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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
United Rentals, Inc.
(Exact Name of Registrant as Specified in Its Charter)
Delaware
(State or Other Jurisdiction of Incorporation or Organization)
06-1522496
(I.R.S. Employer Identification No.)
Four Greenwich Office Park
Greenwich, Connecticut 06830
(203) 622-3131
(Address, Including Zip Code, and Telephone Number, Including Area Code,
of Registrant's Principal Executive Offices)
Bradley S. Jacobs
Four Greenwich Office Park
Greenwich, Connecticut 06830
(203) 622-3131
(Name, Address, Including Zip Code, and Telephone Number, Including Area Code,
of Agent For Service)
A copy of all communications, including communications sent to the agent for
service, should be sent to:
Joseph Ehrenreich, Esq. Stephen M. Besen, Esq.
Ehrenreich Eilenberg Krause & Zivian LLP Weil, Gotshal & Manges LLP
11 East 44th Street 767 Fifth Avenue
New York, NY 10017 New York, NY 10153
(212) 986-9700 (212) 310-8000
Approximate date of commencement of proposed sale to the public: from time to
time after the effective date of this registration statement.
If the only securities being registered on this form are being offered pursuant
to dividend or interest reinvestment plans, check the following box. [_]
If any of the securities being registered on this form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, please check the following box and list
the Securities Act registration
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statement number of the earlier effective registration statement for the same
offering. [_]
If this form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box: [_]
CALCULATION OF REGISTRATION FEE
<TABLE>
- ----------------------------------------------------------------------------------------------
Proposed
Title of Each Class of Maximum
Securities to be Amount to be Aggregate Amount of Registration
Registered Registered (1)(2) Offering Price(1) Fee
- --------------------- ----------------- ----------------- ----------------------
<S> <C> <C> <C>
Common Stock, par
value $0.01 per
share
Debt Securities
Preferred Stock
- ----------------------------------------------------------------------------------------------
Total $750,000,000 $208,500
- ----------------------------------------------------------------------------------------------
</TABLE>
(1) This aggregate public offering price of the securities registered hereby
will not exceed $750,000,000 or the equivalent thereof in one or more
foreign currencies or composite currencies, including the European Currency
Unit. Such aggregate public offering price is estimated solely for purposes
of calculating the registration fee pursuant to Rule 457 under the
Securities Act of 1933.
(2) This registration statement also covers such indeterminate number of shares
of Common Stock and Preferred Stock and indeterminate amounts of Debt
Securities as may be issued upon conversion of, or in exchange for, any
other securities registered hereunder that provide for conversion or
exchange into other securities. No separate consideration will be received
for the Common Stock, Debt Securities or Preferred Stock identified in this
footnote which may be issuable upon conversion of, or in exchange for,
other securities.
The Registrant hereby amends this registration statement on such date or
dates as may be necessary to delay its effective date until the Registrant shall
file a further amendment which specifically states that this registration
statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the registration statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
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PROSPECTUS
$750,000,000
UNITED RENTALS, INC.
Common Stock
Preferred Stock
Debt Securities
------------------------
United Rentals, Inc. may sell, from time to time, in one or more offerings:
. common stock
. preferred stock
. debt securities
The total offering price of these securities, in the aggregate, will not
exceed $750,000,000. Each time we offer securities, we will provide a
prospectus supplement that will contain specific information about the terms of
that offering. You should read this prospectus and any supplements carefully
before you invest.
Our common stock is traded on the New York Stock Exchange under the symbol
"URI."
INVESTING IN THESE SECURITIES INVOLVES CERTAIN RISKS. SEE "RISK FACTORS"
BEGINNING ON PAGE 5.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED IF THIS
PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
The date of this prospectus is January 4, 1999
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CAUTIONARY NOTICE REGARDING FORWARD-LOOKING STATEMENTS
Certain statements contained in, or incorporated by reference in, this
prospectus are forward-looking in nature. Such statements can be identified by
the use of forward-looking terminology such as "believes," "expects," "may,"
"will," "should," or "anticipates" or the negative thereof or comparable
terminology, or by discussions of strategy. You are cautioned that our business
and operations are subject to a variety of risks and uncertainties and,
consequently, our actual results may materially differ from those projected by
any forward-looking statements. Certain of such risks and uncertainties are
discussed below under the heading "Risk Factors." We make no commitment to
revise or update any forward-looking statements in order to reflect events or
circumstances after the date any such statement is made.
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with the
SEC using a "shelf" registration process. Under this shelf process, we may sell
any combination of the securities described in this prospectus in one of more
offerings up to a total dollar amount of $750,000,000. This prospectus provides
you with a general description of the securities we may offer. Each time we
offer securities, we will provide a prospectus supplement that will contain
specific information about the terms of that offering. The prospectus
supplement may also add, update or change information contained in this
prospectus. You should read both this prospectus and any prospectus supplement
together with additional information described under the heading "Where You Can
Find More Information."
We have filed as exhibits to the registration statement certain of the
contracts and other documents that we have summarized in this prospectus. Since
these summaries may not contain all the information that you may find important,
you should review the full text of these documents. The registration statement
can be obtained from the SEC as indicated under the heading "Where You Can Find
More Information."
WHERE YOU CAN FIND MORE INFORMATION
We file reports, proxy statements, and other information with the SEC.
Such reports, proxy statements, and other information can be read and copied at
the SEC's Public Reference Room at 450 Fifth Street, N.W., Washington, D.C.
20549. Please call the SEC at 1-800-SEC-0330 for further information on the
Public Reference Room. The SEC maintains an internet site at http://www.sec.gov
that contains reports, proxy and information statements and other information
regarding issuers that file electronically with the SEC, including our company.
INCORPORATION BY REFERENCE
The SEC allows us to "incorporate by reference" the documents that we file
with the SEC. This means that we can disclose important information to you by
referring you to those documents. Any information we incorporate in this manner
is considered part of this prospectus. Any information we file with SEC after
the date of this prospectus will automatically update and supersede the
information contained in this prospectus.
We incorporate by reference the following documents that we have filed with
the SEC and any filings that we will make with the SEC in the future under
Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 until
this offering is completed:
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. Annual Report on Form 10-K for the year ended December 31,1997;
. Quarterly Reports on Form 10-Q for the quarters ended March 31, 1998,
June 30, 1998 and September 30, 1998;
. Current Report on Form 8-K dated January 27, 1998 and Amendment No. 1
thereto on Form 8-K/A dated February 4, 1998;
. Current Report on Form 8-K dated June 18, 1998 and Amendment No. 1
thereto on Form 8-K/A dated July 21, 1998;
. Current Report on Form 8-K dated June 19, 1998;
. Current Report on Form 8-K dated July 21, 1998;
. Current Report on Form 8-K dated August 7, 1998;
. Current Report on Form 8-K dated September 16, 1998;
. Current Report on Form 8-K dated October 9, 1998;
. Current Report on Form 8-K dated December 15, 1998;
. Current Report on Form 8-K dated December 24, 1998 ; and
. Registration Statement on Form 8-A dated November 7, 1998 (filed on
December 3, 1998) and Registration Statement on Form 8-A dated August 6,
1998.
We will provide without charge, upon written or oral request, a copy of any
or all of the documents which are incorporated by reference into this
prospectus. Requests should be directed to: United Rentals, Inc., Attention:
Corporate Secretary, Four Greenwich Office Park, Greenwich, Connecticut 06830,
telephone number: (203) 622-3131.
UNITED RENTALS, INC.
GENERAL
We are the largest equipment rental company in North America. We offer for
rent a wide variety of equipment (on a daily, weekly, or monthly basis) and
serve customers that include construction industry participants, industrial
companies, homeowners and others. We also sell used equipment, act as a dealer
for certain new equipment, and sell related merchandise and parts.
Our executive offices are located at Four Greenwich Office Park, Greenwich,
Connecticut 06830. Our telephone number is (203) 622-3131.
COMPETITIVE ADVANTAGES
We believe that we benefit from the following competitive advantages:
Low-Cost Purchasing. We have significant purchasing power due to our size
and volume purchasing. As a result, we are able to buy new equipment at prices
that are significantly lower than those generally available to smaller
companies. We are also able to purchase many other products and services--such
as insurance, telephone service and fuel--at attractive rates.
Operating Efficiencies. We generally group our branches into clusters of
10 to 30 locations within a particular geographic region. Our information
technology system links all
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branches within a cluster and enables each branch to track and access all
equipment at any other branch within the cluster. We believe that our cluster
strategy produces significant operating efficiencies, including the following:
. the equipment within a cluster is marketed through multiple branches rather
than a single branch--thereby increasing equipment utilization rates;
. the equipment specialties of different branches are cross-marketed--thereby
increasing revenues without increasing marketing expense; and
. costs are reduced through the centralization of common functions such as
payroll, credit and collection, and heavy maintenance.
Full Range of Rental Equipment. We believe that we have one of the largest
and most diverse equipment rental fleets in the industry. We believe that the
size and diversity of our fleet provide significant advantages, including
enabling us to:
. serve a large and diverse customer base--thereby reducing dependence on any
particular customer;
. satisfy most or all of a customer's equipment rental needs--thereby
increasing the revenues that can be generated from each customer;
. attract customers by providing the benefit of "one-stop" shopping;
. serve the needs of large customers--such as large industrial companies--
which require assurance that large quantities of diverse equipment will be
available as required; and
. minimize lost sales due to equipment being unavailable.
Information Technology System. We have a modern information technology
system designed to facilitate rapid and informed decision making. This system
provides management with a wide range of real time operating and financial data-
- -including data relating to inventory, receivables, customers, vendors, fleet
utilization and price and sales trends. This system also enables branch
personnel to search for needed equipment throughout a geographic region,
determine the closest location of such equipment and arrange for delivery to the
customer's work site.
Geographic Diversity. We believe that our geographic diversity should
reduce our sensitivity to fluctuations in regional economic conditions and
enable us to transfer equipment to regions where demand is increasing from
regions where demand is flat or decreasing. We also believe that our geographic
diversity and large network of branch locations provide significant operating
advantages including the ability to service national accounts and access used
equipment re-sale markets across the country.
Experienced Management. Our senior management team includes managers with
extensive experience in the equipment rental industry and others with proven
track-records in other industries. Our senior management is supported by our
branch managers who have substantial industry experience and knowledge of the
local markets served. Our senior management is also supported by a team of
acquisition specialists who are engaged full-time in evaluating acquisition
candidates and executing our acquisition program.
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RISK FACTORS
In addition to the other information in this document, you should carefully
consider the following factors before making an investment.
SENSITIVITY TO CHANGES IN CONSTRUCTION AND INDUSTRIAL ACTIVITIES
Our equipment is principally used in connection with construction and
industrial activities. Consequently, a downturn in construction or industrial
activity may lead to a decrease in demand for our equipment, which could
adversely affect our business. We have identified below certain of the factors
which may cause such a downturn either temporarily or long-term:
. a general slow-down of the economy;
. an increase in interest rates; or
. adverse weather conditions which may temporarily affect a particular
region.
ACQUIRED COMPANIES NOT HISTORICALLY OPERATED AS A COMBINED BUSINESS
The businesses that we acquired have been in existence an average of 29
years and some have been in existence for more than 50 years. However, these
businesses were not historically managed or operated as a single business.
Although we believe that we can successfully manage and operate the acquired
businesses as a single business, we cannot be certain of this.
LIMITED OPERATING HISTORY
We commenced equipment rental operations in October 1997 with the
acquisition of six well-established rental companies and have grown through a
combination of internal growth, the acquisition of 85 additional companies
(through January 4, 1999), and a merger in September 1998 with U.S. Rentals,
Inc. Due to the relatively recent commencement of our operations, we have only a
limited history upon which you can base an assessment of our business and
prospects.
RISKS RELATING TO GROWTH STRATEGY
Our growth strategy is to continue to expand through a combination of
internal growth, a disciplined acquisition program and the opening of new rental
locations. We have identified below some of the risks relating to our growth
strategy:
AVAILABILITY OF ACQUISITION TARGETS AND SITES FOR START-UP LOCATIONS. We
may encounter substantial competition in our efforts to acquire additional
rental companies and sites for start-up locations. Such competition could have
the effect of increasing the prices that we will have to pay in order to acquire
such businesses and sites. We cannot guarantee that any additional businesses or
sites that we may wish to acquire will be available to us on terms that are
acceptable to us.
NEED TO INTEGRATE NEW OPERATIONS. Our ability to realize the expected
benefits from completed and future acquisitions depends, in large part, on our
ability to integrate the new operations with our existing operations in a timely
and effective manner. We, accordingly, devote substantial efforts to the
integration of new operations. We cannot, however, guarantee that these effort
will always be successful. In addition, under certain circumstances, these
efforts
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could adversely affect our existing operations.
DEBT COVENANTS. Certain of the agreements governing our outstanding
indebtedness provide that we may not make acquisitions unless certain financial
conditions are satisfied or the consent of the lenders is obtained. Our ability
to grow through acquisitions may be constrained as a result of these provisions.
CERTAIN RISKS RELATED TO START-UP LOCATIONS. We expect that start-up
locations may initially have a negative impact on our results of operations and
margins for a number of reasons, including that (1) we will incur significant
start-up expenses in connection with establishing each start-up location and (2)
it will generally take some time following the commencement of operations for a
start-up location to become profitable. Although we believe that start-ups can
generate long-term growth, we cannot guarantee that any start-up location will
become profitable within any specific time period, if at all.
DEPENDENCE ON ADDITIONAL CAPITAL TO FINANCE GROWTH
We will require substantial capital in order to execute our growth
strategy. We will require capital for, among other purposes, completing
acquisitions, establishing new rental locations, and acquiring rental equipment.
If the cash that we generate from our business, together with cash that we may
borrow under our credit facility, is not sufficient to fund our capital
requirements, we will require additional debt and/or equity financing. We
cannot, however, be certain that any additional financing will be available or,
if available, will be available on terms that are satisfactory to us. If we are
unable to obtain sufficient additional capital in the future, our ability to
implement our growth strategy could be limited.
POSSIBLE UNDISCOVERED LIABILITIES OF ACQUIRED COMPANIES
Prior to making an acquisition, we seek to assess the liabilities of the
target company that we will become responsible for as a result of the
acquisition. Nevertheless, we may fail to discover certain of such liabilities.
We seek to reduce our risk relating to these possible hidden liabilities by
generally obtaining the agreement of the seller to reimburse us in the event
that we discover any material hidden liabilities. However, this type of
agreement, if obtained, may not fully protect us against hidden liabilities
because (1) the seller's obligation to reimburse us is generally limited in
duration and/or amount and (2) the seller may not have sufficient financial
resources to reimburse us. Furthermore, when we acquire a public company (such
as when we acquired U.S. Rentals) there is no seller from which to obtain this
type of agreement.
DEPENDENCE ON MANAGEMENT
We are highly dependent upon our senior management team. Consequently, our
business could be adversely affected in the event that we lose the services of
any member of senior management. Furthermore, if we lose the services of
certain members of senior management, it is an event of default under the
agreements governing our credit facility and certain of our other indebtedness,
unless we appoint replacement officers satisfactory to the lenders within 30
days. We do not maintain "key man" life insurance with respect to members of
senior management.
COMPETITION
The equipment rental industry is highly fragmented and competitive. Our
competitors include public companies or divisions of public companies; regional
competitors which operate in one or more states; small, independent businesses
with one or two rental locations; and
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equipment vendors and dealers who both sell and rent equipment directly to
customers. We may in the future encounter increased competition from our
existing competitors or from new companies. In addition, certain equipment
manufacturers may commence (or increase their existing efforts relating to)
renting and selling equipment directly to our customers.
QUARTERLY FLUCTUATIONS OF OPERATING RESULTS
We expect that our revenues and operating results may fluctuate from
quarter to quarter due to a number of factors, including:
. seasonal rental patterns of our customers--with rental activity tending
to be lower in the winter;
. changes in general economic conditions in our markets, including changes
in construction and industrial activities;
. the timing of acquisitions, new location openings, and related
expenditures;
. the effect of the integration of acquired businesses and start-up
locations;
. the timing of expenditures for new equipment and the disposition of used
equipment; and
. price changes in response to competitive factors.
LIABILITY AND INSURANCE
We are exposed to various possible claims relating to our business. These
include claims relating to (1) personal injury or death caused by equipment
rented or sold by us, (2) motor vehicle accidents involving our delivery and
service personnel and (3) employment related claims. We carry a broad range of
insurance for the protection of our asset and operations. However, such
insurance may not fully protect us for a number of reasons, including:
. our coverage is subject to a deductible of $1 million and limited to a
maximum of $97 million per occurrence;
. we do not maintain coverage for environmental liability, since we
believes that the cost for such coverage is high relative to the benefit
that it provides;
. certain types of claims, such as claims for punitive damages or for
damages arising from intentional misconduct, which are often alleged in
third party lawsuits, might not be covered by our insurance; and
. we cannot be certain that insurance will continue to be available to us
on economically reasonable terms, if at all.
ENVIRONMENTAL AND SAFETY REGULATIONS
Our equipment, facilities and operations are subject to certain federal,
state and local laws and regulations relating to environmental protection and
occupational health and safety. These include, among other things, laws and
regulations governing wastewater discharges, the use, treatment, storage and
disposal of solid and hazardous wastes and materials, air quality and the
remediation of contamination associated with the release of hazardous
substances. Under such laws, an owner or lessee of real estate may be liable
for, among other things, (1) the costs of removal or remediation of certain
hazardous or toxic substances located on, in, or emanating
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from, such property, as well as related costs of investigation and property
damage and substantial penalties for violations of such laws, and (2)
environmental contamination at facilities where its waste is or has been
disposed. Such laws often impose such liability without regard to whether the
owner or lessee knew of, or was responsible for, the presence of such hazardous
or toxic substances. Our activities that are or may be impacted by these laws
include, but are not limited to, the use of hazardous materials to clean and
maintain equipment and the disposal of solid and hazardous waste and wastewater
from equipment washing. In addition, we dispense petroleum products from
underground and above-ground storage tanks located at certain rental locations
and are required from time to time to remove or upgrade tanks in order to comply
with applicable laws. Furthermore, we have acquired or leased certain locations
which have or may have been contaminated by leakage from underground tanks or
other sources and are in the process of assessing the nature of the required
remediation. Based on the conditions currently known to us, we believe that any
unreserved environmental remediation and compliance costs required with respect
to those conditions will not have a material adverse affect on our business.
However, we cannot be certain that there are no adverse environmental conditions
that are not currently known to us, that all potential releases from underground
storage tanks removed in the past have been identified, or that environmental
and safety requirements will not become more stringent or be interpreted and
applied more stringently in the future. If we are required to incur
environmental compliance or remediation costs that are not currently anticipated
by us, our business could be adversely affected depending on the magnitude of
the cost.
CONCENTRATED CONTROL
The executive officers and directors of our company own in the aggregate
more than 50% of our outstanding common stock. As a result, these persons acting
together may be able to elect the entire Board of Directors of our company and
control its affairs.
RISKS RELATED TO INTERNATIONAL OPERATIONS
Our operations outside the United States are subject to risks normally
associated with international operations. These include the need to convert
currencies, which could result in a gain or loss depending on fluctuations in
exchange rates, and the need to comply with foreign laws.
YEAR 2000 ISSUES
Our software vendors have informed us that our recently-installed
information technology system is year 2000 compliant. We have, therefore, not
developed any contingency plans relating to year 2000 issues and have not
budgeted any funds for year 2000 issues. Although we believe that our system is
year 2000 compliant, unanticipated year 2000 problems may arise which, depending
on the nature and magnitude of the problem, could adversely affect our business.
Furthermore, year 2000 problems involving third parties may have a negative
impact on our customers or suppliers, the general economy or on the ability of
businesses generally to receive essential services (such as telecommunications,
banking services, etc.). Any such occurrence could adversely affect our
business.
USE OF PROCEEDS
Unless the accompanying prospectus supplement indicates otherwise, we
expect to use the net proceeds from any sale of securities for our general
corporate activities, which may include:
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. making acquisitions;
. repaying, refinancing, redeeming or repurchasing existing indebtedness or
capital stock;
. making capital expenditures; or
. funding working capital requirements.
RATIO OF EARNINGS TO FIXED CHARGES
The following table shows our ratio of earnings to fixed charges for
certain periods. For purposes of calculating this ratio:
. earnings consist of income before income taxes and extraordinary items
plus fixed charges (but only to the extent that fixed charges were
deducted in calculating income); and
. fixed charges consist of interest expensed and capitalized; amortized
premiums, discounts and capitalized expenses related to indebtedness; and
our estimate of the interest portion of rental expense.
<TABLE>
<CAPTION>
Nine Months Ended
Year Ended December 31, September 30,
----------------------------------------------- ------------------------
<S> <C> <C> <C> <C> <C> <C>
1993 1994 1995 1996 1997 1997 1998
4.0x 4.5x 4.8x 4.0x 3.4x 3.2x 1.8x(a)
</TABLE>
- -------------------------
(a) Earnings during this period were impacted by merger-related expenses of
$42.2 million. Excluding such expenses, the ratio of earnings to fixed
charges during this period would have been 2.7x.
CERTAIN INFORMATION CONCERNING THE SECURITIES
We have provided below certain general information concerning the
securities that we may offer from time to time. Each time that we offer any of
these securities, we will provide a prospectus supplement that will contain
specific information about the terms of the securities being offered.
COMMON STOCK
The holders of Common Stock:
. are entitled to one vote per share;
. do not have cumulative voting rights;
. do not have preemptive rights;
. are entitled to receive dividends, if any, that may be declared by the
board of directors (subject to the rights of preferred stockholders);
and
. upon liquidation, dissolution or winding-up our business, are entitled to
any assets remaining after we pay our creditors (subject to the rights of
preferred
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stockholders).
PREFERRED STOCK
We may issue preferred stock in one or more series. The Board of Directors
will fix the terms of each series of preferred stock, including any rights
relating to dividends, voting, conversion, redemption, and liquidation
preference. Our Certificate of Incorporation authorizes the Board of Directors
to fix the terms of each series of preferred stock without obtaining stockholder
approval.
DEBT SECURITIES
GENERAL
We may offer senior notes or subordinated notes in one or more series. The
senior notes and subordinated notes will be issued under separate indentures
between us and a trustee to be selected. These two indentures are referred to
together as the "Indentures," and the trustee under each indenture is referred
to as the "Trustee."
We have summarized selected provisions of the Indentures below. This
summary is not complete. The forms of the Indentures have been filed as
exhibits to the registration statement and you should read the Indentures for
provisions that may be important to you. Capitalized terms that are used in the
summary without being defined have the meanings specified in the Indentures.
We have not yet fixed the specific terms of any series of notes. Prior to
offering any series of notes, we will fix the terms of such series, including:
. the title;
. any limit on the amount that may be issued;
. whether or not such series of notes will be issued in global form;
. the maturity date(s);
. the annual interest rate(s) (which may be fixed or variable) or the
method for determining the rate(s) and the date(s) interest will begin to
accrue, the date(s) interest will be payable and the regular record dates
for interest payment dates or the method for determining such date(s);
. the place(s) where payments shall be payable;
. our right, if any, to defer payment of interest and the maximum length of
any such deferral period;
. the date, if any, after which, and the price(s) at which, such series of
notes may, pursuant to any optional redemption provisions, be redeemed at
our option, and other related terms and provisions;
. the date(s), if any, on which, and the price(s) at which we are
obligated, pursuant to any mandatory sinking fund provisions or
otherwise, to redeem, or at the Holder's option to purchase, such series
of notes and other related terms and provisions;
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. the denominations in which such series of notes will be issued, if other
than denominations of $1,000 and any integral multiple thereof; and
. any other terms that are not inconsistent with the Indenture.
RANKING
The senior notes and the subordinated notes will be unsecured general
obligations of our company. The senior notes will rank equally with all our
other unsecured senior and unsubordinated debt. The subordinated notes will
have a junior position to certain of our other indebtedness. The applicable
prospectus supplement relating to each series of subordinated notes will
describe the extent to which such notes will have such a junior position.
We are a holding company and principally conduct our operations through our
subsidiaries. The senior notes and the subordinated notes will be solely our
obligation (that is the obligation of United Rentals, Inc.) and will not be the
obligation of any of our subsidiaries. As a result, the holders of both the
senior notes and the subordinated notes will generally have a junior position to
claims of creditors of our subsidiaries, including trade creditors and debt
holders.
The Indentures do not restrict us from issuing any other secured or
unsecured debt.
FORM, EXCHANGE, AND TRANSFER
The notes of each series will be issuable only in fully registered form
without coupons and, unless otherwise specified in the applicable prospectus
supplement, in denominations of $1,000 and any integral multiple thereof. The
Indentures will provide that notes of a series may be issuable in temporary or
permanent global form and may be issued as book-entry securities that will be
deposited with, or on behalf of, a depository named by us and identified in a
prospectus supplement with respect to such series.
Subject to the terms of the Indentures and the limitations applicable to
global securities described in the applicable prospectus supplement:
. at the option of the holder, notes of any series will be exchangeable for
other notes of the same series, in any authorized denomination and of
like tenor and aggregate principal amount;
. notes may be presented for exchange or for registration of transfer (duly
endorsed or with the form of transfer endorsed thereon duly executed if
so required by us or the Security Registrar) at the office of the
Security Registrar or at the office of any transfer agent designated by
us for such purpose.
Unless otherwise provided in the notes to be transferred or exchanged, no
service charge will be made for any registration of transfer or exchange, but we
may require payment of any taxes or other governmental charges. The Security
Registrar and any transfer agent (in addition to the Security Registrar)
initially designated by us for any series of notes will be named in the
applicable prospectus supplement. We may at any time designate additional
transfer agents or rescind the designation of any transfer agent or approve a
change in the office through which any transfer agent acts, except that we will
be required to maintain a transfer agent in each place of payment for the notes
of each series.
If the notes of any series are to be redeemed, we will not be required to
issue, register the transfer of, or exchange any notes of that series during a
period beginning at the opening of
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<PAGE>
business 15 days before the day of mailing of a notice of redemption of any such
notes that may be selected for redemption and ending at the close of business on
the day of such mailing. Furthermore, we will not be required to register the
transfer of, or exchange any, notes so selected for redemption, in whole or in
part, except the unredeemed portion of any such notes being redeemed in part.
EVENTS OF DEFAULT UNDER THE INDENTURES
The following are events of default under the Indentures with respect to
any series of notes issued:
. failure to pay interest when due and such failure continues for 90 days
and the time for payment has not been extended or deferred;
. failure to pay the principal (or premium, if any) when due;
. failure to observe or perform any other covenant contained in the notes
or the Indentures (other than a covenant specifically relating to another
series of notes), and such failure continues for 90 days after we receive
notice from the Trustee or holders of at least 25% in aggregate principal
amount of the outstanding notes of that series; and
. certain events of bankruptcy, insolvency or reorganization of our
company.
If an event of default with respect to the notes of any series occurs and
is continuing, the Trustee or the holders of at least 25% in aggregate principal
amount of the outstanding notes of that series, by notice in writing to us (and
to the Trustee if notice is given by such holders), may declare the unpaid
principal of, premium, if any, and accrued interest, if any, due and payable
immediately. Subject to certain conditions, the holders of a majority in
aggregate principal amount of the outstanding notes of that series, by written
notice to us and the Trustee, may rescind and annul such declaration.
Subject to the terms of the Indentures, if an event of default under an
Indenture shall occur and be continuing, the Trustee will be under no obligation
to exercise any of its rights or powers under such Indenture at the request or
direction of any of the holders of the applicable series of notes, unless such
holders have offered the Trustee reasonable indemnity. The holders of a majority
in principal amount of the outstanding notes of any series will 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 notes of that series, provided that:
. the direction is not in conflict with any law or the applicable
Indenture;
. the Trustee may take any other action deemed proper by it which is not
inconsistent with such direction; and
. subject to its duties under the Trust Indenture Act of 1939, the Trustee
need not take any action that might involve it in personal liability or
might be unduly prejudicial to the holders not involved in the
proceeding.
A holder of the notes of any series will only have the right to institute a
proceeding under the Indentures or to appoint a receiver or trustee, or to seek
other remedies if:
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. the holder has given written notice to the Trustee of a continuing event
of default with respect to that series;
. the holders of at least 25% in aggregate principal amount of the
outstanding notes of that series have made written request, and such
holders have offered reasonable indemnity to the Trustee, to institute
such proceedings as Trustee; and
. the Trustee does not institute such proceeding, and does not receive from
the holders of a majority in aggregate principal amount of the
outstanding notes of that series other conflicting directions within 60
days after such notice, request and offer.
These limitations do not apply to a suit instituted by a holder of notes if we
default in the payment of the principal, premium, if any, or interest on, the
notes.
CONSOLIDATION, MERGER OR SALE
The Indentures do not restrict our ability to merge or consolidate, or sell,
convey, transfer or otherwise dispose of all or substantially all of our assets.
However, any successor or acquirer of such assets must assume all of our
obligations under the Indentures.
MODIFICATION OF INDENTURE; WAIVER
The Company and the Trustee may change an Indenture without the consent of
any holders with respect to certain matters. These matters include (1) fixing
any ambiguity, defect or inconsistency in such Indenture and (2) changing
anything that does not materially adversely affect the interests of any holder
of notes of any series.
In addition, under the Indentures, the rights of holders of a series of
notes may be changed by us and the Trustee with the written consent of the
holders of at least a majority in aggregate principal amount of the outstanding
notes of each series that is affected. However, the following changes may only
be made with the consent of each holder of any outstanding notes affected (1)
extending the fixed maturity of such series of notes, (2) reducing the principal
amount, reducing the rate of or extending the time of payment of interest, or
any premium payable upon the redemption of any such notes or (3) reducing the
percentage of notes, the holders of which are required to consent to any
amendment.
INFORMATION CONCERNING THE TRUSTEE
The Trustee, other than during the occurrence and continuance of an event
of default under an Indenture, undertakes to perform only such duties as are
specifically set forth in the Indentures and, upon an event of default under an
Indenture, must use the same degree of care as a prudent person would exercise
or use in the conduct of his or her own affairs. Subject to this provision, the
Trustee is under no obligation to exercise any of the powers given it by the
Indentures at the request of any holder of notes unless it is offered reasonable
security and indemnity against the costs, expenses and liabilities that it might
incur. The Trustee is not required to spend or risk its own money or otherwise
become financially liable while performing its duties unless it reasonably
believes that it will be repaid or receive adequate indemnity.
PAYMENT AND PAYING AGENTS
Unless otherwise indicated in the applicable prospectus supplement, payment
of the interest on any notes on any interest payment date will be made to the
person in whose name
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such notes (or one or more predecessor securities) are registered at the close
of business on the regular record date for such interest.
Principal of and any premium and interest on the notes of a particular
series will be payable at the office of the paying agents designated by us,
except that interest payments may be made by check mailed to the holder.
Unless otherwise indicated in the applicable prospectus supplement, the
corporate trust office of the Trustee in the City of New York will be designated
as our sole paying agent for payments with respect to notes of each series. Any
other paying agents initially designated by us for the notes of a particular
series will be named in the applicable prospectus supplement. We will be
required to maintain a paying agent in each place of payment for the notes of a
particular series.
All moneys paid by us to a paying agent or the Trustee for the payment of
the principal of or any premium or interest on any notes which remains unclaimed
at the end of two years after such principal, premium or interest has become due
and payable will be repaid to us, and the holder of the security thereafter may
look only to us for payment thereof.
GOVERNING LAW
The Indentures and the notes will be governed by and construed in
accordance with the laws of the State of New York except to the extent that the
Trust Indenture Act of 1939 shall be applicable.
PLAN OF DISTRIBUTION
We may sell the securities being offered hereby (1) directly to purchasers,
(2) through agents, (3) through dealers or (4) through underwriters. We and our
agents and underwriters may sell the securities being offered hereby from time
to time in one or more transactions:
. at a fixed price or prices, which may be changed;
. at market prices prevailing at the time of sale;
. at prices related to such prevailing market prices; or
. at negotiated prices.
Each time that we offer securities, we will disclose in the related
prospectus supplement the terms of the offering of the securities, including the
name or names of any underwriters or agents, the purchase price of such
securities and the proceeds to us from such sale, any underwriting discounts or
agency fees and other items constituting underwriters' or agents' compensation,
any initial public offering price, any discounts or concessions allowed or
reallowed or paid to dealers and any securities exchanges on which such
securities may be listed.
If underwriters are used in the sale, the underwriters will acquire the
securities for their own account and they may resell the securities, from time
to time, in one or more transactions. Underwriters may receive compensation from
us in the form of discounts or commissions, and to the extent they act as
agents, they may also receive commissions from the purchasers of securities.
Underwriters also may sell securities to or through dealers. Dealers may receive
compensation in the form of discounts, concessions or commissions from the
underwriters, and to the extent they act as agents, commissions from the
purchasers of securities.
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<PAGE>
We may enter into agreements with underwriters and agents which require us
to indemnify them against certain civil liabilities, including liabilities under
the Securities Act of 1933, or to contribute to payments which the underwriters
or agents may be required to make in respect of these liabilities.
Underwriters and agents may engage in transactions with us or perform
services for us in the ordinary course of business.
Each series of securities will be a new issue of securities and will have
no established trading market, with the exception of our common stock which is
listed on the NYSE. We will list any common stock that we sell on the NYSE. If
we sell securities through underwriters, the underwriters may make a market in
such securities. However, they will not be obligated to do so and may
discontinue any market making at any time without notice. If we offer securities
other than common stock, we may elect to list such securities on a securities
exchange, but we are not obligated to do so.
Any underwriter may engage in over-allotment, stabilizing and syndicate
short covering transactions and penalty bids in accordance with Regulation M of
the Securities Exchange Act of 1934. Over-allotment involves sales in excess of
the offering size, which creates a short position. Stabilizing transactions
involve bids to purchase the underlying security so long as the stabilizing bids
do not exceed a specified maximum. Syndicate short covering transactions
involve purchases of securities in the open market after the distribution has
been completed in order to cover syndicate short positions. Penalty bids permit
the underwriters to reclaim selling concessions from dealers when the securities
originally sold by such dealers are purchased in covering transactions to cover
syndicate short positions. These transactions may cause the price of the
securities sold in an offering to be higher than it would otherwise be. These
transactions, if commenced, may be discontinued by the underwriters at any time.
LEGAL MATTERS
Certain legal matters relating to the securities being offered will be
passed upon for us by Weil, Gotshal & Manges LLP, New York, New York, and
Ehrenreich Eilenberg Krause & Zivian LLP, New York, New York.
EXPERTS
Ernest & Young LLP, independent auditors, have audited the following
financial statements, as set forth in their reports, which are incorporated in
this prospectus by reference:
. the consolidated financial statements of United Rentals, Inc. as of
December 31, 1997 and 1996 and for each of the two years in the period
ended December 31, 1997 and 1996 included in the Company's Current Report
on Form 8-K dated December 15, 1998;
. the financial statements of Mission Valley Rentals, Inc. at June 30, 1996
and 1997 and for the years then ended included in the Company's Current
Report on Form 8-K/A dated February 4, 1998;
. the financial statements of Power Rental Co. Inc. at July 31, 1997 and
for the year then ended, included in the Company's Current Report on Form
8-K/A dated July 21, 1998 and in the Company's Current Report on Form 8-K
dated December 24,1998;
. the combined financial statements of Valley Rentals, Inc. at December 31,
1997 and for the year then ended, and the financial statements of J&J
Rental Services, Inc., at December 31, 1996 and October 22, 1997 and for
each of the two years in the period ended December 31, 1996, the six
months ended June 30, 1997 and for the period from July 1, 1997 to
October 22, 1997, the financial statements of Bronco Hi-Lift, Inc. at
December 31, 1996 and October 24, 1997 and for each of the two years in
the period ended December 31, 1996 and for the period from January 1,
1997 to October 24,
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<PAGE>
1997, the financial statements of Pro Rentals, Inc. at December 31, 1997 and for
the year then ended, the combined financial statements of Able Equipment Rental,
Inc. at December 31, 1997 and for the year then ended, the combined financial
statements of Channel Equipment Holding, Inc. at December 31, 1997 and for the
year then ended, the financial statements of ASC Equipment Company at December
31, 1997 and for the year then ended, and the combined financial statements of
Adco Equipment, Inc. at December 31, 1997 and for the year then ended, included
in the Company's Current Report on Form 8-K dated December 24,1998, these
financial statements are incorporated by reference in reliance on their reports,
given on their authority as experts in accounting and auditing.
