As filed with the Securities and Exchange Commission on May 28, 1999
Registration Nos. 333-74473 and 333-74473-01
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
--------------------------
FORM S-3/A
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------------
THE FINOVA GROUP INC.
(Exact Name of Registrant As Specified in Its Charter)
Delaware 86-0695381
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification Number)
FINOVA CAPITAL CORPORATION
(Exact Name of Registrant As Specified in Its Charter)
Delaware 94-1278569
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification Number)
1850 North Central Avenue
P.O. Box 2209
Phoenix, Arizona 85002-2209
(602) 207-6900
(Address, Including Zip Code, and Telephone Number, Including
Area Code, of Registrants' Principal Executive Offices)
Samuel L. Eichenfield
Chairman, President and Chief Executive Officer
The FINOVA Group Inc.
FINOVA Capital Corporation
1850 North Central Avenue
P.O. Box 2209
Phoenix, Arizona 85002-2209
(602) 207-6900
(Name, Address, Including Zip Code, and Telephone
Number, Including Area Code, of Agent For Service)
Please send copies of all communications to:
Richard Lieberman Paul C. Pringle
Vice President - Brown & Wood LLP
Associate General Counsel 555 California Street
The FINOVA Group Inc. San Francisco, California 94104-1715
1850 North Central Avenue (415) 772-1200
P.O. Box 2209
Phoenix, Arizona 85002-2209
(602) 207-6900
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, please 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]
<PAGE>
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 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. [_]
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
============================================================================================================
Proposed Maximum Proposed Maximum
Title Of Securities Amount To Be Aggregate Price Per Aggregate Offering Amount Of
To Be Registered Registered(1) Unit Price(1)(2) Registration Fee(3)
- ------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Debt Securities(4) |
- ---------------------------- |
Common Stock - par value |
$.01 per share(5)(6) |
- ---------------------------- |
Preferred Stock - par value |
$.01 per share(7) |-- $3,000,000,000 (2) $3,000,000,000 $834,000
- ---------------------------- |
Depositary Shares(8) |
- ---------------------------- |
Warrants(9) |
- ---------------------------- |
============================================================================================================
</TABLE>
(1) In no event will the aggregate maximum offering price of all securities
issued pursuant to this Registration Statement exceed $3,000,000,000. Any
securities registered hereunder may be sold separately or as units with other
securities registered hereunder.
(2) The proposed maximum offering price per unit (a) has been omitted pursuant
to Instruction II.D of Form S-3 and (b) will be determined, from time to time,
by the Registrants in connection with the issuance by the Registrants of the
securities registered hereunder.
(3) Calculated pursuant to Rule 457(o) of the rules and regulations under the
Securities Act of 1933, as amended.
(4) Subject to footnote 1, there is being registered hereunder an indeterminate
principal amount of debt securities as may be sold, from time to time, by the
Registrants.
(5) Subject to footnote 1, there is being registered hereunder an indeterminate
number of shares of common stock as may be sold from time to time, by the
Registrants, including shares of other classes or series of the Registrants'
stock that may be issued upon reclassification of unissued, authorized stock of
the Registrants. There also is being registered hereunder an indeterminate
number of shares of common stock, including shares of other classes or series of
the Registrants' stock that may be issued upon reclassification of unissued,
authorized stock of the Registrants, as may be issuable upon conversion of the
debt securities or the preferred stock or upon exercise of warrants registered
hereby.
(6) Includes the preferred stock purchase rights of The FINOVA Group Inc. which
initially are attached to and trade with the shares of common stock of The
FINOVA Group Inc. being registered hereby. The value attributable to such
Rights, if any, is reflected in the market price of such common stock.
(7) Subject to footnote 1, there is being registered hereunder an indeterminate
number of shares of preferred stock as may be sold from time to time, by the
Registrants. There also is being registered hereunder an indeterminate number of
shares of preferred stock as shall be issuable upon exercise of warrants
registered hereby.
(8) Subject to footnote 1, there is being registered hereunder an indeterminate
number of depositary shares as may be sold from time to time, by the
Registrants.
(9) Subject to footnote 1, there is being registered hereunder an indeterminate
number of warrants representing rights to purchase shares of common stock or
preferred stock of the Registrants, including shares of other classes or series
of the Registrants' stock that may be issued upon reclassification of unissued,
authorized stock of such Registrants, as the case may be, registered hereby.
THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE
OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS
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 THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
<PAGE>
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY
NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER
TO SELL THESE SECURITIES AND IT IS NOT SOLICITING AN OFFER TO BUY THESE
SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
SUBJECT TO COMPLETION, DATED MAY 28, 1999
Prospectus [FINOVA Logo]
- ----------
[The FINOVA Group Inc. logo]
[FINOVA Capital Corporation logo]
By this prospectus, we may offer up to
$3,000,000,000 of our:
DEBT SECURITIES We will provide the specific terms of
COMMON STOCK (including, for The these securities in supplements to
FINOVA Group Inc., Rights to Purchase this prospectus. You should read this
Junior Participating Preferred Stock) prospectus and the supplements
PREFERRED STOCK carefully before you invest.
DEPOSITARY SHARES
WARRANTS
FINOVA Capital Corporation is a wholly We may offer the securities directly
owned subsidiary of The FINOVA Group or through underwriters, agents or
Inc. dealers. The supplement will describe
the terms of that plan of
distribution. "Plan of Distribution"
below also provides more information
on this topic.
These securities have not been
approved or disapproved by the SEC or
any state securities commission.
None of those authorities has
determined that this prospectus is
accurate or complete.
Any representation to the contrary is
a criminal offense.
The date of this prospectus is __________, 1999
<PAGE>
WHERE YOU CAN FIND MORE INFORMATION
The FINOVA Group Inc. ("FINOVA * Portions of the Proxy Statement on
Group") and FINOVA Capital Corporation Schedule 14A for FINOVA Group's
("FINOVA Capital") file annual, Annual Meeting of Shareholders
quarterly and current reports, proxy held on May 13, 1999 that have
and information statements and other been incorporated by reference
information with the SEC. You may read into our 10-K.
and copy any document we file at the
SEC's public reference rooms at 450 * Quarterly Reports on Form 10-Q of
Fifth Street, N.W., Washington, D.C. FINOVA Group and FINOVA Capital
20549. Please call the SEC at for the quarter ended March 31,
1-800-SEC-0330 for more information on 1999.
the public reference room and their
copy charges. Our SEC filings are also * Current Reports on Form 8-K of
available to the public from the SEC's FINOVA Group dated January 14,
web site at http://www.sec.gov, which March 22, April 14, and May 6,
may also be available on our web site 1999.
at http://www.finova.com. You may also
inspect our SEC reports and other * Current Reports on Form 8-K of
information at the New York Stock FINOVA Capital dated January 15,
Exchange, 20 Broad Street, New York, and May 10, 1999.
New York 10005.
* Schedules 13-D of FINOVA Group and
The SEC allows us to "incorporate FINOVA Capital dated January 6,
by reference" the information we file 1999.
with them, which means we can disclose
information to you by referring you to You may request a copy of those
those documents. Information filings or any other information
incorporated by reference is part of incorporated by reference in this
this prospectus. Later information prospectus, including exhibits. You
filed with the SEC updates and may do so orally or in writing by
supersedes this prospectus. contacting us at:
We incorporate by reference the Treasurer
documents listed below and any future The FINOVA Group Inc.
filings made with the SEC under 1850 North Central Avenue
Sections 13(a), 13(c), 14 or 15(d) of P.O. Box 2209
the Securities Exchange Act of 1934 Phoenix, Arizona 85002-2209
until this offering is completed: (602) 207-6900
* Annual Reports on Form 10-K/A of We will provide that information at no
FINOVA Group filed on May 7, 1999 charge to you.
and FINOVA Capital filed on May 10,
1999 for the year ended December
31, 1998.
THE COMPANIES
FINOVA Group is a financial value-added services enable us to
services holding company. Through our differentiate ourselves from our
principal subsidiary, FINOVA Capital, competitors. That expertise and
we provide a broad range of financing ability also enable us to command
and capital market products to pricing that provides a satisfactory
mid-size business. We concentrate on spread over our borrowing costs.
lending to mid-size businesses. FINOVA
Capital has been in operation since We seek to maintain a high quality
1954. portfolio and to minimize non-earning
assets and write-offs. We use clearly
We extend revolving credit defined underwriting criteria and
facilities, term loans, and equipment stringent portfolio management
and real estate financing primarily to techniques. We diversify our lending
"middle-market" businesses with activities geographically and among a
financing needs falling generally range of industries, customers and
between $500,000 and $35 million. loan products.
