a
Paying Agent to pay all money held by it to the Trustee. Upon so doing the
Paying Agent shall have no further liability for the money so paid.
Section 2.07. Securityholder Lists; Ownership of Securities. (a) The
Trustee shall preserve in as current a form as is reasonably practicable the
most recent list available to it of the names and addresses of Holders of each
Series of Securities. If the Trustee is not the Registrar, the Company shall
furnish to the Trustee semi-annually on or before the last day of June and
December in each year, and at such other times as the Trustee may request in
writing, a list, in such form and as of such date as the Trustee may reasonably
require, containing all the information in the possession or control of the
Registrar, the Company or any of its Paying Agents other than the Trustee as to
the names and addresses of Holders of each such Series of Securities. If there
are Unregistered Securities of any Series outstanding, even if the Trustee is
the Registrar, the Company shall furnish to the Trustee such a list containing
such information with respect to Holders of such Unregistered Securities only.
(b) Ownership of Registered Securities of a Series shall be proved by the
register for such Series kept by the Registrar. Ownership of Unregistered
Securities may be proved by the production of such Unregistered Securities or by
a certificate or affidavit executed by the Person holding such Unregistered
Securities or by a depository with whom such Unregistered Securities have been
deposited, if the certificate or affidavit is satisfactory to the Trustee. The
Company, the Trustee and any agent of the Company or the Trustee may treat the
bearer of any Unregistered Security or coupon and the Person in whose name a
Registered Security is registered as the absolute owner thereof for all
purposes.
(c) None of the Company, the Guarantor, the Trustee, any Paying Agent or the
Registrar will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial interests in a
Global Security or for maintaining, supervising or reviewing any records
relating to such beneficial interests.
Section 2.08. Transfer and Exchange. (a) Where Registered Securities of a
Series (other than Securities which, pursuant to the Board Resolution or
supplemental indenture establishing the terms of the Series to which the
Securities belong, are not transferable) are presented to the
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Registrar with a request to register their transfer or to exchange them for an
equal principal amount of Registered Securities of the same Series, date of
maturity, interest rate, and original issue date of other authorized
denominations, the Registrar shall register the transfer or make the exchange if
its requirements for such transactions are met.
(b) If both Registered and Unregistered Securities are authorized for a
Series of Securities and the terms of such Securities permit, (i) Unregistered
Securities may be exchanged for an equal principal amount of Registered or
Unregistered Securities of the same Series, date of maturity, interest rate, and
original issue date in any authorized denominations upon delivery to the
Registrar (or a Paying Agent, if the exchange is for Unregistered Securities) of
the Unregistered Security with all unmatured coupons and all matured coupons in
default appertaining thereto and if all other requirements of the Registrar (or
such Paying Agent) and such Securities for such exchange are met, and (ii)
Registered Securities may be exchanged for an equal principal amount of
Unregistered Securities of the same Series, date of maturity, interest rate, and
original issue date in any authorized denominations (except that any coupons
appertaining to such Unregistered Securities which have matured and have been
paid shall be detached) upon delivery to the Registrar of the Registered
Securities and if all other requirements of the Registrar (or such Paying Agent)
and such Securities for such exchange are met.
Notwithstanding the foregoing, the exchange of Unregistered Securities for
Registered Securities or Registered Securities for Unregistered Securities will
be subject to the satisfaction of the provisions of United States law and
regulations in effect at the time of such exchange, and no exchange of
Registered Securities for Unregistered Securities will be made until the Company
has notified the Trustee and the Registrar that, as a result of such exchange,
the Company would not suffer adverse consequences under such law or regulations.
(c) To permit registrations of transfers and exchanges, the Trustee shall
Authenticate Securities upon surrender of Securities for registration of
transfer or for exchange as provided in this Section. The Company will not make
any charge for any registration of transfer or exchange but may require the
payment by the party requesting such registration of transfer or exchange of a
sum sufficient to cover any tax or other governmental charge payable in
connection therewith.
(d) Neither the Company nor the Registrar shall be required (i) to issue,
register the transfer of or exchange Securities of any Series for the period of
15 days immediately preceding the selection of any such Securities to be
redeemed, or (ii) to register the transfer of or exchange Securities of any
Series selected, called or being called for redemption as a whole or the portion
being redeemed of any such Securities selected, called or being called for
redemption in part.
(e) Unregistered Securities or any coupons appertaining thereto shall be
transferable by delivery.
Section 2.09. Replacement Securities. (a) If a mutilated Security or a
Security with a mutilated coupon appertaining to it is surrendered to the
Trustee, the Company shall issue and the Trustee shall authenticate a
replacement Registered Security, if such surrendered Security was a Registered
Security, or a replacement Unregistered Security with coupons corresponding to
the coupons appertaining to the surrendered Security, if such surrendered
Security was an
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Unregistered Security, of the same Series, date of maturity, interest rate and
original issue date if the Trustee's requirements are met.
(b) If the Holder of a Security claims that the Security or any coupon
appertaining thereto has been lost, destroyed or wrongfully taken, the Company
shall issue and the Trustee shall authenticate a replacement Registered
Security, if such Holder's claim pertains to a Registered Security, or a
replacement Unregistered Security with coupons corresponding to the coupons
appertaining to the lost, destroyed or wrongfully taken Unregistered Security or
the Unregistered Security to which such lost, destroyed or wrongfully taken
coupon appertains, if such Holder's claim pertains to an Unregistered Security,
of the same Series, date of maturity, interest rate, and original issue date, if
the Trustee's requirements are met; provided, however, that the Trustee, the
Company or the Guarantor may require any such Holder to provide to the Trustee,
the Company or the Guarantor security or indemnity sufficient in the judgment of
the Company, the Guarantor and the Trustee to protect the Company, the
Guarantor, the Trustee, any Agent or any authenticating agent from any loss
which any of them may suffer if a Security is replaced. The Company may charge
the party requesting a replacement Security for its expenses in replacing a
Security.
(c) Every replacement Security is an additional obligation of the Company.
Section 2.10. Outstanding Securities. (a) Securities outstanding at any
time are all Securities Authenticated by the Trustee or an authenticating agent
except for those cancelled by it, those Certificated Securities delivered to it
for cancellation, those Uncertificated Securities for which the Trustee or the
Registrar has received valid cancellation instructions and those Securities
described in this Section as not outstanding.
(b) If a Security is replaced pursuant to Section 2.09, it ceases to be
outstanding until the Trustee receives proof satisfactory to it that the
replaced Security is held by a bona fide purchaser.
(c) If the Paying Agent holds on a redemption date or maturity date money
sufficient to pay all amounts due on Securities of such Series, they shall cease
to be outstanding and interest on them shall cease to accrue.
(d) Any acquisition of any Security by the Company or an Affiliate shall not
operate as a redemption or satisfaction of the indebtedness represented by such
Security unless and until the same is cancelled and delivered to the Trustee or
surrendered to the Trustee for cancellation.
(e) In determining whether the Holders of the requisite principal amount of
outstanding Securities of any Series have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, or whether
sufficient funds are available for redemption or for any other purpose, the
principal amount of an Original Issue Discount Security that shall be deemed to
be outstanding for such purposes shall be the amount of the principal thereof
that would be due and payable as of the date of such determination upon a
declaration of acceleration of the maturity thereof pursuant to Section 6.01.
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Section 2.11 Temporary Securities; Global Securities. (a) Until definitive
Registered Securities of any Series are ready for delivery, the Company may
prepare and execute and the Trustee shall authenticate temporary Registered
Securities of such Series. Temporary Registered Securities of any Series shall
be substantially in the form of definitive Registered Securities of such Series
but may have variations that the Company considers appropriate for temporary
Securities. Every temporary Registered Security shall be executed by the Company
and authenticated by the Trustee, and registered by the Registrar, upon the same
conditions, and with like effect, as a definitive Registered Security. Without
unreasonable delay, the Company shall prepare and the Trustee shall authenticate
definitive Registered Securities of the same Series, date of maturity, interest
rate and original issue date in exchange for temporary Registered Securities.
All references herein to "definitive Registered Securities" shall be deemed to
apply equally to permanent global Registered Securities.
(b) Until definitive or permanent global Unregistered Securities of any
Series are ready for delivery, the Company may prepare and execute and the
Trustee shall authenticate one or more temporary Unregistered Securities, which
may have coupons attached or which may be in the form of a single temporary
global Unregistered Security of that Series. The temporary Unregistered Security
or Securities of any Series shall be substantially in the form approved by or
pursuant to a Board Resolution and shall be delivered outside the United States
and its possessions to such Person or Persons as the Company shall direct
against such certification as the Company may from time to time prescribe by or
pursuant to a Board Resolution. The temporary Unregistered Security or
Securities of a Series shall be executed by the Company and authenticated by the
Trustee upon the same conditions, and with like effect, as a definitive
Unregistered Security of such Series, except as provided herein or therein. A
temporary Unregistered Security or Securities shall be exchangeable for
definitive or permanent global Unregistered Securities at the time and on the
conditions, if any, specified in the temporary Security.
(c) Upon any exchange of a part of a temporary or permanent global
Unregistered Security of a Series for definitive or permanent global
Unregistered Securities of such Series, the temporary or permanent global
Unregistered Security, as the case may be, shall be endorsed by the Trustee or
an authenticating agent for the Trustee to reflect the reduction of its
principal amount by an amount equal to the aggregate principal amount of
definitive or permanent Unregistered Securities, as the case may be, of such
Series so exchanged and endorsed. Upon any exchange of a part of a temporary or
permanent global Registered Security of a Series for definitive or permanent
global Registered Securities of such Series, the temporary or permanent global
Registered Security, as the case may be, shall be endorsed by the Trustee or an
authenticating agent for the Trustee to reflect the reduction of its principal
amount by an amount equal to the aggregate principal amount of definitive or
permanent Registered Securities, as the case may be, of such Series so exchanged
and endorsed.
(d) If the Company shall establish pursuant to Section 2.02 that the
Securities of a particular Series are to be issued as one or more Global
Securities, then the Company shall execute and the Trustee shall, in accordance
with Section 2.03 and the Company Order delivered to the Trustee thereunder,
authenticate and deliver to the Depositary or pursuant to the Depositary's
instruction one or more Global Securities. Each Global Security shall bear a
legend
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substantially to the following effect: "Except as otherwise provided in Section
2.11 of the Indenture, this Security may be transferred, in whole but not in
part, only to another nominee of the Depositary or to a successor Depositary or
to a nominee of such successor Depositary."
(e) Notwithstanding any other provision of this Section 2.11 or of Section
2.08, except for exchanges of Global Securities as provided in Section 2.11(c),
a Global Security may be transferred, in whole but not in part and in the manner
provided in Section 2.08, only to another nominee of the Depositary for such
Series, or to a Successor Depositary for such Series selected or approved by the
Company or to a nominee of such successor Depositary.
(f) If at any time the Depositary for a Series of Securities notifies the
Company that it is unwilling or unable to continue as Depositary for such Series
or, with respect to a Depositary for such Series or, with respect to a
Depositary contemplated by clause (ii) of the definition thereof, if at any time
the Depositary for such Series shall no longer be registered or in good standing
under the Securities Exchange Act of 1934, as amended, or other applicable
statute or regulation and, in any such case, a successor Depositary for such
Series is not appointed by the Company within 90 days after the Company receives
such notice or becomes aware of such condition, as the case may be, this Section
2.11 shall no longer be applicable to the Securities of such Series and the
Company will execute, and the Trustee will authenticate and deliver in
accordance with a Company Order, Securities of such Series in definitive
registered form without coupons, or in definitive bearer form with coupons, as
applicable, in authorized denominations, and in an aggregate principal amount
equal to the principal amount of the Global Security of such Series in exchange
for such Global Security.
(g) With the prior written consent of the Company with respect to a Series
of Registered Securities, the Depositary for such Series of Securities may
surrender a Global Security for such Series of Securities in exchange in whole
or in part for Securities of such Series of like tenor and terms and in
definitive form on such terms as are acceptable to the Company and such
Depositary. Thereupon the Company shall execute, and the Trustee shall
authenticate and deliver, without service charge, (i) to each Person specified
by such Depositary (pursuant to instructions from its direct or indirect
participants or otherwise) a new Security or Securities of the same Series, of
like tenor and terms and of any authorized denomination as requested by such
Person in aggregate principal amount equal to and in exchange for such Person's
beneficial interest in the Global Security; and (ii) in the event the principal
amount of the surrendered Global Security exceeds the aggregate principal amount
of Securities delivered to Holders pursuant to the preceding clause (i), to such
Depositary a new Global Security of like tenor and terms and in an aggregate
principal amount equal to such excess.