The consolidated statements of income, of cash flows and of changes in
stockholders' equity of United Rentals (North America), Inc. for the year ended
December 31, 1995, included in the Company's Current Report on Form 8-K dated
December 15, 1998, and the financial statements of U.S. Rentals, Inc. at
December 31, 1997 and 1996 and for each of the three years in the period ended
December 31, 1997, incorporated by reference in the Company's Current Report on
Form 8-K dated October 9, 1998, have been audited by PricewaterhouseCoopers LLP,
independent accountants, as set forth in their reports thereon included therein,
and are incorporated by reference herein in reliance on such reports given upon
the authority of such firm as experts in accounting and auditing.
The consolidated financial statements of A&A Tool Rentals & Sales, Inc. and
subsidiary as of October 19, 1997 and October 31, 1996, and for the period from
November 1, 1996 to October 19, 1997 and for the years ended October 31, 1996
and 1995, included in the Company's Current Report on Form 8-K dated December
24, 1998, have been audited by KPMG Peat Marwick LLP, independent certified
public accountants, as set forth in their report thereon included therein, and
are incorporated by reference herein in reliance on such report given upon the
authority of such firm as experts in accounting and auditing.
The financial statements of MERCER Equipment Company included in the
Company's Current Report on Form 8-K dated December 24, 1998 have been audited
by Webster Duke & Co., independent auditors, as set forth in their reports
thereon included therein, and are incorporated by reference herein in reliance
on such reports given upon the authority of such firm as experts in accounting
and auditing.
The combined financial statements of Coran Enterprises, Inc. (dba A-1
Rents) and Monterey Bay Equipment Rental, Inc. included in the Company's Current
Report on Form 8-K dated December 24, 1998 have been audited by Grant Thornton
LLP, independent auditors, as set forth in their report thereon appearing
therein, and are incorporated by reference herein in reliance on such report
given upon the authority of such firm as experts in accounting and auditing.
The combined financial statements of BNR Group of Companies as of March 31,
1996 and 1997 and for the years ended March 31, 1996 and 1997 included in the
Company's Current Report on Form 8-K/A dated February 4, 1998; and the
consolidated financial statements of Perco Group Ltd. as of December 31 1997 and
for the year ended December 31, 1997, included in the Company's Current Report
on Form 8-K dated December 24, 1998, have been incorporated by reference herein
in reliance upon the reports of KPMG LLP, independent chartered
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accountants, appearing therein and upon the authority of such firm as experts in
accounting and auditing.
The audited financial statements of Access Rentals, Inc. and Subsidiary and
Affiliate, included in the Company's Current Report on Form 8-K/A dated February
4, 1998, have been incorporated by reference herein in reliance upon the report
of Battaglia, Andrews & Moag, P.C., independent certified public accountants,
210 East Main Street, Batavia, New York 14020, for the periods indicated, given
upon the authority of such firm as experts in accounting and auditing.
The financial statements of West Main Rentals & Sales, Incorporated as of
December 31, 1997, and the year then ended, included in the Company's Current
Report on Form 8-K dated December 24, 1998, have been incorporated by reference
herein in reliance upon the report of Moss Adams LLP, independent certified
public accountants, appearing therein and upon the authority of such firm as
experts in accounting and auditing.
The combined financial statements of Equipment Supply Co., Inc. and
Affiliates as of December 31, 1997 and 1996 and for each of the three years in
the period ended December 31, 1997, included in the Company's Current Reports on
Form 8-K dated July 21, 1998 and December 24, 1998, have been audited by BDO
Seidman, LLP independent certified public accountants, as set forth in their
report thereon included therein, and are incorporated by reference herein in
reliance on such report given upon the authority of such firm as experts in
accounting and auditing.
The consolidated financial statements of McClinch Inc. and subsidiaries as
of January 31, 1998 and August 31, 1998, and for the year ended January 31, 1998
and the financial statements of McClinch Equipment Services, Inc. as of December
31, 1997 and August 31, 1998, and for the year ended December 31, 1997, included
in the Company's Current Report on Form 8-K dated December 24, 1998, have been
audited by PricewaterhouseCoopers L.L.P., independent accountants, as set forth
in their reports thereon included therein, and are incorporated by reference
herein in reliance on such reports given upon the authority of such firm as
experts in accounting and auditing.
The financial statements of Lift Systems, Inc. as of December 31, 1997 and
the year then ended included in the Company's Current Report on Form 8-K dated
December 24, 1998 are incorporated by reference herein in reliance upon the
report of Altschuler, Melvoin and Glasser LLP, independent accountants,
appearing therein and upon the authority of such firm as experts in accounting
and auditing.
The financial statements of Reitzel Rentals Ltd. as of February 28, 1998
and for the year ended February 28, 1998, included in the Company's Current
Report on Form 8-K dated December 24, 1998, have been audited by
PricewaterhouseCoopers LLP, independent chartered accountants, as set forth in
their report thereon included therein, and are incorporated by reference herein
in reliance on such report given upon the authority of such firm as experts in
accounting and auditing.
The combined financial statements of Grand Valley Equipment Co., Inc. and
Kubota of Grand Rapids, Inc. as of December 31, 1997, and the year then ended,
included in the Company's Current Report on Form 8-K dated December 24, 1998,
have been audited by Beene Garter LLP, independent certified public accountants,
as set forth in their report thereon included therein, and are incorporated by
reference herein in
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reliance on such given upon the authority of such firm as
experts in accounting and auditing.
The financial statements of Paul E. Carlson, Inc. (d/b/a/ Carlson Equipment
Company) as of February 28, 1998, and for the year then ended, included in the
Company's Current Report on Form 8-K dated December 24, 1998, have been audited
by McGladrey & Pullen, LLP, independent auditors, as stated in their report
appearing therein, and are incorporated by reference herein in reliance on such
report given upon the authority of such firm as experts in accounting and
auditing.
The financial statements of Industrial Lift, Inc. as of December 31, 1997
and 1996 and the years then ended included in the Company's Current Report on
Form 8-K dated December 24, 1998 are incorporated by reference herein in
reliance upon the report of Schalleur & Surgent, LLC, independent auditors,
appearing therein and upon the authority of such firm as experts in accounting
and auditing.
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PART II
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The expenses of the Registrant in connection with the distribution of the
securities being registered hereunder are set forth below and will be borne by
the Registrant. All expenses are estimated other than the SEC registration fee.
<TABLE>
<CAPTION>
<S> <C>
Securities and Exchange Commission registration fee.......................... $ 208,000
Printing and engraving expenses.............................................. 300,000
Accounting fees and expenses................................................. 100,000
Legal fees and expenses...................................................... 100,000
Rating agency fees........................................................... 175,000
Trustees' fees............................................................... 25,000
Miscellaneous................................................................ 92,000
------
Total................................................................... $1,000,000
==========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Certificate of Incorporation (the "Certificate") of the United Rentals,
Inc. (the "Company") provides that a director will not be personally liable to
the Company or its stockholders for monetary damages for breach of fiduciary
duty as a director, except for liability (i) for any breach of the director's
duty of loyalty to the corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) under Section 174 of the Delaware General Corporation
Law (the "Delaware Law"), which concerns unlawful payments of dividends, stock
purchases or redemptions, or (iv) for any transaction from which the director
derived an improper personal benefit. If the Delaware Law is subsequently
amended to permit further limitation of the personal liability of directors, the
liability of a director of the Company will be eliminated or limited to the
fullest extent permitted by the Delaware Law as amended.
The Registrant, as a Delaware corporation, is empowered by Section 145 of
the Delaware Law, subject to the procedures and limitation stated therein, to
indemnify any person against expenses (including attorneys' fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred by him in
connection with any threatened, pending or completed action, suit or proceeding
in which such person is made a party by reason of his being or having been a
director, officer, employee or agent of the Registrant. The statute provides
that indemnification pursuant to its provisions is not exclusive of other rights
of indemnification to which a person may be entitled under any by-law,
agreement, vote of stockholders or disinterested directors, or otherwise. The
Company has entered into indemnification agreements with its directors and
officers. In general, these agreements require the Company to indemnify each of
such persons against expenses, judgments, fines, settlements and other
liabilities incurred in connection with
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any proceeding (including a derivative action) to which such person may be made
a party by reason of the fact that such person is or was a director, officer or
employee of the Company or guaranteed any obligations of the Company, provided
that the right of an indemnitee to receive indemnification is subject to the
following limitations: (i) an indemnitee is not entitled to indemnification
unless he acted in good faith and in a manner that he reasonably believed to be
in or not opposed to the best interests of the Company, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe such conduct
was unlawful and (ii) in the case of a derivative action, an indemnitee is not
entitled to indemnification in the event that he is judged in a final non-
appealable decision of a court of competent jurisdiction to be liable to the
Company due to willful misconduct in the performance of his duties to the
Company (unless and only to the extent that the court determines that the
indemnitee is fairly and reasonably entitled to indemnification).
Pursuant to Section 145 of the Delaware Law, the Registrant has purchased
insurance on behalf of its present and former directors and officers against any
liability asserted against or incurred by them in such capacity or arising out
of their status as such.
Item 16. Exhibits.
1.1...... The form of Underwriting Agreement will be filed as
an exhibit to a Current Report of the Registrant on
Form 8-K and incorporated herein by reference.
4.1...... Amended and Restated Certificate of Incorporation
of the Registrant dated August 5, 1998
(incorporated by reference to Exhibit 3.1 to the
Registrant's Report on Form 10-Q for the quarterly
period ended June 30, 1998)
4.2...... Certificate of Amendment to the Registrant's
Certificate of Incorporation dated September 29,
1998
4.3...... By-laws of the Registrant (incorporated by
reference to Exhibit 3.2 to the Registrant's Report
on Form 10-Q for the quarterly period ended June
30, 1998)
4.4...... Form of Senior Indenture
4.5...... Form of Subordinated Indenture
4.6...... The form of each series of notes issued hereunder
will be filed as an exhibit to a Current Report of
the Registrant on Form 8-K and incorporated herein
by reference.
4.7...... The form of any certificate of designation with
respect to any preferred stock issued hereunder
will be filed as an exhibit to a Current Report of
the Registrant on Form 8-K and incorporated herein
by reference.
5.1...... Opinion of Ehrenreich Eilenberg Krause & Zivian LLP
12.1...... Statement re: Computation of Ratio of Earnings to
Fixed Charges.
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<PAGE>
23.1...... Consent of Ehrenreich Eilenberg Krause & Zivian LLP
(included in Exhibit 5.1)
23.2...... Consent of Ernst & Young LLP
23.3...... Consent of PricewaterhouseCoopers LLP
23.4...... Consent of KPMG Peat Marwick LLP
23.5...... Consent of Webster Duke & Co.
23.6...... Consent of Grant Thornton LLP
23.7...... Consent of KPMG LLP
23.8...... Consent of Battaglia, Andrews & Moag, P.C.
23.9...... Consent of Moss Adams LLP
23.10...... Consent of BDO Seidman LLP
23.11...... Consent of PricewaterhouseCoopers LLP
23.12...... Consent of Altschuler, Melvoin and Glasser LLP
23.13...... Consent of PricewaterhouseCoopers LLP
23.14...... Consent of Beene Garter LLP
23.15...... Consent of McGladrey & Pullen LLP
23.16...... Consent of Schalleur & Surgent, LLC
23.17...... Consent of KPMG LLP
24.1....... Power of Attorney (included in Part II of the Registration
Statement under the caption "Signatures")
25.1....... Statement of Eligibility on Form T-1 under the
Trust Indenture Act of 1939, as amended, of , as
Trustee under the Senior Indenture (to be filed by
amendment)
25.2....... Statement of Eligibility on Form T-1 under the
Trust Indenture Act of 1939, as amended, of , as
Trustee under the Senior Indenture (to be filed by
amendment)
ITEM 17. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
. (i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
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<PAGE>
. (ii) To reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the Registration Statement;
. (iii) To include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement or
any material change to such information in the Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if
the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by the Registrant
pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 that
are incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new Registration Statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities and Exchange
Act of 1934) that is incorporated by reference in the Registration Statement
shall be deemed to be a new Registration Statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
(d) The undersigned registrant hereby undertakes that:
(i) For the purpose of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as
part of this Registration Statement in reliance upon Rule 430A and
contained in a form of prospectus filed by the Company pursuant to
Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be
deemed to be part of this Registration Statement as of the time it was
declared effective.
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<PAGE>
(ii) For the purpose of determining any liability under the Securities Act
of 1933, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating
to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
(e) The undersigned registrant hereby undertakes to file an application
for the purpose of determining the eligibility of the Trustees under the
Indentures to act under subsection (a) of Section 310 of the Trust Indenture Act
in accordance with the rules and regulations prescribed by the Commission under
Section 305(b)(2) of the Act.
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<PAGE>
SIGNATURES
Pursuant to the requirements of Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3, and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in Greenwich, Connecticut, on the 4th day of January, 1999.
United Rentals, Inc.
By:/s/ Michael J. Nolan
------------------------------
Michael J. Nolan
Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in their
respective capacities and on the respective dates indicated. Each person whose
signature appears below hereby authorizes Bradley S. Jacobs, John N. Milne and
Michael J. Nolan and each with full power of substitution, to execute in the
name and on behalf of such person any amendment or any post-effective amendment
to this Registration Statement and to file the same, with exhibits thereto, and
other documents in connection therewith, making such changes in this
Registration Statement as the Registrant deems appropriate, and appoints each of
Bradley S. Jacobs, John N. Milne and Michael J. Nolan, each with full power of
substitution, attorney-in-fact to sign any amendment and any post-effective
amendment to this Registration Statement and to file the same, with exhibits
thereto, and other documents in connection therewith.
Bradley S. Jacobs
/s/ Bradley S. Jacobs
---------------------
Bradley S. Jacobs
Chairman, Chief Executive Officer and Director (Principal Executive
Officer)
January 4, 1999
Wayland R. Hicks
/s/ Wayland R. Hicks
--------------------
Wayland R. Hicks, Director
January 4, 1999
S-1
<PAGE>
John N. Milne
/s/ John N. Milne
-----------------
John N. Milne, Director
January 4, 1999
William F. Berry
/s/ William F. Berry
--------------------
William F. Berry, Director
January 4, 1999
John S. McKinney
/s/ John S. McKinney
--------------------
John S. McKinney, Director
January 4, 1999
----------------------
Richard D. Colburn, Director
January , 1999
Ronald M. DeFeo
/s/ Ronald M. DeFeo
-------------------
Ronald M. DeFeo, Director
January 4, 1999
Richard J. Heckmann
-----------------------
Richard J. Heckmann, Director
January , 1999
Gerald Tsai, Jr.
--------------------
Gerald Tsai, Jr., Director
January , 1999
S-2
<PAGE>
Christian M. Weyer
/s/ Christian M. Weyer
----------------------
Christian M. Weyer, Director
January 4, 1999
Michael J. Nolan
/s/ Michael J. Nolan
--------------------
Michael J. Nolan, Chief Financial Officer
(principal financial officer)
January 4, 1999
Sandra E. Welwood
/s/ Sandra E. Welwood
---------------------
Sandra E. Welwood, Vice President Controller
(principal accounting officer)
January 4, 1999
S-3
<PAGE>
Exhibit 4.2
CERTIFICATE OF AMENDMENT
OF THE CERTIFICATE OF INCORPORATION OF
UNITED RENTALS, INC.
----------------------
Pursuant to Section 242
of the General Corporation Law
of the State of Delaware
----------------------
The undersigned duly authorized officer of United Rentals, Inc., a
Delaware corporation formerly known as United Rentals Holdings, Inc. (the
"Corporation"), does hereby certify that the following amendment to the Amended
and Restated Certificate of Incorporation of the Corporation (the "Charter") has
been duly approved in accordance with the provisions of Section 242 of the
General Corporation Law of the State of Delaware.
That paragraph "A" of Article III of the Charter be amended to read in
its entirety as follows:
"A. The Corporation is authorized to issue two
classes of stock to be designated, respectively,
"Common Stock" and "Preferred Stock". The amount of
the total authorized capital stock of the Corporation
is 505,000,000 shares, divided into (a) 500,000,000
shares of Common Stock having a par value of $0.01
per share, and (b) 5,000,000 shares of Preferred
Stock having a par value of $0.01 per share."
IN WITNESS WHEREOF, the undersigned does hereby make this certificate,
hereby declaring and certifying that this is the act and deed of the Corporation
and the facts herein stated are true and, accordingly, has executed this
certificate this 29th day of September, 1998.
UNITED RENTALS, INC.
By: /s/ MICHAEL J. NOLAN
----------------------------------
Name: Michael J. Nolan
Title: Chief Financial Officer
<PAGE>
EXHIBIT 4.4
UNITED RENTALS, INC.,
Issuer
AND
[ ],
Trustee
___________________________________
INDENTURE
Dated as of [ ], 1998
___________________________________
Senior Debt Securities
<PAGE>
CROSS-REFERENCE TABLE(1)
Section of
Trust Indenture Act Section of
of 1939, as amended Indenture
------------------- ----------
310(a) . . . . . . . . . . . . . . . . . . . 7.09
310(b) . . . . . . . . . . . . . . . . . . . 7.08
7.10
310(c) . . . . . . . . . . . . . . . . . . . Inapplicable
311(a) . . . . . . . . . . . . . . . . . . . 7.13(a)
311(b) . . . . . . . . . . . . . . . . . . . 7.13(b)
311(c) . . . . . . . . . . . . . . . . . . . Inapplicable
5.02(a)
312(b) . . . . . . . . . . . . . . . . . . . 5.02(b)
312(c) . . . . . . . . . . . . . . . . . . . 5.02(c)
313(a) . . . . . . . . . . . . . . . . . . . 5.04(a)
313(b) . . . . . . . . . . . . . . . . . . . 5.04(b)
313(c) . . . . . . . . . . . . . . . . . . . 5.04(a)
5.04(b)
313(d) . . . . . . . . . . . . . . . . . . . 5.04(c)
314(a) . . . . . . . . . . . . . . . . . . . 5.03
314(b) . . . . . . . . . . . . . . . . . . . Inapplicable
314(c) . . . . . . . . . . . . . . . . . . . 13.06
314(d) . . . . . . . . . . . . . . . . . . . Inapplicable
314(e) . . . . . . . . . . . . . . . . . . . 13.06
314(f) . . . . . . . . . . . . . . . . . . . Inapplicable
315(a) . . . . . . . . . . . . . . . . . . . 7.01(a)
7.02
315(b) . . . . . . . . . . . . . . . . . . . 6.07
315(c) . . . . . . . . . . . . . . . . . . . 7.01
315(d) . . . . . . . . . . . . . . . . . . . 7.01(b)
7.01(c)
315(e) . . . . . . . . . . . . . . . . . . . 6.07
316(a) . . . . . . . . . . . . . . . . . . . 6.06
8.04
316(b) . . . . . . . . . . . . . . . . . . . 6.04
316(c) . . . . . . . . . . . . . . . . . . . 8.01
317(a) . . . . . . . . . . . . . . . . . . . 6.02
317(b) . . . . . . . . . . . . . . . . . . . 4.03
318(a) . . . . . . . . . . . . . . . . . . . 13.08
- -------------------
1 This Cross-Reference Table does not constitute part of the
Indenture and shall not have any bearing on the interpretation of
any of its terms or provisions.
<PAGE>
TABLE OF CONTENTS(1)
Page
----
PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE I
DEFINITIONS
SECTION 1.01 Definitions of Terms . . . . . . . . . . . . . . . . . . 1
Affiliate . . . . . . . . . . . . . . . . . . . . . . . 2
Authenticating Agent . . . . . . . . . . . . . . . . . . 2
Bankruptcy Law . . . . . . . . . . . . . . . . . . . . . 2
Board of Directors . . . . . . . . . . . . . . . . . . . 2
Board Resolution . . . . . . . . . . . . . . . . . . . . 2
Business Day . . . . . . . . . . . . . . . . . . . . . . 2
Certificate . . . . . . . . . . . . . . . . . . . . . . 2
Company . . . . . . . . . . . . . . . . . . . . . . . . 2
Corporate Trust Office . . . . . . . . . . . . . . . . . 2
Custodian . . . . . . . . . . . . . . . . . . . . . . . 2
Default . . . . . . . . . . . . . . . . . . . . . . . . 3
Depositary . . . . . . . . . . . . . . . . . . . . . . . 3
Event of Default . . . . . . . . . . . . . . . . . . . . 3
Global Security . . . . . . . . . . . . . . . . . . . . 3
Governmental Obligations . . . . . . . . . . . . . . . . 3
"herein", "hereof" and "hereunder . . . . . . . . . . . 3
Indenture . . . . . . . . . . . . . . . . . . . . . . . 3
Interest Payment Date . . . . . . . . . . . . . . . . . 3
Officers' Certificate . . . . . . . . . . . . . . . . . 4
Opinion of Counsel . . . . . . . . . . . . . . . . . . . 4
Outstanding . . . . . . . . . . . . . . . . . . . . . . 4
Person . . . . . . . . . . . . . . . . . . . . . . . . . 4
Predecessor Security . . . . . . . . . . . . . . . . . . 4
Responsible Officer . . . . . . . . . . . . . . . . . . 4
Securities . . . . . . . . . . . . . . . . . . . . . . . 5
Securityholder . . . . . . . . . . . . . . . . . . . . . 5
Subsidiary . . . . . . . . . . . . . . . . . . . . . . . 5
Trustee . . . . . . . . . . . . . . . . . . . . . . . . 5
Trust Indenture Act . . . . . . . . . . . . . . . . . . 5
Voting Stock . . . . . . . . . . . . . . . . . . . . . . 5
<PAGE>
ARTICLE II
ISSUE, DESCRIPTION, TERMS, EXECUTION, REGISTRATION
AND EXCHANGE OF SECURITIES
SECTION 2.01 Designation and Terms of Securities . . . . . . . . . . 5
SECTION 2.02 Form of Securities and Trustee's Certificate . . . . . . 7
SECTION 2.03 Denominations: Provisions for Payment . . . . . . . . . 8
SECTION 2.04 Execution and Authentications . . . . . . . . . . . . . 9
SECTION 2.05 Registration of Transfer and Exchange . . . . . . . . . 10
SECTION 2.06 Temporary Securities . . . . . . . . . . . . . . . . . . 11
SECTION 2.07 Mutilated, Destroyed, Lost or Stolen Securities . . . . 12
SECTION 2.08 Cancellation . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 2.09 Benefits of Indenture . . . . . . . . . . . . . . . . . 13
SECTION 2.10 Authenticating Agent . . . . . . . . . . . . . . . . . . 13
SECTION 2.11 Global Securities . . . . . . . . . . . . . . . . . . . 14
ARTICLE III
REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS
SECTION 3.01 Redemption . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 3.02 Notice of Redemption . . . . . . . . . . . . . . . . . . 15
SECTION 3.03 Payment Upon Redemption . . . . . . . . . . . . . . . . 16
SECTION 3.04 Sinking Fund . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 3.05 Satisfaction of Sinking Fund Payments with
Securities . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 3.06 Redemption of Securities for Sinking Fund . . . . . . . 17
ARTICLE IV
SECTION 4.01 Payment of Principal, Premium and Interest . . . . . . . 18
SECTION 4.02 Maintenance of Office or Agency . . . . . . . . . . . . 18
SECTION 4.03 Paying Agents . . . . . . . . . . . . . . . . . . . . . 18
SECTION 4.04 Appointment to Fill Vacancy in Office of Trustee . . . . 20
SECTION 4.05 Compliance with Consolidation Provisions . . . . . . . . 20
ARTICLE V
SECURITYHOLDERS' LISTS AND REPORTS
BY THE COMPANY AND THE TRUSTEE
SECTION 5.01 Company to Furnish Trustee Names and Addresses of
Securityholders . . . . . . . . . . . . . . . . . . . 20
SECTION 5.02 Preservation Of Information; Communications With
Securityholders . . . . . . . . . . . . . . . . . . . 20
SECTION 5.03 Reports by the Company . . . . . . . . . . . . . . . . . 21
SECTION 5.04 Reports by the Trustee . . . . . . . . . . . . . . . . . 21
ARTICLE VI
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 6.01 Events of Default . . . . . . . . . . . . . . . . . . . 22
SECTION 6.02 Collection of Indebtedness and Suits for
<PAGE>
Enforcement by Trustee . . . . . . . . . . . . . . . . 24
SECTION 6.03 Application of Moneys Collected . . . . . . . . . . . . 25
SECTION 6.04 Limitation on Suits . . . . . . . . . . . . . . . . . . 26
SECTION 6.05 Rights and Remedies Cumulative; Delay or
Omission Not Waiver . . . . . . . . . . . . . . . . . 27
SECTION 6.06 Control by Securityholders . . . . . . . . . . . . . . . 27
SECTION 6.07 Undertaking to Pay Costs . . . . . . . . . . . . . . . . 28
ARTICLE VII
CONCERNING THE TRUSTEE
SECTION 7.01 Certain Duties and Responsibilities of Trustee . . . . . 28
SECTION 7.02 Certain Rights of Trustee . . . . . . . . . . . . . . . 29
SECTION 7.03 Trustee Not Responsible for Recitals or Issuance
or Securities . . . . . . . . . . . . . . . . . . . . 31
SECTION 7.04 May Hold Securities . . . . . . . . . . . . . . . . . . 31
SECTION 7.05 Moneys Held in Trust . . . . . . . . . . . . . . . . . . 31
SECTION 7.06 Compensation and Reimbursement . . . . . . . . . . . . . 31
SECTION 7.07 Reliance on Officers' Certificate . . . . . . . . . . . 32
SECTION 7.08 Disqualification; Conflicting Interests . . . . . . . . 32
SECTION 7.09 Corporate Trustee Required; Eligibility . . . . . . . . 32
SECTION 7.10 Resignation and Removal; Appointment of Successor . . . 33
SECTION 7.11 Acceptance of Appointment By Successor . . . . . . . . . 34
SECTION 7.12 Merger, Conversion, Consolidation or Succession
to Business . . . . . . . . . . . . . . . . . . . . . 35
SECTION 7.13 Preferential Collection of Claims Against the
Company . . . . . . . . . . . . . . . . . . . . . . . 36
ARTICLE VIII
CONCERNING THE SECURITYHOLDERS
SECTION 8.01 Evidence of Action by Securityholders . . . . . . . . . 36
SECTION 8.02 Proof of Execution by Securityholders . . . . . . . . . 37
SECTION 8.03 Who May be Deemed Owners . . . . . . . . . . . . . . . . 37
SECTION 8.04 Certain Securities Owned by Company Disregarded . . . . 37
SECTION 8.05 Actions Binding on Future Securityholders . . . . . . . 38
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.01 Supplemental Indentures Without the Consent of
Securityholders . . . . . . . . . . . . . . . . . . . 38
SECTION 9.02 Supplemental Indentures With Consent of
Securityholders . . . . . . . . . . . . . . . . . . . 39
SECTION 9.03 Effect of Supplemental Indentures . . . . . . . . . . . 40
SECTION 9.04 Securities Affected by Supplemental Indentures . . . . . 40
SECTION 9.05 Execution of Supplemental Indentures . . . . . . . . . . 40
ARTICLE X
SUCCESSOR CORPORATION
SECTION 10.01 Company May Consolidate, Etc. . . . . . . . . . . . . . 41
SECTION 10.02 Successor Corporation Substituted . . . . . . . . . . . 41
<PAGE>
SECTION 10.03 Evidence of Consolidation, Etc. to Trustee . . . . . . . 42
ARTICLE XI
SATISFACTION AND DISCHARGE
SECTION 11.01 Satisfaction and Discharge of Indenture . . . . . . . . 42
SECTION 11.02 Discharge of Obligations . . . . . . . . . . . . . . . . 43
SECTION 11.03 Deposited Moneys to be Held in Trust . . . . . . . . . . 43
SECTION 11.04 Payment of Moneys Held by Paying Agents . . . . . . . . 43
SECTION 11.05 Repayment to Company . . . . . . . . . . . . . . . . . . 43
ARTICLE XII
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
SECTION 12.01 No Recourse. . . . . . . . . . . . . . . . . . . . . . . 44
ARTICLE XIII
MISCELLANEOUS PROVISIONS
SECTION 13.01 Effect on Successors and Assigns. . . . . . . . . . . . 44
SECTION 13.02 Actions by Successor . . . . . . . . . . . . . . . . . . 45
SECTION 13.03 Surrender of Company Powers . . . . . . . . . . . . . . 45
SECTION 13.04 Notices . . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 13.05 Governing Law . . . . . . . . . . . . . . . . . . . . . 45
SECTION 13.06 Treatment of Securities as Debt . . . . . . . . . . . . 46
SECTION 13.07 Compliance Certificates and Opinions . . . . . . . . . . 46
SECTION 13.08 Payments on Business Days . . . . . . . . . . . . . . . 46
SECTION 13.09 Conflict with Trust Indenture Act . . . . . . . . . . . 46
SECTION 13.10 Counterparts . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 13.11 Separability. . . . . . . . . . . . . . . . . . . . . . 47
SECTION 13.12 Assignment . . . . . . . . . . . . . . . . . . . . . . . 47
- -------------
1 This Table of Contents does not constitute part of the Indenture
and shall not have any bearing upon the interpretation of any of
its terms or provisions.
<PAGE>
INDENTURE, dated as of [ ], 1998, among United Rentals, Inc., a
Delaware corporation (the "Company"), and [ ],
as trustee (the "Trustee"):
WHEREAS, for its lawful corporate purposes, the Company has duly
authorized the execution and delivery of this Indenture to provide for the
issuance of unsecured debt securities (hereinafter referred to as the
"Securities"), in an unlimited aggregate principal amount to be issued from
time to time in one or more series as in this Indenture provided, as
registered Securities without coupons, to be authenticated by the
certificate of the Trustee;
WHEREAS, to provide the terms and conditions upon which the
Securities are to be authenticated, issued and delivered, the Company has
duly authorized the execution of this Indenture; and
WHEREAS, all things necessary to make this Indenture a valid
agreement of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, 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
Securities:
ARTICLE I
DEFINITIONS
SECTION 1.01 Definitions of Terms.
The terms defined in this Section (except as in this Indenture
otherwise expressly provided or unless the context otherwise requires) for
all purposes of this Indenture and of any indenture supplemental hereto
shall have the respective meanings specified in this Section and shall
include the plural as well as the singular. All other terms used in this
Indenture that are defined in the Trust Indenture Act of 1939, as amended,
or that are by reference in such Act defined in the Securities Act of 1933,
as amended (except as herein otherwise expressly provided or unless the
context otherwise requires), shall have the meanings assigned to such terms
in said Trust Indenture Act and in said Securities Act as in force at the
date of the execution of this instrument.
"Affiliate" means, with respect to a specified Person, (a) any
Person directly or indirectly owning, controlling or holding with power to
vote 10% or more of the outstanding voting securities or other ownership
interests of the specified Person, (b) any Person 10% or more of whose
outstanding voting securities or other ownership interests are directly or
indirectly owned, controlled or held with power to vote by the specified
Person, (c) any Person directly or indirectly controlling, controlled by,
or under common control with the specified Person, (d) a partnership in
which the specified Person is a general partner, (e) any officer or
director of the specified Person, and (f) if the specified Person is an
<PAGE>
individual, any entity of which the specified Person is an officer,
director or general partner.
"Authenticating Agent" means an authenticating agent with respect
to all or any of the series of Securities appointed with respect to all or
any series of the Securities by the Trustee pursuant to Section 2.10.
"Bankruptcy Law" means Title 11, U.S. Code, or any similar
federal or state law for the relief of debtors.
"Board of Directors" means the Board of Directors of the Company
or any duly authorized committee of such Board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly
adopted by the Board of Directors and to be in full force and effect on the
date of such certification.
"Business Day" means, with respect to any series of Securities,
any day other than a day on which Federal or State banking institutions in
the Borough of Manhattan, The City of New York, are authorized or obligated
by law, executive order or regulation to close.
"Certificate" means a certificate signed by the principal
executive officer, the principal financial officer or the principal
accounting officer of the Company. The Certificate need not comply with
the provisions of Section 13.07.
"Company" means United Rentals, Inc., a corporation
duly organized and existing under the laws of the State of Delaware, and,
subject to the provisions of Article Ten, shall also include its successors
and assigns.
"Corporate Trust Office" means the office of the Trustee at
which, at any particular time, its corporate trust business shall be
principally administered, which office at the date hereof is located at
[ ], except that whenever a
provision herein refers to an office or agency of the Trustee in the
Borough of Manhattan, The City of New York, such office is located, at
the date hereof, at [ ].
"Custodian" means any receiver, trustee, assignee, liquidator, or
similar official under any Bankruptcy Law.
"Default" means any event, act or condition that with notice or
lapse of time, or both, would constitute an Event of Default.
"Depositary" means, with respect to Securities of any series, for
which the Company shall determine that such Securities will be issued as a
Global Security, The Depository Trust Company, New York, New York, another
clearing agency, or any successor registered as a clearing agency under the
Securities and Exchange Act of 1934, as amended (the "Exchange Act"), or
other applicable statute or regulation, which, in each case, shall be
designated by the Company pursuant to either Section 2.01 or 2.11.
"Event of Default" means, with respect to Securities of a
particular series any event specified in Section 6.01, continued for the
<PAGE>
period of time, if any, therein designated.
"Global Security" means, with respect to any series of
Securities, a Security executed by the Company and delivered by the Trustee
to the Depositary or pursuant to the Depositary's instruction, all in
accordance with the Indenture, which shall be registered in the name of the
Depositary or its nominee.
"Governmental Obligations" means securities that are (i) direct
obligations of the United States of America for the payment of which its
full faith and credit 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 that, in
either case, are not callable or redeemable at the option of the issuer
thereof, and shall also include a depositary receipt issued by a bank (as
defined in Section 3(a)(2) of the Securities Act of 1933, as amended) as
custodian with respect to any such Governmental Obligation or a specific
payment of principal of or interest on any such Governmental Obligation
held by such custodian for the account of the holder of such depositary
receipt; provided, however, that (except as required by law) such custodian
is not authorized to make any deduction from the amount payable to the
holder of such depositary receipt from any amount received by the custodian
in respect of the Governmental Obligation or the specific payment of
principal of or interest on the Governmental Obligation evidenced by such
depositary receipt.
"herein", "hereof" and "hereunder", and other words of similar
import, refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
"Indenture" means this instrument as originally executed or as it
may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into in accordance with the terms hereof.