We operate in 20 specific industry Due to the diversity of our
or market niches under three market portfolio, we believe we are better
groups. We selected those groups able to manage competitive changes in
because our expertise in evaluating our markets and to withstand the
the creditworthiness of prospective impact of deteriorating economic
customers and our ability to provide conditions on a regional or national
2
<PAGE>
basis. There can be no assurance, transaction sizes range from
however, that competitive changes, $100,000 to $1 million and are
borrowers' performance, economic made to small and mid-size
conditions or other factors will not businesses with annual sales
result in an adverse impact on our under $10 million.
results of operations or financial
condition. * REDISCOUNT FINANCE offers
revolving credit facilities to
We generate interest, leasing, fee the independent consumer finance
and other income through charges industry including sales,
assessed on outstanding loans, loan automobile, mortgage and premium
servicing, leasing, brokerage and finance companies. Typical
other activities. Our primary expenses transaction sizes range from $1
are the costs of funding our loan and million to $35 million.
lease business, including interest
paid on debt, provisions for credit SPECIALTY FINANCE
losses, marketing expenses, salaries
and employee benefits, servicing and * COMMERCIAL EQUIPMENT FINANCE
other operating expenses and income offers equipment leases, loans
taxes. and "turnkey" financing to a
broad range of midsize
BUSINESS GROUPS companies. Specialty markets
include the corporate aircraft
We operate the following principal and emerging growth technology
lines of business under three market industries, primarily
groups: biotechnology and electronics.
Typical transaction sizes range
COMMERCIAL FINANCE from $500,000 to $15 million.
* BUSINESS CREDIT offers * COMMUNICATIONS FINANCE
collateral-oriented revolving specializes in term financing to
credit facilities and term loans advertising and subscriber-
for manufacturers, distributors, supported businesses including
wholesalers and service radio and television stations,
companies. Typical transaction cable operators, outdoor
sizes range from $500,000 to $3 advertising firms and
million. publishers. Typical transaction
sizes range from $1 million to
* COMMERCIAL SERVICES (formerly $40 million.
Factoring Services) offers full
service factoring and accounts
receivable management services * FRANCHISE FINANCE offers
for entrepreneurial and larger equipment, real estate and
firms, primarily in the textile acquisition financing for
and apparel industries. The operators of established
annual factored volume of these franchise concepts. Transaction
companies is generally between sizes generally range from
$5 million and $25 million. This $500,000 to $15 million.
line provides accounts
receivable financing and loans * HEALTHCARE FINANCE offers a full
secured by equipment and real range of working capital,
estate. equipment and real estate
financing products for the U.S.
* CORPORATE FINANCE provides a health care industry.
full range of cash flow-oriented Transaction sizes typically
and asset-based term and range from $500,000 to $25
revolving loan products for million.
manufacturers, wholesalers,
distributors, specialty * PORTFOLIO SERVICES provides
retailers and commercial and customized receivable servicing
consumer service businesses. and collections for time-share
Typical transaction sizes range developers and other generators
from $2 million to $35 million. of consumer receivables.
* DISTRIBUTION & CHANNEL FINANCE * PUBLIC FINANCE provides
(formerly Inventory Finance) tax-exempt term financing to
provides inbound and outbound state and local governments,
inventory financing, combined non-profit corporations and
inventory/accounts receivable entities using industrial
lines of credit and purchase revenue or development bonds.
order financing for equipment Typical transaction sizes range
distributors, value-added from $100,000 to $5 million.
resellers and dealers
nationwide. Transaction sizes * RESORT FINANCE focuses on
generally range from $500,000 to construction, acquisition and
$30 million. receivables financing of
timeshare resorts worldwide,
* GROWTH FINANCE provides second home communities and
collateral-based working capital fractional interest resorts.
financing primarily secured by
accounts receivable. Typical
3
<PAGE>
Typical transaction sizes range automobiles and other consumer
from $5 million to $35 million. products.
* SPECIALTY REAL ESTATE FINANCE * MEZZANINE CAPITAL provides
provides senior term acquisition senior and subordinated secured
and bridge/interim loans from $5 term loans to small, fast
million to $30 million or more growing companies in a broad
for hotel and resort properties range of industries that are
in the U.S., Canada and the located in the U.S. and Canada
Caribbean. Through this for expansions, acquisitions,
division, we also provide equity buy-outs and other strategic
investments in credit-oriented ventures. Typical transaction
real estate sale leasebacks. sizes range from $1 million to
$5 million.