Section 2.12. Cancellation. The Company at any time may deliver
Certificated Securities and coupons to the Trustee for cancellation. The
Registrar and the Paying Agent shall forward to the Trustee any Certificated
Securities and coupons surrendered to them, for registration of transfer, or for
exchange or payment. The Trustee shall cancel all Certificated Securities and
coupons surrendered for registration of transfer, or for exchange, payment or
cancellation and may dispose of cancelled Certificated Securities and coupons as
the Company directs; provided, however, that any Unregistered Certificated
Securities of a Series delivered to the Trustee for exchange prior to maturity
shall be retained by the Trustee for reissue as provided herein or in
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the Certificated Securities of such Series. The Company may not issue new
Certificated Securities of a Series to replace Certificated Securities of such
Series that it has paid or delivered to the Trustee for cancellation.
Section 2.13. Defaulted Interest. If the Company defaults on a payment of
interest on a Series of Securities, the Company or the Guarantor shall pay the
defaulted interest as provided in such Securities or in any lawful manner not
inconsistent with the requirements of any securities exchange on which such
Securities may be listed and acceptable to the Trustee.
ARTICLE III
REDEMPTION
Section 3.01. Notice to Trustee. The Company may, with respect to any
Series of Securities, reserve the right to redeem and pay the Series of
Securities or any part thereof, or may covenant to redeem and pay the Series of
Securities or any part thereof, before maturity at such time and on such terms
as provided for in such Securities. If a Series of Securities is redeemable and
the Company wants or is obligated to redeem all or part of the Series of
Securities pursuant to the terms of such Securities, it shall notify the Trustee
of the redemption date and the principal amount of the Series of Securities to
be redeemed. The Company shall give sixty days advance notice to the Trustee
before the redemption date or such lesser notice as shall be satisfactory to the
Trustee.
Section 3.02. Selection of Securities to be Redeemed. Upon notice that less
than all the Securities of a Series are to be redeemed, the Trustee shall
thereupon select the Securities of the Series to be redeemed in such manner as
the Trustee shall deem fair and appropriate, such selection to be made from
Securities of the Series that are outstanding and that have not previously been
called for redemption. Securities of the Series and portions of them selected by
the Trustee shall be in amounts of $1,000 or integral multiples of $1,000 or,
with respect to Securities of any Series issuable in other denominations
pursuant to Section 2.02(a)(8), in amounts equal to the minimum principal
denomination for each such Series and integral multiples thereof. Provisions of
the Indenture that apply to Securities of a Series called for redemption also
apply to portions of Securities of that Series called for redemption. The
Trustee shall promptly notify the Company in writing of the Securities selected
for redemption and, in the case of any Securities selected for partial
redemption, the principal amount thereof to be redeemed.
Section 3.03. Notice of Redemption. (a) At least 30 days but not more than
90 days before a redemption date, the Company shall mail a notice of redemption
by first-class mail to each Holder of Registered Securities that are to be
redeemed.
(b) If Unregistered Securities are to be redeemed, notice of redemption
shall be published in an Authorized Newspaper in the City of New York, and if
such Securities to be redeemed are listed on the London Stock Exchange, London,
and, if such Securities to be redeemed are listed on the Luxembourg Stock
Exchange, Luxembourg, once in each of four
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successive calendar weeks, the first publication to be not less than 30 nor more
than 90 days before the redemption date.
(c) All notices shall identify the Series of Securities to be redeemed and
shall state:
(1) the redemption date;
(2) the redemption price;
(3) if less then all the outstanding Securities of a Series are to be
redeemed, the identification (and, in the case of partial redemption, the
principal amounts) of the particular Securities to be redeemed;
(4) the name and address of the Paying Agent;
(5) the Securities of the Series called for redemption and that all
unmatured coupons, if any, appertaining thereto must be surrendered to the
Paying Agent to collect the redemption price;
(6) that interest on Securities of the Series called for redemption
ceases to accrue on and after the redemption date; and
(7) if redemption is for a mandatory or optional sinking fund payment.
At the Company's request, the Trustee shall give the notice of redemption
in the Company's name and at its expense.
Section 3.04. Effect of Notice of Redemption. Once notice of redemption is
mailed or published, Securities of a Series called for redemption become due and
payable on the redemption date. Upon surrender to the Paying Agent of such
Securities together with all unmatured coupons, if any, appertaining thereto,
such Securities will be paid at the redemption price plus accrued interest to
the redemption date, but regular installments of interest due on or prior to the
redemption date will be payable, in the case of Unregistered Securities, to the
bearers of the coupons for such interest upon surrender thereof, and, in the
case of Registered Securities (except as otherwise provided with respect to the
Securities of a Series), to the Holders of such Securities of record at the
close of business on the relevant record dates; provided that in the case of
Securities that are Uncertificated Securities, no such surrender shall be
required and the redemption price shall be paid to the Holders of such
Uncertificated Securities of record at the close of business on the redemption
date (except as otherwise provided with respect to the Securities of a Series).
Section 3.05. Deposit of Redemption Price. On or before the redemption
date, the Company shall deposit with the Trustee money sufficient to pay the
redemption price of and (unless the redemption date shall be an interest payment
date) interest accrued to the redemption date on all Securities to be redeemed
on that date.
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Upon surrender of a Certificated Security that is redeemed in part, the
Company shall issue and the Trustee shall authenticate for the Holder of that
Security a new Security or Securities of the same Series, the same form and the
same date of maturity, interest rate, and original issue date in authorized
denominations equal in aggregate principal amount to the unredeemed portion of
the Security surrendered.
Section 3.06. Mandatory and Optional Sinking Funds. The minimum amount of
any sinking fund payment provided for by the terms of any Series of Securities
is herein referred to as a "mandatory sinking fund payment," and any payment in
excess of such minimum amount provided for by the terms of any Series of
Securities is herein referred to as an "optional sinking fund payment." The date
on which a sinking fund payment is to be made is herein referred to as the
"sinking fund payment date."
In lieu of making all or any part of any mandatory sinking fund payment
with respect to any Series of Securities in cash, the Company may at its option
(a) deliver to the Trustee Securities of such Series theretofore purchased or
otherwise acquired (except upon redemption pursuant to the mandatory sinking
fund) by the Company or receive credit for Securities of such Series (not
previously so credited) theretofore purchased or otherwise acquired (except as
aforesaid) by the Company and delivered to the Trustee for cancellation pursuant
to Section 2.12, (b) receive credit for optional sinking fund payments (not
previously so credited) made pursuant to this Section, or (c) receive credit for
Securities of such Series (not previously so credited) redeemed by the Company
through any optional redemption provision contained in the terms of such Series.
Securities so delivered or credited shall be received or credited by the Trustee
at the sinking fund redemption price specified in such Securities.
On or before the sixtieth day next preceding each sinking fund payment date
for any Series, the Company will deliver to the Trustee a written statement
signed by an authorized Officer of the Company (a) specifying the portion of the
mandatory sinking fund payment to be satisfied by payment of cash and the
portion to be satisfied by credit of Securities of such Series, (b) stating that
none of the Securities of such Series has theretofore been so credited, (c)
stating that no defaults in the payment of interest or Events of Default with
respect to such Series have occurred (which have not been waived or cured) and
are continuing, (d) stating whether or not the Company intends to exercise its
right to make an optional sinking fund payment with respect to such Series and,
if so, specifying the amount of such optional sinking fund payment which the
Company intends to pay on or before the next succeeding sinking fund payment
date, and (e) specifying such sinking fund payment date. Any Securities of such
Series to be credited and required to be delivered to the Trustee in order for
the Company to be entitled to credit therefor as aforesaid which have not
theretofore been delivered to the Trustee shall be delivered for cancellation
pursuant to Section 2.12 to the Trustee with such written statement (or
reasonably promptly thereafter if acceptable to the Trustee). Such written
statement shall be irrevocable and upon its receipt by the Trustee the Company
shall become unconditionally obligated to make all the cash payments or payments
therein referred to, if any, on or before the next succeeding sinking fund
payment date. Failure of the Company, on or before any such sixtieth day, to
deliver such written statement and Securities specified in this paragraph, if
any, shall not constitute a default but shall constitute, on and as of such
date, the irrevocable election of the Company (i) that the mandatory sinking
fund payment for such Series due on the next
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succeeding sinking fund payment date shall be paid entirely in cash without the
option to deliver or credit Securities of such Series in respect thereof and
(ii) that the Company will make no optional sinking fund payment with respect to
such Series as provided in this Section.
If the sinking fund payment or payments (mandatory or optional or both) to
be made in cash on the next succeeding sinking fund payment date plus any unused
balance of any preceding sinking fund payments made in cash shall exceed $50,000
(or a lesser sum if the Company shall so request) with respect to the Securities
of any particular Series, such cash shall be applied on the next succeeding
sinking fund payment date to the redemption of Securities of such Series at the
sinking fund redemption price together with accrued interest to the date fixed
for redemption. If such amount shall be $50,000 or less and the Company makes no
such request then it shall be carried over until a sum in excess of $50,000 is
available. The Trustee shall select, in the manner provided in Section 3.02, for
redemption on such sinking fund payment date a sufficient principal amount of
Securities of such Series to absorb said cash, as nearly as may be possible, and
shall (if requested in writing by the Company) inform the Company of the serial
numbers of the Securities of such Series (or portions thereof) so selected.
Securities of any Series which are (a) owned by the Company or an entity known
by the Trustee to be directly or indirectly controlling or controlled by or
under direct or indirect common control with the Company, as shown by the
Security register, and not known to the Trustee to have been pledged or
hypothecated by the Company or any such entity or (b) identified in an Officer's
Certificate at least 60 days prior to the sinking fund payment date as being
beneficially owned by, and not pledged or hypothecated by, the Company or an
entity directly or indirectly controlling or controlled by or under direct or
indirect common control with the Company shall be excluded from Securities of
such Series eligible for selection for redemption. The Trustee, in the name and
at the expense of the Company (or the Company, if it shall so request the
Trustee in writing) shall cause notice of redemption of the Securities of such
Series to be given in substantially the manner provided in Section 3.03 (and
with the effect provided in Section 3.04) for the redemption of Securities of
such Series in part at the option of the Company. The amount of any sinking fund
payments not so applied or allocated to the redemption of Securities of such
Series shall be added to the next cash sinking fund payment for such Series and,
together with such payment, shall be applied in accordance with the provisions
of this Section. Any and all sinking fund moneys held on the stated maturity
date of the Securities of any particular Series (or earlier, if such maturity is
accelerated), which are not held for the payment or redemption of particular
Securities of such Series shall be applied, together with other moneys, if
necessary, sufficient for the purpose, to the payment of the principal of, and
interest on, the Securities of such Series at maturity.
At least one business day before each sinking fund payment date, the
Company shall pay to the Trustee in cash or shall otherwise provide for the
payment of all interest accrued to the date fixed for redemption on Securities
to be redeemed on the next following sinking fund payment date.
The Trustee shall not redeem or cause to be redeemed any Securities of a
Series with sinking fund moneys or mail any notice of redemption of Securities
for such Series by operation of the sinking fund during the continuance of a
default in payment of interest on such Securities or of any Event of Default
except that, where the mailing of notice of redemption of any
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Securities shall theretofore have been made, the Trustee shall redeem or cause
to be redeemed such Securities, provided that it shall have received from the
Company a sum sufficient for such redemption. Except as aforesaid, any moneys in
the sinking fund for such Series at the time when any such default or Event of
Default shall occur, and any moneys thereafter paid into the sinking fund,
shall, during the continuance of such default or Event of Default, be deemed to
have been collected under Article Six and held for the payment of all such
Securities. In case such Event of Default shall have been waived as provided in
Section 6.06 or the default cured on or before the sixtieth day preceding the
sinking fund payment date in any year, such moneys shall thereafter be applied
on the next succeeding sinking fund payment date in accordance with this Section
to the redemption of such Securities.