"Interest Payment Date", when used with respect to any
installment of interest on a Security of a particular series, means the
date specified in such Security or in a Board Resolution or in an indenture
supplemental hereto with respect to such series as the fixed date on which
an installment of interest with respect to Securities of that series is due
and payable.
"Officers' Certificate" means a certificate signed by the
President or a Vice President and by the Treasurer or an Assistant
Treasurer or the Controller or an Assistant Controller or the Secretary or
an Assistant Secretary of the Company that is delivered to the Trustee in
accordance with the terms hereof. Each such certificate shall include the
statements provided for in Section 13.07, if and to the extent required by
the provisions thereof.
"Opinion of Counsel" means an opinion in writing of legal
counsel, who may be an employee of or counsel for the Company that is
delivered to the Trustee in accordance with the terms hereof. Each such
opinion shall include the statements provided for in Section 13.07, if and
to the extent required by the provisions thereof.
"Outstanding", when used with reference to Securities of any
<PAGE>
series, means, subject to the provisions of Section 8.04, as of any
particular time, all Securities of that series theretofore authenticated
and delivered by the Trustee under this Indenture, except (a) Securities
theretofore canceled by the Trustee or any paying agent, or delivered to
the Trustee or any paying agent for cancellation or that have previously
been canceled; (b) Securities or portions thereof for the payment or
redemption of which moneys or Governmental Obligations in the necessary
amount shall have been deposited in trust with the Trustee or with any
paying agent (other than the Company) or shall have been set aside and
segregated in trust by the Company (if the Company shall act as its own
paying agent); provided, however, that if such Securities or portions of
such Securities are to be redeemed prior to the maturity thereof, notice of
such redemption shall have been given as in Article Three provided, or
provision satisfactory to the Trustee shall have been made for giving such
notice; and (c) Securities in lieu of or in substitution for which other
Securities shall have been authenticated and delivered pursuant to the
terms of Section 2.07.
"Person" means any individual, corporation, partnership, joint-
venture, joint-stock company, unincorporated organization or government or
any agency or political subdivision thereof.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that
evidenced by such particular Security; and, for the purposes of this
definition, any Security authenticated and delivered under Section 2.07 in
lieu of a lost, destroyed or stolen Security shall be deemed to evidence
the same debt as the lost, destroyed or stolen Security.
"Responsible Officer" when used with respect to the Trustee means
the Chairman of the Board of Directors, the President, any Vice President,
the Secretary, the Treasurer, any trust officer, any corporate trust
officer or any other officer or assistant officer of the Trustee
customarily performing functions similar to those performed by the Persons
who at the time shall be such officers, respectively, or to whom any
corporate trust matter is referred because of his or her knowledge of and
familiarity with the particular subject.
"Securities" means the debt Securities authenticated and
delivered under this Indenture.
"Securityholder", "holder of Securities", "registered holder", or
other similar term, means the Person or Persons in whose name or names a
particular Security shall be registered on the books of the Company kept
for that purpose in accordance with the terms of this Indenture.
"Subsidiary" means, with respect to any Person, (i) any
corporation at least a majority of whose outstanding Voting Stock shall at
the time be owned, directly or indirectly, by such Person or by one or more
of its Subsidiaries or by such Person and one or more of its Subsidiaries,
(ii) any general partnership, joint venture or similar entity, at least a
majority of whose outstanding partnership or similar interests shall at the
time be owned by such Person, or by one or more of its Subsidiaries, or by
such Person and one or more of its Subsidiaries and (iii) any limited
partnership of which such Person or any of its Subsidiaries is a general
partner.
<PAGE>
"Trustee" means [ ], and, subject to the
provisions of Article Seven, shall also include its successors and assigns,
and, if at any time there is more than one Person acting in such capacity
hereunder, "Trustee" shall mean each such Person. The term "Trustee" as
used with respect to a particular series of the Securities shall mean the
trustee with respect to that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended, subject to the provisions of Sections 9.01, 9.02, and 10.01, as in
effect at the date of execution of this instrument.
"Voting Stock", as applied to stock of any Person, means shares,
interests, participations or other equivalents in the equity interest
(however designated) in such Person having ordinary voting power for the
election of a majority of the directors (or the equivalent) of such Person,
other than shares, interests, participations or other equivalents having
such power only by reason of the occurrence of a contingency.
ARTICLE II
ISSUE, DESCRIPTION, TERMS, EXECUTION,
REGISTRATION AND EXCHANGE OF SECURITIES
SECTION 2.01 Designation and Terms of Securities.
(a) The aggregate principal amount of Securities that may be
authenticated and delivered under this Indenture is unlimited. The
Securities may be issued in one or more series up to the aggregate
principal amount of Securities of that series from time to time authorized
by or pursuant to a Board Resolution of the Company or pursuant to one or
more indentures supplemental hereto. Prior to the initial issuance of
Securities of any series, there shall be established in or pursuant to a
Board Resolution of the Company, and set forth in an Officers' Certificate
of the Company, or established in one or more indentures supplemental
hereto:
(1) the title of the Security of the series (which shall
distinguish the Securities of the series from all other Securities);
(2) any limit upon the aggregate principal amount of the
Securities of that series that may be authenticated and delivered
under this Indenture (except for Securities authenticated and
delivered upon registration of transfer of, or in exchange for, or in
lieu of, other Securities of that series);
(3) the date or dates on which the principal of the Securities
of the series is payable;
(4) the rate or rates at which the Securities of the series
shall bear interest or the manner of calculation of such rate or
rates, if any;
(5) the date or dates from which such interest shall accrue, the
Interest Payment Dates on which such interest will be payable or the
manner of determination of such Interest Payment Dates and the record
date for the determination of holders to whom interest is payable on
any such Interest Payment Dates;
<PAGE>
(6) the right, if any, to extend the interest payment periods
and the duration of such extension;
(7) 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;
(8) the obligation, if any, of the Company to redeem or purchase
Securities of the series pursuant to any sinking fund or analogous
provisions (including payments made in cash in participation of future
sinking fund obligations) 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;
(9) the form of the Securities of the series including the form
of the Certificate of Authentication for such series;
(10) if other than denominations of one thousand U.S. dollars
($1,000) or any integral multiple thereof, the denominations in which
the Securities of the series shall be issuable;
(11) any and all other terms with respect to such series (which
terms shall not be inconsistent with the terms 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;
(12) whether the Securities are issuable as a Global Security
and, in such case, the identity for the Depositary for such series;
(13) whether the Securities will be convertible into shares of
common stock or other securities of the Company and, if so, the terms
and conditions upon which such Securities will be so convertible,
including the conversion price and the conversion period;
(14) 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; and
(15) any additional or different Events of Default or restrictive
covenants provided for with respect to the Securities of the series.
All Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or
pursuant to any such Board Resolution or in any indentures supplemental
hereto.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution of the Company, a copy of an appropriate
record of such action shall be certified by the Secretary or an Assistant
Secretary of the Company and delivered to the Trustee at or prior to the
delivery of the Officers' Certificate of the Company setting forth the
<PAGE>
terms of the series.
Securities of any particular series may be issued at various
times, with different dates on which the principal or any installment of
principal is payable, with different rates of interest, if any, or
different methods by which rates of interest may be determined, with
different dates on which such interest may be payable and with different
redemption dates.
SECTION 2.02 Form of Securities and Trustee's Certificate.
The Securities of any series and the Trustee's certificate of
authentication to be borne by such Securities shall be substantially of the
tenor and purport as set forth in one or more indentures supplemental
hereto or as provided in a Board Resolution of the Company and as set forth
in an Officers' Certificate of the Company and the and may have such
letters, numbers or other marks of identification or designation and such
legends or endorsements printed, lithographed or engraved thereon as the
Company may deem appropriate and as are not inconsistent with the
provisions of this Indenture, or as may be required to comply with any law
or with any rule or regulation made pursuant thereto or with any rule or
regulation of any stock exchange on which Securities of that series may be
listed, or to conform to usage.
SECTION 2.03 Denominations: Provisions for Payment.
The Securities shall be issuable as registered Securities and in
the denominations of one thousand U.S. dollars ($1,000) or any integral
multiple thereof, subject to Section 2.01(11). The Securities of a
particular series shall bear interest payable on the dates and at the rate
specified with respect to that series. The principal of and the interest
on the Securities of any series, as well as any premium thereon in case of
redemption thereof prior to maturity, shall be payable in the coin or
currency of the United States of America that at the time is legal tender
for public and private debt, at the office or agency of the Company
maintained for that purpose in the Borough of Manhattan, the City and State
of New York. Each Security shall be dated the date of its authentication.
Interest on the Securities shall be computed on the basis of a 360-day year
composed of twelve 30-day months.
The interest installment on any Security that is payable, and is
punctually paid or duly provided for, on any Interest Payment Date for
Securities of that series shall be paid to the Person in whose name said
Security (or one or more Predecessor Securities) is registered at the close
of business on the regular record date for such interest installment. In
the event that any Security of a particular series or portion thereof is
called for redemption and the redemption date is subsequent to a regular
record date with respect to any Interest Payment Date and prior to such
Interest Payment Date, interest on such Security will be paid upon
presentation and surrender of such Security as provided in Section 3.03.
Any interest on any Security that is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date for
Securities of the same series (herein called "Defaulted Interest") shall
forthwith cease to be payable to the registered holder on the relevant
regular record date by virtue of having been such holder; and such
Defaulted Interest shall be paid by the Company, at its election, as
<PAGE>
provided in clause (1) or clause (2) below:
(1) The Company may make payment of any Defaulted Interest on
Securities to the Persons in whose names such Securities (or their
respective Predecessor Securities) are registered at the close of
business on a special record date for the payment of such Defaulted
Interest, which shall be fixed in the following manner: the Company
shall notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each such Security and the date of the
proposed payment, and at the same time the Company shall deposit with
the Trustee an amount of money equal to the aggregate amount proposed
to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the
date of the proposed payment, such money when deposited to be held in
trust for the benefit of the Persons entitled to such Defaulted
Interest as in this clause provided. Thereupon the Trustee shall fix
a special record date for the payment of such Defaulted Interest which
shall not be more than 15 nor less than 10 days prior to the date of
the proposed payment and not less than 10 days after the receipt by
the Trustee of the notice of the proposed payment. The Trustee shall
promptly notify the Company of such special record date and, in the
name and at the expense of the Company, shall cause notice of the
proposed payment of such Defaulted Interest and the special record
date therefor to be mailed, first class postage prepaid, to each
Securityholder at his or her address as it appears in the Security
Register (as hereinafter defined), not less than 10 days prior to such
special record date. Notice of the proposed payment of such Defaulted
Interest and the special record date therefor having been mailed as
aforesaid, such Defaulted Interest shall be paid to the Persons in
whose names such Securities (or their respective Predecessor
Securities) are registered on such special record date and shall be no
longer payable pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted Interest on
any Securities in any other lawful manner not inconsistent with the
requirements of any securities exchange on which such Securities may
be listed, and upon such notice as may be required by such exchange,
if, after notice given by the Company to the Trustee of the proposed
payment pursuant to this clause, such manner of payment shall be
deemed practicable by the Trustee.
Unless otherwise set forth in a Board Resolution of the Company
or one or more indentures supplemental hereto establishing the terms of any
series of Securities pursuant to Section 2.01 hereof, the term "regular
record date" as used in this Section with respect to a series of Securities
with respect to any Interest Payment Date for such series shall mean either
the fifteenth day of the month immediately preceding the month in which an
Interest Payment Date established for such series pursuant to Section 2.01
hereof shall occur, if such Interest Payment Date is the first day of a
month, or the last day of the month immediately preceding the month in
which an Interest Payment Date established for such series pursuant to
Section 2.01 hereof shall occur, if such Interest Payment Date is the
fifteenth day of a month, whether or not such date is a Business Day.
Subject to the foregoing provisions of this Section, each
Security of a series delivered under this Indenture upon transfer of or in
exchange for or in lieu of any other Security of such series shall carry
<PAGE>
the rights to interest accrued and unpaid, and to accrue, that were carried
by such other Security.
SECTION 2.04 Execution and Authentications.
The Securities shall be signed on behalf of the Company by its
President, or one of its Vice Presidents, or its Treasurer, or one of its
Assistant Treasurers, or its Secretary, or one of its Assistant
Secretaries, under its corporate seal attested by its Secretary or one of
its Assistant Secretaries. Signatures may be in the form of a manual or
facsimile signature. The Company may use the facsimile signature of any
Person who shall have been a President or Vice President thereof, or of any
Person who shall have been a Secretary or Assistant Secretary thereof,
notwithstanding the fact that at the time the Securities shall be
authenticated and delivered or disposed of such Person shall have ceased to
be the President or a Vice President, or the Secretary or an Assistant
Secretary, of the Company. The seal of the Company may be in the form of a
facsimile of such seal and may be impressed, affixed, imprinted or
otherwise reproduced on the Securities. The Securities may contain such
notations, legends or endorsements required by law, stock exchange rule or
usage. Each Security shall be dated the date of its authentication by the
Trustee.
A Security shall not be valid until authenticated manually by an
authorized signatory of the Trustee, or by an Authenticating Agent. Such
signature shall be conclusive evidence that the Security so authenticated
has been duly authenticated and delivered hereunder and that the holder is
entitled to the benefits of this Indenture.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities of any
series executed by the Company to the Trustee for authentication, together
with a written order of the Company for the authentication and delivery of
such Securities, signed by its President or any Vice President and its
Secretary or any Assistant Secretary, and the Trustee in accordance with
such written order shall authenticate and deliver such Securities.
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 that the
form and terms thereof have been established in conformity with the
provisions of this Indenture.
The Trustee shall not be required to authenticate such Securities
if the issue of such Securities pursuant to this Indenture will affect the
Trustee's own rights, duties or immunities under the Securities and this
Indenture or otherwise in a manner that is not reasonably acceptable to the
Trustee.
SECTION 2.05 Registration of Transfer and Exchange.
(a) Securities of any series may be exchanged upon presentation
thereof at the office or agency of the Company designated for such purpose
in the Borough of Manhattan, the City and State of New York, for other
Securities of such series of authorized denominations, and for a like
aggregate principal amount, upon payment of a sum sufficient to cover any
<PAGE>
tax or other governmental charge in relation thereto, all as provided in
this Section. In respect of any Securities so surrendered for exchange,
the Company shall execute, the Trustee shall authenticate and such office
or agency shall deliver in exchange therefor the Security or Securities of
the same series that the Securityholder making the exchange shall be
entitled to receive, bearing numbers not contemporaneously outstanding.
(b) The Company shall keep, or cause to be kept, at its office
or agency designated for such purpose in the Borough of Manhattan, the City
and State of New York, or such other location designated by the Company a
register or registers (herein referred to as the "Security Register") in
which, subject to such reasonable regulations as it may prescribe, the
Company shall register the Securities and the transfers of Securities as in
this Article provided and which at all reasonable times shall be open for
inspection by the Trustee. The registrar for the purpose of registering
Securities and transfer of Securities as herein provided shall be appointed
as authorized by Board Resolution (the "Security Registrar").
Upon surrender for transfer of any Security at the office or
agency of the Company designated for such purpose, the Company shall
execute, the Trustee shall authenticate and such office or agency shall
deliver in the name of the transferee or transferees a new Security or
Securities of the same series as the Security presented for a like
aggregate principal amount.
All Securities presented or surrendered for exchange or
registration of transfer, as provided in this Section, shall be accompanied
(if so required by the Company or the Security Registrar) by a written
instrument or instruments of transfer, in form satisfactory to the Company
or the Security Registrar, duly executed by the registered holder or by
such holder's duly authorized attorney in writing.
(c) No service charge shall be made for any exchange or
registration of transfer of Securities, or issue of new Securities in case
of partial redemption of any series, but the Company may require payment of
a sum sufficient to cover any tax or other governmental charge in relation
thereto, other than exchanges pursuant to Section 2.06, the second
paragraph of Section 3.03 and Section 9.04 not involving any transfer.
(d) The Company shall not be required (i) to issue, exchange or
register the transfer of any Securities during a period beginning at the
opening of business 15 days before the day of the mailing of a notice of
redemption of less than all the Outstanding Securities of the same series
and ending at the close of business on the day of such mailing, nor (ii) to
register the transfer of or exchange any Securities of any series or
portions thereof called for redemption. The provisions of this Section
2.05 are, with respect to any Global Security, subject to Section 2.11
hereof.
SECTION 2.06 Temporary Securities.
Pending the preparation of definitive Securities of any series,
the Company may execute, and the Trustee shall authenticate and deliver,
temporary Securities (printed, lithographed or typewritten) of any
authorized denomination. Such temporary Securities shall be substantially
in the form of the definitive Securities in lieu of which they are issued,
but with such omissions, insertions and variations as may be appropriate
<PAGE>
for temporary Securities, all as may be determined by the Company. Every
temporary Security of any series shall be executed by the Company and be
authenticated by the Trustee upon the same conditions and in substantially
the same manner, and with like effect, as the definitive Securities of such
series. Without unnecessary delay the Company will execute and will
furnish definitive Securities of such series and thereupon any or all
temporary Securities of such series may be surrendered in exchange therefor
(without charge to the holders), at the office or agency of the Company
designated for the purpose in the Borough of Manhattan, the City and State
of New York, and the Trustee shall authenticate and such office or agency
shall deliver in exchange for such temporary Securities an equal aggregate
principal amount of definitive Securities of such series, unless the
Company advises the Trustee to the effect that definitive Securities need
not be executed and furnished until further notice from the Company. Until
so exchanged, the temporary Securities of such series shall be entitled to
the same benefits under this Indenture as definitive Securities of such
series authenticated and delivered hereunder.
SECTION 2.07 Mutilated, Destroyed, Lost or Stolen Securities.
In case any temporary or definitive Security shall become
mutilated or be destroyed, lost or stolen, the Company (subject to the next
succeeding sentence) shall execute, and upon the Company's request the
Trustee (subject as aforesaid) shall authenticate and deliver, a new
Security of the same series, bearing a number not contemporaneously
outstanding, in exchange and substitution for the mutilated Security, or in
lieu of and in substitution for the Security so destroyed, lost or stolen.
In every case the applicant for a substituted Security shall furnish to the
Company and the Trustee such security or indemnity as may be required by
them to save each of them harmless, and, in every case of destruction, loss
or theft, the applicant shall also furnish to the Company and the Trustee
evidence to their satisfaction of the destruction, loss or theft of the
applicant's Security and of the ownership thereof. The Trustee may
authenticate any such substituted Security and deliver the same upon the
written request or authorization of any officer of the Company. Upon the
issuance of any substituted Security, the Company may require the payment
of a sum sufficient to cover any tax or other governmental charge that may
be imposed in relation thereto and any other expenses (including the fees
and expenses of the Trustee) connected therewith. In case any Security
that has matured or is about to mature shall become mutilated or be
destroyed, lost or stolen, the Company may, instead of issuing a substitute
Security, pay or authorize the payment of the same (without surrender
thereof except in the case of a mutilated Security) if the applicant for
such payment shall furnish to the Company and the Trustee such security or
indemnity as they may require to save them harmless, and, in case of
destruction, loss or theft, evidence to the satisfaction of the Company and
the Trustee of the destruction, loss or theft of such Security and of the
ownership thereof.
Every replacement Security issued pursuant to the provisions of
this Section shall constitute an additional contractual obligation of the
Company whether or not the mutilated, destroyed, lost or stolen Security
shall be found at any time, or be enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately
with any and all other Securities of the same series duly issued hereunder.
All Securities shall be held and owned upon the express condition that the
foregoing provisions are exclusive with respect to the replacement or
<PAGE>
payment of mutilated, destroyed, lost or stolen Securities, and shall
preclude (to the extent lawful) any and all other rights or remedies,
notwithstanding any law or statute existing or hereafter enacted to the
contrary with respect to the replacement or payment of negotiable
instruments or other securities without their surrender.
SECTION 2.08 Cancellation.
All Securities surrendered for the purpose of payment,
redemption, exchange or registration of transfer shall, if surrendered to
the Company or any paying agent, be delivered to the Trustee for
cancellation, or, if surrendered to the Trustee, shall be cancelled by it,
and no Securities shall be issued in lieu thereof except as expressly
required or permitted by any of the provisions of this Indenture. On
request of the Company at the time of such surrender, the Trustee shall
deliver to the Company canceled Securities held by the Trustee. In the
absence of such request the Trustee may dispose of canceled Securities in
accordance with its standard procedures and deliver a certificate of
disposition to the Company. If the Company shall otherwise acquire any of
the Securities, however, such acquisition shall not operate as a redemption
or satisfaction of the indebtedness represented by such Securities unless
and until the same are delivered to the Trustee for cancellation.
SECTION 2.09 Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or
implied, shall give or be construed to give to any Person, other than the
parties hereto and the holders of the Securities any legal or equitable
right, remedy or claim under or in respect of this Indenture, or under any
covenant, condition or provision herein contained; all such covenants,
conditions and provisions being for the sole benefit of the parties hereto
and of the holders of the Securities.
SECTION 2.10 Authenticating Agent.
So long as any of the Securities of any series remain Outstanding
there may be an Authenticating Agent for any or all such series of
Securities which the Trustee shall have the right to appoint. Said
Authenticating Agent shall be authorized to act on behalf of the Trustee to
authenticate Securities of such series issued upon exchange, transfer or
partial redemption thereof, and 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.
All references in this Indenture to the authentication of Securities by the
Trustee shall be deemed to include authentication by an Authenticating
Agent for such series. Each Authenticating Agent shall be acceptable to
the Company and shall be a corporation that has a combined capital and
surplus, as most recently reported or determined by it, sufficient under
the laws of any jurisdiction under which it is organized or in which it is
doing business to conduct a trust business, and that is otherwise
authorized under such laws to conduct such business and is subject to
supervision or examination by Federal or State authorities. If at any time
any Authenticating Agent shall cease to be eligible in accordance with
these provisions, it shall resign immediately.
Any Authenticating Agent may at any time resign by giving written
notice of resignation to the Trustee and to the Company. The Trustee may
<PAGE>
at any time (and upon request by the Company shall) terminate the agency of
any Authenticating Agent by giving written notice of termination to such
Authenticating Agent and to the Company. Upon resignation, termination or
cessation of eligibility of any Authenticating Agent, the Trustee may
appoint an eligible successor Authenticating Agent acceptable to the
Company. Any successor Authenticating Agent, upon acceptance of its
appointment hereunder, shall become vested with all the rights, powers and
duties of its predecessor hereunder as if originally named as an
Authenticating Agent pursuant hereto.
SECTION 2.11 Global Securities.
(a) If the Company shall establish pursuant to Section 2.01 that
the Securities of a particular series are to be issued as a Global
Security, then the Company shall execute and the Trustee shall, in
accordance with Section 2.04, authenticate and deliver, a Global Security
that (i) shall represent, and shall be denominated in an amount equal to
the aggregate principal amount of, all of the Outstanding Securities of
such series, (ii) shall be registered in the name of the Depositary or its
nominee, (iii) shall be delivered by the Trustee to the Depositary or
pursuant to the Depositary's instruction and (iv) shall bear a legend
substantially to the following effect: "Except as otherwise provided in
Section 2.11 of the Indenture, this Security may be transferred, in whole
but not in part, only to another nominee of the Depositary or to a
successor Depositary or to a nominee of such successor Depositary."
(b) Notwithstanding the provisions of Section 2.05, the Global
Security of a series may be transferred, in whole but not in part and in
the manner provided in Section 2.05, 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.
(c) If at any time the Depositary for a series of the Securities
notifies the Company that it is unwilling or unable to continue as
Depositary for such series or if at any time the Depositary for such series
shall no longer be registered or in good standing under the Exchange Act,
or other applicable statute or regulation, and 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 subject to
Section 2.05, the Trustee will authenticate and deliver the Securities of
such series in definitive registered form without coupons, 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. In addition, the Company may at any time determine that the
Securities of any series shall no longer be represented by a Global
Security and that the provisions of this Section 2.11 shall no longer apply
to the Securities of such series. In such event the Company will execute
and subject to Section 2.05, the Trustee, upon receipt of an Officers'
Certificate evidencing such determination by the Company, will authenticate
and deliver the Securities of such series in definitive registered form
without coupons, 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. Upon the exchange of the Global
Security for such Securities in definitive registered form without coupons,
<PAGE>
in authorized denominations, the Global Security shall be canceled by the
Trustee. Such Securities in definitive registered form issued in exchange
for the Global Security pursuant to this Section 2.11(c) shall be
registered in such names and in such authorized denominations as the
Depositary, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee. The Trustee shall
deliver such Securities to the Depositary for delivery to the Persons in
whose names such Securities are so registered.
ARTICLE III
REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS
SECTION 3.01 Redemption.
The Company may redeem the Securities of any series issued
hereunder on and after the dates and in accordance with the terms
established for such series pursuant to Section 2.01 hereof.
SECTION 3.02 Notice of Redemption.
(a) In case the Company shall desire to exercise such right to
redeem all or, as the case may be, a portion of the Securities of any
series in accordance with the right reserved so to do, the Company shall,
or shall cause the Trustee to, give notice of such redemption to holders of
the Securities of such series to be redeemed by mailing, first class
postage prepaid, a notice of such redemption not less than 30 days and not
more than 90 days before the date fixed for redemption of that series to
such holders at their last addresses as they shall appear upon the Security
Register unless a shorter period is specified in the Securities to be
redeemed. Any notice that is mailed in the manner herein provided shall be
conclusively presumed to have been duly given, whether or not the
registered holder receives the notice. In any case, failure duly to give
such notice to the holder of any Security of any series designated for
redemption in whole or in part, or any defect in the notice, shall not
affect the validity of the proceedings for the redemption of any other
Securities of such series or any other series. In the case of any
redemption of Securities prior to the expiration of any restriction on such
redemption provided in the terms of such Securities or elsewhere in this
Indenture, the Company shall furnish the Trustee with an Officers'
Certificate evidencing compliance with any such restriction.
Each such notice of redemption shall specify the date fixed for
redemption and the redemption price at which Securities of that series are
to be redeemed, and shall state that payment of the redemption price of
such Securities to be redeemed will be made at the office or agency of the
Company in the Borough of Manhattan, the City and State of New York, upon
presentation and surrender of such Securities, that interest accrued to the
date fixed for redemption will be paid as specified in said notice, that
from and after said date interest will cease to accrue and that the
redemption is for a sinking fund, if such is the case. If less than all
the Securities of a series are to be redeemed, the notice to the holders of
Securities of that series to be redeemed in whole or in part shall specify
the particular Securities to be so redeemed. In case any Security is to be
redeemed in part only, the notice that relates to such Security shall state
the portion of the principal amount thereof to be redeemed, and shall state
that on and after the redemption date, upon surrender of such Security, a
<PAGE>
new Security or Securities of such series in principal amount equal to the
unredeemed portion thereof will be issued.
(b) If less than all the Securities of a series are to be
redeemed, the Company shall give the Trustee at least 45 days' notice in
advance of the date fixed for redemption as to the aggregate principal
amount of Securities of the series to be redeemed, and thereupon the
Trustee shall select, by lot or in such other manner as it shall deem
appropriate and fair in its discretion and that may provide for the
selection of a portion or portions (equal to one thousand U.S. dollars
($1,000) or any integral multiple thereof) of the principal amount of such
Securities of a denomination larger than $1,000, the Securities to be
redeemed and shall thereafter promptly notify the Company in writing of the
numbers of the Securities to be redeemed, in whole or in part.
The Company may, if and whenever it shall so elect, by delivery
of instructions signed on its behalf by its President or any Vice
President, instruct the Trustee or any paying agent to call all or any part
of the Securities of a particular series for redemption and to give notice
of redemption in the manner set forth in this Section, such notice to be in
the name of the Company or its own name as the Trustee or such paying agent
may deem advisable. In any case in which notice of redemption is to be
given by the Trustee or any such paying agent, the Company shall deliver or
cause to be delivered to, or permit to remain with, the Trustee or such
paying agent, as the case may be, such Security Register, transfer books or
other records, or suitable copies or extracts therefrom, sufficient to
enable the Trustee or such paying agent to give any notice by mail that may
be required under the provisions of this Section.
SECTION 3.03 Payment Upon Redemption.
(a) If the giving of notice of redemption shall have been
completed as above provided, the Securities or portions of Securities of
the series to be redeemed specified in such notice shall become due and
payable on the date and at the place stated in such notice at the
applicable redemption price, together with interest accrued to the date
fixed for redemption and interest on such Securities or portions of
Securities shall cease to accrue on and after the date fixed for
redemption, unless the Company shall default in the payment of such
redemption price and accrued interest with respect to any such Security or
portion thereof. On presentation and surrender of such Securities on or
after the date fixed for redemption at the place of payment specified in
the notice, said Securities shall be paid and redeemed at the applicable
redemption price for such series, together with interest accrued thereon to
the date fixed for redemption (but if the date fixed for redemption is an
interest payment date, the interest installment payable on such date shall
be payable to the registered holder at the close of business on the
applicable record date pursuant to Section 2.03).
(b) Upon presentation of any Security of such series that is to
be redeemed in part only, the Company shall execute and the Trustee shall
authenticate and the office or agency where the Security is presented shall
deliver to the holder thereof, at the expense of the Company, a new
Security of the same series of authorized denominations in principal amount
equal to the unredeemed portion of the Security so presented.
SECTION 3.04 Sinking Fund.
<PAGE>
The provisions of Sections 3.04, 3.05 and 3.06 shall be
applicable to any sinking fund for the retirement of Securities of a
series, except as otherwise specified as contemplated by Section 2.01 for
Securities of such series.
The minimum amount of any sinking fund payment provided for by
the terms of Securities of any series 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 Securities of any series is herein referred to
as an "optional sinking fund payment". If provided for by the terms of
Securities of any series, the cash amount of any sinking fund payment may
be subject to reduction as provided in Section 3.05. Each sinking fund
payment shall be applied to the redemption of Securities of any series as
provided for by the terms of Securities of such series.
SECTION 3.05 Satisfaction of Sinking Fund Payments with
Securities.
The Company (i) may deliver Outstanding Securities of a series
(other than any Securities previously called for redemption) and (ii) may
apply as a credit Securities of a series that have been redeemed either at
the election of the Company pursuant to the terms of such Securities or
through the application of permitted optional sinking fund payments
pursuant to the terms of such Securities, in each case in satisfaction of
all or any part of any sinking fund payment with respect to the Securities
of such series required to be made pursuant to the terms of such Securities
as provided for by the terms of such series, provided that such Securities
have not been previously so credited. Such Securities shall be received
and credited for such purpose by the Trustee at the redemption price
specified in such Securities for redemption through operation of the
sinking fund and the amount of such sinking fund payment shall be reduced
accordingly.
SECTION 3.06 Redemption of Securities for Sinking Fund.
Not less than 45 days prior to each sinking fund payment date for
any series of Securities, the Company will deliver to the Trustee an
Officers' Certificate specifying the amount of the next ensuing sinking
fund payment for that series pursuant to the terms of the series, the
portion thereof, if any, that is to be satisfied by delivering and
crediting Securities of that series pursuant to Section 3.05 and the basis
for such credit and will, together with such Officers' Certificate, deliver
to the Trustee any Securities to be so delivered. Not less than 30 days
before each such sinking fund payment date the Trustee shall select the
Securities to be redeemed upon such sinking fund payment date in the manner
specified in Section 3.02 and cause notice of the redemption thereof to be
given in the name of and at the expense of the Company in the manner
provided in Section 3.02. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the
manner stated in Section 3.03.
ARTICLE IV
SECTION 4.01 Payment of Principal, Premium and Interest.
<PAGE>
The Company will duly and punctually pay or cause to be paid the
principal of (and premium, if any) and interest on the Securities of that
series at the time and place and in the manner provided herein and
established with respect to such Securities.
SECTION 4.02 Maintenance of Office or Agency.
So long as any series of the Securities remain Outstanding, the
Company agrees to maintain an office or agency in the Borough of Manhattan,
the City and State of New York, with respect to each such series and at
such other location or locations as may be designated as provided in this
Section 4.02, where (i) Securities of that series may be presented for
payment, (ii) Securities of that series may be presented as hereinabove
authorized for registration of transfer and exchange, and (iii) notices and
demands to or upon the Company in respect of the Securities of that series
and this Indenture may be given or served, such designation to continue
with respect to such office or agency until the Company shall, by written
notice signed by its President or a Vice President and delivered to the
trustee, designate some other office or agency for such purposes or any of
them. If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address
thereof, such presentations, notices and demands may be made or served at
the Corporate Trust Office of the Trustee, and the Company hereby appoints
the Trustee as its agent to receive all such presentations, notices and
demands.
SECTION 4.03 Paying Agents.
(a) If the Company shall appoint one or more paying agents for
all or any series of the Securities, other than the Trustee, the Company
will cause each such paying agent to execute and deliver to the Trustee an
instrument in which such agent shall agree with the Trustee, subject to the
provisions of this Section:
(1) that it will hold all sums held by it as such agent for the
payment of the principal of (and premium, if any) or interest on the
Securities of that series (whether such sums have been paid to it by
the Company or by any other obligor of such Securities) in trust for
the benefit of the Persons entitled thereto;
(2) that it will give the Trustee notice of any failure by the
Company (or by any other obligor of such Securities) to make any
payment of the principal of (and premium, if any) or interest on the
Securities of that series when the same shall be due and payable;
(3) that it will, at any time during the continuance of any
failure referred to in the preceding paragraph (a)(2) above, upon the
written request of the Trustee, forthwith pay to the Trustee all sums
so held in trust by such paying agent; and
(4) that it will perform all other duties of paying agent as set
forth in this Indenture.
(b) If the Company shall act as its own paying agent with
respect to any series of the Securities, it will on or before each due date
of the principal of (and premium, if any) or interest on Securities of that
series, set aside, segregate and hold in trust for the benefit of the
<PAGE>
Persons entitled thereto a sum sufficient to pay such principal (and
premium, if any) or interest so becoming due on Securities of that series
until such sums shall be paid to such Persons or otherwise disposed of as
herein provided and will promptly notify the Trustee of such action, or any
failure (by it or any other obligor on such Securities) to take such
action. Whenever the Company shall have one or more paying agents for any
series of Securities, it will, prior to each due date of the principal of
(and premium, if any) or interest on any Securities of that series, deposit
with the paying agent a sum sufficient to pay the principal (an premium, if
any) or interest so becoming due, such sum to be held in trust for the
benefit of the Persons entitled to such principal, premium or interest, and
(unless such paying agent is the Trustee) the Company will promptly notify
the Trustee of this action or failure so to act.
(c) Notwithstanding anything in this Section to the contrary,
(i) the agreement to hold sums in trust as provided in this Section is
subject to the provisions of Section 11.05, and (ii) the Company may at any
time, for the purpose of obtaining the satisfaction and discharge of this
Indenture or for any other purpose, pay, or direct any paying agent to pay,
to the Trustee all sums held in trust by the Company or such paying agent,
such sums to be held by the Trustee upon the same terms and conditions as
those upon which such sums were held by the Company or such paying agent;
and, upon such payment by any paying agent to the Trustee, such paying
agent shall be released from all further liability with respect to such
money.
SECTION 4.04 Appointment to Fill Vacancy in Office of Trustee.
The Company, whenever necessary to avoid or fill a vacancy in the
office of Trustee, will appoint, in the manner provided in Section 7.10, a
Trustee, so that there shall at all times be a Trustee hereunder.
SECTION 4.05 Compliance with Consolidation Provisions.
The Company will not, while any of the Securities remain
Outstanding, consolidate with, or merge into, or merge into itself, or sell
or convey all or substantially all of its property to any other company
unless the provisions of Article Ten hereof are complied with.