* TRANSPORTATION FINANCE struc-
tures equipment loans, leases, * HARRIS WILLIAMS & CO provides
acquisition financing and merger and acquisition advisory
leveraged lease equity services targeting middle market
investments for commercial and businesses.
cargo airlines worldwide,
railroads and operators of other Both FINOVA Group and FINOVA
transportation related Capital are Delaware corporations.
equipment. Typical transaction FINOVA Group was incorporated in 1991
sizes range from $5 million to to serve as the successor to The Dial
$30 million. Through FINOVA Corp's financial services businesses.
Aircraft Investors LLC, FINOVA Dial transferred those businesses to
also seeks to use its market FINOVA Group in March 1992 in a
expertise and industry presence spin-off. Since that time, FINOVA
to purchase, upgrade and resell Group has increased its total assets
used commercial aircraft. from $2.6 billion at December 31,
1992 to $10.5 billion at December 31,
CAPITAL MARKETS 1998. Income from continuing
operations increased from $36.8
* REALTY CAPITAL specializes million in 1992 to $169.7 million in
in providing capital markets- 1998. We believe FINOVA Group ranks
funded commercial real among the largest independent
estate financing products and commercial finance companies in the
commercial mortgage banking U.S., based on total assets. The
services. Typical transaction common stock of FINOVA Group is
sizes range from $1 million to traded on the New York Stock
$5 million. Exchange.
* INVESTMENT ALLIANCE provides FINOVA Capital was incorporated in
equity and debt financing 1965 and is the successor to a
for midsize businesses in California corporation that was formed
partnership with institutional in 1954. All of FINOVA Capital's
investors and selected fund capital stock is owned by FINOVA
sponsors. Typical transaction Group.
sizes range from $2 million to
$15 million. Our principal executive offices are
located at 1850 North Central Avenue,
* LOAN ADMINISTRATION provides P.O. Box 2209, Phoenix, Arizona
in-house servicing for 85002-2209. Our telephone number is
FINOVA's commercial loan (602) 207-6900.
products as well as servicing
and subservicing of other
mortgage and consumer loans,
including residential real
estate, mobile homes,
4
<PAGE>
SELECTED FINANCIAL INFORMATION
The following information was statements and other information that
derived from FINOVA Group's financial we have filed with the SEC. We have
statements. The information is only a restated the financial information
summary and does not provide all of through 1998 as noted more fully in
the information contained in our Note T to the financial statements
financial statements, including the for the year ended December 31, 1998.
related notes, and Management's Prior year amounts have also been
Discussion and Analysis. Those items reclassified to conform to the 1998
are part of our Annual Reports on Form presentation and to reflect a 2-for-1
10-K/A and Quarterly Reports on Form stock split in 1997.
10-Q. You should read our financial
<TABLE>
<CAPTION>
For the Three
Months Ended
March 31, As of and for the Year Ended December 31,
----------------------- -------------------------------------------------------------
1999 1998 1998 1997 1996 1995 1994
---- ---- ---- ---- ---- ---- ----
Dollars in thousands, except per share data)
<S> <C> <C> <C> <C> <C> <C> <C>
OPERATIONS:
Income earned from
financing transactions $ 273,075 $ 232,833 $ 1,007,773 $ 879,763 $ 756,996 $ 673,194 $ 458,411
Interest margins earned 124,666 105,383 459,515 392,124 329,107 280,788 211,419
Volume-based fees 12,735 22,156 77,723 39,378 28,588 21,204 10,796
Provision for credit losse 9,500 9,500 82,200 69,200 41,751 39,568 10,439
Gains on disposal of assets 12,370 1,525 27,912 30,333 12,562 10,490 3,877
Income from continuing
operations 50,057 39,741 160,341 137,910 117,968 95,621 75,470
Net income 50,057 39,741 160,341 137,910 118,475 97,060 76,013
Basic earnings from
continuing operations
per share 0.89 0.71 2.87 2.53 2.16 1.75 1.52
Basic earnings per share 0.89 0.71 2.87 2.53 2.17 1.78 1.53
Basic adjusted weighted
average outstanding
shares(1) 56,294,000 56,138,000 55,946,000 54,405,000 54,508,000 54,633,000 49,765,000
Diluted earnings from
continuing operations
per share $ 0.83 $ 0.67 $ 2.70 $ 2.40 $ 2.10 $ 1.72 $ 1.50
Diluted earnings per share 0.83 0.67 2.70 2.40 2.11 1.75 1.51
Diluted adjusted weighted
average shares(1) 61,318,000 61,079,000 60,705,000 59,161,000 56,051,000 55,469,000 50,436,000
Dividends declared per
common share $ 0.16 $ 0.14 $ 0.60 $ 0.52 $ 0.46 $ 0.42 $ 0.37
FINANCIAL POSITION:
Investment in financing
transactions $11,086,016 $ 8,689,238 $10,020,221 $ 8,420,462 $ 7,318,919 $ 6,364,189 $ 5,354,626
Nonaccruing assets 228,416 195,267 205,233 187,356 155,505 143,127 149,046
Reserve for credit losses 238,277 175,967 207,618 177,088 148,693 129,077 110,903
Total assets 11,730,347 9,037,349 10,441,236 8,724,626 7,538,456 7,045,547 5,831,327
Total debt 9,327,137 7,115,327 8,394,578 6,764,581 5,850,223 5,649,368 4,573,354
Company-obligated
mandatory redeemable
convertible preferred
securities of subsidiary
trust solely holding con-
vertible debentures of
FINOVA Group
("TOPrS") 111,550 111,550 111,550 111,550 111,550
Shareowners' equity 1,557,612 1,128,594 1,167,231 1,092,254 936,085 829,040 773,547
</TABLE>
- ------------
(1) Adjusted to reflect a 2-for-1 stock split on October 1, 1997.