ARTICLE IV
COVENANTS
Section 4.01. Payment of Securities. The Company shall pay the principal of
and interest on the Securities on the dates and in the manner provided herein
and in the Securities. An installment of principal or interest shall be
considered paid on the date it is due if the Trustee or Paying Agent holds on
that date money designated for and sufficient to pay the installment. If the
Securities of a Series provide for the payment of additional amounts as
contemplated by Section 2.02(a)(11), at least 10 days prior to the first
interest payment date with respect to that Series of Securities (or if the
Securities of that Series will not bear interest prior to maturity, the first
day on which a payment of principal is made), and at least 10 days prior to each
date of payment of principal or interest if there has been any change with
respect to the matters set forth in the below-mentioned Officer's Certificate,
the Company will furnish the Trustee and the Company's principal Paying Agent or
Paying Agents, if other than the Trustee, with an Officer's Certificate
instructing the Trustee and such Paying Agent or Paying Agents whether such
payment of principal of and interest on the Securities of that Series shall be
made to Holders of Securities of that Series or any related coupons who are not
U.S. Persons without withholding for or on account of any tax, assessment or
other governmental charge described in the Securities of the Series. If any such
withholding shall be required, then such Officer's Certificate shall specify by
country the amount, if any, required to be withheld on such payments to such
Holders of Securities or coupons and the Company will pay to the Trustee or such
Paying Agent such additional amounts as may be required pursuant to the terms
applicable to such Series. The Company covenants to indemnify the Trustee and
any Paying Agent for, and to hold them harmless against, any loss, liability or
expense reasonably incurred without negligence or bad faith on their part
arising out of or in connection with actions taken or omitted by any of them in
reliance on any Officer's Certificate furnished pursuant to this Section.
Section 4.02. Reports by the Company and the Guarantor. The Company and the
Guarantor covenant:
(a) to file with the Trustee, within 15 days after the Guarantor is
required to file the same with the SEC copies of the annual reports and of
the information, documents and other reports (or copies of such portions of
any of the
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foregoing as the SEC may from time to time by rules and regulations
prescribe) which the Guarantor may be required to file with the SEC
pursuant to Section 13 or Section 15(d) of the Securities Exchange
Act of 1934, as amended; or, if the Guarantor is not required to file
information, documents or reports pursuant to either of such sections of
the Securities Exchange Act of 1934, as amended, then to file with the
Trustee and the SEC, in accordance with rules and regulations prescribed
from time to time by the SEC, such of the supplementary and periodic
information, documents and reports which may be required pursuant
to Section 13 of the Securities Exchange Act of 1934, as amended, in
respect of a security listed and registered on a national securities
exchange as may be prescribed from time to time in such rules and
regulations;
(b) to file with the SEC, in accordance with the rules and regulations
prescribed from time to time by the SEC, and the Trustee such additional
information, documents, and reports with respect to compliance by the
Company and the Guarantor with the conditions and covenants provided for
in this Indenture as may be required from time to time by such rules
and regulations;
(c) to transmit by mail to all Holders of Registered Securities, as
the names and addresses of such Holders appear on the register for each
Series of Securities, and to such Holders of Unregistered Securities as
have, within the two years preceding such transmission, filed their names
and addresses with the Trustee for that purpose, within 30 days after the
filing thereof with the Trustee, and to all Holders whose names appear on
the list furnished to the Trustee by the Company under Section 2.07(a),
such summaries of any information, documents and reports required to be
filed by the Company and the Guarantor pursuant to subsections (a) and (b)
of this Section 4.02 as may be required by rules and regulations prescribed
from time to time by the SEC; and
(d) in the case of Uncertificated Securities for which the Trustee
does not act as Registrar, to file with the Trustee at the time it files
the annual or quarterly reports required to be filed pursuant to paragraph
(a) hereof or at such other times as the Trustee may reasonably request, a
statement of the aggregate amount of such Uncertificated Securities issued
and outstanding hereunder.
Section 4.03. Limitations on Liens. The Guarantor will not, nor will it
permit any Restricted Subsidiary to, create or incur, or suffer to be incurred
or to exist, any Lien on its or their property or assets, whether now owned or
hereafter acquired, or upon any income or profits therefrom, or transfer any
property for the purpose of subjecting the same to the payment of obligations in
priority to the payment of its or their general creditors, or acquire or agree
to acquire, or permit any Restricted Subsidiary to acquire, any property or
assets upon conditional sales agreements or other title retention devices,
without thereupon expressly securing the due and punctual payment of the
principal of and the interest on the Securities of each Series equally and
ratably with any and all other obligations and indebtedness secured by such
Lien, so long as any such other obligations and indebtedness shall be so
secured, and the Guarantor covenants that if and when any such Lien is created,
the Securities of each Series will be so secured
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thereby. Notwithstanding the foregoing, this Section shall neither limit nor be
deemed or construed as limiting the right of the Guarantor or any Restricted
Subsidiary to create or incur, or suffer to be incurred or to exist, any one or
more of the following Liens:
(a) Liens for property taxes and assessments or governmental charges
or levies which are not yet due and payable, or the amount, applicability
or validity thereof is being contested by the Guarantor or any Restricted
Subsidiary on a timely basis in good faith and in appropriate proceedings,
and the Guarantor or such Restricted Subsidiary has established adequate
reserves therefor in accordance with GAAP on the books of the Guarantor or
such Restricted Subsidiary, or the nonpayment of all such taxes,
assessments, charges and levies in the aggregate would not reasonably be
expected to have a materially adverse effect on the business, operations,
affairs, financial condition, properties or assets of the Guarantor and its
Restricted Subsidiaries taken as a whole and Liens securing claims or
demands of mechanics and materialmen in each case incurred in the ordinary
course of business for sums not yet due and payable or the non-payment of
which would not reasonably be expected, individually or in the aggregate,
to have a materially adverse effect on the business, operations, affairs,
financial condition, properties or assets of the Guarantor and its
Restricted Subsidiaries taken as a whole;
(b) Liens of or resulting from any judgment or award, the time for the
appeal or petition for rehearing of which shall not have expired, or in
respect of which the Guarantor or a Restricted Subsidiary shall at any time
in good faith be prosecuting an appeal or proceeding for a review and in
respect of which a stay of execution pending such appeal or proceeding for
review shall have been secured;
(c) Liens incidental to the conduct of business or the ownership of
properties and assets (including Liens in connection with worker's
compensation, unemployment insurance and other like laws, warehousemen's
and solicitors' liens and statutory landlords' liens) and Liens to secure
the performance of bids, tenders or trade contracts, or to secure statutory
obligations, surety or appeal bonds or other Liens of like general nature
incurred in the ordinary course of business and not in connection with the
borrowing of money; provided in each case, the obligation secured is not
overdue or, if overdue, is being contested in good faith by appropriate
actions or proceedings;
(d) Minor survey exceptions, or minor encumbrances, easements or
reservations, or rights of others for rights-of-way, utilities and other
similar purposes, or zoning or other restrictions as to the use of real
properties, which are necessary for the conduct of the activities of the
Guarantor and the Restricted Subsidiaries or which customarily exist on
properties of corporations engaged in similar activities and similarly
situated and which do not in any event materially impair their use in the
operation of the business of the Guarantor and the Restricted Subsidiaries;
(e) Liens securing Debt of a Restricted Subsidiary to the Guarantor or
to another Restricted Subsidiary;
(f) Purchase Money Obligations;
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(g) Liens on Acquired Financing Assets to secure Secured Subordinated
Debt of the Guarantor or the Restricted Subsidiaries arising in connection
with the acquisition of such Acquired Financing Assets;
(h) Liens securing Non-Recourse Debt of the Guarantor or the
Restricted Subsidiaries;
(i) Liens created or incurred after December 15, 1998 upon any
property (the "Substitute Property") concurrently with the release of a
comparable Lien on other property (the "Released Property"), provided that
(A) the fair market value of the Substitute Property shall not exceed the
fair market value of the Released Property by more than 110%, (B) the
character and use of the Substitute Property shall be substantially
equivalent to the character and use of the Released Property, and (C) such
substitution shall be without increase in the principal amount of the Debt
remaining unpaid as of the date of such substitution which is to be secured
by the Lien on such Substitute Property and such remaining unpaid principal
amount of such Debt shall not exceed the aggregate fair market value of
such Substitute Property and any other property securing such Debt;
(j) Liens on property of, or on any shares of stock or debt of, any
corporation existing at the time such corporation becomes a Restricted
Subsidiary;
(k) Liens on property, shares of stock, other equity interests, or
debt existing at the time of acquisition or repossession thereof by the
Guarantor or any Restricted Subsidiary;
(l) Liens on physical property (or any Accounts Receivable arising in
connection with the lease thereof), shares of stock, other equity
interests, or Debt acquired (or, in the case of physical property,
constructed) after December 15, 1998 by the Guarantor 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;
(m) Liens on Accounts Receivable of the Guarantor or any Restricted
Subsidiary arising from or in connection with transactions entered into by
the Guarantor or such Restricted Subsidiary after December 15, 1998 or on
Accounts Receivable acquired by the Guarantor or such Restricted Subsidiary
after such date from others which liens are created prior to, at the time
of, or after such Accounts Receivable arise or are acquired (i) as a result
of any guarantee, repurchase or other contingent (direct or indirect) or
recourse obligation of the Guarantor or such Restricted Subsidiary in
connection with the discounting, sale, assignment, transfer or other
disposition of such
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Accounts Receivable or any interest therein, or (ii) to secure or provide
for the payment of all or any part of the investment of the Guarantor or
such Restricted Subsidiary in any such Accounts Receivable (whether or not
such Accounts Receivable are the Accounts Receivable on which such liens
are created) or the purchase price thereof or to secure any debt
(including, without limitation, Non-Recourse Debt) issued, incurred,
assumed or guaranteed for the purpose of financing or refinancing all or
any part of such investment or purchase price;
(n) any extension, renewal, or replacement of any Lien permitted by
the preceding subsections (f), (g), (i), (j), (k) (l) and (m) hereof in
respect of the same property theretofore subject to such Lien in connection
with the extension, renewal or refinancing of the Debt secured thereby;
provided that (A) such Lien shall attached solely to the same such property
or Substitute Property, and (B) such extension, renewal or refinancing of
such Debt shall be without increase in the principal remaining unpaid as of
the date of such extension, renewal or refinancing;
(o) Any other Liens (other than the Liens described in clauses (a) -
(n)) which in the aggregate relate to Debt the aggregate amount of which
does not exceed 10% of Consolidated Net Tangible Assets; and
(p) any Lien approved by the Holders holding a majority in principal
amount of the outstanding Securities of each Series.
Section 4.04. Statement as to Compliance; Notice of Certain Events of
Default. The Company and the Guarantor will, within 120 days after the close of
each fiscal year, commencing with the first fiscal year following the issuance
of Securities of any Series under this Indenture, file with the Trustee a
certificate of the principal executive officer, the principal financial officer
or the principal accounting officer of each of the Company and the Guarantor,
covering the period from the date of issuance of such Securities to the end of
the fiscal year in which such Securities were issued, in the case of the first
such certificate, and covering the preceding fiscal year in the case of each
subsequent certificate, and stating whether or not, to the knowledge of the
signers, the Company and Guarantor, as applicable has complied with all
conditions and covenants on its part contained in this Indenture, and, if the
signers have obtained knowledge of any default by the Company or Guarantor in
the performance, observance or fulfillment of any such condition or covenant,
specifying each such default and the nature thereof. For the purpose of this
Section 4.04, compliance shall be determined without regard to any grace period
or requirement of notice provided pursuant to the terms of this Indenture.
ARTICLE V
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
Section 5.01. Consolidation or Merger, etc., on Certain Terms. The Company
and the Guarantor each covenants that it will not merge or consolidate with any
other Person or sell or convey all, or substantially all of its assets to any
Person (other than such a sale or conveyance to
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a Subsidiary or any successor thereto (such a sale or conveyance being called an
"Asset Drop-Down")), unless (i) either the Company or the Guarantor shall be the
continuing Person or the successor Person which acquires by sale or conveyance
substantially all the assets of the Company or the Guarantor (if other than the
Guarantor or the Company) shall expressly assume the due and punctual payment
of the principal of and interest, if any, on all the Securities, according to
their tenor, and the due and punctual performance and observance of all of the
covenants and conditions of this Indenture and the Parent Guarantee to be
performed or observed by the Company and the Guarantor, by supplemental
indenture in form satisfactory to the Trustee, executed and delivered to the
Trustee by such Person, and, if applicable, execution and delivery of a Guaranty
substantially in the form of the Parent Guarantee, and (ii) the Company, the
Guarantor or such successor Person, as the case may be, shall not, immediately
after such merger or consolidation, or such sale or conveyance, be in default
in the performance of any such covenant or condition. In the event of any
Asset Drop-Down after the date of this Indenture, any subsequent sale or
conveyance of assets by a Subsidiary to which assets were transferred in such
Asset Drop-Down (a "Drop-Down Subsidiary") will be deemed to be a sale or
conveyance of assets by the Company or the Guarantor, as applicable for
purposes of this Section 5.01.