ARTICLE V
SECURITYHOLDERS' LISTS AND REPORTS
BY THE COMPANY AND THE TRUSTEE
SECTION 5.01 Company to Furnish Trustee Names and Addresses of
Securityholders.
The Company will furnish or cause to be furnished to the Trustee
(a) on a monthly basis on each regular record date (as defined in Section
2.03) a list, in such form as the Trustee may reasonably require, of the
names and addresses of the holders of each series of Securities as of such
regular record date, provided that the Company shall not be obligated to
furnish or cause to furnish such list at any time that the list shall not
differ in any respect from the most recent list furnished to the Trustee by
the Company and (b) at such other times as the Trustee may request in
writing within 30 days after the receipt by the Company of any such
request, a list of similar form and content as of a date not more than 15
<PAGE>
days prior to the time such list is furnished; provided, however, that, in
either case, no such list need be furnished for any series for which the
Trustee shall be the Security Registrar.
SECTION 5.02 Preservation Of Information; Communications With
Securityholders.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, all information as to the names and addresses of
the holders of Securities contained in the most recent list furnished to it
as provided in Section 5.01 and as to the names and addresses of holders of
Securities received by the Trustee in its capacity as Security Registrar
(if acting in such capacity).
(b) The Trustee may destroy any list furnished to it as provided
in Section 5.01 upon receipt of a new list so furnished.
(c) Securityholders may communicate as provided in Section
312(b) of the Trust Indenture Act with other Securityholders with respect
to their rights under this Indenture or under the Securities.
SECTION 5.03 Reports by the Company.
(a) The Company covenants and agrees to file with the Trustee,
within 15 days after the Company is required to file the same with the
Commission, copies of the annual reports and of the information, documents
and other reports (or copies of such portions of any of the foregoing as
the Commission may from time to time by rules and regulations prescribe)
that the Company may be required to file with the Commission pursuant to
Section 13 or Section 15(d) of the Exchange Act; or, if the Company is not
required to file information, documents or reports pursuant to either of
such sections, then to file with the Trustee and the Commission, in
accordance with the rules and regulations prescribed from time to time by
the Commission, such of the supplementary and periodic information,
documents and reports that may be required pursuant to Section 13 of the
Exchange Act, 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) The Company covenants and agrees to file with the Trustee
and the Commission, in accordance with the rules and regulations prescribed
from to time by the Commission, such additional information, documents and
reports with respect to compliance by the Company with the conditions and
covenants provided for in this Indenture as may be required from time to
time by such rules and regulations.
(c) The Company covenants and agrees to transmit by mail, first
class postage prepaid, or reputable over-night delivery service that
provides for evidence of receipt, to the Securityholders, as their names
and addresses appear upon the Security Register, within 30 days after the
filing thereof with the Trustee, such summaries of any information,
documents and reports required to be filed by the Company pursuant to
subsections (a) and (b) of this Section as may be required by rules and
regulations prescribed from time to time by the Commission.
SECTION 5.04 Reports by the Trustee.
<PAGE>
(a) On or before July 15 in each year in which any of the
Securities are Outstanding, the Trustee shall transmit by mail, first class
postage prepaid, to the Securityholders, as their names and addresses
appear upon the Security Register, a brief report dated as of the preceding
May 15, if and to the extent required under Section 313(a) of the Trust
Indenture Act.
(b) The Trustee shall comply with Section 313(b) and 313(c) of
the Trust Indenture Act.
(c) A copy of each such report shall, at the time of such
transmission to Securityholders, be filed by the Trustee with the Company,
with each stock exchange upon which any Securities are listed (if so
listed) and also with the Commission. The Company agrees to notify the
Trustee when any Securities become listed on any stock exchange.
ARTICLE VI
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 6.01 Events of Default.
(a) Whenever used herein with respect to Securities of a
particular series, "Event of Default" means any one or more of the
following events that has occurred and is continuing:
(1) the Company defaults 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; provided, however, that a valid extension of an
interest payment period by the Company in accordance with the terms of
any indenture supplemental hereto, shall not constitute a default in
the payment of interest for this purpose;
(2) the Company defaults in the payment of the principal of (or
premium, if any, on) any of the Securities of that series as and when
the same shall become due and payable whether at maturity, upon
redemption, by declaration or otherwise, or in any payment required by
any sinking or analogous fund established with respect to that series;
provided, however, that a valid extension of the maturity of such
Securities in accordance with the terms of any indenture supplemental
hereto shall not constitute a default in the payment of principal or
premium, if any;
(3) the Company fails to observe or perform any other of its
covenants or agreements with respect to that series contained in this
Indenture or otherwise established with respect to that series of
Securities pursuant to Section 2.01 hereof (other than a covenant or
agreement that has been expressly included in this Indenture solely
for the benefit of one or more series of Securities other than such
series) for a period of 90 days after the date on which written notice
of such failure, requiring the same to be remedied and stating that
such notice is a "Notice of Default" hereunder, shall have been given
to the Company by the Trustee, by registered or certified mail, or to
the Company and the Trustee by the holders of at least 25% in
principal amount of the Securities of that series at the time
<PAGE>
Outstanding;
(4) the Company pursuant to or within the meaning of any
Bankruptcy Law (i) commences a voluntary case, (ii) consents to the
entry of an order for relief against it in an involuntary case, (iii)
consents to the appointment of a Custodian of it or for all or
substantially all of its property or (iv) makes a general assignment
for the benefit of its creditors; or
(5) a court of competent jurisdiction enters an order under any
Bankruptcy Law that (i) is for relief against the Company in an
involuntary case, (ii) appoints a Custodian of the Company for all or
substantially all of their respective property, or (iii) orders the
liquidation of the Company, and the order or decree remains unstayed
and in effect for 90 days.
(b) 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 25% in aggregate principal
amount of the Securities of that series then Outstanding hereunder, by
notice in writing to the Company (and to the Trustee if given by such
Securityholders), may declare the principal of all the Securities of that
series to be due and payable immediately, and upon any such declaration the
same shall become and shall be immediately due and payable, notwithstanding
anything contained in this Indenture or in the Securities of that series or
established with respect to that series pursuant to Section 2.01 to the
contrary.
(c) At any time after the principal of the Securities 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 holders of a majority in aggregate
principal amount of the Securities of that series then Outstanding
hereunder, by written notice to the Company and the Trustee, may rescind
and annul such declaration and its consequences if: (i) the Company has
paid or deposited with the Trustee a sum sufficient to pay all matured
installments of interest upon all the Securities of that series and the
principal of (and premium, if any, on) any and all Securities of that
series that shall have become due otherwise than by acceleration (with
interest upon such principal and premium, if any, and, to the extent that
such payment is enforceable under applicable law, upon overdue installments
of interest, at the rate per annum expressed in the Securities of that
series to the date of such payment or deposit) and the amount payable to
the Trustee under Section 7.06, and (ii) any and all Events of Default
under the Indenture with respect to such series, other than the nonpayment
of principal on Securities of that series that shall not have become due by
their terms, shall have been remedied or waived as provided in Section
6.06.
No such rescission and annulment shall extend to or shall affect
any subsequent default or impair any right consequent thereon.
(d) In case the Trustee shall have proceeded to enforce any
right with respect to Securities of that series under this Indenture and
such proceedings shall have been discontinued or abandoned because of such
rescission or annulment or for any other reason or shall have been
determined adversely to the Trustee, then and in every such case the
<PAGE>
Company, and the Trustee shall be restored respectively to their former
positions and rights hereunder, and all rights, remedies and powers of the
Company and the Trustee shall continue as though no such proceedings had
been taken.
SECTION 6.02 Collection of Indebtedness and Suits for
Enforcement by Trustee.
(a) The Company covenants that (1) in case it shall default in
the payment of any installment of interest on any of the Securities of a
series, or any payment required by any sinking or analogous fund
established with respect to that series as and when the same shall have
become due and payable, and such default shall have continued for a period
of 90 Business Days, or (2) in case it shall default in the payment of the
principal of (or premium, if any, on) any of the Securities of a series
when the same shall have become due and payable, whether upon maturity of
the Securities of a series or upon redemption or upon declaration or
otherwise, then, upon demand of the Trustee, the Company will pay to the
Trustee, for the benefit of the holders of the Securities of that series,
the whole amount that then shall have been become due and payable on all
such Securities for principal (and premium, if any) or interest, or both,
as the case may be, with interest upon the overdue principal (and premium,
if any) and (to the extent that payment of such interest is enforceable
under applicable law) upon overdue installments of interest at the rate per
annum expressed in the Securities of that series; and, in addition thereto,
such further amount as shall be sufficient to cover the costs and expenses
of collection, and the amount payable to the Trustee under Section 7.06.
(b) If the Company shall fail to pay such amounts forthwith 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 proceeding to judgment or
final decree, and may enforce any such judgment or final decree against the
Company or other obligor upon the Securities of that series and collect the
moneys adjudged or decreed to be payable in the manner provided by law out
of the property of the Company or other obligor upon the Securities of that
series, wherever situated.
(c) In case of any receivership, insolvency, liquidation,
bankruptcy, reorganization, readjustment, arrangement, composition or
judicial proceedings affected the Company, or its creditors or property,
the Trustee shall have power to intervene in such proceedings and take any
action therein that may be permitted by the court and shall (except as may
be otherwise provided by law) be entitled to file such proofs of claim and
other papers and documents as may be necessary or advisable in order to
have the claims of the Trustee and of the holders of Securities of such
series allowed for the entire amount due and payable by the Company under
the Indenture at the date of institution of such proceedings and for any
additional amount that may become due and payable by the Company after such
date, and to collect and receive any moneys or other property payable or
deliverable on any such claim, and to distribute the same after the
deduction of the amount payable to the Trustee under Section 7.06; and any
receiver, assignee or trustee in bankruptcy or reorganization is hereby
authorized by each of the holders of Securities of such series to make such
payments to the Trustee, and, in the event that the Trustee shall consent
to the making of such payments directly to such Securityholders, to pay to
<PAGE>
the Trustee any amount due it under Section 7.06.
(d) All rights of action and of asserting claims under this
Indenture, or under any of the terms established with respect to Securities
of that series, may be enforced by the Trustee without the possession of
any of such Securities, or the production thereof at any trial or other
proceeding relative thereto, and any such suit or proceeding instituted by
the Trustee shall be brought in its own name as trustee of an express
trust, and any recovery of judgment shall, after provision for payment to
the Trustee of any amounts due under Section 7.06, be for the ratable
benefit of the holders of the Securities of such series.
In 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 the Indenture or in
aid of the exercise of any power granted in this Indenture, or to enforce
any other legal or equitable right vested in the Trustee by this Indenture
or by law.
Nothing contained herein shall be deemed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any
Securityholder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities of that 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.
SECTION 6.03 Application of Moneys Collected.
Any moneys collected by the Trustee pursuant to this Article with
respect to a particular series of Securities shall be applied in the
following order, at the date or dates fixed by the Trustee and, in case of
the distribution of such moneys on account of principal (or premium, if
any) or interest, upon presentation of the Securities of that series, and
notation thereon the payment, if only partially paid, and upon surrender
thereof if fully paid:
FIRST: To the payment of costs and expenses of collection and of
all amounts payable to the Trustee under Section 7.06; and
SECOND: To the payment of the amounts then due and unpaid upon
Securities of such series for principal (and premium, if any) and
interest, in respect of which or for the benefit of which such money
has been collected, ratably, without preference or priority of any
kind, according to the amounts due and payable on such Securities for
principal (and premium, if any) and interest, respectively.
SECTION 6.04 Limitation on Suits.
No holder of any Security of any series shall have any right by
virtue or by availing of any provision of this Indenture to institute any
suit, action or proceeding in equity or at law upon or under or with
respect to this Indenture or for the appointment of a receiver or trustee,
or for any other remedy hereunder, unless (i) such holder previously shall
have given to the Trustee written notice of an Event of Default and of the
<PAGE>
continuance thereof with respect to the Securities of such series
specifying such Event of Default, as hereinbefore provided; (ii) the
holders of not less than 25% in aggregate principal amount of the
Securities of such series then Outstanding shall have made written request
upon the Trustee to institute such action, suit or proceeding in its own
name as trustee hereunder; (iii) such holder or holders 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 (iv)
the Trustee for 60 days after its receipt of such notice, request and offer
of indemnity, shall have failed to institute any such action, suit or
proceeding and (v) during such 60 day period, the holders of a majority in
principal amount of the Securities of that series do not give the Trustee a
direction inconsistent with the request.
Notwithstanding anything contained herein to the contrary, any
other provisions of this Indenture, the right of any holder of any Security
to receive payment of the principal of (and premium, if any) and interest
on such Security, as therein provided, on or after the respective due dates
expressed in such Security (or in the case of redemption, on the redemption
date), or to institute suit for the enforcement of any such payment on or
after such respective dates or redemption date, shall not be impaired or
affected without the consent of such holder and by accepting a Security
hereunder it is expressly understood, intended and covenanted by the taker
and holder of every Security of such series with every other such taker and
holder and the Trustee, that no one or more holders of Securities of such
series shall have any right in any manner whatsoever by virtue or by
availing of any provision of this Indenture to affect, disturb or prejudice
the rights of the holders of any other of such Securities, 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 such series. For the protection and enforcement of the
provisions of this Section, each and every Securityholder and the Trustee
shall be entitled to such relief as can be given either at law or in
equity.
SECTION 6.05 Rights and Remedies Cumulative; Delay or Omission
Not Waiver.
(a) Except as otherwise provided in Section 2.07, all powers and
remedies given by this Article to the Trustee or to the Securityholders
shall, to the extent permitted by law, be deemed cumulative and not
exclusive of any other powers and remedies available to the Trustee or the
holders of the Securities, by judicial proceedings or otherwise, to enforce
the performance or observance of the covenants and agreements contained in
this Indenture or otherwise established with respect to such Securities.
(b) No delay or omission of the Trustee or of any holder of any
of the Securities to exercise 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 on
acquiescence therein; and, subject to the provisions of Section 6.04, every
power and remedy given by this Article or by law to the Trustee or the
Securityholders may be exercised from time to time, and as often as shall
be deemed expedient, by the Trustee or by the Securityholders.
SECTION 6.06 Control by Securityholders.
<PAGE>
The holders of a majority in aggregate principal amount of the
Securities of any series at the time Outstanding, determined in accordance
with Section 8.04, 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
such series; provided, however, that such direction shall not be in
conflict with any rule of law or with this Indenture or be unduly
prejudicial to the rights of holders of Securities of any other series at
the time Outstanding determined in accordance with Section 8.04. Subject
to the provisions of Section 7.01, the Trustee shall have the right to
decline to follow any such direction if the Trustee in good faith shall, by
a Responsible Officer or Officers of the Trustee, determine that the
proceeding so directed would involve the Trustee in personal liability.
The holders of a majority in aggregate principal amount of the Securities
of any series at the time Outstanding affected thereby, determined in
accordance with Section 8.04, may on behalf of the holders of all of the
Securities of such series waive any past default in the performance of any
of the covenants contained herein or established pursuant to Section 2.01
with respect to such series and its consequences, except a default in the
payment of the principal of, or premium, if any, or interest on, any of the
Securities of that series as and when the same shall become due by the
terms of such Securities otherwise than by acceleration (unless such
default has been cured and a sum sufficient to pay all matured installments
of interest and principal and any premium has been deposited with the
Trustee (in accordance with Section 6.01(c)). Upon any such waiver, the
default covered thereby shall be deemed to be cured for all purposes of
this Indenture and the Company, 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 Undertaking to Pay Costs.
All parties to this Indenture agree, and each holder of any
Securities 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 shall not apply to any suit instituted by the Trustee, to any
suit instituted by any Securityholder, or group of Securityholders, holding
more than 10% in aggregate principal amount of the Outstanding Securities
of any series, or to any suit instituted by any Securityholder for the
enforcement of the payment of the principal of (or premium, if any) or
interest on any Security of such series, on or after the respective due
dates expressed in such Security or established pursuant to this Indenture.
ARTICLE VII
CONCERNING THE TRUSTEE
SECTION 7.01 Certain Duties and Responsibilities of Trustee.
<PAGE>
(a) The Trustee, prior to the occurrence of an Event of Default
with respect to the Securities of a series and after the curing of all
Events of Default with respect to the Securities of that series that may
have occurred, shall undertake to perform with respect to the Securities of
such series such duties and only such duties as are specifically set forth
in this Indenture, and no implied covenants shall be read into this
Indenture against the Trustee. In case an Event of Default with respect to
the Securities of a series has occurred (that has not been cured or
waived), the Trustee shall exercise with respect to Securities of that
series such of the rights and powers vested in it by this Indenture, and
use the same degree of care and skill in their exercise, as a prudent man
would exercise or use under the circumstances in the conduct of his own
affairs.
(b) No provision of this Indenture shall be construed to relieve
the Trustee from liability for its own negligent action, its own negligent
failure to act, or its own willful misconduct, except that:
(1) prior to the occurrence of an Event of Default with respect
to the Securities of a series and after the curing or waiving of all
such Events of Default with respect to that series that may have
occurred:
(i) the duties and obligations of the Trustee shall
with respect to the Securities of such series be determined
solely by the express provisions of this Indenture, and the
Trustee shall not be liable with respect to the Securities
of such series except for the performance of such duties and
obligations as are specifically set forth in this Indenture,
and no implied covenants or obligations shall be read into
this Indenture against the Trustee; and
(ii) in the absence of bad faith on the part of the
Trustee, the Trustee may with respect to the Securities of
such series conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the
Trustee and conforming to the requirements of this
Indenture; but in the case of any such certificates or
opinions that by any provision hereof are specifically
required to be furnished to the Trustee, the Trustee shall
be under a duty to examine the same to determine whether or
not they conform to the requirement of this Indenture;
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer or Responsible Officers of
the Trustee, unless it shall be proved that the Trustee, was negligent
in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with
the direction of the holders of not less than a majority in principal
amount of the Securities of any series at the time Outstanding
relating to the time, method and place of conducting any proceeding
for any remedy available to the Trustee, or exercising any trust or
power conferred upon the Trustee under this Indenture with respect to
<PAGE>
the Securities of that series; and
(4) None of the provisions contained in this Indenture shall
require the Trustee to expend or risk its own funds or otherwise incur
personal financial liability in the performance of any of its duties
or in the exercise of any of its rights or powers, if there is
reasonable ground for believing that the repayment of such funds or
liability is not reasonably assured to it under the terms of this
Indenture or adequate indemnity against such risk is not reasonably
assured to it.
SECTION 7.02 Certain Rights of Trustee.
Except as otherwise provided in Section 7.01:
(a) The Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval,
bond, security or other paper or document believed by it to be genuine and
to have been signed or presented by the proper party or parties;
(b) Any request, direction, order or demand of the Company
mentioned herein shall be sufficiently evidenced by a Board Resolution or
an instrument signed in the name of the Company, by the President or any
Vice President and by the Secretary or an Assistant Secretary or the
Treasurer or an Assistant Treasurer thereof (unless other evidence in
respect thereof is specifically prescribed herein);
(c) The Trustee may consult with counsel and the written advice
of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or suffered or
omitted hereunder in good faith and in reliance thereon;
(d) The Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request, order
or direction of any of the Securityholders, pursuant to the provisions of
this Indenture, unless such Securityholders shall have offered to the
Trustee reasonable security or indemnity against the costs, expenses and
liabilities that may be incurred therein or thereby; nothing contained
herein shall, however, relieve the Trustee of the obligation, upon the
occurrence of an Event of Default with respect to a series of the
Securities (that has not been cured or waived) to exercise with respect to
Securities of that series such of the rights and powers vested in it by
this Indenture, and to use the same degree of care and skill in their
exercise, as a prudent man would exercise or use under the circumstances in
the conduct of his own affairs;
(e) The Trustee shall not be liable for any action taken or
omitted to be taken by it in good faith and believed by it to be authorized
or within the discretion or rights or powers conferred upon it by this
Indenture;
(f) The Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval,
bond, security, or other papers or documents, unless requested in writing
so to do by the holders of not less than a majority in principal amount of
<PAGE>
the Outstanding Securities of the particular series affected thereby
(determined as provided in Section 8.04); provided, however, that if the
payment within a reasonable time to the Trustee of the costs, expenses or
liabilities likely to be incurred by it in the making of such investigation
is, in the opinion of the Trustee, not reasonably assured to the Trustee by
the security afforded to it by the terms of this Indenture, the Trustee may
require reasonable indemnity against such costs, expenses or liabilities as
a condition to so proceeding. The reasonable expense of every such
examination shall be paid by the Company or, if paid by the Trustee, shall
be repaid by the Company upon demand; and
(g) The Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys and the Trustee shall not be responsible for any
misconduct or negligence on the part of any agent or attorney appointed
with due care by it hereunder.
SECTION 7.03 Trustee Not Responsible for Recitals or Issuance
or Securities.
(a) The recitals contained herein and in the Securities shall be
taken as the statements of the Company, and the Trustee assumes no
responsibility for the correctness of the same.
(b) The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Securities.
(c) The Trustee shall not be accountable for the use or
application by the Company of any of the Securities or of the proceeds of
such Securities, or for the use or application of any moneys paid over by
the Trustee in accordance with any provision of this Indenture or
established pursuant to Section 2.01, or for the use or application of any
moneys received by any paying agent other than the Trustee.
SECTION 7.04 May Hold Securities.
The Trustee or any paying agent or Security Registrar, in its
individual or any other capacity, may become the owner or pledgee of
Securities with the same rights it would have if it were not Trustee,
paying agent or Security Registrar.
SECTION 7.05 Moneys Held in Trust.
Subject to the provisions of Section 11.05, all moneys received
by the Trustee shall, until used or applied as herein provided, be held in
trust for the purposes for which they were received, but need not be
segregated from other funds except to the extent required by law. The
Trustee shall be under no liability for interest on any moneys received by
it hereunder except such as it may agree with the Company to pay thereon.
SECTION 7.06 Compensation and Reimbursement.
(a) The Company covenants and agrees to pay to the Trustee, and
the Trustee shall be entitled to, such reasonable compensation (which shall
not be limited by any provision of law in regard to the compensation of a
trustee of an express trust), as the Company, and the Trustee may from time
to time agree in writing, for all services rendered by it in the execution
<PAGE>
of the trusts hereby created and in the exercise and performance of any of
the powers and duties hereunder of the Trustee, and, except as otherwise
expressly provided herein, the Company will pay or reimburse the Trustee
upon its request for all reasonable expenses, disbursements and advances
incurred or made by the Trustee in accordance with any of the provisions of
this Indenture (including the reasonable compensation and the expenses and
disbursements of its counsel and of all Persons not regularly in its
employ) except any such expense, disbursement or advance as may arise from
its negligence or bad faith. The Company also covenants to indemnify the
Trustee (and its officers, agents, directors and employees) for, and to
hold it harmless against, any loss, liability or expense incurred without
negligence or bad faith on the part of the Trustee and arising out of or in
connection with the acceptance or administration of this trust, including
the costs and expenses of defending itself against any claim of liability
in the premises.
(b) The obligations of the Company under this Section to
compensate and indemnify the Trustee and to pay or reimburse the Trustee
for expenses, disbursements and advances shall constitute additional
indebtedness hereunder. Such additional indebtedness shall be secured by a
lien prior to that of the Securities upon all property and funds held or
collected by the Trustee as such, except funds held in trust for the
benefit of the holders of particular Securities.
SECTION 7.07 Reliance on Officers' Certificate.
Except as otherwise provided in Section 7.01, whenever in the
administration of the provisions of this Indenture the Trustee shall deem
it necessary or desirable that a matter be proved or established prior to
taking or suffering or omitting to take any action hereunder, such matter
(unless other evidence in respect thereof be herein specifically
prescribed) may, in the absence of negligence or bad faith on the part of
the Trustee, be deemed to be conclusively proved and established by an
Officers' Certificate delivered to the Trustee and such certificate, in the
absence of negligence or bad faith on the part of the Trustee, shall be
full warrant to the Trustee for any action taken, suffered or omitted to be
taken by it under the provisions of this Indenture upon the faith thereof.
SECTION 7.08 Disqualification; Conflicting Interests.
If the Trustee has or shall acquire any "conflicting interest"
within the meaning of Section 310(b) of the Trust Indenture Act, the
Trustee and the Company shall in all respects comply with the provisions of
Section 310(b) of the Trust Indenture Act.
SECTION 7.09 Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee with respect to the
Securities issued hereunder which shall at all times be a corporation
organized and doing business under the laws of the United States of America
or any State or Territory thereof or of the District of Columbia, or a
corporation or other Person permitted to act as trustee by the Commission,
authorized under such laws to exercise corporate trust powers, having a
combined capital and surplus of at least 50 million U.S. dollars
($50,000,000), and subject to supervision or examination by Federal, State,
Territorial, or District of Columbia authority. If such corporation
publishes reports of condition at least annually, pursuant to law or to the
<PAGE>
requirements of the aforesaid supervising or examining authority, then for
the purposes of this Section, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set
forth in its most recent report of condition so published. The Company may
not, nor may any Person directly or indirectly controlling, controlled by,
or under common control with the Company, serve as Trustee. In case at any
time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, the Trustee shall resign immediately in the
manner and with the effect specified in Section 7.10.
SECTION 7.10 Resignation and Removal; Appointment of Successor.
(a) The Trustee or any successor hereafter appointed, may at any
time resign with respect to the Securities of one or more series by giving
written notice thereof to the Company and by transmitting notice of
resignation by mail, first class postage prepaid, to the Securityholders of
such series, as their names and addresses appear upon the Security
Register. Upon receiving such notice of resignation, the Company shall
promptly appoint a successor trustee with respect to Securities of such
series by written instrument, in duplicate, executed by order of the Board
of Directors, one copy of which instrument shall be delivered to the
resigning Trustee and one copy to the successor trustee. If no successor
trustee shall have been so appointed and have accepted appointment within
30 days after the mailing of such notice of resignation, the resigning
Trustee may petition any court of competent jurisdiction for the
appointment of a successor trustee with respect to Securities of such
series, or any Securityholder of that series who has been a bona fide
holder of a Security or Securities for at least six months may on behalf of
himself and all others similarly situated, petition any such court for the
appointment of a successor trustee. Such court may thereupon after such
notice, if any, as it may deem proper and prescribe, appoint a successor
trustee.
(b) In case at any time any one of the following shall occur:
(1) the Trustee shall fail to comply with the provisions of
Section 7.08 after written request therefor by the Company or by any
Securityholder who has been a bona fide holder of a Security or
Securities for at least six months; or
(2) the Trustee shall cease to be eligible in accordance with
the provisions of Section 7.09 and shall fail to resign after written
request therefor by the Company or by any such Securityholder; or
(3) the Trustee shall become incapable of acting, or shall be
adjudged a bankrupt or insolvent, or commence a voluntary bankruptcy
proceeding, or a receiver of the Trustee or of its property shall be
appointed or consented to, or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose
of rehabilitation, conservation or liquidation, then, in any such
case, the Company may remove the Trustee with respect to all
Securities and appoint a successor trustee by written instrument, in
duplicate, executed by order of the Board of Directors, one copy of
which instrument shall be delivered to the Trustee so removed and one
copy to the successor trustee, or, unless the Trustee's duty to resign
is stayed as provided herein, any Securityholder who has been a bona
fide holder of a Security or Securities for at least six months may,
<PAGE>
on behalf of that holder and all others similarly situated, petition
any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor trustee. Such court may thereupon
after such notice, if any, as it may deem proper and prescribe, remove
the Trustee and appoint a successor trustee.
(c) The holders of a majority in aggregate principal amount of
the Securities of any series at the time Outstanding may at any time remove
the Trustee with respect to such series by so notifying the Trustee and the
Company and may appoint a successor Trustee for such series with the
consent of the Company.
(d) Any resignation or removal of the Trustee and appointment of
a successor trustee with respect to the Securities of a series pursuant to
any of the provisions of this Section shall become effective upon
acceptance of appointment by the successor trustee as provided in Section
7.11.
(e) Any successor trustee appointed pursuant to this Section may
be appointed with respect to the Securities of one or more series or all of
such series, and at any time there shall be only one Trustee with respect
to the Securities of any particular series.
SECTION 7.11 Acceptance of Appointment By Successor.
(a) In case of the appointment hereunder of a successor trustee
with respect to all Securities, every such successor trustee so appointed
shall execute, acknowledge and deliver to the Company and to the retiring
Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and
such successor trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of the
retiring Trustee; but, on the request of the Company or the successor
trustee, such retiring Trustee shall, upon payment of its charges, execute
and deliver an instrument transferring to such successor trustee all the
rights, powers, and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor trustee all property and money held
by such retiring Trustee hereunder.
(b) 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 each successor trustee with respect to
the Securities of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor trustee shall accept such
appointment and which (1) shall contain such provisions as shall be
necessary or desirable to transfer and confirm to, and to vest in, each
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) shall contain such
provisions as shall be deemed necessary or desirable to confirm that all
the rights, powers, trusts and duties of the retiring Trustee with respect
to the 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
<PAGE>
co-trustees of the same trust, 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 and that no Trustee shall
be responsible for any act or failure to act on the part of any other
Trustee hereunder; and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein, such retiring Trustee shall with
respect to the Securities of that or those series to which the appointment
of such successor trustee relates have no further responsibility for the
exercise of rights and powers or for the performance of the duties and
obligations vested in the Trustee under this Indenture, and each such
successor trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series to
which the appointment of such successor trustee relates; but, on request of
the Company or any successor trustee, such retiring Trustee shall duly
assign, transfer and deliver to such successor trustee, to the extent
contemplated by such supplemental indenture, the property and money held by
such retiring Trustee hereunder with respect to the Securities of that or
those series to which the appointment of such successor trustee relates.
(c) Upon request of any such successor trustee, the Company
shall execute any and all instruments for more fully and certainly vesting
in and confirming to such successor trustee all such rights, powers and
trusts referred to in paragraph (a) or (b) of this Section, as the case may
be.
(d) No successor trustee shall accept its appointment unless at
the time of such acceptance such successor trustee shall be qualified and
eligible under this Article.
(e) Upon acceptance of appointment by a successor trustee as
provided in this Section, the Company shall transmit notice of the
succession of such trustee hereunder by mail, first class postage prepaid,
to the Securityholders, as their names and addresses appear upon the
Security Register. If the Company fails to transmit such notice within ten
days after acceptance of appointment by the successor trustee, the
successor trustee shall cause such notice to be transmitted at the expense
of the Company.
SECTION 7.12 Merger, Conversion, Consolidation or Succession to
Business.
Any corporation into which the Trustee may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party,
or any corporation succeeding to the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder, provided that
such corporation shall be qualified under the provisions of Section 7.08
and eligible under the provisions of Section 7.09, without the execution or
filing of any paper or any further act on the part of any of the parties
hereto, anything herein to the contrary notwithstanding. In case any
Securities shall have been authenticated, but not delivered, by the Trustee
then in office, any successor by merger, conversion or consolidation to
such authenticating Trustee may adopt such authentication and deliver the
Securities so authenticated with the same effect as if such successor
Trustee had itself authenticated such Securities.
<PAGE>
SECTION 7.13 Preferential Collection of Claims Against the
Company.
The Trustee shall comply with Section 311(a) of the Trust
Indenture Act, excluding any creditor relationship described in Section
311(b) of the Trust Indenture Act. A Trustee who has resigned or been
removed shall be subject to Section 311(a) of the Trust Indenture Act to
the extent included therein.
ARTICLE VIII
CONCERNING THE SECURITYHOLDERS
SECTION 8.01 Evidence of Action by Securityholders.
Whenever in this Indenture it is provided that the holders of a
majority or specified percentage in aggregate principal amount of the
Securities of a particular series may take any action (including the making
of any demand or request, the giving of any notice, consent or waiver or
the taking of any other action), the fact that at the time of taking any
such action the holders of such majority or specified percentage of that
series have joined therein may be evidenced by any instrument or any number
of instruments of similar tenor executed by such holders of Securities of
that series in Person or by agent or proxy appointed in writing.
If the Company shall solicit from the Securityholders of any
series any request, demand, authorization, direction, notice, consent,
waiver or other action, the Company may, at its option, as evidenced by an
Officers' Certificate, fix in advance a record date for such series for the
determination of Securityholders entitled to give such request, demand,
authorization, direction, notice, consent, waiver or other action, but the
Company shall have no obligation to do so. If such a record date is fixed,
such request, demand, authorization, direction, notice, consent, waiver or
other action may be given before or after the record date, but only the
Securityholders of record at the close of business on the record date shall
be deemed to be Securityholders for the purposes of determining whether
Securityholders of the requisite proportion of Outstanding Securities of
that series have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other action, and for
that purpose the Outstanding Securities of that series shall be computed as
of the record date; provided, however, that no such authorization,
agreement or consent by such Securityholders on the record date shall be
deemed effective unless it shall become effective pursuant to the
provisions of this Indenture not later than six months after the record
date.
SECTION 8.02 Proof of Execution by Securityholders.
Subject to the provisions of Section 7.01, proof of the execution
of any instrument by a Securityholder (such proof will not require
notarization) or his agent or proxy and proof of the holding by any Person
of any of the Securities shall be sufficient if made in the following
manner:
(a) The fact and date of the execution by any such Person of any
instrument may be proved in any reasonable manner acceptable to the
<PAGE>
Trustee.
(b) The ownership of Securities shall be proved by the Security
Register of such Securities or by a certificate of the Security Registrar
thereof.
(c) The Trustee may require such additional proof of any matter
referred to in this Section as it shall deem necessary.
SECTION 8.03 Who May be Deemed Owners.
Prior to the due presentment for registration of transfer of any
Security, the Company, the Trustee, any paying agent and any Security
Registrar may deem and treat the Person in whose name such Security shall
be registered upon the books of the Company as the absolute owner of such
Security (whether or not such Security shall be overdue and notwithstanding
any notice of ownership or writing thereon made by anyone other than the
Security Registrar) for the purpose of receiving payment of or on account
of the principal of, premium, if any, and (subject to Section 2.03)
interest on such Security and for all other purposes; and neither the
Company nor the Trustee nor any paying agent nor any Security Registrar
shall be affected by any notice to the contrary.
SECTION 8.04 Certain Securities Owned by Company Disregarded.
In determining whether the holders of the requisite aggregate
principal amount of Securities of a particular series have concurred in any
direction, consent of waiver under this Indenture, the Securities of that
series that are owned by the Company or any other obligor on the Securities
of that series or by any Person directly or indirectly controlling or
controlled by or under common control with the Company or any other obligor
on the Securities of that series shall be disregarded and deemed not to be
Outstanding for the purpose of any such determination, except that for the
purpose of determining whether the Trustee shall be protected in relying on
any such direction, consent or waiver, only Securities of such series that
the Trustee actually knows are so owned shall be so disregarded. The
Securities so owned that have been pledged in good faith may be regarded as
Outstanding for the purposes of this Section, if the pledgee shall
establish to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Securities and that the pledgee is not a Person
directly or indirectly controlling or controlled by or under direct or
indirect common control with the Company or any such other obligor. In
case of a dispute as to such right, any decision by the Trustee taken upon
the advice of counsel shall be full protection to the Trustee.
SECTION 8.05 Actions Binding on Future Securityholders.
At any time prior to (but not after) the evidencing to the
Trustee, as provided in Section 8.01, of the taking of any action by the
holders of the majority or percentage in aggregate principal amount of the
Securities of a particular series specified in this Indenture in connection
with such action, any holder of a Security of that series that is shown by
the evidence to be included in the Securities the holders of which have
consented to such action may, by filing written notice with the Trustee,
and upon proof of holding as provided in Section 8.02, revoke such action
so far as concerns such Security. Except as aforesaid any such action
taken by the holder of any Security shall be conclusive and binding upon
<PAGE>
such holder and upon all future holders and owners of such Security, and of
any Security issued in exchange therefor, on registration of transfer
thereof or in place thereof, irrespective of whether or not any notation in
regard thereto is made upon such Security. Any action taken by the holders
of the majority or percentage in aggregate principal amount of the
Securities of a particular series specified in this Indenture in connection
with such action shall be conclusively binding upon the Company, the
Trustee and the holders of all the Securities of that series.
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.01 Supplemental Indentures Without the Consent of
Securityholders.
In addition to any supplemental indenture otherwise authorized by
this Indenture, the Company and the Trustee may from time to time and at
any time enter into an indenture or indentures supplemental hereto (which
shall conform to the provisions of the Trust Indenture Act as then in
effect), without the consent of the Securityholders, for one or more of the
following purposes:
(a) to cure any ambiguity, defect, or inconsistency herein, in
the Securities of any series;
(b) to comply with Article Ten;
(c) to provide for uncertificated Securities in addition to or
in place of certificated Securities;
(d) to add to the covenants of the Company for the benefit of
the holders of all or any Series of Securities (and if such covenants are
to be for the benefit of less than all series of Securities, stating that
such covenants are expressly being included solely for the benefit of such
series) or to surrender any right or power herein conferred upon the
Company;
(e) to add to, delete from, or revise the conditions,
limitations, and restrictions on the authorized amount, terms, or purposes
of issue, authentication, and delivery of Securities, as herein set forth;
(f) to make any change that does not adversely affect the rights
of any Securityholder in any material respect; or
(g) to provide for the issuance of and establish the form and
terms and conditions of the Securities of any series as provided in Section
2.01, 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.
The Trustee is hereby authorized to join with the Company in the
execution of any such supplemental indenture, and to make any further
appropriate agreements and stipulations that may be therein contained, but
the Trustee shall not be obligated to enter into any such supplemental
indenture that affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
<PAGE>
Any supplemental indenture authorized by the provisions of this
Section may be executed by the Company and the Trustee without the consent
of the holders of any of the Securities at the time Outstanding,
notwithstanding any of the provisions of Section 9.02.
SECTION 9.02 Supplemental Indentures With Consent of
Securityholders.
With the consent (evidenced as provided in Section 8.01) of the
holders of not less than a majority in aggregate principal amount of the
Securities of each series affected by such supplemental indenture or
indentures at the time Outstanding, the Company, when authorized by Board
Resolutions, and the Trustee may from time to time and at any time enter
into an indenture or indentures supplemental hereto (which shall conform to
the provisions of the Trust Indenture Act as then in effect) for the
purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Indenture or of any supplemental
indenture or of modifying in any manner not covered by Section 9.01 the
rights of the holders of the Securities of such series under this
Indenture; provided, however, that no such supplemental indenture shall,
without the consent of the holders of each Security then Outstanding and
affected thereby, (i) extend the fixed maturity of any Securities of any
series, or reduce the principal amount thereof, or reduce the rate or
extend the time of payment of interest thereon, or reduce any premium
payable upon the redemption thereof or (ii) reduce the aforesaid percentage
of Securities, the holders of which are required to consent to any such
supplemental indenture.
It shall not be necessary for the consent of the Securityholders
of any series affected thereby under this Section to approve the particular
form of any proposed supplemental indenture, but it shall be sufficient if
such consent shall approve the substance thereof.
SECTION 9.03 Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture pursuant to the
provisions of this Article or of Section 10.01, this Indenture shall, with
respect to such series, be and be deemed to be modified and amended in
accordance therewith and the respective rights, limitations of rights,
obligations, duties and immunities under this Indenture of the Trustee, the
Company and the holders of Securities of the series affected thereby shall
thereafter be determined, exercised and enforced hereunder subject in all
respects to such modifications and amendments, and all the terms and
conditions of any such supplemental indenture shall be and be deemed to be
part of the terms and conditions of this Indenture for any and all
purposes.
SECTION 9.04 Securities Affected by Supplemental Indentures.
Securities of any series, affected by a supplemental indenture,
authenticated and delivered after the execution of such supplemental
indenture pursuant to the provisions of this Article or of Section 10.01,
may bear a notation in form approved by the Company, provided such form
meets the requirements of any exchange upon which such series may be
listed, as to any matter provided for in such supplemental indenture. If
the Company shall so determine, new Securities of that series so modified
<PAGE>
as to conform, in the opinion of the Board of Directors of the Company, to
any modification of this Indenture contained in any such supplemental
indenture may be prepared by the Company, authenticated by the Trustee and
delivered in exchange for the Securities of that series then Outstanding.
SECTION 9.05 Execution of Supplemental Indentures.
Upon the request of the Company, accompanied by its Board
Resolutions authorizing the execution of any such supplemental indenture,
and upon the filing with the Trustee of evidence of the consent of
Securityholders required to consent thereto as aforesaid, the Trustee shall
join with the Company in the execution of such supplemental indenture
unless such supplemental indenture affects the Trustee's own rights, duties
or immunities under this Indenture or otherwise, in which case the Trustee
may in its discretion but shall not be obligated to enter into such
supplemental indenture. The Trustee, subject to the provisions of Section
7.01, may receive an Opinion of Counsel as conclusive evidence that any
supplemental indenture executed pursuant to this Article is authorized or
permitted by, and conforms to, the terms of this Article and that it is
proper for the Trustee under the provisions of this Article to join in the
execution thereof; provided, however, that such Opinion of Counsel need not
be provided in connection with the execution of a supplemental indenture
that establishes the terms of a series of Securities pursuant to Section
2.01 hereof.
Promptly after the execution by the Company and the Trustee of
any supplemental indenture pursuant to the provisions of this Section, the
Trustee shall transmit by mail, first class postage prepaid, a notice,
setting forth in general terms the substance of such supplemental
indenture, to the Securityholders of all series affected thereby as their
names and addresses appear upon the Security Register. Any failure of the
Trustee to mail such notice, or any defect therein, shall not, however, in
any way impair or affect the validity of any such supplemental indenture.
ARTICLE X
SUCCESSOR CORPORATION
SECTION 10.01 Company May Consolidate, Etc.
Nothing contained in this Indenture or in any of the Securities
shall prevent any consolidation or merger of the Company with or into any
other corporation or corporations (whether or not affiliated with the
Company) or successive consolidations or mergers in which the Company or
its successor or successors shall be a party or parties, or shall prevent
any sale, conveyance, transfer or other disposition of the property of the
Company or its successor or successors as an entirety, or substantially as
an entirety, to any other corporation (whether or not affiliated with the
Company or its successor or successors) authorized to acquire and operate
the same; provided, however, the Company hereby covenants and agrees that,
upon any such consolidation, merger, sale, conveyance, transfer or other
disposition, the due and punctual payment of the principal of (premium, if
any) and interest on all of the Securities of all series in accordance with
the terms of each series, according to their tenor and the due and punctual
performance and observance of all the covenants and conditions of this
Indenture with respect to each series or established with respect to such
series pursuant to Section 2.01 to be kept or performed by the Company
<PAGE>
shall be expressly assumed, by supplemental indenture (which shall conform
to the provisions of the Trust Indenture Act, as then in effect)
satisfactory in form to the Trustee executed and delivered to the Trustee
by the entity formed by such consolidation, or into which the Company shall
have been merged, or by the entity which shall have acquired such property.
SECTION 10.02 Successor Corporation Substituted.
(a) In case of any such consolidation, merger, sale, conveyance,
transfer or other disposition and upon the assumption by the successor
corporation, by supplemental indenture, executed and delivered to the
Trustee and satisfactory in form to the Trustee, of the due and punctual
payment of the principal of, premium, if any, and interest on all of the
Securities of all series Outstanding and the due and punctual performance
of all of the covenants and conditions of this Indenture or established
with respect to each series of the Securities pursuant to Section 2.01 to
be performed by the Company with respect to each series, such successor
corporation shall succeed to and be substituted for the Company with the
same effect as if it had been named as the Company herein, and thereupon
the predecessor corporation shall be relieved of all obligations and
covenants under this Indenture and the Securities.
(b) In case of any such consolidation, merger, sale, conveyance,
transfer or other disposition such changes in phraseology and form (but not
in substance) may be made in the Securities thereafter to be issued as may
be appropriate.
(c) Nothing contained in this Indenture or in any of the
Securities shall prevent the Company from merging into itself or acquiring
by purchase or otherwise all or any part of the property of any other
Person (whether or not affiliated with the Company).
SECTION 10.03 Evidence of Consolidation, Etc. to Trustee.
The Trustee, subject to the provisions of Section 7.01, may
receive an Opinion of Counsel as conclusive evidence that any such
consolidation, merger, sale, conveyance, transfer or other disposition, and
any such assumption, comply with the provisions of this Article.
ARTICLE XI
SATISFACTION AND DISCHARGE
SECTION 11.01 Satisfaction and Discharge of Indenture.
If at any time: (a) the Company shall have delivered to the
Trustee for cancellation all Securities of a series theretofore
authenticated (other than any Securities that shall have ben destroyed,
lost or stolen and that shall have been replaced or paid as provided in
Section 2.07) and Securities for whose payment money or Governmental
Obligations have theretofore been deposited in trust or segregated and held
in trust by the Company (and thereupon repaid to the Company or discharged
from such trust, as provided in Section 11.05); or (b) all such Securities
of a particular series not theretofore delivered to the Trustee 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
<PAGE>
giving of notice of redemption, and the Company shall deposit or cause to
be deposited with the Trustee as trust funds the entire amount in moneys
or Governmental Obligations sufficient or a combination thereof, sufficient
in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee, to pay at maturity or upon redemption all Securities of that
series not theretofore delivered to the Trustee for cancellation, including
principal (and premium, if any) and interest due or to become due to such
date of maturity or date fixed for redemption, as the case may be, and if
the Company shall also pay or cause to be paid all other sums payable
hereunder with respect to such series by the Company then this Indenture
shall thereupon cease to be of further effect with respect to such series
except for the provisions of Sections 2.03, 2.05, 2.07, 4.01, 4.02, 4.03
and 7.10, that shall survive until the date of maturity or redemption date,
as the case may be, and Sections 7.06 and 11.05, that shall survive to such
date and thereafter, and the Trustee, on demand of the Company and at the
cost and expense of the Company shall execute proper instruments
acknowledging satisfaction of and discharging this Indenture with respect
to such series.
SECTION 11.02 Discharge of Obligations.
If at any time all such Securities of a particular series not
heretofore delivered to the Trustee for cancellation or that have not
become due and payable as described in Section 11.01 shall have been paid
by the Company by depositing irrevocably with the Trustee as trust funds
moneys or an amount of Governmental Obligations sufficient to pay at
maturity or upon redemption all such Securities of that series not
theretofore delivered to the Trustee for cancellation, including principal
(and premium, if any) and interest due or to become due to such date of
maturity or date fixed for redemption, as the case may be, and if the
Company shall also pay or cause to be paid all other sums payable
hereunder by the Company with respect to such series, then after the date
such moneys or Governmental Obligations, as the case may be, are deposited
with the Trustee the obligations of the Company under this Indenture with
respect to such series shall cease to be of further effect except for the
provisions of Sections 2.03, 2.05, 2.07, 4,01, 4.02, 4,03, 7.06, 7.10 and
11.05 hereof that shall survive until such Securities shall mature and be
paid. Thereafter, Sections 7.06 and 11.05 shall survive.
SECTION 11.03 Deposited Moneys to be Held in Trust.
All moneys or Governmental Obligations deposited with the Trustee
pursuant to Sections 11.01 or 11.02 shall be held in trust and shall be
available for payment as due, either directly or through any paying agent
(including the Company acting as its own paying agent), to the holders of
the particular series of Securities for the payment or redemption of which
such moneys or Governmental Obligations have been deposited with the
Trustee.
SECTION 11.04 Payment of Moneys Held by Paying Agents.
In connection with the satisfaction and discharge of this
Indenture all moneys or Governmental Obligations then held by any paying
agent under the provisions of this Indenture shall, upon demand of the
Company, be paid to the Trustee and thereupon such paying agent shall be
released from all further liability with respect to such moneys or
<PAGE>
Governmental Obligations.
SECTION 11.05 Repayment to Company.
Any moneys or Governmental Obligations deposited with any paying
agent or the Trustee, or then held by the Company, in trust for payment of
principal of or premium or interest on the Securities of a particular
series that are not applied but remain unclaimed by the holders of such
Securities for at least two years after the date upon which the principal
of (and premium, if any) or interest on such Securities shall have
respectively become due and payable, shall be repaid to the Company on May
31 of each year or (if then held by the Company) shall be discharged from
such trust; and thereupon the paying agent and the Trustee shall be
released from all further liability with respect to such moneys or
Governmental Obligations, and the holder of any of the Securities entitled
to receive such payment shall thereafter, as an unsecured general creditor,
look only to the Company for the payment thereof.
ARTICLE XII
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS
AND DIRECTORS
SECTION 12.01 No Recourse.
No recourse under or upon any obligation, covenant or agreement
of this Indenture, or of any Security, or for any claim based thereon or
otherwise in respect thereof, shall be had against any incorporator,
stockholder, officer or director, past, present or future as such, of the
Company or of any predecessor or successor corporation, either directly or
through the Company or any such predecessor or successor corporation,
whether by virtue of any constitution, statute or rule of law, or by the
enforcement of any assessment or penalty or otherwise; it being expressly
understood that this Indenture and the obligations issued hereunder are
solely corporate obligations, and that no such personal liability whatever
shall attach to, or is or shall be incurred by, the incorporators,
stockholders, officers or directors as such, of the Company or of any
predecessor or successor corporation, or any of them, because of the
creation of the indebtedness hereby authorized, or under or by reason of
the obligations, covenants or agreements contained in this Indenture or in
any of the Securities or implied therefrom; and that any and all such
personal liability of every name and nature, either at common law or in
equity or by constitution or statute, of, and any and all such rights and
claims against, every such incorporator, stockholder, officer or director
as such, because of the creation of the indebtedness hereby authorized, or
under or by reason of the obligations, covenants or agreements contained in
this Indenture or in any of the Securities or implied therefrom, are hereby
expressly waived and released as a condition of, and as a consideration
for, the execution of this Indenture and the issuance of such Securities.
ARTICLE XIII
MISCELLANEOUS PROVISIONS
SECTION 13.01 Effect on Successors and Assigns.
All the covenants, stipulations, promises and agreements in this
<PAGE>
Indenture contained by or on behalf of the Company shall bind their
respective successors and assigns, whether so expressed or not.
SECTION 13.02 Actions by Successor.
Any act or proceeding by any provision of this Indenture
authorized or required to be done or performed by any board, committee or
officer of the Company shall and may be done and performed with like force
and effect by the corresponding board, committee or officer of any
corporation that shall at the time be the lawful sole successor of the
Company.
SECTION 13.03 Surrender of Company Powers.
The Company by instrument in writing executed by authority of 2/3
(two-thirds) of its Board of Directors and delivered to the Trustee may
surrender any of the powers reserved to the Company, and thereupon such
power so surrendered shall terminate both as to the Company and as to any
successor corporation.
SECTION 13.04 Notices.
Except as otherwise expressly provided herein any notice or
demand that by any provision of this Indenture is required or permitted to
be given or served by the Trustee or by the holders of Securities to or on
the Company may be given or served by being deposited first class postage
prepaid in a post-office letterbox addressed (until another address is
filed in writing by the Company with the Trustee), as follows: United Rentals,
Inc., Four Greenwich Office Park, Greenwich, Connecticut 06830. Any notice,
election, request or demand by the Company or any
Securityholder to or upon the Trustee shall be deemed to have been
sufficiently given or made, for all purposes, if given or made in writing
at the Corporate Trust Office of the Trustee.
SECTION 13.05 Governing Law.
This Indenture and each Security shall be deemed to be a contract
made under the internal laws of the State of New York, and for all purposes
shall be construed in accordance with the laws of said State.
SECTION 13.06 Treatment of Securities as Debt.
It is intended that the Securities will be treated as
indebtedness and not as equity for federal income tax purposes. The
provisions of this Indenture shall be interpreted to further this
intention.
SECTION 13.07 Compliance Certificates and Opinions.
(a) Upon any application or demand by the Company to the Trustee
to take any action under any of the provisions of this Indenture, the
Company, shall furnish to the Trustee an Officers' Certificate stating that
all conditions precedent provided for in this Indenture relating to the
proposed action have been complied with and an Opinion of Counsel stating
that in the opinion of such counsel all such conditions precedent have been
complied with, except that in the case of any such application or demand as
to which the furnishing of such documents is specifically required by any
<PAGE>
provision of this Indenture relating to such particular application or
demand, no additional certificate or opinion need be furnished.
(b) Each certificate or opinion provided for in this Indenture
and delivered to the Trustee with respect to compliance with a condition or
covenant in this Indenture 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.
SECTION 13.08 Payments on Business Days.
Except as provided pursuant to Section 2.01 pursuant to a Board
Resolution, and as set forth in an Officers' Certificate, or established in
one or more indentures supplemental to this Indenture, in any case where
the date of maturity of interest or principal of any Security or the date
of redemption of any Security shall not be a Business Day, then payment of
interest or principal (and premium, if any) may be made on the next
succeeding Business Day with the same force and effect as if made on the
nominal date of maturity or redemption, and no interest shall accrue for
the period after such nominal date.
SECTION 13.09 Conflict with Trust Indenture Act.
If and to the extent that any provision of this Indenture limits,
qualifies or conflicts with the duties imposed by Sections 310 to 317,
inclusive, of the Trust Indenture Act, such imposed duties shall control.
SECTION 13.10 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 and the same instrument.
SECTION 13.11 Separability.
In case any one or more of the provisions contained in this
Indenture or in the Securities of any series shall for any reason be held
to be invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provisions of
this Indenture or of such Securities, but this Indenture and such
Securities shall be construed as if such invalid or illegal or
unenforceable provision had never been contained herein or therein.
SECTION 13.12 Assignment.
The Company will have the right at all times to assign any of its
rights or obligations under this Indenture to a direct or indirect wholly-
owned Subsidiary of the Company, provided that, in the event of any such
assignment, the Company, will remain liable for all such obligations.
Subject to the foregoing, the Indenture is binding upon and inures to the
<PAGE>
benefit of the parties thereto and their respective successors and assigns.
This Indenture may not otherwise be assigned by the parties thereto.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture
to be duly executed all as of the day and year first above written.
UNITED RENTALS, INC.
By:______________________________
Name:
Title:
[ ],
as Trustee
By:______________________________
Name:
Title:
<PAGE>
EXHIBIT 4.5
==========================================================================
UNITED RENTALS, INC.,
Issuer
AND
[ ],
Trustee
___________________________________
INDENTURE
Dated as of [ ], 1998
___________________________________
Subordinated Debt Securities
==========================================================================
<PAGE>
CROSS-REFERENCE TABLE(1)
Section of
Trust Indenture Act Section of
of 1939, as amended Indenture
------------------- -----------
310(a) . . . . . . . . . . . . . . . . . . . 7.09
310(b) . . . . . . . . . . . . . . . . . . . 7.08
7.10
310(c) . . . . . . . . . . . . . . . . . . . Inapplicable
311(a) . . . . . . . . . . . . . . . . . . . 7.13(a)
311(b) . . . . . . . . . . . . . . . . . . . 7.13(b)
311(c) . . . . . . . . . . . . . . . . . . . Inapplicable
5.02(a)
312(b) . . . . . . . . . . . . . . . . . . . 5.02(b)
312(c) . . . . . . . . . . . . . . . . . . . 5.02(c)
313(a) . . . . . . . . . . . . . . . . . . . 5.04(a)
313(b) . . . . . . . . . . . . . . . . . . . 5.04(b)
313(c) . . . . . . . . . . . . . . . . . . . 5.04(a)
5.04(b)
313(d) . . . . . . . . . . . . . . . . . . . 5.04(c)
314(a) . . . . . . . . . . . . . . . . . . . 5.03
314(b) . . . . . . . . . . . . . . . . . . . Inapplicable
314(c) . . . . . . . . . . . . . . . . . . . 13.06
314(d) . . . . . . . . . . . . . . . . . . . Inapplicable
314(e) . . . . . . . . . . . . . . . . . . . 13.06
314(f) . . . . . . . . . . . . . . . . . . . Inapplicable
315(a) . . . . . . . . . . . . . . . . . . . 7.01(a)
7.02
315(b) . . . . . . . . . . . . . . . . . . . 6.07
315(c) . . . . . . . . . . . . . . . . . . . 7.01
315(d) . . . . . . . . . . . . . . . . . . . 7.01(b)
7.01(c)
315(e) . . . . . . . . . . . . . . . . . . . 6.07
316(a) . . . . . . . . . . . . . . . . . . . 6.06
8.04
316(b) . . . . . . . . . . . . . . . . . . . 6.04
316(c) . . . . . . . . . . . . . . . . . . . 8.01
317(a) . . . . . . . . . . . . . . . . . . . 6.02
317(b) . . . . . . . . . . . . . . . . . . . 4.03
318(a) . . . . . . . . . . . . . . . . . . . 13.08
- ---------------------------
(1) This Cross-Reference Table does not constitute part of the
Indenture and shall not have any bearing on the interpretation of
any of its terms or provisions.
<PAGE>
TABLE OF CONTENTS(1)
Page
----
PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE I
DEFINITIONS
SECTION 1.01 Definitions of Terms . . . . . . . . . . . . . . . . . . 1
Affiliate . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Authenticating Agent . . . . . . . . . . . . . . . . . . . . . 2
Bankruptcy Law . . . . . . . . . . . . . . . . . . . . . . . . 2
Board of Directors . . . . . . . . . . . . . . . . . . . . . . 2
Board Resolution . . . . . . . . . . . . . . . . . . . . . . . 2
Business Day . . . . . . . . . . . . . . . . . . . . . . . . . 2
Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Corporate Trust Office . . . . . . . . . . . . . . . . . . . . 2
Custodian . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Depositary . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Event of Default . . . . . . . . . . . . . . . . . . . . . . . 3
Global Security . . . . . . . . . . . . . . . . . . . . . . . . 3
Governmental Obligations . . . . . . . . . . . . . . . . . . . 3
"herein", "hereof" and "hereunder . . . . . . . . . . . . . . . 3
Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Interest Payment Date . . . . . . . . . . . . . . . . . . . . . 3
Officers' Certificate . . . . . . . . . . . . . . . . . . . . . 4
Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . . 4
Outstanding . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Person . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Predecessor Security . . . . . . . . . . . . . . . . . . . . . 4
Responsible Officer . . . . . . . . . . . . . . . . . . . . . . 4
Securities . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Securityholder . . . . . . . . . . . . . . . . . . . . . . . . 5
Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . 5
Voting Stock . . . . . . . . . . . . . . . . . . . . . . . . . 5
- -----------------------
(1) This Table of Contents does not constitute part of the Indenture
and shall not have any bearing upon the interpretation of any of
its terms or provisions.
ARTICLE II
ISSUE, DESCRIPTION, TERMS, EXECUTION, REGISTRATION
AND EXCHANGE OF SECURITIES
<PAGE>
SECTION 2.01 Designation and Terms of Securities . . . . . . . . . . 5
SECTION 2.02 Form of Securities and Trustee's Certificate . . . . . . 7
SECTION 2.03 Denominations: Provisions for Payment . . . . . . . . . 8
SECTION 2.04 Execution and Authentications . . . . . . . . . . . . . 9
SECTION 2.05 Registration of Transfer and Exchange . . . . . . . . . 10
SECTION 2.06 Temporary Securities . . . . . . . . . . . . . . . . . . 11
SECTION 2.07 Mutilated, Destroyed, Lost or Stolen Securities . . . . 12
SECTION 2.08 Cancellation . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 2.09 Benefits of Indenture . . . . . . . . . . . . . . . . . 13
SECTION 2.10 Authenticating Agent . . . . . . . . . . . . . . . . . . 13
SECTION 2.11 Global Securities . . . . . . . . . . . . . . . . . . . 14
ARTICLE III
REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS
SECTION 3.01 Redemption . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 3.02 Notice of Redemption . . . . . . . . . . . . . . . . . . 15
SECTION 3.03 Payment Upon Redemption . . . . . . . . . . . . . . . . 16
SECTION 3.04 Sinking Fund . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 3.05 Satisfaction of Sinking Fund Payments with Securities . 17
SECTION 3.06 Redemption of Securities for Sinking Fund . . . . . . . 17
ARTICLE IV.
SECTION 4.01 Payment of Principal, Premium and Interest . . . . . . . 18
SECTION 4.02 Maintenance of Office or Agency . . . . . . . . . . . . 18
SECTION 4.03 Paying Agents . . . . . . . . . . . . . . . . . . . . . 18
SECTION 4.04 Appointment to Fill Vacancy in Office of Trustee . . . . 20
SECTION 4.05 Compliance with Consolidation Provisions . . . . . . . . 20
ARTICLE V
SECURITYHOLDERS' LISTS AND REPORTS
BY THE COMPANY AND THE TRUSTEE
SECTION 5.01 Company to Furnish Trustee Names and Addresses of
Securityholders . . . . . . . . . . . . . . . . . . . . 20
SECTION 5.02 Preservation Of Information; Communications With
Securityholders . . . . . . . . . . . . . . . . . . . . 20
SECTION 5.03 Reports by the Company . . . . . . . . . . . . . . . . . 21
SECTION 5.04 Reports by the Trustee . . . . . . . . . . . . . . . . . 21
ARTICLE VI
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 6.01 Events of Default . . . . . . . . . . . . . . . . . . . 22
SECTION 6.02 Collection of Indebtedness and Suits for Enforcement
by Trustee . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 6.03 Application of Moneys Collected . . . . . . . . . . . . 25
SECTION 6.04 Limitation on Suits . . . . . . . . . . . . . . . . . . 26
SECTION 6.05 Rights and Remedies Cumulative; Delay or Omission
Not Waiver . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 6.06 Control by Securityholders . . . . . . . . . . . . . . . 27
<PAGE>
SECTION 6.07 Undertaking to Pay Costs . . . . . . . . . . . . . . . . 28
ARTICLE VII
CONCERNING THE TRUSTEE
SECTION 7.01 Certain Duties and Responsibilities of Trustee . . . . . 28
SECTION 7.02 Certain Rights of Trustee . . . . . . . . . . . . . . . 29
SECTION 7.03 Trustee Not Responsible for Recitals or Issuance
or Securities . . . . . . . . . . . . . . . . . . . . . 31
SECTION 7.04 May Hold Securities . . . . . . . . . . . . . . . . . . 31
SECTION 7.05 Moneys Held in Trust . . . . . . . . . . . . . . . . . . 31
SECTION 7.06 Compensation and Reimbursement . . . . . . . . . . . . . 31
SECTION 7.07 Reliance on Officers' Certificate . . . . . . . . . . . 32
SECTION 7.08 Disqualification; Conflicting Interests . . . . . . . . 32
SECTION 7.09 Corporate Trustee Required; Eligibility . . . . . . . . 32
SECTION 7.10 Resignation and Removal; Appointment of Successor . . . 33
SECTION 7.11 Acceptance of Appointment By Successor. . . . . . . . . 34
SECTION 7.12 Merger, Conversion, Consolidation or Succession
to Business . . . . . . . . . . . . . . . . . . . . . . 35
SECTION 7.13 Preferential Collection of Claims Against the
Company . . . . . . . . . . . . . . . . . . . . . . . . 36
ARTICLE VIII
CONCERNING THE SECURITYHOLDERS
SECTION 8.01 Evidence of Action by Securityholders . . . . . . . . . 36
SECTION 8.02 Proof of Execution by Securityholders . . . . . . . . . 37
SECTION 8.03 Who May be Deemed Owners . . . . . . . . . . . . . . . . 37
SECTION 8.04 Certain Securities Owned by Company Disregarded . . . . 37
SECTION 8.05 Actions Binding on Future Securityholders . . . . . . . 38
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.01 Supplemental Indentures Without the Consent of
Securityholders . . . . . . . . . . . . . . . . . . . 38
SECTION 9.02 Supplemental Indentures With Consent of
Securityholders . . . . . . . . . . . . . . . . . . . . 39
SECTION 9.03 Effect of Supplemental Indentures . . . . . . . . . . . 40
SECTION 9.04 Securities Affected by Supplemental Indentures . . . . . 40
SECTION 9.05 Execution of Supplemental Indentures . . . . . . . . . . 40
ARTICLE X
SUCCESSOR CORPORATION
SECTION 10.01 Company May Consolidate, Etc. . . . . . . . . . . . . . 41
SECTION 10.02 Successor Corporation Substituted . . . . . . . . . . . 41
SECTION 10.03 Evidence of Consolidation, Etc. to Trustee . . . . . . . 42
ARTICLE XI
SATISFACTION AND DISCHARGE
<PAGE>
SECTION 11.01 Satisfaction and Discharge of Indenture . . . . . . . . 42
SECTION 11.02 Discharge of Obligations . . . . . . . . . . . . . . . . 43
SECTION 11.03 Deposited Moneys to be Held in Trust . . . . . . . . . . 43
SECTION 11.04 Payment of Moneys Held by Paying Agents . . . . . . . . 43
SECTION 11.05 Repayment to Company . . . . . . . . . . . . . . . . . . 43
ARTICLE XII
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
SECTION 12.01 No Recourse. . . . . . . . . . . . . . . . . . . . . . . 44
ARTICLE XIII
MISCELLANEOUS PROVISIONS
SECTION 13.01 Effect on Successors and Assigns. . . . . . . . . . . . 44
SECTION 13.02 Actions by Successor . . . . . . . . . . . . . . . . . . 45
SECTION 13.03 Surrender of Company Powers . . . . . . . . . . . . . . 45
SECTION 13.04 Notices . . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 13.05 Governing Law . . . . . . . . . . . . . . . . . . . . . 45
SECTION 13.06 Treatment of Securities as Debt . . . . . . . . . . . . 46
SECTION 13.07 Compliance Certificates and Opinions . . . . . . . . . . 46
SECTION 13.08 Payments on Business Days . . . . . . . . . . . . . . . 46
SECTION 13.09 Conflict with Trust Indenture Act . . . . . . . . . . . 46
SECTION 13.10 Counterparts . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 13.11 Separability. . . . . . . . . . . . . . . . . . . . . . 47
SECTION 13.12 Assignment . . . . . . . . . . . . . . . . . . . . . . . 47
ARTICLE XIV
SUBORDINATION OF SECURITIES
SECTION 14.01 Subordination Terms . . . . . . . . . . . . . . . . . . 47
<PAGE>
INDENTURE, dated as of [ ], 1998, among United Rentals, Inc., a
Delaware corporation (the "Company"), and [ ],
as trustee (the "Trustee"):
WHEREAS, for its lawful corporate purposes, the Company has duly
authorized the execution and delivery of this Indenture to provide for the
issuance of unsecured subordinated debt securities (hereinafter referred to
as the "Securities"), in an unlimited aggregate principal amount to be
issued from time to time in one or more series as in this Indenture
provided, as registered Securities without coupons, to be authenticated by
the certificate of the Trustee;
WHEREAS, to provide the terms and conditions upon which the
Securities are to be authenticated, issued and delivered, the Company has
duly authorized the execution of this Indenture; and
WHEREAS, all things necessary to make this Indenture a valid
agreement of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, 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
Securities:
ARTICLE I
DEFINITIONS
SECTION 1.01 Definitions of Terms.
The terms defined in this Section (except as in this Indenture
otherwise expressly provided or unless the context otherwise requires) for
all purposes of this Indenture and of any indenture supplemental hereto
shall have the respective meanings specified in this Section and shall
include the plural as well as the singular. All other terms used in this
Indenture that are defined in the Trust Indenture Act of 1939, as amended,
or that are by reference in such Act defined in the Securities Act of 1933,
as amended (except as herein otherwise expressly provided or unless the
context otherwise requires), shall have the meanings assigned to such terms
in said Trust Indenture Act and in said Securities Act as in force at the
date of the execution of this instrument.
"Affiliate" means, with respect to a specified Person, (a) any
Person directly or indirectly owning, controlling or holding with power to
vote 10% or more of the outstanding voting securities or other ownership
interests of the specified Person, (b) any Person 10% or more of whose
outstanding voting securities or other ownership interests are directly or
indirectly owned, controlled or held with power to vote by the specified
Person, (c) any Person directly or indirectly controlling, controlled by,
or under common control with the specified Person, (d) a partnership in
which the specified Person is a general partner, (e) any officer or
director of the specified Person, and (f) if the specified Person is an
individual, any entity of which the specified Person is an officer,
<PAGE>
director or general partner.
"Authenticating Agent" means an authenticating agent with respect
to all or any of the series of Securities appointed with respect to all or
any series of the Securities by the Trustee pursuant to Section 2.10.
"Bankruptcy Law" means Title 11, U.S. Code, or any similar
federal or state law for the relief of debtors.
"Board of Directors" means the Board of Directors of the Company
or any duly authorized committee of such Board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly
adopted by the Board of Directors and to be in full force and effect on the
date of such certification.
"Business Day" means, with respect to any series of Securities,
any day other than a day on which Federal or State banking institutions in
the Borough of Manhattan, The City of New York, are authorized or obligated
by law, executive order or regulation to close.
"Certificate" means a certificate signed by the principal
executive officer, the principal financial officer or the principal
accounting officer of the Company. The Certificate need not comply with
the provisions of Section 13.07.
"Company" means United Rentals, Inc., a corporation
duly organized and existing under the laws of the State of Delaware, and,
subject to the provisions of Article Ten, shall also include its successors
and assigns.
"Corporate Trust Office" means the office of the Trustee at
which, at any particular time, its corporate trust business shall be
principally administered, which office at the date hereof is located at [
], except that whenever a
provision herein refers to an office or agency of the Trustee in the
Borough of Manhattan, The City of New York, such office is located, at the
date hereof, at [ ].
"Custodian" means any receiver, trustee, assignee, liquidator, or
similar official under any Bankruptcy Law.
"Default" means any event, act or condition that with notice or
lapse of time, or both, would constitute an Event of Default.
"Depositary" means, with respect to Securities of any series, for
which the Company shall determine that such Securities will be issued as a
Global Security, The Depository Trust Company, New York, New York, another
clearing agency, or any successor registered as a clearing agency under the
Securities and Exchange Act of 1934, as amended (the "Exchange Act"), or
other applicable statute or regulation, which, in each case, shall be
designated by the Company pursuant to either Section 2.01 or 2.11.
"Event of Default" means, with respect to Securities of a
particular series any event specified in Section 6.01, continued for the
period of time, if any, therein designated.
<PAGE>
"Global Security" means, with respect to any series of
Securities, a Security executed by the Company and delivered by the Trustee
to the Depositary or pursuant to the Depositary's instruction, all in
accordance with the Indenture, which shall be registered in the name of the
Depositary or its nominee.
"Governmental Obligations" means securities that are (i) direct
obligations of the United States of America for the payment of which its
full faith and credit 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 that, in
either case, are not callable or redeemable at the option of the issuer
thereof, and shall also include a depositary receipt issued by a bank (as
defined in Section 3(a)(2) of the Securities Act of 1933, as amended) as
custodian with respect to any such Governmental Obligation or a specific
payment of principal of or interest on any such Governmental Obligation
held by such custodian for the account of the holder of such depositary
receipt; provided, however, that (except as required by law) such custodian
is not authorized to make any deduction from the amount payable to the
holder of such depositary receipt from any amount received by the custodian
in respect of the Governmental Obligation or the specific payment of
principal of or interest on the Governmental Obligation evidenced by such
depositary receipt.