Section 5.02. Successor Substituted. In case of any such consolidation,
merger, sale or conveyance, and following such an assumption by the successor
Person, such successor Person shall succeed to and be substituted for the
Company or the Guarantor, as applicable, with the same effect as if it had been
named herein and in the Parent Guarantee. With respect to any successor to the
Company, such successor Person may cause to be signed, and may issue either in
its own name or in the name of the Company prior to such succession any or all
of the Securities issuable hereunder which theretofore shall not have been
signed by the Company and delivered to the Trustee; and, upon the order of such
successor Person instead of the Company and subject to all the terms, conditions
and limitations in this Indenture prescribed, the Trustee shall authenticate and
shall deliver any Securities which previously shall have been signed and
delivered by the officers of the Company to the Trustee for authentication, and
any Securities which such successor Person thereafter shall cause to be signed
and delivered to the Trustee for that purpose. All of the Securities so issued
shall in all respects have the same legal rank and benefit under this Indenture
as the Securities theretofore or thereafter issued in accordance with the terms
of this Indenture as though all of such Securities had been issued at the date
of the execution hereof.
In case of any such consolidation, merger, sale, lease or conveyance such
changes in phraseology and form (but not in substance) may be made in the
Securities thereafter to be issued as may be appropriate.
In the event of any such sale or conveyance (other than a conveyance by way
of lease) the Company, the Guarantor or any successor Person which shall
theretofore have become such in the manner described in this Article shall be
released and discharged from all obligations and covenants under this Indenture.
Section 5.03. Opinion of Counsel to Trustee. The Trustee, subject to the
provisions of Sections 7.01 and 7.02, may receive an Opinion of Counsel,
prepared in accordance with
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Section 10.04, as conclusive evidence that any such consolidation, merger, sale,
lease or conveyance, any such assumption, and any such release and discharge
complies with the applicable provisions of this Indenture.
ARTICLE VI
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
Section 6.01. Events of Default; Acceleration of Maturity; Waiver of
Default. In case one or more of the following events shall have occurred and be
continuing with respect to the Securities of any Series ("Events of Default"):
(a) default in the payment of any installment of interest upon any of
the Securities of that Series as and when the same shall become due and
payable, and continuance of such default for a period of 90 days; or
(b) default in the payment of the principal of any of the Securities
of that Series as and when the same shall become due and payable either at
maturity, upon redemption, or otherwise (except as may be otherwise
provided in the Board Resolution or supplemental indenture establishing the
terms of the Securities of such Series); or
(c) failure on the part of the Company or the Guarantor duly to
observe or perform any other of the covenants or agreements on the part of
the Company or the Guarantor in the Securities of that Series, in this
Indenture contained or in any supplemental indenture under which the
Securities of that Series have been issued, for a period of 90 days after
the date on which written notice of such failure (specified as a "Notice of
Default"), requiring the Company or the Guarantor to remedy the same, shall
have been given to the Company and the Guarantor by the Trustee or to the
Company, the Guarantor and the Trustee by the Holders of at least
twenty-five percent in aggregate principal amount of the Securities of that
Series at the time outstanding; or
(d) a court or governmental agency having jurisdiction in the premises
shall enter a decree or order for relief in respect of the Company or the
Guarantor in an involuntary case under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect, or appointing a
receiver, liquidator, assignee, custodian, trustee, sequestrator (or
similar official) of the Company or the Guarantor or for all or
substantially all of its property or ordering the winding up or liquidation
of its affairs, and such decree or order shall remain unstayed and in
effect for a period of 90 consecutive days; or
(e) the Company or the Guarantor shall commence a voluntary case under
any applicable bankruptcy, insolvency or other similar law now or hereafter
in effect, or consent to the entry of an order for relief in an involuntary
case under any such law, or consent to the appointment or taking possession
by a receiver, liquidator, assignee,
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custodian, trustee, sequestrator (or similar official) of the Company or
the Guarantor or for all or substantially all of its property or make any
general assignment for the benefit of creditors; or the Company or the
Guarantor shall admit in writing its inability to pay its debts generally
as they become due; or
(f) any other Event of Default provided in the applicable resolution
of the Board of Directors or in the supplemental indenture under which such
Series of Securities is issued, as the case may be, as contemplated by
Section 2.02;
then and in each and every such case, unless the principal of all the Securities
of that Series shall have already become due and payable, either the Trustee or
the Holders of not less than twenty-five percent in aggregate principal amount
of the Securities of that Series then outstanding hereunder, by notice in
writing to the Company and the Guarantor (and to the Trustee if given by
Securityholders), may declare the principal (or, if the Securities of that
Series are Original Issue Discount Securities, such portion of the principal
amount as may be specified in the terms of that Series) of all the Securities of
that Series to be due and payable immediately, and upon any such declaration the
same (or, in the case of Original Issue Discount Securities, such specified
amount) shall become and shall be immediately due and payable, anything in this
Indenture, in any supplemental indenture under which the Securities of that
Series have been issued or in the Securities of that Series contained to the
contrary notwithstanding. This provision, however, is subject to the condition
that if, at any time after the principal of the Securities of that Series (or,
if the Securities of that Series are Original Issue Discount Securities, such
portion of the principal amount as may be specified in the terms of that Series)
shall have been so declared due and payable, and before any judgment or decree
for the payment of the moneys due shall have been obtained or entered as
hereinafter provided, the Company or the Guarantor shall pay, or shall deposit
with the Trustee a sum sufficient to pay, all matured installments of interest
upon all the Securities of that Series and the principal of any and all
Securities of that Series which shall have become due otherwise than by
declaration, with interest upon such principal and (to the extent that payment
of such interest is enforceable under applicable law) upon any overdue
installments of interest at the same rate of interest or Yield to Maturity (in
the case of Original Issue Discount Securities) specified in the Securities of
that Series, to the date of such payment or deposit, and such amount as shall be
sufficient to cover reasonable compensation to the Trustee, its agents and
counsel, and all other expenses and liabilities incurred, and all advances made,
by the Trustee except as a result of its negligence or bad faith, and if any and
all defaults under this Indenture with respect to the Securities of that Series,
other than the nonpayment of the principal of and interest on the Securities of
that Series which shall have become due by declaration, shall have been
remedied; then and in every such case the Holders of a majority in aggregate
principal amount of the Securities of that Series then outstanding by written
notice to the Company, the Guarantor and to the Trustee may waive all defaults
and rescind and annul such declaration and its consequences; but no such waiver
or rescission or annulment shall extend to or shall affect any subsequent
default or shall impair any right consequent thereon.
For all purposes under this Indenture, if a portion of the principal of any
Original Issue Discount Securities shall have been accelerated and declared due
and payable pursuant to the provisions hereof, then, from and after such
declaration, unless such declaration has been rescinded and annulled, the
principal amount of such Original Issue Discount Securities shall be
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deemed, for all purposes hereunder, to be such portion of the principal thereof
as shall be due and payable as a result of such acceleration, and payment of
such portion of the principal thereof as shall be due and payable as a result of
such acceleration, together with interest, if any, thereon and all other amounts
owing thereunder, shall constitute payment in full of such Original Issue
Discount Securities.
In case the Trustee shall have proceeded to enforce any right under this
Indenture and such proceedings shall have been discontinued or abandoned because
of such waiver or rescission or annulment or for any other reason or shall have
been determined adversely to the Trustee, then and in every such case the
Company, the Guarantor, the Trustee and the Holders of the Securities shall be
restored respectively to their former positions and rights hereunder, and all
rights, remedies and powers of the Company, the Guarantor, the Trustee and the
Holders of the Securities shall continue as though no such proceedings had been
taken.
Section 6.02. Collection of Indebtedness by Trustee; Trustee May Prove
Debt. The Company and the Guarantor covenant that (1) in the case default shall
be made in the payment of any installment of interest on any of the Securities
of any Series, as and when the same shall become due and payable, and such
default shall have continued for a period of 90 days, or (2) in case default
shall be made in the payment of the principal of any of the Securities of any
Series when the same shall have become due and payable, whether upon maturity or
upon redemption or upon declaration or otherwise -- then, upon demand of the
Trustee, the Company or the Guarantor will pay to the Trustee, for the benefit
of the Holders of the Securities of such Series, the whole amount that then
shall have become due and payable on all Securities of such Series for principal
and interest, with interest upon any overdue principal and (to the extent that
payment of such interest is enforceable under applicable law) upon any overdue
installments of interest at the same rate as the rate of interest or Yield to
Maturity (in the case of Original Issue Discount Securities) specified in the
Securities of such Series, and, in addition thereto, such further amount as
shall be sufficient to cover reasonable compensation to the Trustee, its agents
and counsel, and all other expenses and liabilities incurred, and all advances
made, by the Trustee except as a result of its negligence or bad faith.
In case both the Company and the Guarantor shall fail forthwith to pay such
amounts upon such demand, the Trustee, in its own name and as trustee of an
express trust, shall be entitled and empowered to institute any action or
proceedings at law or in equity for the collection of the sums so due and
unpaid, and may prosecute any such action or proceedings to judgment or final
decree and may enforce any such judgment or final decree against the Company or
the Guarantor or other obligor upon such Securities and collect in the manner
provided by law out of the property of the Company or the Guarantor or other
obligor upon such Securities wherever situated the moneys adjudged or decreed to
be payable.
In case there shall be pending proceedings relative to the Company or the
Guarantor or any other obligor upon the Securities under Title 11 of the United
States Code or any other applicable federal, state or other bankruptcy,
insolvency or other similar law, or in case a receiver, assignee or trustee in
bankruptcy or reorganization, liquidator, sequestrator or similar official shall
have been appointed for or taken possession of the Company or the Guarantor or
its property or such other obligor, or in case of any other judicial proceedings
relative to the
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Company or the Guarantor or other obligor upon the Securities of any Series, or
to the creditors or property of the Company, the Guarantor or such other
obligor, the Trustee, irrespective of whether the principal of any Securities
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand
pursuant to the provisions of this Section 6.02, shall be entitled and
empowered, by intervention in such proceedings or otherwise, (a) to file and
prove a claim or claims for the whole amount of principal (or, if the Securities
of any Series are Original Issue Discount Securities, such portion of the
principal amount as may be specified in the terms of such Series), and interest
paid and unpaid in respect of the Securities of any Series and to file such
other papers or documents as may be necessary or advisable in order to have the
claims of the Trustee (including any claim for reasonable compensation to the
Trustee, its agents and counsel, and for reimbursement of all expenses and
liabilities incurred, and all advances made, by the Trustee except as a result
of its negligence or bad faith) and of the Securityholders allowed in any
judicial proceedings relative to the Company, the Guarantor or other obligor
upon the Securities of any Series, or to the creditors or property of the
Company, the Guarantor or such other obligor, (b) unless prohibited by
applicable law and regulations, to vote on behalf of the Holders of the
Securities of any Series in any election of a trustee or a standby trustee in
arrangement, reorganization, liquidation or other bankruptcy or insolvency
proceedings or person performing similar functions in comparable proceedings,
and (c) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute all amounts received with
respect to the claims of the Securityholders and of the Trustee on their behalf
and any receiver, assignee, liquidator, custodian, trustee or other similar
official is hereby authorized by each of the Securityholders to make payments to
the Trustee and, in the event that the Trustee shall consent to the making of
payments directly to the Securityholders, to pay the Trustee such amount as
shall be sufficient to cover reasonable compensation to the Trustee, its agents
and counsel, and all other expenses and liabilities incurred, and all advances
made, by the Trustee except as a result of its negligence or bad faith.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or vote for or accept or adopt on behalf of any
Securityholder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities of any Series or the rights of any Holder
thereof, or to authorize the Trustee to vote in respect of the claim of any
Securityholder in any such proceeding except, as aforesaid, to vote for the
election of a trustee in bankruptcy or similar person.
All rights of action and to assert claims under this Indenture, or under
any of the Securities of any Series or coupons appertaining thereto, may be
enforced by the Trustee without the possession of any of the Securities of such
Series or of any coupons appertaining thereto or the production thereof in any
trial or other proceedings relative thereto, and any recovery of judgment shall
be for the ratable benefit of the holders of the Securities or coupons
appertaining to such Securities in respect of which such action was taken.
In any proceedings brought by the Trustee (and also any proceedings
involving the interpretation of any provision of this Indenture to which the
Trustee shall be a party) the Trustee shall be held to represent all the Holders
of the Securities or coupons appertaining to such
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Securities in respect to which such action was taken, and it shall not be
necessary to make any Holders of such Securities or coupons parties to any such
proceedings.