"herein", "hereof" and "hereunder", and other words of similar
import, refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
"Indenture" means this instrument as originally executed or as it
may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into in accordance with the terms hereof.
"Interest Payment Date", when used with respect to any
installment of interest on a Security of a particular series, means the
date specified in such Security or in a Board Resolution or in an indenture
supplemental hereto with respect to such series as the fixed date on which
an installment of interest with respect to Securities of that series is due
and payable.
"Officers' Certificate" means a certificate signed by the
President or a Vice President and by the Treasurer or an Assistant
Treasurer or the Controller or an Assistant Controller or the Secretary or
an Assistant Secretary of the Company that is delivered to the Trustee in
accordance with the terms hereof. Each such certificate shall include the
statements provided for in Section 13.07, if and to the extent required by
the provisions thereof.
"Opinion of Counsel" means an opinion in writing of legal
counsel, who may be an employee of or counsel for the Company that is
delivered to the Trustee in accordance with the terms hereof. Each such
opinion shall include the statements provided for in Section 13.07, if and
to the extent required by the provisions thereof.
"Outstanding", when used with reference to Securities of any
series, means, subject to the provisions of Section 8.04, as of any
<PAGE>
particular time, all Securities of that series theretofore authenticated
and delivered by the Trustee under this Indenture, except (a) Securities
theretofore canceled by the Trustee or any paying agent, or delivered to
the Trustee or any paying agent for cancellation or that have previously
been canceled; (b) Securities or portions thereof for the payment or
redemption of which moneys or Governmental Obligations in the necessary
amount shall have been deposited in trust with the Trustee or with any
paying agent (other than the Company) or shall have been set aside and
segregated in trust by the Company (if the Company shall act as its own
paying agent); provided, however, that if such Securities or portions of
such Securities are to be redeemed prior to the maturity thereof, notice of
such redemption shall have been given as in Article Three provided, or
provision satisfactory to the Trustee shall have been made for giving such
notice; and (c) Securities in lieu of or in substitution for which other
Securities shall have been authenticated and delivered pursuant to the
terms of Section 2.07.
"Person" means any individual, corporation, partnership, joint-
venture, joint-stock company, unincorporated organization or government or
any agency or political subdivision thereof.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that
evidenced by such particular Security; and, for the purposes of this
definition, any Security authenticated and delivered under Section 2.07 in
lieu of a lost, destroyed or stolen Security shall be deemed to evidence
the same debt as the lost, destroyed or stolen Security.
"Responsible Officer" when used with respect to the Trustee means
the Chairman of the Board of Directors, the President, any Vice President,
the Secretary, the Treasurer, any trust officer, any corporate trust
officer or any other officer or assistant officer of the Trustee
customarily performing functions similar to those performed by the Persons
who at the time shall be such officers, respectively, or to whom any
corporate trust matter is referred because of his or her knowledge of and
familiarity with the particular subject.
"Securities" means the debt Securities authenticated and
delivered under this Indenture.
"Securityholder", "holder of Securities", "registered holder", or
other similar term, means the Person or Persons in whose name or names a
particular Security shall be registered on the books of the Company kept
for that purpose in accordance with the terms of this Indenture.
"Subsidiary" means, with respect to any Person, (i) any
corporation at least a majority of whose outstanding Voting Stock shall at
the time be owned, directly or indirectly, by such Person or by one or more
of its Subsidiaries or by such Person and one or more of its Subsidiaries,
(ii) any general partnership, joint venture or similar entity, at least a
majority of whose outstanding partnership or similar interests shall at the
time be owned by such Person, or by one or more of its Subsidiaries, or by
such Person and one or more of its Subsidiaries and (iii) any limited
partnership of which such Person or any of its Subsidiaries is a general
partner.
"Trustee" means [ ], and, subject to the
<PAGE>
provisions of Article Seven, shall also include its successors and assigns,
and, if at any time there is more than one Person acting in such capacity
hereunder, "Trustee" shall mean each such Person. The term "Trustee" as
used with respect to a particular series of the Securities shall mean the
trustee with respect to that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended, subject to the provisions of Sections 9.01, 9.02, and 10.01, as in
effect at the date of execution of this instrument.
"Voting Stock", as applied to stock of any Person, means shares,
interests, participations or other equivalents in the equity interest
(however designated) in such Person having ordinary voting power for the
election of a majority of the directors (or the equivalent) of such Person,
other than shares, interests, participations or other equivalents having
such power only by reason of the occurrence of a contingency.
ARTICLE II
ISSUE, DESCRIPTION, TERMS, EXECUTION,
REGISTRATION AND EXCHANGE OF SECURITIES
SECTION 2.01 Designation and Terms of Securities.
(a) The aggregate principal amount of Securities that may be
authenticated and delivered under this Indenture is unlimited. The
Securities may be issued in one or more series up to the aggregate
principal amount of Securities of that series from time to time authorized
by or pursuant to a Board Resolution of the Company or pursuant to one or
more indentures supplemental hereto. Prior to the initial issuance of
Securities of any series, there shall be established in or pursuant to a
Board Resolution of the Company, and set forth in an Officers' Certificate
of the Company, or established in one or more indentures supplemental
hereto:
(1) the title of the Security of the series (which shall
distinguish the Securities of the series from all other Securities);
(2) any limit upon the aggregate principal amount of the
Securities of that series that may be authenticated and delivered
under this Indenture (except for Securities authenticated and
delivered upon registration of transfer of, or in exchange for, or in
lieu of, other Securities of that series);
(3) the date or dates on which the principal of the Securities
of the series is payable;
(4) the rate or rates at which the Securities of the series
shall bear interest or the manner of calculation of such rate or
rates, if any;
(5) the date or dates from which such interest shall accrue, the
Interest Payment Dates on which such interest will be payable or the
manner of determination of such Interest Payment Dates and the record
date for the determination of holders to whom interest is payable on
any such Interest Payment Dates;
<PAGE>
(6) the right, if any, to extend the interest payment periods
and the duration of such extension;
(7) 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;
(8) the obligation, if any, of the Company to redeem or purchase
Securities of the series pursuant to any sinking fund or analogous
provisions (including payments made in cash in participation of future
sinking fund obligations) 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;
(9) the subordination terms of the Securities of the series;
(10) the form of the Securities of the series including the form
of the Certificate of Authentication for such series;
(11) if other than denominations of one thousand U.S. dollars
($1,000) or any integral multiple thereof, the denominations in which
the Securities of the series shall be issuable;
(12) any and all other terms with respect to such series (which
terms shall not be inconsistent with the terms 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;
(13) whether the Securities are issuable as a Global Security
and, in such case, the identity for the Depositary for such series;
(14) whether the Securities will be convertible into shares of
common stock or other securities of the Company and, if so, the terms
and conditions upon which such Securities will be so convertible,
including the conversion price and the conversion period;
(15) 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; and
(16) any additional or different Events of Default or restrictive
covenants provided for with respect to the Securities of the series.
All Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or
pursuant to any such Board Resolution or in any indentures supplemental
hereto.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution of the Company, a copy of an appropriate
record of such action shall be certified by the Secretary or an Assistant
Secretary of the Company and delivered to the Trustee at or prior to the
<PAGE>
delivery of the Officers' Certificate of the Company setting forth the
terms of the series.
Securities of any particular series may be issued at various
times, with different dates on which the principal or any installment of
principal is payable, with different rates of interest, if any, or
different methods by which rates of interest may be determined, with
different dates on which such interest may be payable and with different
redemption dates.
SECTION 2.02 Form of Securities and Trustee's Certificate.
The Securities of any series and the Trustee's certificate of
authentication to be borne by such Securities shall be substantially of the
tenor and purport as set forth in one or more indentures supplemental
hereto or as provided in a Board Resolution of the Company and as set forth
in an Officers' Certificate of the Company and the and may have such
letters, numbers or other marks of identification or designation and such
legends or endorsements printed, lithographed or engraved thereon as the
Company may deem appropriate and as are not inconsistent with the
provisions of this Indenture, or as may be required to comply with any law
or with any rule or regulation made pursuant thereto or with any rule or
regulation of any stock exchange on which Securities of that series may be
listed, or to conform to usage.
SECTION 2.03 Denominations: Provisions for Payment.
The Securities shall be issuable as registered Securities and in
the denominations of one thousand U.S. dollars ($1,000) or any integral
multiple thereof, subject to Section 2.01(11). The Securities of a
particular series shall bear interest payable on the dates and at the rate
specified with respect to that series. The principal of and the interest
on the Securities of any series, as well as any premium thereon in case of
redemption thereof prior to maturity, shall be payable in the coin or
currency of the United States of America that at the time is legal tender
for public and private debt, at the office or agency of the Company
maintained for that purpose in the Borough of Manhattan, the City and State
of New York. Each Security shall be dated the date of its authentication.
Interest on the Securities shall be computed on the basis of a 360-day year
composed of twelve 30-day months.
The interest installment on any Security that is payable, and is
punctually paid or duly provided for, on any Interest Payment Date for
Securities of that series shall be paid to the Person in whose name said
Security (or one or more Predecessor Securities) is registered at the close
of business on the regular record date for such interest installment. In
the event that any Security of a particular series or portion thereof is
called for redemption and the redemption date is subsequent to a regular
record date with respect to any Interest Payment Date and prior to such
Interest Payment Date, interest on such Security will be paid upon
presentation and surrender of such Security as provided in Section 3.03.
Any interest on any Security that is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date for
Securities of the same series (herein called "Defaulted Interest") shall
forthwith cease to be payable to the registered holder on the relevant
regular record date by virtue of having been such holder; and such
<PAGE>
Defaulted Interest shall be paid by the Company, at its election, as
provided in clause (1) or clause (2) below:
(1) The Company may make payment of any Defaulted Interest on
Securities to the Persons in whose names such Securities (or their
respective Predecessor Securities) are registered at the close of
business on a special record date for the payment of such Defaulted
Interest, which shall be fixed in the following manner: the Company
shall notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each such Security and the date of the
proposed payment, and at the same time the Company shall deposit with
the Trustee an amount of money equal to the aggregate amount proposed
to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the
date of the proposed payment, such money when deposited to be held in
trust for the benefit of the Persons entitled to such Defaulted
Interest as in this clause provided. Thereupon the Trustee shall fix
a special record date for the payment of such Defaulted Interest which
shall not be more than 15 nor less than 10 days prior to the date of
the proposed payment and not less than 10 days after the receipt by
the Trustee of the notice of the proposed payment. The Trustee shall
promptly notify the Company of such special record date and, in the
name and at the expense of the Company, shall cause notice of the
proposed payment of such Defaulted Interest and the special record
date therefor to be mailed, first class postage prepaid, to each
Securityholder at his or her address as it appears in the Security
Register (as hereinafter defined), not less than 10 days prior to such
special record date. Notice of the proposed payment of such Defaulted
Interest and the special record date therefor having been mailed as
aforesaid, such Defaulted Interest shall be paid to the Persons in
whose names such Securities (or their respective Predecessor
Securities) are registered on such special record date and shall be no
longer payable pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted Interest on
any Securities in any other lawful manner not inconsistent with the
requirements of any securities exchange on which such Securities may
be listed, and upon such notice as may be required by such exchange,
if, after notice given by the Company to the Trustee of the proposed
payment pursuant to this clause, such manner of payment shall be
deemed practicable by the Trustee.
Unless otherwise set forth in a Board Resolution of the Company
or one or more indentures supplemental hereto establishing the terms of any
series of Securities pursuant to Section 2.01 hereof, the term "regular
record date" as used in this Section with respect to a series of Securities
with respect to any Interest Payment Date for such series shall mean either
the fifteenth day of the month immediately preceding the month in which an
Interest Payment Date established for such series pursuant to Section 2.01
hereof shall occur, if such Interest Payment Date is the first day of a
month, or the last day of the month immediately preceding the month in
which an Interest Payment Date established for such series pursuant to
Section 2.01 hereof shall occur, if such Interest Payment Date is the
fifteenth day of a month, whether or not such date is a Business Day.
Subject to the foregoing provisions of this Section, each
Security of a series delivered under this Indenture upon transfer of or in
<PAGE>
exchange for or in lieu of any other Security of such series shall carry
the rights to interest accrued and unpaid, and to accrue, that were carried
by such other Security.
SECTION 2.04 Execution and Authentications.
The Securities shall be signed on behalf of the Company by its
President, or one of its Vice Presidents, or its Treasurer, or one of its
Assistant Treasurers, or its Secretary, or one of its Assistant
Secretaries, under its corporate seal attested by its Secretary or one of
its Assistant Secretaries. Signatures may be in the form of a manual or
facsimile signature. The Company may use the facsimile signature of any
Person who shall have been a President or Vice President thereof, or of any
Person who shall have been a Secretary or Assistant Secretary thereof,
notwithstanding the fact that at the time the Securities shall be
authenticated and delivered or disposed of such Person shall have ceased to
be the President or a Vice President, or the Secretary or an Assistant
Secretary, of the Company. The seal of the Company may be in the form of a
facsimile of such seal and may be impressed, affixed, imprinted or
otherwise reproduced on the Securities. The Securities may contain such
notations, legends or endorsements required by law, stock exchange rule or
usage. Each Security shall be dated the date of its authentication by the
Trustee.
A Security shall not be valid until authenticated manually by an
authorized signatory of the Trustee, or by an Authenticating Agent. Such
signature shall be conclusive evidence that the Security so authenticated
has been duly authenticated and delivered hereunder and that the holder is
entitled to the benefits of this Indenture.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities of any
series executed by the Company to the Trustee for authentication, together
with a written order of the Company for the authentication and delivery of
such Securities, signed by its President or any Vice President and its
Secretary or any Assistant Secretary, and the Trustee in accordance with
such written order shall authenticate and deliver such Securities.
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 that the
form and terms thereof have been established in conformity with the
provisions of this Indenture.
The Trustee shall not be required to authenticate such Securities
if the issue of such Securities pursuant to this Indenture will affect the
Trustee's own rights, duties or immunities under the Securities and this
Indenture or otherwise in a manner that is not reasonably acceptable to the
Trustee.
SECTION 2.05 Registration of Transfer and Exchange.
(a) Securities of any series may be exchanged upon presentation
thereof at the office or agency of the Company designated for such purpose
in the Borough of Manhattan, the City and State of New York, for other
Securities of such series of authorized denominations, and for a like
<PAGE>
aggregate principal amount, upon payment of a sum sufficient to cover any
tax or other governmental charge in relation thereto, all as provided in
this Section. In respect of any Securities so surrendered for exchange,
the Company shall execute, the Trustee shall authenticate and such office
or agency shall deliver in exchange therefor the Security or Securities of
the same series that the Securityholder making the exchange shall be
entitled to receive, bearing numbers not contemporaneously outstanding.
(b) The Company shall keep, or cause to be kept, at its office
or agency designated for such purpose in the Borough of Manhattan, the City
and State of New York, or such other location designated by the Company a
register or registers (herein referred to as the "Security Register") in
which, subject to such reasonable regulations as it may prescribe, the
Company shall register the Securities and the transfers of Securities as in
this Article provided and which at all reasonable times shall be open for
inspection by the Trustee. The registrar for the purpose of registering
Securities and transfer of Securities as herein provided shall be appointed
as authorized by Board Resolution (the "Security Registrar").
Upon surrender for transfer of any Security at the office or
agency of the Company designated for such purpose, the Company shall
execute, the Trustee shall authenticate and such office or agency shall
deliver in the name of the transferee or transferees a new Security or
Securities of the same series as the Security presented for a like
aggregate principal amount.
All Securities presented or surrendered for exchange or
registration of transfer, as provided in this Section, shall be accompanied
(if so required by the Company or the Security Registrar) by a written
instrument or instruments of transfer, in form satisfactory to the Company
or the Security Registrar, duly executed by the registered holder or by
such holder's duly authorized attorney in writing.
(c) No service charge shall be made for any exchange or
registration of transfer of Securities, or issue of new Securities in case
of partial redemption of any series, but the Company may require payment of
a sum sufficient to cover any tax or other governmental charge in relation
thereto, other than exchanges pursuant to Section 2.06, the second
paragraph of Section 3.03 and Section 9.04 not involving any transfer.
(d) The Company shall not be required (i) to issue, exchange or
register the transfer of any Securities during a period beginning at the
opening of business 15 days before the day of the mailing of a notice of
redemption of less than all the Outstanding Securities of the same series
and ending at the close of business on the day of such mailing, nor (ii) to
register the transfer of or exchange any Securities of any series or
portions thereof called for redemption. The provisions of this Section
2.05 are, with respect to any Global Security, subject to Section 2.11
hereof.
SECTION 2.06 Temporary Securities.
Pending the preparation of definitive Securities of any series,
the Company may execute, and the Trustee shall authenticate and deliver,
temporary Securities (printed, lithographed or typewritten) of any
authorized denomination. Such temporary Securities shall be substantially
in the form of the definitive Securities in lieu of which they are issued,
<PAGE>
but with such omissions, insertions and variations as may be appropriate
for temporary Securities, all as may be determined by the Company. Every
temporary Security of any series shall be executed by the Company and be
authenticated by the Trustee upon the same conditions and in substantially
the same manner, and with like effect, as the definitive Securities of such
series. Without unnecessary delay the Company will execute and will
furnish definitive Securities of such series and thereupon any or all
temporary Securities of such series may be surrendered in exchange therefor
(without charge to the holders), at the office or agency of the Company
designated for the purpose in the Borough of Manhattan, the City and State
of New York, and the Trustee shall authenticate and such office or agency
shall deliver in exchange for such temporary Securities an equal aggregate
principal amount of definitive Securities of such series, unless the
Company advises the Trustee to the effect that definitive Securities need
not be executed and furnished until further notice from the Company. Until
so exchanged, the temporary Securities of such series shall be entitled to
the same benefits under this Indenture as definitive Securities of such
series authenticated and delivered hereunder.
SECTION 2.07 Mutilated, Destroyed, Lost or Stolen Securities.
In case any temporary or definitive Security shall become
mutilated or be destroyed, lost or stolen, the Company (subject to the next
succeeding sentence) shall execute, and upon the Company's request the
Trustee (subject as aforesaid) shall authenticate and deliver, a new
Security of the same series, bearing a number not contemporaneously
outstanding, in exchange and substitution for the mutilated Security, or in
lieu of and in substitution for the Security so destroyed, lost or stolen.
In every case the applicant for a substituted Security shall furnish to the
Company and the Trustee such security or indemnity as may be required by
them to save each of them harmless, and, in every case of destruction, loss
or theft, the applicant shall also furnish to the Company and the Trustee
evidence to their satisfaction of the destruction, loss or theft of the
applicant's Security and of the ownership thereof. The Trustee may
authenticate any such substituted Security and deliver the same upon the
written request or authorization of any officer of the Company. Upon the
issuance of any substituted Security, the Company may require the payment
of a sum sufficient to cover any tax or other governmental charge that may
be imposed in relation thereto and any other expenses (including the fees
and expenses of the Trustee) connected therewith. In case any Security
that has matured or is about to mature shall become mutilated or be
destroyed, lost or stolen, the Company may, instead of issuing a substitute
Security, pay or authorize the payment of the same (without surrender
thereof except in the case of a mutilated Security) if the applicant for
such payment shall furnish to the Company and the Trustee such security or
indemnity as they may require to save them harmless, and, in case of
destruction, loss or theft, evidence to the satisfaction of the Company and
the Trustee of the destruction, loss or theft of such Security and of the
ownership thereof.
Every replacement Security issued pursuant to the provisions of
this Section shall constitute an additional contractual obligation of the
Company whether or not the mutilated, destroyed, lost or stolen Security
shall be found at any time, or be enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately
with any and all other Securities of the same series duly issued hereunder.
All Securities shall be held and owned upon the express condition that the
<PAGE>
foregoing provisions are exclusive with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities, and shall
preclude (to the extent lawful) any and all other rights or remedies,
notwithstanding any law or statute existing or hereafter enacted to the
contrary with respect to the replacement or payment of negotiable
instruments or other securities without their surrender.
SECTION 2.08 Cancellation.
All Securities surrendered for the purpose of payment,
redemption, exchange or registration of transfer shall, if surrendered to
the Company or any paying agent, be delivered to the Trustee for
cancellation, or, if surrendered to the Trustee, shall be cancelled by it,
and no Securities shall be issued in lieu thereof except as expressly
required or permitted by any of the provisions of this Indenture. On
request of the Company at the time of such surrender, the Trustee shall
deliver to the Company canceled Securities held by the Trustee. In the
absence of such request the Trustee may dispose of canceled Securities in
accordance with its standard procedures and deliver a certificate of
disposition to the Company. If the Company shall otherwise acquire any of
the Securities, however, such acquisition shall not operate as a redemption
or satisfaction of the indebtedness represented by such Securities unless
and until the same are delivered to the Trustee for cancellation.
SECTION 2.09 Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or
implied, shall give or be construed to give to any Person, other than the
parties hereto and the holders of the Securities (and, with respect to the
provisions of Article Fourteen, the holders of Senior Indebtedness) any
legal or equitable right, remedy or claim under or in respect of this
Indenture, or under any covenant, condition or provision herein contained;
all such covenants, conditions and provisions being for the sole benefit of
the parties hereto and of the holders of the Securities (and, with respect
to the provisions of Article Fourteen, the holders of Senior Indebtedness).
SECTION 2.10 Authenticating Agent.
So long as any of the Securities of any series remain Outstanding
there may be an Authenticating Agent for any or all such series of
Securities which the Trustee shall have the right to appoint. Said
Authenticating Agent shall be authorized to act on behalf of the Trustee to
authenticate Securities of such series issued upon exchange, transfer or
partial redemption thereof, and 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.
All references in this Indenture to the authentication of Securities by the
Trustee shall be deemed to include authentication by an Authenticating
Agent for such series. Each Authenticating Agent shall be acceptable to
the Company and shall be a corporation that has a combined capital and
surplus, as most recently reported or determined by it, sufficient under
the laws of any jurisdiction under which it is organized or in which it is
doing business to conduct a trust business, and that is otherwise
authorized under such laws to conduct such business and is subject to
supervision or examination by Federal or State authorities. If at any time
any Authenticating Agent shall cease to be eligible in accordance with
these provisions, it shall resign immediately.
<PAGE>
Any Authenticating Agent may at any time resign by giving written
notice of resignation to the Trustee and to the Company. The Trustee may
at any time (and upon request by the Company shall) terminate the agency of
any Authenticating Agent by giving written notice of termination to such
Authenticating Agent and to the Company. Upon resignation, termination or
cessation of eligibility of any Authenticating Agent, the Trustee may
appoint an eligible successor Authenticating Agent acceptable to the
Company. Any successor Authenticating Agent, upon acceptance of its
appointment hereunder, shall become vested with all the rights, powers and
duties of its predecessor hereunder as if originally named as an
Authenticating Agent pursuant hereto.
SECTION 2.11 Global Securities.
(a) If the Company shall establish pursuant to Section 2.01 that
the Securities of a particular series are to be issued as a Global
Security, then the Company shall execute and the Trustee shall, in
accordance with Section 2.04, authenticate and deliver, a Global Security
that (i) shall represent, and shall be denominated in an amount equal to
the aggregate principal amount of, all of the Outstanding Securities of
such series, (ii) shall be registered in the name of the Depositary or its
nominee, (iii) shall be delivered by the Trustee to the Depositary or
pursuant to the Depositary's instruction and (iv) shall bear a legend
substantially to the following effect: "Except as otherwise provided in
Section 2.11 of the Indenture, this Security may be transferred, in whole
but not in part, only to another nominee of the Depositary or to a
successor Depositary or to a nominee of such successor Depositary."
(b) Notwithstanding the provisions of Section 2.05, the Global
Security of a series may be transferred, in whole but not in part and in
the manner provided in Section 2.05, 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.
(c) If at any time the Depositary for a series of the Securities
notifies the Company that it is unwilling or unable to continue as
Depositary for such series or if at any time the Depositary for such series
shall no longer be registered or in good standing under the Exchange Act,
or other applicable statute or regulation, and 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 subject to
Section 2.05, the Trustee will authenticate and deliver the Securities of
such series in definitive registered form without coupons, in authorized
denominations, and in an aggregate principal amount equal to the principal
<PAGE>
amount of the Global Security of such series in exchange for such Global
Security. In addition, the Company may at any time determine that the
Securities of any series shall no longer be represented by a Global
Security and that the provisions of this Section 2.11 shall no longer apply
to the Securities of such series. In such event the Company will execute
and subject to Section 2.05, the Trustee, upon receipt of an Officers'
Certificate evidencing such determination by the Company, will authenticate
and deliver the Securities of such series in definitive registered form
without coupons, 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. Upon the exchange of the Global
Security for such Securities in definitive registered form without coupons,
in authorized denominations, the Global Security shall be canceled by the
Trustee. Such Securities in definitive registered form issued in exchange
for the Global Security pursuant to this Section 2.11(c) shall be
registered in such names and in such authorized denominations as the
Depositary, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee. The Trustee shall
deliver such Securities to the Depositary for delivery to the Persons in
whose names such Securities are so registered.
ARTICLE III
REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS
SECTION 3.01 Redemption.
The Company may redeem the Securities of any series issued
hereunder on and after the dates and in accordance with the terms
established for such series pursuant to Section 2.01 hereof.
SECTION 3.02 Notice of Redemption.
(a) In case the Company shall desire to exercise such right to
redeem all or, as the case may be, a portion of the Securities of any
series in accordance with the right reserved so to do, the Company shall,
or shall cause the Trustee to, give notice of such redemption to holders of
the Securities of such series to be redeemed by mailing, first class
postage prepaid, a notice of such redemption not less than 30 days and not
more than 90 days before the date fixed for redemption of that series to
such holders at their last addresses as they shall appear upon the Security
Register unless a shorter period is specified in the Securities to be
redeemed. Any notice that is mailed in the manner herein provided shall be
conclusively presumed to have been duly given, whether or not the
registered holder receives the notice. In any case, failure duly to give
such notice to the holder of any Security of any series designated for
redemption in whole or in part, or any defect in the notice, shall not
affect the validity of the proceedings for the redemption of any other
Securities of such series or any other series. In the case of any
redemption of Securities prior to the expiration of any restriction on such
redemption provided in the terms of such Securities or elsewhere in this
Indenture, the Company shall furnish the Trustee with an Officers'
Certificate evidencing compliance with any such restriction.
Each such notice of redemption shall specify the date fixed for
redemption and the redemption price at which Securities of that series are
to be redeemed, and shall state that payment of the redemption price of
such Securities to be redeemed will be made at the office or agency of the
Company in the Borough of Manhattan, the City and State of New York, upon
presentation and surrender of such Securities, that interest accrued to the
date fixed for redemption will be paid as specified in said notice, that
from and after said date interest will cease to accrue and that the
redemption is for a sinking fund, if such is the case. If less than all
the Securities of a series are to be redeemed, the notice to the holders of
Securities of that series to be redeemed in whole or in part shall specify
the particular Securities to be so redeemed. In case any Security is to be
<PAGE>
redeemed in part only, the notice that relates to such Security shall state
the portion of the principal amount thereof to be redeemed, and shall state
that on and after the redemption date, upon surrender of such Security, a
new Security or Securities of such series in principal amount equal to the
unredeemed portion thereof will be issued.
(b) If less than all the Securities of a series are to be
redeemed, the Company shall give the Trustee at least 45 days' notice in
advance of the date fixed for redemption as to the aggregate principal
amount of Securities of the series to be redeemed, and thereupon the
Trustee shall select, by lot or in such other manner as it shall deem
appropriate and fair in its discretion and that may provide for the
selection of a portion or portions (equal to one thousand U.S. dollars
($1,000) or any integral multiple thereof) of the principal amount of such
Securities of a denomination larger than $1,000, the Securities to be
redeemed and shall thereafter promptly notify the Company in writing of the
numbers of the Securities to be redeemed, in whole or in part.
The Company may, if and whenever it shall so elect, by delivery
of instructions signed on its behalf by its President or any Vice
President, instruct the Trustee or any paying agent to call all or any part
of the Securities of a particular series for redemption and to give notice
of redemption in the manner set forth in this Section, such notice to be in
the name of the Company or its own name as the Trustee or such paying agent
may deem advisable. In any case in which notice of redemption is to be
given by the Trustee or any such paying agent, the Company shall deliver or
cause to be delivered to, or permit to remain with, the Trustee or such
paying agent, as the case may be, such Security Register, transfer books or
other records, or suitable copies or extracts therefrom, sufficient to
enable the Trustee or such paying agent to give any notice by mail that may
be required under the provisions of this Section.
SECTION 3.03 Payment Upon Redemption.
(a) If the giving of notice of redemption shall have been
completed as above provided, the Securities or portions of Securities of
the series to be redeemed specified in such notice shall become due and
payable on the date and at the place stated in such notice at the
applicable redemption price, together with interest accrued to the date
fixed for redemption and interest on such Securities or portions of
Securities shall cease to accrue on and after the date fixed for
redemption, unless the Company shall default in the payment of such
redemption price and accrued interest with respect to any such Security or
portion thereof. On presentation and surrender of such Securities on or
after the date fixed for redemption at the place of payment specified in
the notice, said Securities shall be paid and redeemed at the applicable
redemption price for such series, together with interest accrued thereon to
the date fixed for redemption (but if the date fixed for redemption is an
interest payment date, the interest installment payable on such date shall
be payable to the registered holder at the close of business on the
applicable record date pursuant to Section 2.03).
(b) Upon presentation of any Security of such series that is to
be redeemed in part only, the Company shall execute and the Trustee shall
authenticate and the office or agency where the Security is presented shall
deliver to the holder thereof, at the expense of the Company, a new
Security of the same series of authorized denominations in principal amount
<PAGE>
equal to the unredeemed portion of the Security so presented.
SECTION 3.04 Sinking Fund.
The provisions of Sections 3.04, 3.05 and 3.06 shall be
applicable to any sinking fund for the retirement of Securities of a
series, except as otherwise specified as contemplated by Section 2.01 for
Securities of such series.
The minimum amount of any sinking fund payment provided for by
the terms of Securities of any series 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 Securities of any series is herein referred to
as an "optional sinking fund payment". If provided for by the terms of
Securities of any series, the cash amount of any sinking fund payment may
be subject to reduction as provided in Section 3.05. Each sinking fund
payment shall be applied to the redemption of Securities of any series as
provided for by the terms of Securities of such series.
SECTION 3.05 Satisfaction of Sinking Fund Payments with
Securities.
The Company (i) may deliver Outstanding Securities of a series
(other than any Securities previously called for redemption) and (ii) may
apply as a credit Securities of a series that have been redeemed either at
the election of the Company pursuant to the terms of such Securities or
through the application of permitted optional sinking fund payments
pursuant to the terms of such Securities, in each case in satisfaction of
all or any part of any sinking fund payment with respect to the Securities
of such series required to be made pursuant to the terms of such Securities
as provided for by the terms of such series, provided that such Securities
have not been previously so credited. Such Securities shall be received
and credited for such purpose by the Trustee at the redemption price
specified in such Securities for redemption through operation of the
sinking fund and the amount of such sinking fund payment shall be reduced
accordingly.
SECTION 3.06 Redemption of Securities for Sinking Fund.
Not less than 45 days prior to each sinking fund payment date for
any series of Securities, the Company will deliver to the Trustee an
Officers' Certificate specifying the amount of the next ensuing sinking
fund payment for that series pursuant to the terms of the series, the
portion thereof, if any, that is to be satisfied by delivering and
crediting Securities of that series pursuant to Section 3.05 and the basis
for such credit and will, together with such Officers' Certificate, deliver
to the Trustee any Securities to be so delivered. Not less than 30 days
before each such sinking fund payment date the Trustee shall select the
Securities to be redeemed upon such sinking fund payment date in the manner
specified in Section 3.02 and cause notice of the redemption thereof to be
given in the name of and at the expense of the Company in the manner
provided in Section 3.02. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the
manner stated in Section 3.03.
ARTICLE IV
<PAGE>
SECTION 4.01 Payment of Principal, Premium and Interest.
The Company will duly and punctually pay or cause to be paid the
principal of (and premium, if any) and interest on the Securities of that
series at the time and place and in the manner provided herein and
established with respect to such Securities.
SECTION 4.02 Maintenance of Office or Agency.
So long as any series of the Securities remain Outstanding, the
Company agrees to maintain an office or agency in the Borough of Manhattan,
the City and State of New York, with respect to each such series and at
such other location or locations as may be designated as provided in this
Section 4.02, where (i) Securities of that series may be presented for
payment, (ii) Securities of that series may be presented as hereinabove
authorized for registration of transfer and exchange, and (iii) notices and
demands to or upon the Company in respect of the Securities of that series
and this Indenture may be given or served, such designation to continue
with respect to such office or agency until the Company shall, by written
notice signed by its President or a Vice President and delivered to the
trustee, designate some other office or agency for such purposes or any of
them. If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address
thereof, such presentations, notices and demands may be made or served at
the Corporate Trust Office of the Trustee, and the Company hereby appoints
the Trustee as its agent to receive all such presentations, notices and
demands.
SECTION 4.03 Paying Agents.
(a) If the Company shall appoint one or more paying agents for
all or any series of the Securities, other than the Trustee, the Company
will cause each such paying agent to execute and deliver to the Trustee an
instrument in which such agent shall agree with the Trustee, subject to the
provisions of this Section:
(1) that it will hold all sums held by it as such agent for the
payment of the principal of (and premium, if any) or interest on the
Securities of that series (whether such sums have been paid to it by
the Company or by any other obligor of such Securities) in trust for
the benefit of the Persons entitled thereto;
(2) that it will give the Trustee notice of any failure by the
Company (or by any other obligor of such Securities) to make any
payment of the principal of (and premium, if any) or interest on the
Securities of that series when the same shall be due and payable;
(3) that it will, at any time during the continuance of any
failure referred to in the preceding paragraph (a)(2) above, upon the
written request of the Trustee, forthwith pay to the Trustee all sums
so held in trust by such paying agent; and
(4) that it will perform all other duties of paying agent as set
forth in this Indenture.
(b) If the Company shall act as its own paying agent with
respect to any series of the Securities, it will on or before each due date
<PAGE>
of the principal of (and premium, if any) or interest on Securities of that
series, set aside, segregate and hold in trust for the benefit of the
Persons entitled thereto a sum sufficient to pay such principal (and
premium, if any) or interest so becoming due on Securities of that series
until such sums shall be paid to such Persons or otherwise disposed of as
herein provided and will promptly notify the Trustee of such action, or any
failure (by it or any other obligor on such Securities) to take such
action. Whenever the Company shall have one or more paying agents for any
series of Securities, it will, prior to each due date of the principal of
(and premium, if any) or interest on any Securities of that series, deposit
with the paying agent a sum sufficient to pay the principal (an premium, if
any) or interest so becoming due, such sum to be held in trust for the
benefit of the Persons entitled to such principal, premium or interest, and
(unless such paying agent is the Trustee) the Company will promptly notify
the Trustee of this action or failure so to act.
(c) Notwithstanding anything in this Section to the contrary,
(i) the agreement to hold sums in trust as provided in this Section is
subject to the provisions of Section 11.05, and (ii) the Company may at any
time, for the purpose of obtaining the satisfaction and discharge of this
Indenture or for any other purpose, pay, or direct any paying agent to pay,
to the Trustee all sums held in trust by the Company or such paying agent,
such sums to be held by the Trustee upon the same terms and conditions as
those upon which such sums were held by the Company or such paying agent;
and, upon such payment by any paying agent to the Trustee, such paying
agent shall be released from all further liability with respect to such
money.
SECTION 4.04 Appointment to Fill Vacancy in Office of Trustee.
The Company, whenever necessary to avoid or fill a vacancy in the
office of Trustee, will appoint, in the manner provided in Section 7.10, a
Trustee, so that there shall at all times be a Trustee hereunder.
SECTION 4.05 Compliance with Consolidation Provisions.
The Company will not, while any of the Securities remain
Outstanding, consolidate with, or merge into, or merge into itself, or sell
or convey all or substantially all of its property to any other company
unless the provisions of Article Ten hereof are complied with.
ARTICLE V
SECURITYHOLDERS' LISTS AND REPORTS
BY THE COMPANY AND THE TRUSTEE
SECTION 5.01 Company to Furnish Trustee Names and Addresses of
Securityholders.
The Company will furnish or cause to be furnished to the Trustee
(a) on a monthly basis on each regular record date (as defined in Section
2.03) a list, in such form as the Trustee may reasonably require, of the
names and addresses of the holders of each series of Securities as of such
regular record date, provided that the Company shall not be obligated to
furnish or cause to furnish such list at any time that the list shall not
differ in any respect from the most recent list furnished to the Trustee by
the Company and (b) at such other times as the Trustee may request in
<PAGE>
writing within 30 days after the receipt by the Company of any such
request, a list of similar form and content as of a date not more than 15
days prior to the time such list is furnished; provided, however, that, in
either case, no such list need be furnished for any series for which the
Trustee shall be the Security Registrar.
SECTION 5.02 Preservation Of Information; Communications With
Securityholders.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, all information as to the names and addresses of
the holders of Securities contained in the most recent list furnished to it
as provided in Section 5.01 and as to the names and addresses of holders of
Securities received by the Trustee in its capacity as Security Registrar
(if acting in such capacity).
(b) The Trustee may destroy any list furnished to it as provided
in Section 5.01 upon receipt of a new list so furnished.
(c) Securityholders may communicate as provided in Section
312(b) of the Trust Indenture Act with other Securityholders with respect
to their rights under this Indenture or under the Securities.
SECTION 5.03 Reports by the Company.
(a) The Company covenants and agrees to file with the Trustee,
within 15 days after the Company is required to file the same with the
Commission, copies of the annual reports and of the information, documents
and other reports (or copies of such portions of any of the foregoing as
the Commission may from time to time by rules and regulations prescribe)
that the Company may be required to file with the Commission pursuant to
Section 13 or Section 15(d) of the Exchange Act; or, if the Company is not
required to file information, documents or reports pursuant to either of
such sections, then to file with the Trustee and the Commission, in
accordance with the rules and regulations prescribed from time to time by
the Commission, such of the supplementary and periodic information,
documents and reports that may be required pursuant to Section 13 of the
Exchange Act, 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) The Company covenants and agrees to file with the Trustee
and the Commission, in accordance with the rules and regulations prescribed
from to time by the Commission, such additional information, documents and
reports with respect to compliance by the Company with the conditions and
covenants provided for in this Indenture as may be required from time to
time by such rules and regulations.
(c) The Company covenants and agrees to transmit by mail, first
class postage prepaid, or reputable over-night delivery service that
provides for evidence of receipt, to the Securityholders, as their names
and addresses appear upon the Security Register, within 30 days after the
filing thereof with the Trustee, such summaries of any information,
documents and reports required to be filed by the Company pursuant to
subsections (a) and (b) of this Section as may be required by rules and
regulations prescribed from time to time by the Commission.
<PAGE>
SECTION 5.04 Reports by the Trustee.
(a) On or before July 15 in each year in which any of the
Securities are Outstanding, the Trustee shall transmit by mail, first class
postage prepaid, to the Securityholders, as their names and addresses
appear upon the Security Register, a brief report dated as of the preceding
May 15, if and to the extent required under Section 313(a) of the Trust
Indenture Act.
(b) The Trustee shall comply with Section 313(b) and 313(c) of
the Trust Indenture Act.
(c) A copy of each such report shall, at the time of such
transmission to Securityholders, be filed by the Trustee with the Company,
with each stock exchange upon which any Securities are listed (if so
listed) and also with the Commission. The Company agrees to notify the
Trustee when any Securities become listed on any stock exchange.
ARTICLE VI
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 6.01 Events of Default.
(a) Whenever used herein with respect to Securities of a
particular series, "Event of Default" means any one or more of the
following events that has occurred and is continuing:
(1) the Company defaults 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; provided, however, that a valid extension of an
interest payment period by the Company in accordance with the terms of
any indenture supplemental hereto, shall not constitute a default in
the payment of interest for this purpose;
(2) the Company defaults in the payment of the principal of (or
premium, if any, on) any of the Securities of that series as and when
the same shall become due and payable whether at maturity, upon
redemption, by declaration or otherwise, or in any payment required by
any sinking or analogous fund established with respect to that series;
provided, however, that a valid extension of the maturity of such
Securities in accordance with the terms of any indenture supplemental
hereto shall not constitute a default in the payment of principal or
premium, if any;
(3) the Company fails to observe or perform any other of its
covenants or agreements with respect to that series contained in this
Indenture or otherwise established with respect to that series of
Securities pursuant to Section 2.01 hereof (other than a covenant or
agreement that has been expressly included in this Indenture solely
for the benefit of one or more series of Securities other than such
series) for a period of 90 days after the date on which written notice
of such failure, requiring the same to be remedied and stating that
such notice is a "Notice of Default" hereunder, shall have been given
to the Company by the Trustee, by registered or certified mail, or to
<PAGE>
the Company and the Trustee by the holders of at least 25% in
principal amount of the Securities of that series at the time
Outstanding;
(4) the Company pursuant to or within the meaning of any
Bankruptcy Law (i) commences a voluntary case, (ii) consents to the
entry of an order for relief against it in an involuntary case, (iii)
consents to the appointment of a Custodian of it or for all or
substantially all of its property or (iv) makes a general assignment
for the benefit of its creditors; or
(5) a court of competent jurisdiction enters an order under any
Bankruptcy Law that (i) is for relief against the Company in an
involuntary case, (ii) appoints a Custodian of the Company for all or
substantially all of their respective property, or (iii) orders the
liquidation of the Company, and the order or decree remains unstayed
and in effect for 90 days.
(b) 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 25% in aggregate principal
amount of the Securities of that series then Outstanding hereunder, by
notice in writing to the Company (and to the Trustee if given by such
Securityholders), may declare the principal of all the Securities of that
series to be due and payable immediately, and upon any such declaration the
same shall become and shall be immediately due and payable, notwithstanding
anything contained in this Indenture or in the Securities of that series or
established with respect to that series pursuant to Section 2.01 to the
contrary.
(c) At any time after the principal of the Securities 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 holders of a majority in aggregate
principal amount of the Securities of that series then Outstanding
hereunder, by written notice to the Company and the Trustee, may rescind
and annul such declaration and its consequences if: (i) the Company has
paid or deposited with the Trustee a sum sufficient to pay all matured
installments of interest upon all the Securities of that series and the
principal of (and premium, if any, on) any and all Securities of that
series that shall have become due otherwise than by acceleration (with
interest upon such principal and premium, if any, and, to the extent that
such payment is enforceable under applicable law, upon overdue installments
of interest, at the rate per annum expressed in the Securities of that
series to the date of such payment or deposit) and the amount payable to
the Trustee under Section 7.06, and (ii) any and all Events of Default
under the Indenture with respect to such series, other than the nonpayment
of principal on Securities of that series that shall not have become due by
their terms, shall have been remedied or waived as provided in Section
6.06.
No such rescission and annulment shall extend to or shall affect
any subsequent default or impair any right consequent thereon.
(d) In case the Trustee shall have proceeded to enforce any
right with respect to Securities of that series under this Indenture and
such proceedings shall have been discontinued or abandoned because of such
<PAGE>
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, and the Trustee shall be restored respectively to their former
positions and rights hereunder, and all rights, remedies and powers of the
Company and the Trustee shall continue as though no such proceedings had
been taken.
SECTION 6.02 Collection of Indebtedness and Suits for
Enforcement by Trustee.
(a) The Company covenants that (1) in case it shall default in
the payment of any installment of interest on any of the Securities of a
series, or any payment required by any sinking or analogous fund
established with respect to that series as and when the same shall have
become due and payable, and such default shall have continued for a period
of 90 Business Days, or (2) in case it shall default in the payment of the
principal of (or premium, if any, on) any of the Securities of a series
when the same shall have become due and payable, whether upon maturity of
the Securities of a series or upon redemption or upon declaration or
otherwise, then, upon demand of the Trustee, the Company will pay to the
Trustee, for the benefit of the holders of the Securities of that series,
the whole amount that then shall have been become due and payable on all
such Securities for principal (and premium, if any) or interest, or both,
as the case may be, with interest upon the overdue principal (and premium,
if any) and (to the extent that payment of such interest is enforceable
under applicable law) upon overdue installments of interest at the rate per
annum expressed in the Securities of that series; and, in addition thereto,
such further amount as shall be sufficient to cover the costs and expenses
of collection, and the amount payable to the Trustee under Section 7.06.
(b) If the Company shall fail to pay such amounts forthwith 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 proceeding to judgment or
final decree, and may enforce any such judgment or final decree against the
Company or other obligor upon the Securities of that series and collect the
moneys adjudged or decreed to be payable in the manner provided by law out
of the property of the Company or other obligor upon the Securities of that
series, wherever situated.
(c) In case of any receivership, insolvency, liquidation,
bankruptcy, reorganization, readjustment, arrangement, composition or
judicial proceedings affected the Company, or its creditors or property,
the Trustee shall have power to intervene in such proceedings and take any
action therein that may be permitted by the court and shall (except as may
be otherwise provided by law) be entitled to file such proofs of claim and
other papers and documents as may be necessary or advisable in order to
have the claims of the Trustee and of the holders of Securities of such
series allowed for the entire amount due and payable by the Company under
the Indenture at the date of institution of such proceedings and for any
additional amount that may become due and payable by the Company after such
date, and to collect and receive any moneys or other property payable or
deliverable on any such claim, and to distribute the same after the
deduction of the amount payable to the Trustee under Section 7.06; and any
receiver, assignee or trustee in bankruptcy or reorganization is hereby
authorized by each of the holders of Securities of such series to make such
<PAGE>
payments to the Trustee, and, in the event that the Trustee shall consent
to the making of such payments directly to such Securityholders, to pay to
the Trustee any amount due it under Section 7.06.
(d) All rights of action and of asserting claims under this
Indenture, or under any of the terms established with respect to Securities
of that series, may be enforced by the Trustee without the possession of
any of such Securities, or the production thereof at any trial or other
proceeding relative thereto, and any such suit or proceeding instituted by
the Trustee shall be brought in its own name as trustee of an express
trust, and any recovery of judgment shall, after provision for payment to
the Trustee of any amounts due under Section 7.06, be for the ratable
benefit of the holders of the Securities of such series.
In 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 the Indenture or in
aid of the exercise of any power granted in this Indenture, or to enforce
any other legal or equitable right vested in the Trustee by this Indenture
or by law.
Nothing contained herein shall be deemed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any
Securityholder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities of that 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.
SECTION 6.03 Application of Moneys Collected.
Any moneys collected by the Trustee pursuant to this Article with
respect to a particular series of Securities shall be applied in the
following order, at the date or dates fixed by the Trustee and, in case of
the distribution of such moneys on account of principal (or premium, if
any) or interest, upon presentation of the Securities of that series, and
notation thereon the payment, if only partially paid, and upon surrender
thereof if fully paid:
FIRST: To the payment of costs and expenses of collection and of
all amounts payable to the Trustee under Section 7.06;
SECOND: To the payment of all Senior Indebtedness of the Company
if and to the extent required by Article Fourteen; and
THIRD: To the payment of the amounts then due and unpaid upon
Securities of such series for principal (and premium, if any) and
interest, in respect of which or for the benefit of which such money
has been collected, ratably, without preference or priority of any
kind, according to the amounts due and payable on such Securities for
principal (and premium, if any) and interest, respectively.
SECTION 6.04 Limitation on Suits.
No holder of any Security of any series shall have any right by
<PAGE>
virtue or by availing of any provision of this Indenture to institute any
suit, action or proceeding in equity or at law upon or under or with
respect to this Indenture or for the appointment of a receiver or trustee,
or for any other remedy hereunder, unless (i) such holder previously shall
have given to the Trustee written notice of an Event of Default and of the
continuance thereof with respect to the Securities of such series
specifying such Event of Default, as hereinbefore provided; (ii) the
holders of not less than 25% in aggregate principal amount of the
Securities of such series then Outstanding shall have made written request
upon the Trustee to institute such action, suit or proceeding in its own
name as trustee hereunder; (iii) such holder or holders 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 (iv)
the Trustee for 60 days after its receipt of such notice, request and offer
of indemnity, shall have failed to institute any such action, suit or
proceeding and (v) during such 60 day period, the holders of a majority in
principal amount of the Securities of that series do not give the Trustee a
direction inconsistent with the request.
Notwithstanding anything contained herein to the contrary, any
other provisions of this Indenture, the right of any holder of any Security
to receive payment of the principal of (and premium, if any) and interest
on such Security, as therein provided, on or after the respective due dates
expressed in such Security (or in the case of redemption, on the redemption
date), or to institute suit for the enforcement of any such payment on or
after such respective dates or redemption date, shall not be impaired or
affected without the consent of such holder and by accepting a Security
hereunder it is expressly understood, intended and covenanted by the taker
and holder of every Security of such series with every other such taker and
holder and the Trustee, that no one or more holders of Securities of such
series shall have any right in any manner whatsoever by virtue or by
availing of any provision of this Indenture to affect, disturb or prejudice
the rights of the holders of any other of such Securities, 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 such series. For the protection and enforcement of the
provisions of this Section, each and every Securityholder and the Trustee
shall be entitled to such relief as can be given either at law or in
equity.
SECTION 6.05 Rights and Remedies Cumulative; Delay or Omission
Not Waiver.
(a) Except as otherwise provided in Section 2.07, all powers and
remedies given by this Article to the Trustee or to the Securityholders
shall, to the extent permitted by law, be deemed cumulative and not
exclusive of any other powers and remedies available to the Trustee or the
holders of the Securities, by judicial proceedings or otherwise, to enforce
the performance or observance of the covenants and agreements contained in
this Indenture or otherwise established with respect to such Securities.
(b) No delay or omission of the Trustee or of any holder of any
of the Securities to exercise 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 on
acquiescence therein; and, subject to the provisions of Section 6.04, every
<PAGE>
power and remedy given by this Article or by law to the Trustee or the
Securityholders may be exercised from time to time, and as often as shall
be deemed expedient, by the Trustee or by the Securityholders.
SECTION 6.06 Control by Securityholders.
The holders of a majority in aggregate principal amount of the
Securities of any series at the time Outstanding, determined in accordance
with Section 8.04, 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
such series; provided, however, that such direction shall not be in
conflict with any rule of law or with this Indenture or be unduly
prejudicial to the rights of holders of Securities of any other series at
the time Outstanding determined in accordance with Section 8.04. Subject
to the provisions of Section 7.01, the Trustee shall have the right to
decline to follow any such direction if the Trustee in good faith shall, by
a Responsible Officer or Officers of the Trustee, determine that the
proceeding so directed would involve the Trustee in personal liability.
The holders of a majority in aggregate principal amount of the Securities
of any series at the time Outstanding affected thereby, determined in
accordance with Section 8.04, may on behalf of the holders of all of the
Securities of such series waive any past default in the performance of any
of the covenants contained herein or established pursuant to Section 2.01
with respect to such series and its consequences, except a default in the
payment of the principal of, or premium, if any, or interest on, any of the
Securities of that series as and when the same shall become due by the
terms of such Securities otherwise than by acceleration (unless such
default has been cured and a sum sufficient to pay all matured installments
of interest and principal and any premium has been deposited with the
Trustee (in accordance with Section 6.01(c)). Upon any such waiver, the
default covered thereby shall be deemed to be cured for all purposes of
this Indenture and the Company, 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 Undertaking to Pay Costs.
All parties to this Indenture agree, and each holder of any
Securities 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 shall not apply to any suit instituted by the Trustee, to any
suit instituted by any Securityholder, or group of Securityholders, holding
more than 10% in aggregate principal amount of the Outstanding Securities
of any series, or to any suit instituted by any Securityholder for the
enforcement of the payment of the principal of (or premium, if any) or
interest on any Security of such series, on or after the respective due
dates expressed in such Security or established pursuant to this Indenture.
<PAGE>
ARTICLE VII
CONCERNING THE TRUSTEE
SECTION 7.01 Certain Duties and Responsibilities of Trustee.
(a) The Trustee, prior to the occurrence of an Event of Default
with respect to the Securities of a series and after the curing of all
Events of Default with respect to the Securities of that series that may
have occurred, shall undertake to perform with respect to the Securities of
such series such duties and only such duties as are specifically set forth
in this Indenture, and no implied covenants shall be read into this
Indenture against the Trustee. In case an Event of Default with respect to
the Securities of a series has occurred (that has not been cured or
waived), the Trustee shall exercise with respect to Securities of that
series such of the rights and powers vested in it by this Indenture, and
use the same degree of care and skill in their exercise, as a prudent man
would exercise or use under the circumstances in the conduct of his own
affairs.
(b) No provision of this Indenture shall be construed to relieve
the Trustee from liability for its own negligent action, its own negligent
failure to act, or its own willful misconduct, except that:
(1) prior to the occurrence of an Event of Default with respect
to the Securities of a series and after the curing or waiving of all
such Events of Default with respect to that series that may have
occurred:
(i) the duties and obligations of the Trustee shall
with respect to the Securities of such series be determined
solely by the express provisions of this Indenture, and the
Trustee shall not be liable with respect to the Securities
of such series except for the performance of such duties and
obligations as are specifically set forth in this Indenture,
and no implied covenants or obligations shall be read into
this Indenture against the Trustee; and
(ii) in the absence of bad faith on the part of the
Trustee, the Trustee may with respect to the Securities of
such series conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the
Trustee and conforming to the requirements of this
Indenture; but in the case of any such certificates or
opinions that by any provision hereof are specifically
required to be furnished to the Trustee, the Trustee shall
be under a duty to examine the same to determine whether or
not they conform to the requirement of this Indenture;
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer or Responsible Officers of
the Trustee, unless it shall be proved that the Trustee, was negligent
in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with
<PAGE>
the direction of the holders of not less than a majority in principal
amount of the Securities of any series at the time Outstanding
relating to the time, method and place of conducting any proceeding
for any remedy available to the Trustee, or exercising any trust or
power conferred upon the Trustee under this Indenture with respect to
the Securities of that series; and
(4) None of the provisions contained in this Indenture shall
require the Trustee to expend or risk its own funds or otherwise incur
personal financial liability in the performance of any of its duties
or in the exercise of any of its rights or powers, if there is
reasonable ground for believing that the repayment of such funds or
liability is not reasonably assured to it under the terms of this
Indenture or adequate indemnity against such risk is not reasonably
assured to it.
SECTION 7.02 Certain Rights of Trustee.
Except as otherwise provided in Section 7.01:
(a) The Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval,
bond, security or other paper or document believed by it to be genuine and
to have been signed or presented by the proper party or parties;
(b) Any request, direction, order or demand of the Company
mentioned herein shall be sufficiently evidenced by a Board Resolution or
an instrument signed in the name of the Company, by the President or any
Vice President and by the Secretary or an Assistant Secretary or the
Treasurer or an Assistant Treasurer thereof (unless other evidence in
respect thereof is specifically prescribed herein);
(c) The Trustee may consult with counsel and the written advice
of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or suffered or
omitted hereunder in good faith and in reliance thereon;
(d) The Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request, order
or direction of any of the Securityholders, pursuant to the provisions of
this Indenture, unless such Securityholders shall have offered to the
Trustee reasonable security or indemnity against the costs, expenses and
liabilities that may be incurred therein or thereby; nothing contained
herein shall, however, relieve the Trustee of the obligation, upon the
occurrence of an Event of Default with respect to a series of the
Securities (that has not been cured or waived) to exercise with respect to
Securities of that series such of the rights and powers vested in it by
this Indenture, and to use the same degree of care and skill in their
exercise, as a prudent man would exercise or use under the circumstances in
the conduct of his own affairs;
(e) The Trustee shall not be liable for any action taken or
omitted to be taken by it in good faith and believed by it to be authorized
or within the discretion or rights or powers conferred upon it by this
Indenture;
<PAGE>
(f) The Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval,
bond, security, or other papers or documents, unless requested in writing
so to do by the holders of not less than a majority in principal amount of
the Outstanding Securities of the particular series affected thereby
(determined as provided in Section 8.04); provided, however, that if the
payment within a reasonable time to the Trustee of the costs, expenses or
liabilities likely to be incurred by it in the making of such investigation
is, in the opinion of the Trustee, not reasonably assured to the Trustee by
the security afforded to it by the terms of this Indenture, the Trustee may
require reasonable indemnity against such costs, expenses or liabilities as
a condition to so proceeding. The reasonable expense of every such
examination shall be paid by the Company or, if paid by the Trustee, shall
be repaid by the Company upon demand; and
(g) The Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys and the Trustee shall not be responsible for any
misconduct or negligence on the part of any agent or attorney appointed
with due care by it hereunder.
SECTION 7.03 Trustee Not Responsible for Recitals or Issuance
or Securities.
(a) The recitals contained herein and in the Securities shall be
taken as the statements of the Company, and the Trustee assumes no
responsibility for the correctness of the same.
(b) The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Securities.
(c) The Trustee shall not be accountable for the use or
application by the Company of any of the Securities or of the proceeds of
such Securities, or for the use or application of any moneys paid over by
the Trustee in accordance with any provision of this Indenture or
established pursuant to Section 2.01, or for the use or application of any
moneys received by any paying agent other than the Trustee.
SECTION 7.04 May Hold Securities.
The Trustee or any paying agent or Security Registrar, in its
individual or any other capacity, may become the owner or pledgee of
Securities with the same rights it would have if it were not Trustee,
paying agent or Security Registrar.
SECTION 7.05 Moneys Held in Trust.
Subject to the provisions of Section 11.05, all moneys received
by the Trustee shall, until used or applied as herein provided, be held in
trust for the purposes for which they were received, but need not be
segregated from other funds except to the extent required by law. The
Trustee shall be under no liability for interest on any moneys received by
it hereunder except such as it may agree with the Company to pay thereon.
SECTION 7.06 Compensation and Reimbursement.
<PAGE>
(a) The Company covenants and agrees to pay to the Trustee, and
the Trustee shall be entitled to, such reasonable compensation (which shall
not be limited by any provision of law in regard to the compensation of a
trustee of an express trust), as the Company, and the Trustee may from time
to time agree in writing, for all services rendered by it in the execution
of the trusts hereby created and in the exercise and performance of any of
the powers and duties hereunder of the Trustee, and, except as otherwise
expressly provided herein, the Company will pay or reimburse the Trustee
upon its request for all reasonable expenses, disbursements and advances
incurred or made by the Trustee in accordance with any of the provisions of
this Indenture (including the reasonable compensation and the expenses and
disbursements of its counsel and of all Persons not regularly in its
employ) except any such expense, disbursement or advance as may arise from
its negligence or bad faith. The Company also covenants to indemnify the
Trustee (and its officers, agents, directors and employees) for, and to
hold it harmless against, any loss, liability or expense incurred without
negligence or bad faith on the part of the Trustee and arising out of or in
connection with the acceptance or administration of this trust, including
the costs and expenses of defending itself against any claim of liability
in the premises.
(b) The obligations of the Company under this Section to
compensate and indemnify the Trustee and to pay or reimburse the Trustee
for expenses, disbursements and advances shall constitute additional
indebtedness hereunder. Such additional indebtedness shall be secured by a
lien prior to that of the Securities upon all property and funds held or
collected by the Trustee as such, except funds held in trust for the
benefit of the holders of particular Securities.
SECTION 7.07 Reliance on Officers' Certificate.
Except as otherwise provided in Section 7.01, whenever in the
administration of the provisions of this Indenture the Trustee shall deem
it necessary or desirable that a matter be proved or established prior to
taking or suffering or omitting to take any action hereunder, such matter
(unless other evidence in respect thereof be herein specifically
prescribed) may, in the absence of negligence or bad faith on the part of
the Trustee, be deemed to be conclusively proved and established by an
Officers' Certificate delivered to the Trustee and such certificate, in the
absence of negligence or bad faith on the part of the Trustee, shall be
full warrant to the Trustee for any action taken, suffered or omitted to be
taken by it under the provisions of this Indenture upon the faith thereof.
SECTION 7.08 Disqualification; Conflicting Interests.
If the Trustee has or shall acquire any "conflicting interest"
within the meaning of Section 310(b) of the Trust Indenture Act, the
Trustee and the Company shall in all respects comply with the provisions of
Section 310(b) of the Trust Indenture Act.
SECTION 7.09 Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee with respect to the
Securities issued hereunder which shall at all times be a corporation
organized and doing business under the laws of the United States of America
or any State or Territory thereof or of the District of Columbia, or a
corporation or other Person permitted to act as trustee by the Commission,
<PAGE>
authorized under such laws to exercise corporate trust powers, having a
combined capital and surplus of at least 50 million U.S. dollars
($50,000,000), and subject to supervision or examination by Federal, State,
Territorial, or District of Columbia authority. If such corporation
publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for
the purposes of this Section, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set
forth in its most recent report of condition so published. The Company may
not, nor may any Person directly or indirectly controlling, controlled by,
or under common control with the Company, serve as Trustee. In case at any
time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, the Trustee shall resign immediately in the
manner and with the effect specified in Section 7.10.
SECTION 7.10 Resignation and Removal; Appointment of Successor.
(a) The Trustee or any successor hereafter appointed, may at any
time resign with respect to the Securities of one or more series by giving
written notice thereof to the Company and by transmitting notice of
resignation by mail, first class postage prepaid, to the Securityholders of
such series, as their names and addresses appear upon the Security
Register. Upon receiving such notice of resignation, the Company shall
promptly appoint a successor trustee with respect to Securities of such
series by written instrument, in duplicate, executed by order of the Board
of Directors, one copy of which instrument shall be delivered to the
resigning Trustee and one copy to the successor trustee. If no successor
trustee shall have been so appointed and have accepted appointment within
30 days after the mailing of such notice of resignation, the resigning
Trustee may petition any court of competent jurisdiction for the
appointment of a successor trustee with respect to Securities of such
series, or any Securityholder of that series who has been a bona fide
holder of a Security or Securities for at least six months may on behalf of
himself and all others similarly situated, petition any such court for the
appointment of a successor trustee. Such court may thereupon after such
notice, if any, as it may deem proper and prescribe, appoint a successor
trustee.
(b) In case at any time any one of the following shall occur:
(1) the Trustee shall fail to comply with the provisions of
Section 7.08 after written request therefor by the Company or by any
Securityholder who has been a bona fide holder of a Security or
Securities for at least six months; or
(2) the Trustee shall cease to be eligible in accordance with
the provisions of Section 7.09 and shall fail to resign after written
request therefor by the Company or by any such Securityholder; or
(3) the Trustee shall become incapable of acting, or shall be
adjudged a bankrupt or insolvent, or commence a voluntary bankruptcy
proceeding, or a receiver of the Trustee or of its property shall be
appointed or consented to, or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose
of rehabilitation, conservation or liquidation, then, in any such
case, the Company may remove the Trustee with respect to all
Securities and appoint a successor trustee by written instrument, in
<PAGE>
duplicate, executed by order of the Board of Directors, one copy of
which instrument shall be delivered to the Trustee so removed and one
copy to the successor trustee, or, unless the Trustee's duty to resign
is stayed as provided herein, any Securityholder who has been a bona
fide holder of a Security or Securities for at least six months may,
on behalf of that holder and all others similarly situated, petition
any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor trustee. Such court may thereupon
after such notice, if any, as it may deem proper and prescribe, remove
the Trustee and appoint a successor trustee.
(c) The holders of a majority in aggregate principal amount of
the Securities of any series at the time Outstanding may at any time remove
the Trustee with respect to such series by so notifying the Trustee and the
Company and may appoint a successor Trustee for such series with the
consent of the Company.
(d) Any resignation or removal of the Trustee and appointment of
a successor trustee with respect to the Securities of a series pursuant to
any of the provisions of this Section shall become effective upon
acceptance of appointment by the successor trustee as provided in Section
7.11.
(e) Any successor trustee appointed pursuant to this Section may
be appointed with respect to the Securities of one or more series or all of
such series, and at any time there shall be only one Trustee with respect
to the Securities of any particular series.
SECTION 7.11 Acceptance of Appointment By Successor.
(a) In case of the appointment hereunder of a successor trustee
with respect to all Securities, every such successor trustee so appointed
shall execute, acknowledge and deliver to the Company and to the retiring
Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and
such successor trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of the
retiring Trustee; but, on the request of the Company or the successor
trustee, such retiring Trustee shall, upon payment of its charges, execute
and deliver an instrument transferring to such successor trustee all the
rights, powers, and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor trustee all property and money held
by such retiring Trustee hereunder.
(b) 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 each successor trustee with respect to
the Securities of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor trustee shall accept such
appointment and which (1) shall contain such provisions as shall be
necessary or desirable to transfer and confirm to, and to vest in, each
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) shall contain such
provisions as shall be deemed necessary or desirable to confirm that all
the rights, powers, trusts and duties of the retiring Trustee with respect
to the Securities of that or those series as to which the retiring Trustee
<PAGE>
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
co-trustees of the same trust, 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 and that no Trustee shall
be responsible for any act or failure to act on the part of any other
Trustee hereunder; and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein, such retiring Trustee shall with
respect to the Securities of that or those series to which the appointment
of such successor trustee relates have no further responsibility for the
exercise of rights and powers or for the performance of the duties and
obligations vested in the Trustee under this Indenture, and each such
successor trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series to
which the appointment of such successor trustee relates; but, on request of
the Company or any successor trustee, such retiring Trustee shall duly
assign, transfer and deliver to such successor trustee, to the extent
contemplated by such supplemental indenture, the property and money held by
such retiring Trustee hereunder with respect to the Securities of that or
those series to which the appointment of such successor trustee relates.
(c) Upon request of any such successor trustee, the Company
shall execute any and all instruments for more fully and certainly vesting
in and confirming to such successor trustee all such rights, powers and
trusts referred to in paragraph (a) or (b) of this Section, as the case may
be.
(d) No successor trustee shall accept its appointment unless at
the time of such acceptance such successor trustee shall be qualified and
eligible under this Article.
(e) Upon acceptance of appointment by a successor trustee as
provided in this Section, the Company shall transmit notice of the
succession of such trustee hereunder by mail, first class postage prepaid,
to the Securityholders, as their names and addresses appear upon the
Security Register. If the Company fails to transmit such notice within ten
days after acceptance of appointment by the successor trustee, the
successor trustee shall cause such notice to be transmitted at the expense
of the Company.
SECTION 7.12 Merger, Conversion, Consolidation or Succession to
Business.
Any corporation into which the Trustee may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party,
or any corporation succeeding to the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder, provided that
such corporation shall be qualified under the provisions of Section 7.08
and eligible under the provisions of Section 7.09, without the execution or
filing of any paper or any further act on the part of any of the parties
hereto, anything herein to the contrary notwithstanding. In case any
<PAGE>
Securities shall have been authenticated, but not delivered, by the Trustee
then in office, any successor by merger, conversion or consolidation to
such authenticating Trustee may adopt such authentication and deliver the
Securities so authenticated with the same effect as if such successor
Trustee had itself authenticated such Securities.
SECTION 7.13 Preferential Collection of Claims Against the
Company.
The Trustee shall comply with Section 311(a) of the Trust
Indenture Act, excluding any creditor relationship described in Section
311(b) of the Trust Indenture Act. A Trustee who has resigned or been
removed shall be subject to Section 311(a) of the Trust Indenture Act to
the extent included therein.
ARTICLE VIII
CONCERNING THE SECURITYHOLDERS
SECTION 8.01 Evidence of Action by Securityholders.
Whenever in this Indenture it is provided that the holders of a
majority or specified percentage in aggregate principal amount of the
Securities of a particular series may take any action (including the making
of any demand or request, the giving of any notice, consent or waiver or
the taking of any other action), the fact that at the time of taking any
such action the holders of such majority or specified percentage of that
series have joined therein may be evidenced by any instrument or any number
of instruments of similar tenor executed by such holders of Securities of
that series in Person or by agent or proxy appointed in writing.
If the Company shall solicit from the Securityholders of any
series any request, demand, authorization, direction, notice, consent,
waiver or other action, the Company may, at its option, as evidenced by an
Officers' Certificate, fix in advance a record date for such series for the
determination of Securityholders entitled to give such request, demand,
authorization, direction, notice, consent, waiver or other action, but the
Company shall have no obligation to do so. If such a record date is fixed,
such request, demand, authorization, direction, notice, consent, waiver or
other action may be given before or after the record date, but only the
Securityholders of record at the close of business on the record date shall
be deemed to be Securityholders for the purposes of determining whether
Securityholders of the requisite proportion of Outstanding Securities of
that series have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other action, and for
that purpose the Outstanding Securities of that series shall be computed as
of the record date; provided, however, that no such authorization,
agreement or consent by such Securityholders on the record date shall be
deemed effective unless it shall become effective pursuant to the
provisions of this Indenture not later than six months after the record
date.
SECTION 8.02 Proof of Execution by Securityholders.
Subject to the provisions of Section 7.01, proof of the execution
of any instrument by a Securityholder (such proof will not require
notarization) or his agent or proxy and proof of the holding by any Person
<PAGE>
of any of the Securities shall be sufficient if made in the following
manner:
(a) The fact and date of the execution by any such Person of any
instrument may be proved in any reasonable manner acceptable to the
Trustee.
(b) The ownership of Securities shall be proved by the Security
Register of such Securities or by a certificate of the Security Registrar
thereof.
(c) The Trustee may require such additional proof of any matter
referred to in this Section as it shall deem necessary.
SECTION 8.03 Who May be Deemed Owners.
Prior to the due presentment for registration of transfer of any
Security, the Company, the Trustee, any paying agent and any Security
Registrar may deem and treat the Person in whose name such Security shall
be registered upon the books of the Company as the absolute owner of such
Security (whether or not such Security shall be overdue and notwithstanding
any notice of ownership or writing thereon made by anyone other than the
Security Registrar) for the purpose of receiving payment of or on account
of the principal of, premium, if any, and (subject to Section 2.03)
interest on such Security and for all other purposes; and neither the
Company nor the Trustee nor any paying agent nor any Security Registrar
shall be affected by any notice to the contrary.
SECTION 8.04 Certain Securities Owned by Company Disregarded.
In determining whether the holders of the requisite aggregate
principal amount of Securities of a particular series have concurred in any
direction, consent of waiver under this Indenture, the Securities of that
series that are owned by the Company or any other obligor on the Securities
of that series or by any Person directly or indirectly controlling or
controlled by or under common control with the Company or any other obligor
on the Securities of that series shall be disregarded and deemed not to be
Outstanding for the purpose of any such determination, except that for the
purpose of determining whether the Trustee shall be protected in relying on
any such direction, consent or waiver, only Securities of such series that
the Trustee actually knows are so owned shall be so disregarded. The
Securities so owned that have been pledged in good faith may be regarded as
Outstanding for the purposes of this Section, if the pledgee shall
establish to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Securities and that the pledgee is not a Person
directly or indirectly controlling or controlled by or under direct or
indirect common control with the Company or any such other obligor. In
case of a dispute as to such right, any decision by the Trustee taken upon
the advice of counsel shall be full protection to the Trustee.