In the case of an Event of Default hereunder the Trustee may in its
discretion proceed to protect and enforce the rights vested in it by this
Indenture by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any of such rights, either at law or in
equity or in bankruptcy or otherwise, whether for the specific enforcement of
any covenant or agreement contained in this Indenture, or in aid of the exercise
of any power granted in this Indenture, or otherwise, and the Trustee may
enforce any other legal or equitable right vested in the Trustee by this
Indenture or by law.
Section 6.03. Application of Proceeds. Any moneys collected by the Trustee
pursuant to Section 6.02 in respect of any Series shall be applied in the order
following, at the date or dates fixed by the Trustee and in case of the
distribution of such moneys on account of principal or interest, upon
presentation (except in the case of Uncertificated Securities) of the several
Securities and coupons, if any, appertaining to such Securities in respect of
which moneys have been collected and stamping thereon the payment if only
partially paid, and upon surrender thereof if fully paid:
First: The Trustee for amounts due under Section 7.07;
Second: In case the principal of the Securities of such Series in
respect of which moneys have been collected shall not have become due, to
the payment of interest on the Securities of such Series in default, in the
order of the maturity of the installments of such interest, with interest
(to the extent that such interest has been collected by the Trustee) upon
the overdue installments of interest, at the same rate as the rate of
interest or Yield to Maturity (in the case of Original Issue Discount
Securities) specified in the Securities of such Series, such payments to be
made ratably to the persons entitled thereto;
Third: In case the principal of the Securities of such Series in
respect of which moneys have been collected shall have become due by
declaration or otherwise, to the payment of the whole amount then owing and
unpaid upon all of the Securities of such Series for principal and
interest, with interest on the overdue principal, and (to the extent that
such interest has been collected by the Trustee) upon overdue installments
of interest, at the same rate as the rate of interest or Yield to Maturity
(in the case of Original Issue Discount Securities) specified in the
Securities of such Series, and in the case such moneys shall be
insufficient to pay in full the whole amount so due and unpaid upon the
Securities of such Series, then to the payment of such principal and
interest or Yield to Maturity without preference or priority of principal
over interest or Yield to Maturity, or of interest over any other
installment of interest, or of any Security of such Series over any other
Security of such Series, ratably to the aggregate of such principal and
interest or Yield to Maturity; and
Fourth: To the Company.
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Section 6.04. Limitation on Suits by Securityholders. No Holder of any
Security of any Series or any coupon appertaining thereto shall have any right
by virtue or by availing of any provision of this Indenture to institute any
action or proceeding at law or in equity or in bankruptcy or otherwise upon or
under or with respect to this Indenture, or for the appointment of a receiver,
trustee, liquidator, custodian or other similar official or for any other remedy
hereunder, unless such Holder previously shall have given to the Trustee written
notice of an Event of Default and unless also the Holders of not less than
twenty-five percent in aggregate principal amount of the Securities of such
Series then outstanding shall have made written request upon the Trustee to
institute such action or proceedings in its own name as trustee hereunder and
shall have offered to the Trustee such reasonable indemnity, as it may require
against the costs, expenses, and liabilities to be incurred therein or thereby
and the Trustee, for 60 days after its receipt of such notice, request and offer
of indemnity, shall have failed to institute any such action or proceedings and
no direction inconsistent with such written request shall have been given to the
Trustee pursuant to Section 6.06; it being understood and intended and being
expressly covenanted by the taker and Holder of every Security or coupon with
every other taker and Holder and the Trustee that no one or more Holders of
Securities of any Series or coupons appertaining thereto shall have any right in
any manner whatever by virtue or by availing of any provision of this Indenture
to affect, disturb or prejudice the rights of any other Holder of Securities or
coupons of such Series, or to obtain or seek to obtain priority over or
preference to any other such Holder, or to enforce any right under this
Indenture, except in the manner herein provided and for the equal, ratable and
common benefit of all Holders of Securities of the applicable Series and
coupons, if any, appertaining thereto. For the protection and enforcement of the
provisions of this Section 6.04, each and every Securityholder and the Trustee
shall be entitled to such relief as can be given either at law or in equity.
Notwithstanding any other provision in this Indenture or any provision of
any Security, the right of any Holder of any Security to receive payment of the
principal of and interest on such Security, on or after the respective due dates
expressed in such Security, or any redemption date, and the right of any Holder
of a coupon to receive payment of interest due as provided in such coupon, or to
institute suit for the enforcement of any such payment on or after such
respective due dates or redemption dates, shall not be impaired or affected
without the consent of such Holder.
Section 6.05. Powers and Remedies Cumulative; Delay or Omission Not Waiver
of Default. All powers and remedies given by this Article VI to the Trustee or
to the Securityholders or the Holders of any coupons shall, to the extent
permitted by law, be deemed cumulative and not exclusive of any thereof or of
any other powers and remedies available to the Trustee or the Securityholders or
the Holders of any coupons, by judicial proceedings or otherwise, to enforce the
performance or observance of the covenants and agreements contained in this
Indenture, and no delay or omission of the Trustee or of any Holder of the
Securities or coupons in exercising any right or power accruing upon any Event
of Default occurring and continuing as aforesaid shall impair any such right or
power or shall be construed to be a waiver of any such default or an
acquiescence therein; and, subject to the provisions of Section 6.04, every
power and remedy given by this Article VI or by law to the Trustee or to the
Securityholders or the Holders of any coupons may be exercised from time to
time, and as often
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as shall be deemed expedient, by the Trustee or by the Securityholders or the
Holders of any coupons.
Section 6.06. Control by Securityholders; Waiver of Defaults. The Holders
of a majority in aggregate principal amount of the Securities of each Series
affected (with each Series voting as a separate class) at the time outstanding
shall have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust or
power conferred on the Trustee with respect to the Securities of such Series by
this Indenture; provided that such direction shall not be otherwise than in
accordance with law and the provisions of this Indenture and provided further
that (subject to the provisions of Section 7.01) the Trustee shall have the
right to decline to follow any such direction if the Trustee, being advised by
counsel, shall determine that the action or proceeding so directed may not
lawfully be taken or if the Trustee in good faith by its board of directors, the
executive committee, or a trust committee of directors or Responsible Officers
of the Trustee shall determine that the action or proceedings so directed would
involve the Trustee in personal liability or if the Trustee in good faith shall
so determine that the actions or forbearances specified in or pursuant to such
direction would be unduly prejudicial to the interests of Holders of the
Securities of all Series so affected not joining in the giving of said
direction, it being understood that (subject to Section 7.01) the Trustee shall
have no duty to ascertain whether or not such actions or forbearances are unduly
prejudicial to such Holders. Nothing in this Indenture shall impair the right of
the Trustee in its discretion to take any action deemed proper by the Trustee
and which is not inconsistent with such direction or directions by
Securityholders. Prior to the declaration of the maturity of the Securities of
any Series as provided in Section 6.01, the Holders of a majority in aggregate
principal amount of the Securities of such Series at the time outstanding may on
behalf of the Holders of all the Securities of such Series waive any past
default hereunder with respect to such Series and its consequences, except a
default in the payment of the principal of or interest on any of the Securities
of such Series. In the case of any such waiver, the Company, the Guarantor, the
Trustee and the holders of the Securities of such Series shall be restored to
their former positions and rights hereunder, respectively; but no such waiver
shall extend to any subsequent or other default or impair any right consequent
thereon.
Section 6.07. Right of Court to Require Filing of Undertaking to Pay Costs.
All parties to this Indenture agree, and each Holder of any Security or coupon
appertaining thereto, by such Holder's acceptance thereof shall be deemed to
have agreed, that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture, or in any suit against
the Trustee for any action taken or omitted by it as Trustee, the filing by any
party litigant in such suit of an undertaking to pay the costs of such suit, and
that such court may in its discretion assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in such suit, having due
regard to the merits and good faith of the claims or defenses made by such party
litigant; but the provisions of this Section 6.07 shall not apply to any suit
instituted by the Trustee, to any suit instituted by any Securityholder, or
group of Securityholders of any Series, holding in the aggregate more than ten
percent in principal amount of the Securities of such Series outstanding, or to
any suit instituted by any Securityholder for the enforcement of the payment of
the principal of or interest on any Security on or after the due date expressed
in such Security.
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ARTICLE VII
TRUSTEE
Section 7.01. Duties of Trustee. (a) If an Event of Default has occurred
and is continuing, the Trustee shall exercise its rights and powers under this
Indenture and use the same degree of care and skill in their exercise as a
prudent person would exercise or use under the circumstances in the conduct of
his own affairs.
(b) Except during the continuance of an Event of Default:
(1) The Trustee need perform only those duties that are specifically
set forth in this Indenture and no implied covenants or obligations shall
be read into this Indenture against the Trustee.
(2) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture. However,
the Trustee shall examine the certificates and opinions to determine
whether or not they conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liability for its own negligent
action, its own negligent failure to act or its own willful misconduct, except
that
(1) This paragraph does not limit the effect of paragraph (b) of this
Section.
(2) The Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer, unless it is proved that the Trustee
was negligent in ascertaining the pertinent facts.
(3) The Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.06.
(d) Every provision of this Indenture that in any way relates to the Trustee
is subject to paragraphs (a), (b) and (c) of this Section.
(e) The Trustee may refuse to perform any duty or exercise any right or
power unless it receives indemnity satisfactory to it against any loss,
liability or expense.
(f) The Trustee shall not be liable for interest on any money received by it
except as the Trustee may agree with the Company. Money held in trust by the
Trustee need not be segregated from other funds except to the extent required by
law.
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Section 7.02. Rights of Trustee. (a) The Trustee may rely on any document
believed by it to be genuine and to have been signed or presented by the proper
person. The Trustee need not investigate any fact or matter stated in the
document.
(b) Before the Trustee acts or refrains from acting, it may consult with
counsel or require an Officer's Certificate or an Opinion of Counsel. The
Trustee shall not be liable for any action it takes or omits to take in good
faith in reliance on a Board Resolution, the written advice of counsel
reasonably acceptable to the Trustee, a certificate of an Officer or Officers
delivered pursuant to Section 2.02(b), an Officer's Certificate or an Opinion of
Counsel.
(c) The Trustee may act through agents and shall not be responsible for the
misconduct or negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits to take
in good faith which it believes to be authorized or within its rights or powers.
(e) Unless otherwise specifically provided, any demand, request, direction
or notice from the Company or the Guarantor shall be sufficient if signed by an
Officer of the Company or the Guarantor, as the case may be.
Section 7.03. Individual Rights of Trustee. The Trustee in its individual
or any other capacity may become the owner or pledgee of Securities and may
otherwise deal with the Company or an Affiliate with the same rights it would
have if it were not Trustee. Any Agent may do the same with like rights.
However, the Trustee is subject to Section 7.10 and 7.11.
Section 7.04. Trustee Disclaimer. The Trustee makes no representation as to
the validity or adequacy of this Indenture, the Securities or the Parent
Guarantee. It shall not be accountable for the Company's use of the proceeds
from the Securities or for moneys paid over to the Company pursuant to this
Indenture, and it shall not be responsible for any statement in the Securities
other than its certificate of authentication.
Section 7.05. Notice of Default. If a Default occurs and is continuing with
respect to the Securities of any Series and it is known to the Trustee, the
Trustee shall mail to each Holder of a Security of that Series entitled to
receive reports pursuant to Section 4.02(c) (and, if Unregistered Securities of
that Series are outstanding, shall cause to be published at least once in an
Authorized Newspaper in The City of New York, and if such Securities are listed
on the London Stock Exchange, London, and, if such Securities are listed on The
Luxembourg Stock Exchange, Luxembourg) notice of the Default within 90 days
after it occurs. Except in the case of a Default in payment on the Securities of
any Series, the Trustee may withhold the notice if and so long as its Corporate
Trust Committee or a committee of its Responsible Officers in good faith
determines that withholding such notice is in the interests of Securityholders
of that Series.
Section 7.06. Reports by Trustee to Holders. (a) Within 60 days after each
anniversary date of the first issue of Securities, the Trustee shall mail to
each Securityholder, if any, entitled to receive reports pursuant to Section
4.02(c) a brief report dated as of such date that complies with TIA
"SS""SS" 313(a) (but if no event described in TIA ss. 313(a) has occurred
within the twelve
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months preceding such date, no report need be transmitted). Commencing at such
time, the Trustee also shall comply with TIA "SS" 313(b).
(b) At the time that it mails such a report to Securityholders, the Trustee
shall file a copy of that report with the SEC and with each stock exchange on
which the Securities are listed. The Company shall provide written notice to the
Trustee when the Securities of any Series are listed on any stock exchange.
Section 7.07. Compensation and Indemnity. (a) The Company shall pay to the
Trustee from time to time reasonable compensation for its services. The
Trustee's compensation shall not be limited by any law on compensation of a
trustee of an express trust. The Company shall reimburse the Trustee upon
request for all reasonable out-of-pocket expenses incurred by it in connection
with the performance of its duties under this Indenture. Such expenses shall
include the reasonable compensation and expenses of the Trustee's agents and
counsel.
(b) The Company shall indemnify the Trustee against any loss or liability
incurred by it arising out of or in connection with its acceptance or
administration of the trust or trusts hereunder. The Trustee shall notify the
Company promptly of any claim for which it may seek indemnity. The Company shall
defend the claim and the Trustee shall cooperate in the defense. The Trustee may
have separate counsel and the Company shall pay the reasonable fees and expenses
of such counsel. The Company need not pay for any settlement made without its
consent.
(c) The Company need not reimburse any expense or indemnify against any loss
or liability incurred by the Trustee through negligence or bad faith.
(d) To secure the payment obligations of the Company pursuant to this
Section, the Trustee shall have a lien prior to the Securities of any Series on
all money or property held or collected by the Trustee, except that held in
trust to pay principal and interest on particular Securities of a Series.
(e) If the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01(d) or (e) occurs, such expenses and the
compensation for such services are intended to constitute expenses of
administration under any applicable bankruptcy, insolvency or other similar law.
Section 7.08. Replacement of Trustee. (a) The resignation or removal of the
Trustee and the appointment of a successor Trustee shall become effective only
upon the successor Trustee's acceptance of appointment as provided in this
Section.
(b) The Trustee may resign with respect to the Securities of any Series by
so notifying the Company. The Holders of a majority in principal amount of the
Securities of any Series may remove the Trustee with respect to that Series by
so notifying the Trustee and the Company and may appoint a successor Trustee for
such Series with the Company's consent. The Company may remove the Trustee with
respect to Securities of any Series if:
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(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged a bankrupt or an insolvent;
(3) a receiver or public officer takes charge of the Trustee or its
property; or
(4) the Trustee becomes incapable of acting.
(c) If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, with respect to Securities of any Series, the
Company shall promptly appoint a successor Trustee for such Series.
(d) If a successor Trustee with respect to the Securities of any Series does
not take office within 30 days after the retiring Trustee resigns or is removed,
the retiring Trustee, the Company or the Holders of a majority in principal
amount of the Securities of the applicable Series may petition any court of
competent jurisdiction for the appointment of a successor Trustee.
(e) If the Trustee with respect to the Securities of any Series fails to
comply with Section 7.10, after request therefor by any Securityholder of the
applicable Series who has been a bona fide Holder of a Security of such Series
for at least six months, then such Holder may petition any court of competent
jurisdiction for the removal of such Trustee and the appointment of a successor
Trustee.
(f) A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon, the
resignation or removal of the retiring Trustee for any Series of Securities
shall become effective, and the successor Trustee shall have all the rights,
powers and duties of the retiring Trustee with respect to all Series of
Securities for which the successor Trustee is to be acting as Trustee under this
Indenture. The retiring Trustee shall promptly transfer all property held by it
as Trustee with respect to such Series of Securities to the successor Trustee
subject to the lien provided for in Section 7.07. The Company shall give notice
of each appointment of a successor Trustee for any Series of Securities by
publishing notice of such event once in an Authorized Newspaper in The City of
New York, and if Securities of that Series are listed on the London Stock
Exchange, London, and if Securities of that Series are listed on the Luxembourg
Stock Exchange, Luxembourg, and by mailing written notice of such event by
first-class mail to the Holders of Securities of such Series entitled to receive
reports pursuant to Section 4.02(c).
(g) All provisions of this Section 7.08 except subparagraphs (b)(1) and (e)
and the words "subject to the lien provided for in Section 7.07" in subparagraph
(f) shall apply also to any Paying Agent located outside the U.S. and its
possessions as required by Section 2.04.
(h) In case of the appointment hereunder of a successor Trustee with respect
to the Securities of one or more (but not all) Series, the Company, the retiring
Trustee and such successor Trustee shall execute and deliver a supplemental
indenture wherein such successor Trustee shall accept such appointment and which
(1) shall contain such provisions as shall be
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necessary or desirable to transfer and confirm to, and to vest in, such
successor Trustee all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those Series to which the
appointment of such successor Trustee relates, (2) if the retiring Trustee is
not retiring with respect to the Securities of a Series, shall contain such
provisions as shall be deemed necessary or desirable to confirm that the
trusteeship for Securities of that or those Series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees as co-trustees of
the same trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee.
Section 7.09. Successor Trustee, Agents by Merger, etc. If the Trustee or
any Agent consolidates with, merges or converts into, or transfers all or
substantially all of its corporate trust business assets to, another
corporation, the successor corporation, without any further act, shall be the
successor Trustee or Agent, as the case may be.
Section 7.10. Eligibility; Disqualification. This Indenture shall always
have a Trustee with respect to each Series of Securities who satisfies the
requirement of TIA "SS" 310(a)(1) and (5). The Trustee shall always have a
combined capital and surplus of at least $100,000,000 as set forth in its most
recent published annual report of condition. The Trustee is subject to TIA
"SS" 310(b) during the period of time required thereby, except that there
shall be excluded from the operation of TIA "SS" 310(b)(1) all indentures of the
Company or the Guarantor now or hereafter existing which may be excluded under
the proviso of TIA "SS" 310(b)(1) including the Indenture dated as of April 9,
1990, as amended between the Company and The Chase Manhattan Bank (formerly
known as Chemical Bank), as Trustee, the Indenture dated as of June 1, 1992,
as amended between the Company and The Chase Manhattan Bank (formerly known as
Chemical Bank), as Trustee the Indenture dated as of July 1, 1993, as amended,
between the Company and The Chase Manhattan Bank (formerly known as Chemical
Bank), as Trustee, the Indenture dated as of April 1, 1998 among the Company,
the Guarantor and The Chase Manhattan Bank, as Trustee, the Indenture dated as
of December 15, 1998 among the Guarantor and The Chase Manhattan Bank, as
Trustee and the Indenture dated as of February 15, 1999 among the Company, the
Guarantor and The Chase Manhattan Bank, as Trustee. Nothing herein shall
prevent the Trustee from filing with the SEC the application referred to in
the penultimate paragraph of TIA "SS" 310(b).
Section 7.11. Preferential Collection of Claims Against Company. The
Trustee is subject to TIA "SS" 311(a), excluding any creditor relationship
listed in TIA "SS" 311(b). A Trustee who has resigned or been removed shall
be subject to TIA "SS" 311(a) to the extent indicated.
Section 7.12. Authenticating Agent. The Trustee may appoint an
authenticating agent or agents acceptable to the Company and the Trustee with
respect to the Securities of one or more Series which shall be authorized to act
on behalf of the Trustee to Authenticate Certificated and Uncertificated
Securities of such Series issued upon original issue, exchange, registration of
transfer, partial redemption, conversion or payment or substitution of
Securities pursuant to any
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provision contained in this Indenture. Securities so Authenticated shall be
entitled to the benefits of this Indenture and shall be valid and obligatory for
all purposes as if Authenticated by the Trustee hereunder and every reference
herein to the Authentication and delivery of Securities by the Trustee or the
Trustee's certificate of Authentication on Certificated Securities or the
issuance of Statements of Account by the Trustee shall be deemed to include
Authentication and delivery on behalf of the Trustee by an authenticating agent
and a certificate of Authentication on Certificated Securities executed on
behalf of the Trustee by an authenticating agent and the issuance of Statements
of Account on behalf of the Trustee by an authenticating agent. Each
authenticating agent shall at all times be a corporation organized and doing
business under the laws of the United States of America or any state thereof or
the District of Columbia and authorized under such laws to act as an
authenticating agent.
Any corporation into which an authenticating agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such authenticating agent
shall be a party, or any corporation succeeding to the corporate agency or all
or substantially all of the business of an authenticating agent, shall continue
to be an authenticating agent, provided that such corporation shall be otherwise
eligible under this Section 7.12, without the execution or filing of any paper
or any further act on the part of the Trustee or the authenticating agent.
An authenticating agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time terminate
the agency of an authenticating agent by giving written notice thereof to such
authenticating agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
authenticating agent shall cease to be eligible in accordance with the
provisions of this Section 7.12, the Trustee may appoint a successor
authenticating agent which shall be acceptable to the Company. Any successor
authenticating agent upon acceptance of its appointment hereunder shall become
vested with all rights, powers and duties of its predecessor hereunder, with
like effect as if originally named as an authenticating agent. No successor
authenticating agent shall be appointed unless eligible under the provisions of
this Section 7.12.
The Company agrees to pay to each authenticating agent from time to time
reasonable compensation for its services under this Section 7.12.
The Trustee shall not incur any liability for the appointment by the
Trustee of any authenticating agent or for any misconduct or negligence of any
such authenticating agent, including without limitation, its authentication of
Securities upon original issuance or otherwise. If the Trustee does incur
liability for any such misconduct or negligence of any such authenticating
agent, the Company agrees to indemnify the Trustee for, and hold it harmless
against, any such liability, including the costs and expenses of defending
itself against any liability in connection with such misconduct or negligence of
such authenticating agent.
If an authenticating agent is appointed with respect to the Securities of
one or more Series pursuant to this Section 7.12, the Certificated Securities of
such Series may have endorsed thereon, in addition to or in lieu of the
Trustee's certificate of Authentication, an alternate certificate of
Authentication in the following form:
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This is one of the Certificated Securities of the Series designated therein
referred to in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK, as Trustee
By
__________________________________
As Authenticating Agent
By
__________________________________
Authorized Officer
ARTICLE VIII
SATISFACTION AND DISCHARGE OF INDENTURE; DEFEASANCE;
UNCLAIMED MONIES
Section 8.01. Satisfaction and Discharge of Indenture. If at any time (a)
the Company shall have delivered to the Trustee cancelled or for cancellation
all Securities of any Series theretofore authenticated and all unmatured
coupons, if any, appertaining thereto (other than any Securities of such Series
and coupons appertaining thereto which shall have been destroyed, lost or stolen
and which shall have been replaced or paid as provided in Section 2.09), or (b)
in the case of any Series of Securities where the exact amount (including
currency of payment) of principal of and interest due on which can be determined
at the time of making the deposit referred to in clause (ii) below, (i) all the
Securities of such Series and all unmatured coupons appertaining thereto, not
theretofore delivered to the Trustee cancelled or for cancellation shall have
become due and payable, or are by their terms to become due and payable within
one year or are to be called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of redemption, and (ii) the
Company or the Guarantor shall deposit or cause to be deposited with the Trustee
as trust funds the entire amount in cash sufficient to pay at maturity or upon
redemption all such Securities not theretofore delivered to the Trustee
cancelled or for cancellation, including principal and interest due or to become
due to such date of maturity or date fixed for redemption, as the case may be,
or (c) in the case of any Series of Securities which have a floating or variable
rate of interest that cannot exceed a specified or determinable maximum rate of
interest, (i) all the Securities of such Series and all unmatured coupons
appertaining thereto, not theretofore delivered to the Trustee cancelled or for
cancellation shall have become due and payable, or are by their terms to become
due and payable within one year or are to be called for redemption within one
year under arrangements satisfactory to the Trustee for the giving of notice of
redemption, and (ii) the Company or the Guarantor shall deposit or cause to be
deposited with the Trustee as trust funds the entire amount in cash sufficient
to pay each installment of interest on such Series of Securities not theretofore
delivered to the Trustee for cancellation at the applicable specified or
determined maximum rate of interest thereon on the dates such installments of
interest are due and sufficient to pay the principal of the Securities
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of such Series not theretofore delivered to the Trustee for cancellation at
maturity or upon redemption, but excluding, however, in each of the foregoing
cases, the amount of any moneys for the payment of principal of or interest on
the Securities (1) theretofore deposited with the Trustee and repaid by the
Trustee to the Company in accordance with the provisions of Section 8.05, or (2)
paid to any state or to the District of Columbia pursuant to its unclaimed
property or similar laws, and if in either case the Company or the Guarantor
shall also pay or cause to be paid all other sums payable hereunder by the
Company or the Guarantor, then this Indenture shall cease to be of further
effect with respect to the Securities of such Series (except as to the
provisions applicable to transfers and exchanges of Securities of such Series
and any coupons appertaining thereto), and the Trustee on demand of and at the
cost and expense of the Company shall execute proper instruments acknowledging
satisfaction of and discharging this Indenture with respect to the Securities of
such Series. The Company agrees to reimburse the Trustee for any costs or
expenses thereafter reasonably and properly incurred by the Trustee in
connection with this Indenture or the Securities.