SECTION 8.05 Actions Binding on Future Securityholders.
At any time prior to (but not after) the evidencing to the
Trustee, as provided in Section 8.01, of the taking of any action by the
holders of the majority or percentage in aggregate principal amount of the
Securities of a particular series specified in this Indenture in connection
with such action, any holder of a Security of that series that is shown by
<PAGE>
the evidence to be included in the Securities the holders of which have
consented to such action may, by filing written notice with the Trustee,
and upon proof of holding as provided in Section 8.02, revoke such action
so far as concerns such Security. Except as aforesaid any such action
taken by the holder of any Security shall be conclusive and binding upon
such holder and upon all future holders and owners of such Security, and of
any Security issued in exchange therefor, on registration of transfer
thereof or in place thereof, irrespective of whether or not any notation in
regard thereto is made upon such Security. Any action taken by the holders
of the majority or percentage in aggregate principal amount of the
Securities of a particular series specified in this Indenture in connection
with such action shall be conclusively binding upon the Company, the
Trustee and the holders of all the Securities of that series.
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.01 Supplemental Indentures Without the Consent of
Securityholders.
In addition to any supplemental indenture otherwise authorized by
this Indenture, the Company and the Trustee may from time to time and at
any time enter into an indenture or indentures supplemental hereto (which
shall conform to the provisions of the Trust Indenture Act as then in
effect), without the consent of the Securityholders, for one or more of the
following purposes:
(a) to cure any ambiguity, defect, or inconsistency herein, in
the Securities of any series;
(b) to comply with Article Ten;
(c) to provide for uncertificated Securities in addition to or
in place of certificated Securities;
(d) to add to the covenants of the Company for the benefit of
the holders of all or any Series of Securities (and if such covenants are
to be for the benefit of less than all series of Securities, stating that
such covenants are expressly being included solely for the benefit of such
series) or to surrender any right or power herein conferred upon the
Company;
(e) to add to, delete from, or revise the conditions,
limitations, and restrictions on the authorized amount, terms, or purposes
of issue, authentication, and delivery of Securities, as herein set forth;
(f) to make any change that does not adversely affect the rights
of any Securityholder in any material respect; or
(g) to provide for the issuance of and establish the form and
terms and conditions of the Securities of any series as provided in Section
2.01, 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.
The Trustee is hereby authorized to join with the Company in the
<PAGE>
execution of any such supplemental indenture, and to make any further
appropriate agreements and stipulations that may be therein contained, but
the Trustee shall not be obligated to enter into any such supplemental
indenture that affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this
Section may be executed by the Company and the Trustee without the consent
of the holders of any of the Securities at the time Outstanding,
notwithstanding any of the provisions of Section 9.02.
SECTION 9.02 Supplemental Indentures With Consent of
Securityholders.
With the consent (evidenced as provided in Section 8.01) of the
holders of not less than a majority in aggregate principal amount of the
Securities of each series affected by such supplemental indenture or
indentures at the time Outstanding, the Company, when authorized by Board
Resolutions, and the Trustee may from time to time and at any time enter
into an indenture or indentures supplemental hereto (which shall conform to
the provisions of the Trust Indenture Act as then in effect) for the
purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Indenture or of any supplemental
indenture or of modifying in any manner not covered by Section 9.01 the
rights of the holders of the Securities of such series under this
Indenture; provided, however, that no such supplemental indenture shall,
without the consent of the holders of each Security then Outstanding and
affected thereby, (i) extend the fixed maturity of any Securities of any
series, or reduce the principal amount thereof, or reduce the rate or
extend the time of payment of interest thereon, or reduce any premium
payable upon the redemption thereof or (ii) reduce the aforesaid percentage
of Securities, the holders of which are required to consent to any such
supplemental indenture.
It shall not be necessary for the consent of the Securityholders
of any series affected thereby under this Section to approve the particular
form of any proposed supplemental indenture, but it shall be sufficient if
such consent shall approve the substance thereof.
SECTION 9.03 Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture pursuant to the
provisions of this Article or of Section 10.01, this Indenture shall, with
respect to such series, be and be deemed to be modified and amended in
accordance therewith and the respective rights, limitations of rights,
obligations, duties and immunities under this Indenture of the Trustee, the
Company and the holders of Securities of the series affected thereby shall
thereafter be determined, exercised and enforced hereunder subject in all
respects to such modifications and amendments, and all the terms and
conditions of any such supplemental indenture shall be and be deemed to be
part of the terms and conditions of this Indenture for any and all
purposes.
SECTION 9.04 Securities Affected by Supplemental Indentures.
Securities of any series, affected by a supplemental indenture,
authenticated and delivered after the execution of such supplemental
<PAGE>
indenture pursuant to the provisions of this Article or of Section 10.01,
may bear a notation in form approved by the Company, provided such form
meets the requirements of any exchange upon which such series may be
listed, as to any matter provided for in such supplemental indenture. If
the Company shall so determine, new Securities of that series so modified
as to conform, in the opinion of the Board of Directors of the Company, to
any modification of this Indenture contained in any such supplemental
indenture may be prepared by the Company, authenticated by the Trustee and
delivered in exchange for the Securities of that series then Outstanding.
SECTION 9.05 Execution of Supplemental Indentures.
Upon the request of the Company, accompanied by its Board
Resolutions authorizing the execution of any such supplemental indenture,
and upon the filing with the Trustee of evidence of the consent of
Securityholders required to consent thereto as aforesaid, the Trustee shall
join with the Company in the execution of such supplemental indenture
unless such supplemental indenture affects the Trustee's own rights, duties
or immunities under this Indenture or otherwise, in which case the Trustee
may in its discretion but shall not be obligated to enter into such
supplemental indenture. The Trustee, subject to the provisions of Section
7.01, may receive an Opinion of Counsel as conclusive evidence that any
supplemental indenture executed pursuant to this Article is authorized or
permitted by, and conforms to, the terms of this Article and that it is
proper for the Trustee under the provisions of this Article to join in the
execution thereof; provided, however, that such Opinion of Counsel need not
be provided in connection with the execution of a supplemental indenture
that establishes the terms of a series of Securities pursuant to Section
2.01 hereof.
Promptly after the execution by the Company and the Trustee of
any supplemental indenture pursuant to the provisions of this Section, the
Trustee shall transmit by mail, first class postage prepaid, a notice,
setting forth in general terms the substance of such supplemental
indenture, to the Securityholders of all series affected thereby as their
names and addresses appear upon the Security Register. Any failure of the
Trustee to mail such notice, or any defect therein, shall not, however, in
any way impair or affect the validity of any such supplemental indenture.
ARTICLE X
SUCCESSOR CORPORATION
SECTION 10.01 Company May Consolidate, Etc.
Nothing contained in this Indenture or in any of the Securities
shall prevent any consolidation or merger of the Company with or into any
other corporation or corporations (whether or not affiliated with the
Company) or successive consolidations or mergers in which the Company or
its successor or successors shall be a party or parties, or shall prevent
any sale, conveyance, transfer or other disposition of the property of the
Company or its successor or successors as an entirety, or substantially as
an entirety, to any other corporation (whether or not affiliated with the
Company or its successor or successors) authorized to acquire and operate
the same; provided, however, the Company hereby covenants and agrees that,
upon any such consolidation, merger, sale, conveyance, transfer or other
disposition, the due and punctual payment of the principal of (premium, if
<PAGE>
any) and interest on all of the Securities of all series in accordance with
the terms of each series, according to their tenor and the due and punctual
performance and observance of all the covenants and conditions of this
Indenture with respect to each series or established with respect to such
series pursuant to Section 2.01 to be kept or performed by the Company
shall be expressly assumed, by supplemental indenture (which shall conform
to the provisions of the Trust Indenture Act, as then in effect)
satisfactory in form to the Trustee executed and delivered to the Trustee
by the entity formed by such consolidation, or into which the Company shall
have been merged, or by the entity which shall have acquired such property.
SECTION 10.02 Successor Corporation Substituted.
(a) In case of any such consolidation, merger, sale, conveyance,
transfer or other disposition and upon the assumption by the successor
corporation, by supplemental indenture, executed and delivered to the
Trustee and satisfactory in form to the Trustee, of the due and punctual
payment of the principal of, premium, if any, and interest on all of the
Securities of all series Outstanding and the due and punctual performance
of all of the covenants and conditions of this Indenture or established
with respect to each series of the Securities pursuant to Section 2.01 to
be performed by the Company with respect to each series, such successor
corporation shall succeed to and be substituted for the Company with the
same effect as if it had been named as the Company herein, and thereupon
the predecessor corporation shall be relieved of all obligations and
covenants under this Indenture and the Securities.
(b) In case of any such consolidation, merger, sale, conveyance,
transfer or other disposition such changes in phraseology and form (but not
in substance) may be made in the Securities thereafter to be issued as may
be appropriate.
(c) Nothing contained in this Indenture or in any of the
Securities shall prevent the Company from merging into itself or acquiring
by purchase or otherwise all or any part of the property of any other
Person (whether or not affiliated with the Company).
SECTION 10.03 Evidence of Consolidation, Etc. to Trustee.
The Trustee, subject to the provisions of Section 7.01, may
receive an Opinion of Counsel as conclusive evidence that any such
consolidation, merger, sale, conveyance, transfer or other disposition, and
any such assumption, comply with the provisions of this Article.
ARTICLE XI
SATISFACTION AND DISCHARGE
SECTION 11.01 Satisfaction and Discharge of Indenture.
If at any time: (a) the Company shall have delivered to the
Trustee for cancellation all Securities of a series theretofore
authenticated (other than any Securities that shall have ben destroyed,
lost or stolen and that shall have been replaced or paid as provided in
Section 2.07) and Securities for whose payment money or Governmental
Obligations have theretofore been deposited in trust or segregated and held
in trust by the Company (and thereupon repaid to the Company or discharged
<PAGE>
from such trust, as provided in Section 11.05); or (b) all such Securities
of a particular series not theretofore delivered to the Trustee 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 the Company shall deposit or cause to
be deposited with the Trustee as trust funds the entire amount in moneys
or Governmental Obligations sufficient or a combination thereof, sufficient
in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee, to pay at maturity or upon redemption all Securities of that
series not theretofore delivered to the Trustee for cancellation, including
principal (and premium, if any) and interest due or to become due to such
date of maturity or date fixed for redemption, as the case may be, and if
the Company shall also pay or cause to be paid all other sums payable
hereunder with respect to such series by the Company then this Indenture
shall thereupon cease to be of further effect with respect to such series
except for the provisions of Sections 2.03, 2.05, 2.07, 4.01, 4.02, 4.03
and 7.10, that shall survive until the date of maturity or redemption date,
as the case may be, and Sections 7.06 and 11.05, that shall survive to such
date and thereafter, and the Trustee, on demand of the Company and at the
cost and expense of the Company shall execute proper instruments
acknowledging satisfaction of and discharging this Indenture with respect
to such series.
SECTION 11.02 Discharge of Obligations.
If at any time all such Securities of a particular series not
heretofore delivered to the Trustee for cancellation or that have not
become due and payable as described in Section 11.01 shall have been paid
by the Company by depositing irrevocably with the Trustee as trust funds
moneys or an amount of Governmental Obligations sufficient to pay at
maturity or upon redemption all such Securities of that series not
theretofore delivered to the Trustee for cancellation, including principal
(and premium, if any) and interest due or to become due to such date of
maturity or date fixed for redemption, as the case may be, and if the
Company shall also pay or cause to be paid all other sums payable
hereunder by the Company with respect to such series, then after the date
such moneys or Governmental Obligations, as the case may be, are deposited
with the Trustee the obligations of the Company under this Indenture with
respect to such series shall cease to be of further effect except for the
provisions of Sections 2.03, 2.05, 2.07, 4,01, 4.02, 4,03, 7.06, 7.10 and
11.05 hereof that shall survive until such Securities shall mature and be
paid. Thereafter, Sections 7.06 and 11.05 shall survive.
SECTION 11.03 Deposited Moneys to be Held in Trust.
All moneys or Governmental Obligations deposited with the Trustee
pursuant to Sections 11.01 or 11.02 shall be held in trust and shall be
available for payment as due, either directly or through any paying agent
(including the Company acting as its own paying agent), to the holders of
the particular series of Securities for the payment or redemption of which
such moneys or Governmental Obligations have been deposited with the
Trustee.
SECTION 11.04 Payment of Moneys Held by Paying Agents.
<PAGE>
In connection with the satisfaction and discharge of this
Indenture all moneys or Governmental Obligations then held by any paying
agent under the provisions of this Indenture shall, upon demand of the
Company, be paid to the Trustee and thereupon such paying agent shall be
released from all further liability with respect to such moneys or
Governmental Obligations.
SECTION 11.05 Repayment to Company.
Any moneys or Governmental Obligations deposited with any paying
agent or the Trustee, or then held by the Company, in trust for payment of
principal of or premium or interest on the Securities of a particular
series that are not applied but remain unclaimed by the holders of such
Securities for at least two years after the date upon which the principal
of (and premium, if any) or interest on such Securities shall have
respectively become due and payable, shall be repaid to the Company on May
31 of each year or (if then held by the Company) shall be discharged from
such trust; and thereupon the paying agent and the Trustee shall be
released from all further liability with respect to such moneys or
Governmental Obligations, and the holder of any of the Securities entitled
to receive such payment shall thereafter, as an unsecured general creditor,
look only to the Company for the payment thereof.
ARTICLE XII
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS
AND DIRECTORS
SECTION 12.01 No Recourse.
No recourse under or upon any obligation, covenant or agreement
of this Indenture, or of any Security, or for any claim based thereon or
otherwise in respect thereof, shall be had against any incorporator,
stockholder, officer or director, past, present or future as such, of the
Company or of any predecessor or successor corporation, either directly or
through the Company or any such predecessor or successor corporation,
whether by virtue of any constitution, statute or rule of law, or by the
enforcement of any assessment or penalty or otherwise; it being expressly
understood that this Indenture and the obligations issued hereunder are
solely corporate obligations, and that no such personal liability whatever
shall attach to, or is or shall be incurred by, the incorporators,
stockholders, officers or directors as such, of the Company or of any
predecessor or successor corporation, or any of them, because of the
creation of the indebtedness hereby authorized, or under or by reason of
the obligations, covenants or agreements contained in this Indenture or in
any of the Securities or implied therefrom; and that any and all such
personal liability of every name and nature, either at common law or in
equity or by constitution or statute, of, and any and all such rights and
claims against, every such incorporator, stockholder, officer or director
as such, because of the creation of the indebtedness hereby authorized, or
under or by reason of the obligations, covenants or agreements contained in
this Indenture or in any of the Securities or implied therefrom, are hereby
expressly waived and released as a condition of, and as a consideration
for, the execution of this Indenture and the issuance of such Securities.
ARTICLE XIII
<PAGE>
MISCELLANEOUS PROVISIONS
SECTION 13.01 Effect on Successors and Assigns.
All the covenants, stipulations, promises and agreements in this
Indenture contained by or on behalf of the Company shall bind their
respective successors and assigns, whether so expressed or not.
SECTION 13.02 Actions by Successor.
Any act or proceeding by any provision of this Indenture
authorized or required to be done or performed by any board, committee or
officer of the Company shall and may be done and performed with like force
and effect by the corresponding board, committee or officer of any
corporation that shall at the time be the lawful sole successor of the
Company.
SECTION 13.03 Surrender of Company Powers.
The Company by instrument in writing executed by authority of 2/3
(two-thirds) of its Board of Directors and delivered to the Trustee may
surrender any of the powers reserved to the Company, and thereupon such
power so surrendered shall terminate both as to the Company and as to any
successor corporation.
SECTION 13.04 Notices.
Except as otherwise expressly provided herein any notice or
demand that by any provision of this Indenture is required or permitted to
be given or served by the Trustee or by the holders of Securities to or on
the Company may be given or served by being deposited first class postage
prepaid in a post-office letterbox addressed (until another address is
filed in writing by the Company with the Trustee), as follows: United
Rentals, Inc., Four Greenwich Office Park, Greenwich, Connecticut
06830. Any notice, election, request or demand by the Company or any
Securityholder to or upon the Trustee shall be deemed to have been
sufficiently given or made, for all purposes, if given or made in writing
at the Corporate Trust Office of the Trustee.
SECTION 13.05 Governing Law.
This Indenture and each Security shall be deemed to be a contract
made under the internal laws of the State of New York, and for all purposes
shall be construed in accordance with the laws of said State.
SECTION 13.06 Treatment of Securities as Debt.
It is intended that the Securities will be treated as
indebtedness and not as equity for federal income tax purposes. The
provisions of this Indenture shall be interpreted to further this
intention.
SECTION 13.07 Compliance Certificates and Opinions.
(a) Upon any application or demand by the Company to the Trustee
to take any action under any of the provisions of this Indenture, the
Company, shall furnish to the Trustee an Officers' Certificate stating that
<PAGE>
all conditions precedent provided for in this Indenture relating to the
proposed action have been complied with and an Opinion of Counsel stating
that in the opinion of such counsel all such conditions precedent have been
complied with, except that in the case of any such application or demand as
to which the furnishing of such documents is specifically required by any
provision of this Indenture relating to such particular application or
demand, no additional certificate or opinion need be furnished.
(b) Each certificate or opinion provided for in this Indenture
and delivered to the Trustee with respect to compliance with a condition or
covenant in this Indenture 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.
SECTION 13.08 Payments on Business Days.
Except as provided pursuant to Section 2.01 pursuant to a Board
Resolution, and as set forth in an Officers' Certificate, or established in
one or more indentures supplemental to this Indenture, in any case where
the date of maturity of interest or principal of any Security or the date
of redemption of any Security shall not be a Business Day, then payment of
interest or principal (and premium, if any) may be made on the next
succeeding Business Day with the same force and effect as if made on the
nominal date of maturity or redemption, and no interest shall accrue for
the period after such nominal date.
SECTION 13.09 Conflict with Trust Indenture Act.
If and to the extent that any provision of this Indenture limits,
qualifies or conflicts with the duties imposed by Sections 310 to 317,
inclusive, of the Trust Indenture Act, such imposed duties shall control.
SECTION 13.10 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 and the same instrument.
SECTION 13.11 Separability.
In case any one or more of the provisions contained in this
Indenture or in the Securities of any series shall for any reason be held
to be invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provisions of
this Indenture or of such Securities, but this Indenture and such
Securities shall be construed as if such invalid or illegal or
unenforceable provision had never been contained herein or therein.
SECTION 13.12 Assignment.
<PAGE>
The Company will have the right at all times to assign any of its
rights or obligations under this Indenture to a direct or indirect wholly-
owned Subsidiary of the Company, provided that, in the event of any such
assignment, the Company, will remain liable for all such obligations.
Subject to the foregoing, the Indenture is binding upon and inures to the
benefit of the parties thereto and their respective successors and assigns.
This Indenture may not otherwise be assigned by the parties thereto.
ARTICLE XIV
SUBORDINATION OF SECURITIES
SECTION 14.01 Subordination Terms.
The payment by the Company of the principal of, premium, if any,
and interest on any series of Securities issued hereunder shall be
subordinated to the extent set forth in an indenture supplemental hereto
relating to such Securities.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture
to be duly executed all as of the day and year first above written.
UNITED RENTALS, INC.
By:______________________________
Name:
Title:
[ ],
as Trustee
By:_____________________________
Name:
Title:
<PAGE>
Exhibit 5.1
January 4, 1999
United Rentals, Inc.
Four Greenwich Office Park
Greenwich, Connecticut 06830
Re: Registration Statement on Form S-3
for Debt Securities, Preferred Stock,
and Common Stock
-------------------------------------
Ladies and Gentlemen:
We have acted as counsel to United Rentals, Inc., a Delaware
corporation (the "Company"), in connection with the filing of a Registration
Statement on Form S-3, including the exhibits thereto (the "Registration
Statement"), under the Securities Act of 1933, as amended (the "Act"), for the
registration by the Company of debt securities, preferred stock, and common
stock having an aggregate initial offering price of up to $750,000,000. The
securities which may be issued pursuant to the Registration Statement are
referred to as the "Securities."
In connection with this opinion, we have examined originals, or copies
certified or otherwise identified to our satisfaction, of the Registration
Statement and such other documents and records as we have deemed necessary. We
have assumed that (i) the issuance of any Securities, and the terms of any such
issuance, will have been duly approved by the Board of Directors of the Company
in accordance with applicable law, (ii) the definitive terms of any Security
offered pursuant to a prospectus supplement will have been established in
accordance with the authorizing resolutions of the Board of Directors of the
Company and applicable law, (iii) the Registration Statement, and any amendments
thereto, will have become effective, (iv) a prospectus supplement will have been
filed with the Securities and Exchange Commission (the "Commission") describing
the Securities offered thereby (the "Offered Securities") and (v) all Securities
will be issued in compliance with applicable federal and state securities laws.
With respect to the issuance and sale of any debt securities, we have
assumed further that (i) an indenture with respect to such debt securities will
have been executed and delivered by the Company and the applicable Trustee in
the form filed as an exhibit to the Registration Statement, and such Indenture
will have been qualified under the Trust Indenture Act of 1939, as amended, and
(ii) such debt securities will have been created, executed, authenticated,
issued and delivered (a) against receipt of the consideration therefor approved
by the Company and (b) as provided in the Indenture with respect
<PAGE>
thereto.
With respect to the issuance and sale of any series of preferred
stock, we have assumed further that an appropriate certificate of designation,
setting forth the powers, designations, preferences and relative, participating,
optional or other special rights, and the qualifications and restrictions
thereof, with respect to such series of preferred stock will have been duly
adopted and filed with the Secretary of State of the State of Delaware in
accordance with applicable law.
With respect to the issuance and sale of any common stock, we have
assumed further that such common stock will have been duly authorized and
reserved for issuance and certificates evidencing the same will have been duly
executed and delivered, against receipt of the consideration approved by the
Company which will be no less than the par value thereof.
With respect to any Securities issuable upon conversion, exchange or
exercise of any Security being offered, we have assumed that such Securities
will be duly authorized, created and, if appropriate, reserved for issuance upon
such conversion, exchange or exercise.
Based upon the foregoing, we are of the opinion that (i) any Offered
Securities consisting of debt securities will constitute legal, valid and
binding obligations of the Company and will be entitled to the benefits provided
by the applicable Indenture, all subject to bankruptcy, insolvency, fraudulent
conveyance or similar laws affecting creditors' rights generally and general
equitable principles, and (ii) any Offered Securities consisting of preferred
stock or common stock will be duly authorized and validly issued, fully paid and
non-assessable.
The foregoing opinion is limited to the laws of the State of New York
and the General Corporation Law of the State of Delaware and the federal laws of
the United States of America.
We consent to the filing of this opinion as an exhibit to the
Registration statement and to the use of our name under the caption "Validity of
Securities." In giving this consent, we do not admit that we are acting within
the category of persons whose consent is required under Section 7 of the Act.
Very truly yours,
Ehrenreich Eilenberg Krause
& Zivian LLP
<PAGE>
EXHIBIT 12.1
UNITED RENTALS, INC.
STATEMENT OF COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
<TABLE>
<CAPTION>
Historical
-----------------------------------------------------------------------
Nine Months Ended
Year Ended December 31 September 30,
------------------------------------------------ --------------------
1993 1994 1995 1996 1997 1997 1998
---- ---- ---- ---- ---- ---- ----
(dollars in thousands)
<S> <C> <C> <C> <C> <C> <C> <C>
Earnings:
Income before
provision for income
taxes and extraordinary
items........................... $15,190 $26,025 $33,781 $38,146 $34,917 $17,225 $41,753
Interest expense................. 3,906 6,245 7,490 11,278 11,847 6,316 42,149
Amortization of debt
issuance cost................... 27 78 124 67 684
Interest portion of
rent expense(1)................ 1,164 1,239 1,358 1,514 2,305 1,480 6,540
------- ------- ------- ------ ------ ------ -------
Earnings as
asjusted...................... $20,260 $33,509 $42,656 $51,016 $49,193 $25,088 $91,126
======= ======= ======= ======= ======= ======= =======
Fixed charges:
Interest expense................ $ 3,906 $ 6,245 $ 7,490 $11,278 $11,847 $ 6,316 $42,149
Amortization of debt
issuance cost................. 27 78 124 67 684
Interest portion of
rent expense (1).............. 1,164 1,239 1,358 1,514 2,305 1,480 6,540
------- ------- ------- ------- ------- ------- -------
Fixed charges................ $ 5,070 $ 7,484 $ 8,875 $12,870 $14,276 $ 7,863 $49,373
======= ======= ======= ======= ======= ======= =======
Ratio of earnings to
fixed charges................... 4.0x 4.5x 4.8x 4.0x 3.4x 3.2x 1.8x
</TABLE>
- ----------
(1) The interest portion of rent expense is estimated to be one-third of rent
expense.
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-3) and related Prospectus for registering up to
$750,000,000 of any combination of its Common Stock, Preferred Stock, and Debt
Securities and to the incorporation by reference therein of our reports dated
November 17, 1998, with respect to the consolidated financial statements of
United Rentals, Inc. included in the Company's Current Report on Form 8-K dated
December 15, 1998; our report dated January 23, 1998, with respect to the
financial statements of Mission Valley Rentals, Inc. included in the Company's
Current Report on Form 8-K/A dated February 4, 1998, our report dated June 24,
1998, with respect to the financial statements of Power Rental Co., Inc.
included in the Company's Current Report on Form 8-K/A dated July 21, 1998 and
in the Company's Current Report on Form 8-K dated December 24, 1998; and (i) our
report dated April 20, 1998, except for Note 10, as to which the date is April
22, 1998, with respect to the combined financial statements of Valley Rentals,
Inc., (ii) our report dated January 23, 1998, with respect to the financial
statements of J&J Rental Services, Inc., (iii) our report dated January 19,
1998, with respect to the financial statements of Bronco Hi-Lift, Inc., (iv) our
report dated April 22, 1998, with respect to the financial statements of Pro
Rentals, Inc., (v) our report dated April 15, 1998, with respect to the combined
financial statements of Able Equipment Rental, Inc., (vi) our report dated
April 21, 1998, with respect to the combined financial statements of Channel
Equipment Holding, Inc., (vii) our report dated April 22, 1998, with respect to
the financial statements of ASC Equipment Company and (viii) our report dated
July 17, 1998, with respect to the combined financial statements of Adco
Equipment, Inc. included in the Company's Current Report on Form 8-K dated
December 24, 1998, filed with the Securities and Exchange Commission.
ERNST & YOUNG LLP
MetroPark, New Jersey
January 5, 1999
<PAGE>
Exhibit 23.3
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-3 of United Rentals,
Inc. of our report dated November 17, 1998 relating to the financial statements
of United Rentals (North America), Inc. and of our report dated January 28, 1998
relating to the financial statements of U.S. Rentals, Inc., which appear in such
Prospectus. We also consent to the references to us under the heading "Experts"
in such Prospectus.
PRICEWATERHOUSECOOPERS LLP
Sacramento, California
January 5, 1999
<PAGE>
Exhibit 23.4
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
A & A Tool Rentals & Sales, Inc.:
We consent to the incorporation by reference in the registration
statement on Form S-3 of United Rentals, Inc. for the registration of up to
$750,000,000 of its common stock, preferred stock, or debt securities of our
report dated November 20, 1997, with respect to the consolidated balances sheets
of A & A Tool Rental & Sales, Inc. and subsidiary as of October 19, 1997 and
October 31, 1996, and the related consolidated statements of operations,
stockholders' equity, and cash flows for the period from November 1, 1996 to
October 19, 1997 and for the years ended October 31, 1996 and 1995, which report
appears in the Form 8-K of United Rentals, Inc. dated December 24, 1998.
KPMG Peat Marwick LLP
Sacramento, California
January 5, 1999
<PAGE>
Exhibit 23.5
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in
the Registration Statement on Form S-3 and the related Prospectus of United
Rentals, Inc. (the "Company"), for the registration of up to $750,000,000 of its
common stock, preferred stock or debt securities and to the incorporation by
reference therein of our report dated January 21, 1998 with respect to the
financial statements of MERCER Equipment Company, included in the Company's
Report on Form 8-K dated December 24, 1998.
Webster Duke & Co. PA
January 5, 1999
<PAGE>
Exhibit 23.6
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
---------------------------------------------------
We have issued our report dated January 21, 1998, accompanying the
combined financial statements of Coren Enterprises, Inc., dba A-1 Rents, and
Monterey Bay Equipment Rental, Inc., appearing in the United Rentals, Inc.
Report on Form 8-K dated December 24, 1998, which are incorporated by reference
in the Registration Statement and Prospectus. We consent to the incorporation
by reference in the Registration Statement and Prospectus of the aforementioned
report and to the use of our name as it appears under the caption "Experts."
Grant Thorton LLP
San Jose, California
January 4, 1999
<PAGE>
Exhibit 23.7
BOARD OF DIRECTORS
THE BNR GROUP OF COMPANIES:
We consent to the incorporation by reference in the Registration Statement
for the registration of up to $750,000,000 of its common stock, preferred stock
or debt securities on Form S-3 dated January 5, 1999 of United Rentals, Inc. of
our report dated February 3, 1998, with respect to the combined financial
statements of BNR Group of Companies as of March 31, 1997 and 1996 which report
appears in the Form 8-K/A of United Rentals, Inc. dated February 4, 1998.
KPMG LLP
Waterloo, Canada
January 5, 1999
<PAGE>
Exhibit 23.8
INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS' CONSENT
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement on Form S-3 and the related Prospectus of United Rentals,
Inc. (the Company), for the registration of up to $750,000,000 of its common
stock, preferred stock or debt securities and to the incorporation by reference
therein of our report dated January 22, 1998 with respect to the financial
statements of Access Rentals, Inc., and Subsidiary and Affiliate, included in
the Company's Report on Form 8-K/A dated February 4, 1998.
Battaglia, Andrews & Moag, P.C.
Batavia, New York
January 4, 1999
<PAGE>
Exhibit 23.9
CONSENT OF INDEPENDENT AUDITORS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement of United Rentals, Inc. (the
"Company") on Form S-3, of our report dated April 22, 1998 relating to the
financial statements of West Main Rentals and Sales, Incorporated, which
appear in the Company's Report on Form 8-K dated December 24, 1998. We also
consent to the reference to our Firm under the heading "Experts" in the
Prospectus.
Moss Adams LLP
January 4, 1999
<PAGE>
Exhibit 23.10
CONSENT OF INDEPENDENT AUDITORS
Equipment Supply Co., Inc. and Affiliates
Burlington, New Jersey
We consent to the reference to our firm under the caption "Experts" in
the Registration Statement on Form S-3 and the related Prospectus of United
Rentals, Inc. (the "Company"), for the registration of up to $750,000,000 of its
common stock, preferred stock or debt securities and to the incorporation by
reference therein of our reports dated June 19, 1998, except for Notes 9 and 15
which are as of July 10, 1998, with respect to the combined financial statements
of Equipment Supply Co., Inc. and Affiliates, included in the Company's Reports
on Form 8-K dated July 21, 1998 and December 24, 1998.
BDO Seidman LLP
Philadelphia, Pennsylvania
January 4, 1999
<PAGE>
Exhibit 23.11
CONSENT OF INDEPENDENT OF ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-3 of United Rentals,
Inc. for the registration of up to $750,000,000 of its common stock, preferred
stock or debt securities, of our reports dated March 6, 1998 and October 28,
1998, on our audits of the financial statements of McClinch Equipment Services,
Inc. as of December 31, 1997 and August 31, 1998 and for the year ended December
31, 1997 and of our reports dated March 25, 1998 and October 28, 1998 on our
audits of the consolidated financial statements of McClinch, Inc., and
Subsidiaries as of January 31, 1998 and August 31, 1998 and for the year ended
January 31, 1998. We also consent to the reference to our firm under the caption
"Experts".
PricewaterhouseCoopers LLP
Stamford, Connecticut
January 5, 1999
<PAGE>
EXHIBIT 23.12
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in
the Registration Statement on Form S-3 and the related Prospectus of United
Rentals, Inc. (the "Company"), for the registration of up to $750,000,000 of its
common stock, preferred stock or debt securities and to the incorporation by
reference therein of our report dated March 12, 1998 except for Note 8 as which
the date July 28, with respect to the financial statements of Lift System, Inc.,
included in the Company's Report on Form 8-K dated December 24, 1998.
Altschuler, Melvoin and Glasser LLP
Chicago, Illinois
January 5, 1999
<PAGE>
EXHIBIT 23.13
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the reference to our firm under the caption "Experts" in
the Registration Statement on Form S-3 and the related Prospectus
of United Rentals, Inc. (the "Company"), for the registration of up to
$750,000,000 of its common stock, preferred stock or debt securities and to the
incorporation by reference therein of our report dated July 27, 1998 with
respect to the financial statements of Reitzel, Rentals Ltd., included in the
Company's Report on Form 8-K dated December 24, 1998.
PricewaterhouseCoopers LLP
Kitchener, Ontario
January 5, 1999
<PAGE>
EXHIBIT 23.14
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" In the
Registration Statement on Form S-3 and the related Prospectus of United Rentals,
Inc. (the "Company"), for the registration of up to $750,000,000 of its common
stock, preferred stock or debt securities and to the incorporation by reference
therein of our report dated July 23, 1998 with respect to the combined financial
statements of Grand Valley Equipment Co., Inc. and Kubota of Grand Rapids, Inc.,
included in the Company's Report on Form 8-K dated December 24, 1998.
Beene Garter LLP
January 5, 1999
Grand Rapids, Michigan
<PAGE>
EXHIBIT 23.15
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in
the Registration Statement on Form S-3 and the related Prospectus of United
Rentals, Inc. (the "Company"), for the registration of up to $750,000,000 of its
common stock, preferred stock or debt securities and to the incorporation by
reference therein of our report dated April 21, 1998 with respect to the
financial statements of Paul E. Carlson, Inc. (d/b/a Carlson Equipment Company),
included in the Company's Report on Form 8-K dated December 24, 1998.
McGladrey & Pullen LLP
January 5, 1999
<PAGE>
EXHIBIT 23.16
INDEPENDENT AUDITOR'S CONSENT
-----------------------------
We consent to the reference to our firm under the caption "Experts" in
the Registration Statement on Form S-3 and the related Prospectus of United
Rentals, Inc. (the "Company"), for the registration of up to $750,000,000 of its
common stock, preferred stock or debt securities and to the incorporation by
reference therein of our report dated February 26, 1998 with respect to the
financial statements of Industrial Lift, Inc., included in the Company's Report
on Form 8-K dated December 24, 1998.
Schalleur & Surgent LLC
January 4, 1999
<PAGE>
EXHIBIT 23.17
BOARD OF DIRECTORS
PERCO GROUP LTD
We consent to the incorporation by reference in the Registration Statement on
Form S-3 of United Rentals, Inc. of our report dated February 2, 1998 except as
to note 14 which is as of May 22, 1998, with respect to the consolidated
financial statements of Perco Group Ltd as of December 31, 1997 which report
appears in the Form 8-K of United Rentals, Inc. dated
December 24, 1998.
KPMG LLP
Montreal, Canada
January 5, 1999