Section 8.02. Defeasance upon Deposit of Moneys or U.S. Government
Obligations. In the case of any Series of Securities, the exact amounts
(including the currency of payment) of principal of and interest due on which
can be determined at the time of making the deposit referred to in clause (1)
below, at the Company's option, either (i) the Company and the Guarantor shall
be deemed to have been Discharged (as defined below) from its obligations with
respect to the Securities of such Series and coupons, if any, appertaining
thereto or (ii) the Company and the Guarantor shall cease to be under any
obligation to comply with any term, provision or condition set forth in Sections
4.03 and 5.01 with respect to the Securities of such Series at any time after
the applicable conditions set forth below have been satisfied:
(1) the Company or the Guarantor shall have deposited or caused to be
deposited irrevocably with the Trustee as trust funds in trust,
specifically pledged as security for, and dedicated solely to, the benefit
of the holders of the Securities of such Series and coupons appertaining
thereto (i) money in an amount, or (ii) in the case of any Series of
Securities the payments on which may only be made in U.S. dollars, U.S.
Government Obligations which through the payment of interest and principal
in respect thereof in accordance with their terms will provide, not later
than one day before the due date of any payment, money in an amount, or
(iii) a combination of (i) and (ii), sufficient in each case in the opinion
of a nationally recognized firm of independent public accountants expressed
in a written certification thereof delivered to the Trustee, to pay and
discharge each installment of principal of, and interest on, the
outstanding Securities of such Series and coupons appertaining thereto on
the dates such installments of interest or principal are due;
(2) if the Securities of such Series are then listed on the New York
Stock Exchange, the Company shall have delivered to the Trustee an Opinion
of Counsel to the effect that the Company's exercise of its option under
this paragraph would not cause such Securities to be delisted;
(3) no Event of Default or event (including such deposit) which with
notice or lapse of time would become an Event of Default with respect to
the Securities of such
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Series shall have occurred and be continuing on the date of such deposit
and no Event of Default under Section 6.01(d) or (e) shall have occurred by
the 91st day after such deposit in connection with a deposit under clause
(1) of this Section 8.02 to Discharge the Company or the Guarantor from its
obligations with respect to the Securities of such Series; and
(4) the Company shall have delivered to the Trustee an opinion of
independent counsel satisfactory to the Trustee to the effect that Holders
of the Securities of such Series and coupons appertaining thereto will not
recognize income, gain or loss for Federal income tax purposes as a result
of the Company's exercise of its option under this Section 8.02 and will be
subject to Federal income tax on the same amount and in the same manner and
at the same time as would have been the case if such option had not been
exercised, which opinion may, but is not required to, include or be based
upon a ruling to that effect received from or published by the Internal
Revenue Service.
"Discharged" means that the Company and the Guarantor shall be deemed to
have paid and discharged the entire indebtedness represented by, and obligations
under, the Securities of such Series and coupons appertaining thereto and the
Parent Guarantee relating thereto and to have satisfied all the obligations
under this Indenture relating to the Securities of such Series and coupons
appertaining thereto (and the Trustee, at the expense of the Company, shall
execute proper instruments acknowledging the same), except (A) the rights of
holders of the Securities of such Series and coupons appertaining thereto to
receive, from the trust fund described in clause (1) above, payment of the
principal of and the interest on such Securities of such Series and coupons when
such payments are due; (B) the Company's obligations with respect to such
Securities of such Series under Sections 2.04, 2.08, 2.09, 2.11 and 8.03; and
(C) the rights, powers, trusts, duties and immunities of the Trustee hereunder.
This Indenture may be Discharged pursuant to this Section 8.02 with respect
to Securities of a Series which have a floating or variable rate of interest
that cannot exceed a specified or determinable maximum rate of interest by
deposit, in accordance with clause (1) of this Section 8.02, with respect to the
interest payments required to be made on the outstanding Securities of such
Series of money and/or U.S. Government Obligations sufficient (determined in
accordance with clause (1) of this Section 8.02) to pay and discharge each
installment of interest on the outstanding Securities of such Series at the
applicable specified or determined maximum rate of interest thereon on the dates
such installments of interest are due and the satisfaction of all other
requirements of this Section 8.02.
Section 8.03. Application of Moneys Deposited. All moneys deposited with
the Trustee pursuant to Section 8.01 or 8.02 shall be held in trust and applied
by it to the payment, either directly or through any Paying Agent (including the
Company acting as its own Paying Agent), to the Holders of the particular
Securities of such Series and of coupons appertaining thereto for the payment or
redemption of which such moneys have been deposited with the Trustee, of all
sums due, and to become due thereon for principal and interest.
Section 8.04. Repayment of Moneys Held. In connection with the satisfaction
and discharge of this Indenture with respect to the Securities of any Series,
all moneys then held by
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any Paying Agent under the provisions of this Indenture with respect to such
Series of Securities shall, upon demand of the Company, be repaid to it or paid
to the Trustee and thereupon such Paying Agent shall be released from all
further liability with respect to such moneys.
Section 8.05. Return of Moneys Unclaimed for Two Years; Return of
Additional Monies and U.S. Government Obligations. (a) Any moneys deposited with
or paid to the Trustee or any Paying Agent pursuant to any provision of this
Indenture for payment of the principal of or interest on the Securities of any
Series and any coupon appertaining thereto and not applied but remaining
unclaimed for two years after the date upon which the principal of or interest
on such Securities or coupons, as the case may be, shall have become due and
payable, shall be repaid to the Company by the Trustee or such Paying Agent on
demand; and the Holder of any of the Securities of such Series or coupons
appertaining thereto shall thereafter look only to the Company for any payment
which such Holder may be entitled to collect and all liability of the Trustee or
any Paying Agent with respect to such moneys shall thereupon cease; provided,
however, that the Trustee or such Paying Agent, before being required to make
any such repayment with respect to moneys deposited with it for any payment (a)
in respect of Registered Securities of any Series, shall at the expense of the
Company, mail by first-class mail to Holders of such Securities at their
addresses as they shall appear on the Security register, and (b) in respect of
Unregistered Securities of any Series, shall at the expense of the Company cause
to be published once, in an Authorized Newspaper in the Borough of Manhattan,
The City of New York, and if the Securities of such Series are listed on the
London Stock Exchange, once in an Authorized Newspaper in London, and if the
Securities of such Series are listed on the Luxembourg Stock Exchange, once in
an Authorized Newspaper in Luxembourg, notice, that such moneys remain and that,
after a date specified therein, which shall not be less than thirty days from
the date of such mailing or publication, any unclaimed balance of such money
then remaining will be repaid to the Company.
(b) Any moneys or U.S. Government Obligations remaining on deposit with the
Trustee pursuant to Section 8.01 or 8.02 with respect to Securities of a Series
(including Securities of a Series which have a floating or variable rate of
interest that cannot exceed a specified or determinable maximum rate of
interest) shall, after payment of all amounts of principal of and interest on
and other amounts due with respect to the outstanding Securities of such Series,
be promptly remitted by the Trustee to the Company.
Section 8.06. Indemnity for Government Obligations. The Company shall pay
and shall indemnify the Trustee and each Securityholder of each Series in
respect of which the deposit shall have been made against any tax, fee or other
charge imposed on or assessed against deposited U.S. Government Obligations or
the principal and interest received on such obligations.
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ARTICLE IX
AMENDMENTS AND WAIVERS
Section 9.01. Without Consent of Holders. The Company, the Guarantor and
the Trustee may enter into one or more supplemental indentures without consent
of any Securityholder for any of the following purposes:
(1) to cure any ambiguity, defect or inconsistency herein or in the
Securities of any Series or to make any other change, provided no such
action shall adversely affect the rights of any Securityholder; or
(2) to comply with Article V; or
(3) to secure the Securities pursuant to Section 4.03; or
(4) to provide for Uncertificated Securities in addition to or in
place of Certificated Securities; or
(5) to provide for the issuance of and establish the form and terms
and conditions of Securities of any Series as provided in Section 2.02, to
establish the form of any certifications required to be furnished pursuant
to the terms of this Indenture or any Series of Securities, or to add to
the rights of the Holders of any Series of Securities, or to surrender any
right or power conferred on the Company.
Section 9.02. With Consent of Holders. (a) With the written consent of the
Holders of a majority in principal amount of the outstanding Securities of each
Series affected by such supplemental indenture (with each Series voting as a
class), the Company, the Guarantor and the Trustee may enter into a supplemental
indenture to add any provisions to or to change or eliminate any provisions of
this Indenture or of any supplemental indenture or to modify, in each case in
any manner not covered by Section 9.01, the rights of the Securityholders of
each such Series. The Holders of a majority in principal amount of the
outstanding Securities of each Series affected by such waiver (with each Series
voting as a class), by notice to the Trustee, may waive compliance by the
Company or the Guarantor with any provision of this Indenture, any supplemental
indenture or the Securities of any such Series; but no such waiver shall extend
to or affect (x) any other Series of Securities or (y) such provision except to
the extent so expressly waived, and, until such waiver shall become effective,
the obligations of the Company and the Guarantor and duties of the Trustee in
respect to any such provision shall remain in full force and effect, provided,
however, without the consent of each Securityholder affected, an amendment or
waiver may not:
(1) reduce the amount of Securities whose Holders must consent to an
amendment or waiver;
(2) change the rate of or change the time for payment of interest on
any Security;
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(3) change the principal of or change the fixed maturity of any
Security;
(4) waive a Default in the payment of the principal of or interest on
any Security;
(5) make any Security payable in money other than that stated in the
Security; or
(6) make any changes in Sections 6.04 (last paragraph), 6.06 (third
sentence), or the proviso in the last sentence of Section 9.02(a).
(b) It is not necessary under this Section 9.02 for the Securityholders to
consent to the particular form of any proposed supplemental indenture, but it is
sufficient if they consent to the substance thereof.
(c) Promptly after the execution by the Company, the Guarantor and the
Trustee of any supplemental indenture pursuant to the provisions of this Section
9.02, the Company shall transmit by mail a notice, setting forth in general
terms the substance of such supplemental indenture, to all Holders of Registered
Securities, as the names and addresses of such Holders appear on the register
for each Series of Securities, and to such Holders of Unregistered Securities
that are entitled to receive reports pursuant to Section 4.02(c). Any failure of
the Company to mail such notice, or any defect therein, shall not, however, in
any way impair or affect the validity of any such supplemental indenture.
Section 9.03. Compliance with Trust Indenture Act. Every amendment to this
Indenture or the Securities of one or more Series shall be set forth in a
supplemental indenture that complies with the TIA as then in effect.
Section 9.04. Revocation and Effect of Consents. Until an amendment,
direction or waiver becomes effective, a consent to it by a Holder of a Security
is a continuing consent by the Holder and every subsequent Holder of a Security
or portion of a Security that evidences the same debt as the consenting Holder's
Security, even if notation of the consent is not made on any Security. However,
any such Holder (or, if no record date has been established for the solicitation
of consents, any subsequent Holder) may revoke the consent as to his Security or
portion of a Security if the Trustee receives the notice of revocation before
the date the amendment, direction or waiver becomes effective. After an
amendment or waiver becomes effective, it shall bind ever Securityholder of each
Series affected by such amendment or waiver.
Section 9.05. Notation on or Exchange of Securities. The Trustee may, at
the direction of the Company, place an appropriate notation about an amendment
or waiver on any Security of any Series thereafter authenticated. The Company in
exchange for Securities of that Series may issue and the Trustee shall
authenticate new Securities of that Series that reflect the amendment or waiver.
Section 9.06. Trustee Protected. The Trustee need not sign any supplemental
indenture that adversely affects its rights, duties, obligations and standard of
care hereunder.
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ARTICLE X
MISCELLANEOUS
Section 10.01. Trust Indenture Act Controls. If and to the extent that any
provision of this Indenture limits, qualifies or conflicts with the duties
imposed by, or with another provision (an "incorporated provision") included in
this Indenture by operation of, Sections 310 to 318, inclusive of the Trust
Indenture Act of 1939, such imposed duties or incorporated provision shall
control.
Section 10.02. Notices. (a) Unless otherwise herein provided, any notice or
communication by the Company, the Guarantor or the Trustee to any of the other
is duly given if in writing and delivered in person or mailed by first-class
mail:
if to the Company to: AT&T Capital Corporation
2 Gatehall Drive
Parsippany, New Jersey 07054
if to the Trustee to: The Chase Manhattan Bank
450 West 33rd Street
New York, New York 10001
Attention: Capital Markets Fiduciary Services
if to the Guarantor to: Newcourt Credit Group Inc.
BCE Place, 181 Bay Street
Suite 3500
Toronto, Ontario, Canada M5J 2T3
(b) The Company, the Guarantor or the Trustee by notice to the other may
designate additional or different addresses for subsequent notices or
communications.
(c) Any notice or communication to Holders of Securities entitled to
received reports pursuant to Section 4.02(c) shall be mailed by first-class mail
to the addresses for Holders of Registered Securities shown on the register kept
by the Registrar and to addresses filed with the Trustee for other Holders.
Failure to so mail a notice or communication or any defect in such notice or
communication shall not affect its sufficiency with respect to other Holders of
Securities of that or any other Series entitled to receive notice.
(d) If a notice or communication is mailed in the manner provided above
within the time prescribed, it is conclusively presumed to have been duly given,
whether or not the addressee receives it.
(e) If the Company mails a notice or communication to Securityholders, it
shall mail a copy to the Guarantor, the Trustee and to each Agent at the same
time.
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(f) If it shall be impractical in the opinion of the Trustee, the Guarantor
or the Company to make any publication of any notice required hereby in an
Authorized Newspaper, any publication or other notice in lieu thereof which is
made or given with the approval of the Trustee shall constitute a sufficient
publication of such notice.
(g) In case, by reason of the suspension of regular mail service, or by
reason of any other cause, it shall be impossible to mail any notice as required
by this Indenture, then such method of notification as shall be made with the
approval of the Trustee shall constitute a sufficient mailing of such notice.
Section 10.03. Communication by Holders with Other Holders. Securityholders
of any Series may communicate pursuant to TIA "SS" 312(b) with other
Securityholders of that Series or of all Series with respect to their rights
under this Indenture or under the Securities of that Series or of all Series.
The Company, the Trustee, the Registrar and anyone else shall have the
protection of TIA "SS" 312(c).
Section 10.04. Certificate and Opinion as to Conditions Precedent. Upon any
request or application by the Company or the Guarantor to the Trustee to take
any action under this Indenture, the Company or the Guarantor, as the case may
be, shall furnish to the Trustee:
(1) an Officer's Certificate stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with; and
(2) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
Section 10.05. Statements Required in Certificate or Opinion. Each
certificate or opinion with respect to compliance with a condition or covenant
provided for in this Indenture (other than statements delivered pursuant to
Section 4.04) shall include:
(1) a statement that the person making such certificate or opinion has
read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of such person he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and
(4) a statement as to whether or not, in the opinion of such person,
such condition or covenant has been complied with.
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Section 10.06. Legal Holidays. A "Legal Holiday" is a Saturday, a Sunday,
or a day on which banking institutions are not required to be open.
Section 10.07. Governing Law. This Indenture, each Security and any coupons
shall be deemed to be a contract made under the laws of the State of New York,
and for all purposes shall be construed in accordance with the laws of said
state.
Section 10.08. No Adverse Interpretation of Other Agreements. This
Indenture may not be used to interpret another indenture, loan or debt agreement
of the Company, the Guarantor or an Affiliate. No such indenture, loan or debt
agreement may be used to interpret this Indenture.
Section 10.09. No Recourse Against Others. No director, officer, employee
or stockholder, as such, of the Company or the Guarantor shall have any
liability for any obligations of the Company or the Guarantor under the
Securities or the Indenture or for any claim based on, in respect of or by
reason of such obligations or their creation. Each Securityholder by accepting a
Security waives and releases all such liability. The waiver and release are part
of the consideration for the issue of the Securities.
Section 10.10. When Treasury Securities Disregarded. In determining whether
the Holders of the required principal amount of Securities have concurred in any
direction, waiver or consent, Securities owned by the Company or any Affiliate
of the Company shall be disregarded, except that for the purposes of determining
whether the Trustee shall be protected in relying on any such direction, waiver
or consent, only Securities which the Trustee knows are so owned shall be so
disregarded. Securities so owned which have been pledged in good faith shall not
be disregarded if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to the Securities and that the pledgee is
not the Company or an Affiliate of the Company.
Section 10.11. Rules by Trustee, Paying Agent, Registrar, Record Dates. The
Trustee may make reasonable rules for action by or a meeting of Securityholders.
The Paying Agent or Registrar may make reasonable rules for its functions. The
Company may set a record date for purposes of determining the identity of
Holders entitled to vote or consent to any action by vote or consent authorized
or permitted under this Indenture, which record date, in the case of a consent
or vote pursuant to Section 6.06, shall be the later of 10 days prior to the
first solicitation of such consent or the date of the most recent list of
Holders furnished to the Trustee pursuant to Section 2.07 of this Indenture
prior to such solicitation. If a record date is fixed, those persons who were
Holders of Securities at such record date (or their duly designated proxies),
and only those persons, shall be entitled to take such action by vote or consent
or to revoke any vote or consent previously given, whether or not such persons
continue to be Holders after such record date. No such vote or consent shall be
valid or effective for more than 120 days after such record date.
Section 10.12. Execution in Counterparts. This Indenture may be executed in
any number of counterparts, each of which shall be an original, but such
counterparts shall together constitute but one instrument.
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Section 10.13. Securities in a Foreign Currency. Unless otherwise specified
in a Company Order delivered pursuant to Section 2.03(d) of this Indenture with
respect to a Series of Securities, whenever for purposes of this Indenture any
action may be taken by the Holders of a specified percentage in aggregate
principal amount of Securities of all Series or all Series affected at the time
outstanding and, at such time, there are outstanding Securities of any Series
which are denominated in a coin or currency other than United States dollars,
then the principal amount of Securities of such Series which shall be deemed to
be outstanding for the purpose of taking such action shall be that amount of
United States dollars that could be obtained for such amount at the Market
Exchange Rate, as such rate shall be certified to the Trustee by an Officer's
Certificate. For purposes of this Section 10.13, "Market Exchange Rate" shall
mean the noon United States dollar buying rate for that currency for cable
transfers quoted in The City of New York as certified for customs purposes by
the Federal Reserve Bank of New York; provided, however, in the case of Euros
("Euros"), "Market Exchange Rate" shall mean the rate of exchange determined by
the Commission of the European Communities (or any successor thereof) as
published in the Official Journal of the European Communities (such publication
or any successor publication, the "Journal"). If such Market Exchange Rate is
not available for any reason with respect to such currency, the Company shall
use, in its sole discretion and without liability on its part, (i) such
quotation of the Federal Reserve Bank of New York, or, in the case of Euros, the
rate of exchange as published in the Journal, as the most recent available date
or (ii) quotations or, in the case of Euros, rates of exchange from one or more
major banks in The City of New York or in the country of issue of the currency
in question, which for purposes of the Euros shall be Brussels, Belgium, or such
other quotations or, in the case of Euros, rates of exchange as the Company
shall deem appropriate. The provisions of this paragraph shall apply in
determining the equivalent number of votes which each Holder or proxy shall be
entitled to in respect of Securities of a Series denominated in a currency other
than United States dollars.
All decisions and determinations of the Company regarding the Market
Exchange Rate shall be in its sole discretion and shall, in the absence of
manifest error, be conclusive for all purposes and irrevocably binding upon the
Company, the Trustee and all Holders.
Section 10.14. Judgment Currency. Each of the Company and the Guarantor
agrees, to the fullest extent that it may effectively do so under applicable
law, that (a) if for the purpose of obtaining judgment in any court it is
necessary to convert any sum due in respect of the principal of or interest on
the Securities of any Series (the "Required Currency") into a currency in which
such judgment will be rendered (the "Judgment Currency"), the rate of exchange
used shall be the rate at which in accordance with normal banking procedures the
Trustee could purchase in The City of New York the Required Currency with the
Judgment Currency on the day on which final judgment is entered, unless such day
is not a New York Banking Day then, to the extent permitted by applicable law,
the rate of exchange used shall be the rate at which in accordance with normal
banking procedures the Trustee could purchase in The City of New York the
Required Currency with the Judgment Currency on the New York Banking Day
preceding the day on which final judgment is entered and (b) its obligations
under this Indenture to make payments in the Required Currency (i) shall not be
discharged or satisfied by any tender, or any recovery pursuant to any judgment
(whether or not entered in accordance with subsection (a)), in any currency
other than the Required Currency, except to the extent that such tender or
recovery shall result in the actual receipt, by the payee, of the full amount of
the Required Currency
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expressed to be payable in respect of such payments, (ii) shall be enforceable
as an alternative or additional cause of action for the purpose of recovering in
the Required Currency the amount, if any, by which such actual receipt shall
fall short of the full amount of the Required Currency so expressed to be
payable and (iii) shall not be affected by judgment being obtained for any other
sum due not previously tendered or recovered under this Indenture. For purposes
of the foregoing, "New York Banking Day" means any day except a Saturday, Sunday
or a legal holiday in The City of New York or a day on which banking
institutions in The City of New York are authorized by law or required by
executive order to close.
Section 10.15. Forum Selection and Consent to Jurisdiction. ANY LITIGATION
BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS INDENTURE,
ANY RELATED AGREEMENT OR THE SECURITIES, OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF THE COMPANY, THE
GUARANTOR OR THE TRUSTEE SHALL BE BROUGHT AND MAINTAINED EXCLUSIVELY IN THE
COURTS OF THE STATE OF NEW YORK OR IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK. THE COMPANY, THE GUARANTOR AND THE TRUSTEE HEREBY
EXPRESSLY AND IRREVOCABLY SUBMIT TO THE NON-EXCLUSIVE JURISDICTION OF ALL
FEDERAL AND STATE COURTS OF THE STATE OF NEW YORK FOR THE PURPOSE OF ANY SUCH
LITIGATION AS SET FORTH ABOVE AND IRREVOCABLY AGREE TO BE BOUND BY ANY JUDGMENT
RENDERED THEREBY IN CONNECTION WITH SUCH LITIGATION. EACH OF THE COMPANY, THE
GUARANTOR AND THE TRUSTEE FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS
BY REGISTERED MAIL, POSTAGE PREPAID, OR BY PERSONAL SERVICE WITHIN OR WITHOUT
THE STATE OF NEW YORK. EACH OF THE COMPANY, THE GUARANTOR AND THE TRUSTEE HEREBY
EXPRESSLY AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY
OBJECTION WHICH IT MAY HAVE OR HEREAFTER MAY HAVE TO THE LAYING OF VENUE OF ANY
SUCH LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT
ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. TO THE EXTENT
THAT THE COMPANY, THE GUARANTOR OR THE TRUSTEE HAS OR HEREAFTER MAY ACQUIRE ANY
IMMUNITY FROM JURISDICTION OF ANY COURT OR FROM ANY LEGAL PROCESS (WHETHER
THROUGH SERVICE OR NOTICE, ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF
EXECUTION OR OTHERWISE) WITH RESPECT TO ITSELF OR ITS PROPERTY, EACH HEREBY
IRREVOCABLY WAIVES SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER THIS
INDENTURE, ANY RELATED AGREEMENT AND THE SECURITIES.
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IN WITNESS WHEREOF, the undersigned have caused this Indenture to be duly
executed as of the date and year first above written.
AT&T CAPITAL CORPORATION
By
_______________________________________
THE CHASE MANHATTAN BANK
By
_______________________________________
NEWCOURT CREDIT GROUP INC.
By
_______________________________________
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STATE OF NEW JERSEY )
) SS: Parsippany, NJ
COUNTY OF MORRIS )
On the ____ day of _________________, 1999, before me personally came
______________, to me known, who, being by me duly sworn, did depose and say
that he resides at __________________, that he is the _________________________
of AT&T Capital Corporation, one of the corporations described in and which
executed the above instrument, and that he signed his name thereto by like
authority.
_______________________________________
Notary Public
STATE OF NEW YORK )
) SS:
COUNTY OF NEW YORK )
On the ___ day of _____________, 1999, before me personally came ________,
to me known, who, being by duly sworn, did depose and say that he resides at
_________________________, that he is a ____________________________ of The
Chase Manhattan Bank, one of the corporations described in and which executed
the above instrument, and that he signed his name thereto by like authority.
_______________________________________
Notary Public
STATE OF NEW JERSEY )
) SS: Parsippany, NJ
COUNTY OF MORRIS )
On the ____ day of _________________, 1999, before me personally came
______________, to me known, who, being by me duly sworn, did depose and say
that he resides at __________________, that he is the _________________________
of Newcourt Credit Group Inc., one of the corporations described in and which
executed the above instrument, and that he signed his name thereto by like
authority.
_______________________________________
Notary Public
EXHIBIT A
FORM OF PARENT GUARANTEE
See Exhibit 4J
to the Registration Statement