RATIO OF INCOME TO TOTAL FIXED CHARGES
For the Three
Months Ended
March 31, Year Ended December 31,
------------ ------------------------------------
1999 1998 1998 1997 1996 1995 1994
---- ---- ---- ---- ---- ---- ----
FINOVA Group 1.63x 1.60x 1.55x 1.54x 1.51x 1.45x 1.59x
FINOVA Capital 1.63x 1.60x 1.55x 1.54x 1.51x 1.45x 1.59x
RATIO OF INCOME TO COMBINED FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
For the Three
Months Ended
March 31, Year Ended December 31,
------------ -------------------------------------
1999 1998 1998 1997 1996 1995 1994
---- ---- ---- ---- ---- ---- ----
FINOVA Group 1.61x 1.58x 1.53x 1.51x 1.51x 1.45x 1.59x
FINOVA Capital 1.63x 1.60x 1.55x 1.54x 1.51x 1.45x 1.59x
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Variations in interest rates generally computing the above ratios, consists
do not have a substantial impact on of income from continuing operations
the ratio because fixed-rate and before income taxes plus fixed
floating-rate assets are generally charges. Fixed charges consist of
matched with liabilities of similar interest and related debt expense, and
rate and term. Income available for a portion of rental expense determined
fixed charges, for purposes of to be representative of interest.
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
Certain statements in this competitive without sacrificing
prospectus and any supplements are prudent lending standards. Doing
"forward-looking," in that they do not business under those standards
discuss historical fact but instead becomes more difficult, however,
note future expectations, projections, when competitors offer financing
intentions or other items relating to with less stringent criteria. We
the future. These forward-looking seek to maintain credit quality
statements include those made in at the risk of growth in assets,
documents incorporated in this if necessary.
prospectus by reference.
* The cost of our capital. That
Forward-looking statements are cost depends on many factors,
subject to known and unknown risks, some of which are beyond our
uncertainties and other factors that control, such as our portfolio
may cause our actual results or quality, ratings, prospects and
performance to differ materially from outlook.
those contemplated by the
forward-looking statements. Many of * Changes in government
those factors are noted in conjunction regulations, tax rates and
with the forward-looking statements similar matters. For example,
in the text. Other important factors government regulations could
that could cause actual results to significantly increase the cost
differ include: of doing business or could
eliminate certain tax advantages
* The results of our efforts to of some of our financing
implement our business strategy. products.
Failure to fully implement our
business strategy might result * Necessary technological changes,
in decreased market penetration, including those addressing "Year
adverse effects on results of 2000" data systems issues, may be
operations and other adverse more difficult, expensive or time
results. consuming than anticipated.
* The effect of economic * Costs or difficulties related to
conditions and the performance integration of acquisitions.
of our borrowers. Economic
conditions in general or in * Other risks detailed in our
particular market segments could other SEC reports or filings.
impact the ability of our
borrowers to operate or expand We do not intend to update
their businesses, which might forward-looking information to reflect
result in decreased performance actual results or changes in
for repayment of their assumptions or other factors that
obligations or reduce demand for could affect those statements. We
additional financing needs. cannot predict the risk from reliance
on forward-looking statements in
* Actions of our competitors and light of the many factors that could
our ability to respond to those affect their accuracy.
actions. We seek to remain
USE OF PROCEEDS
We intend to use the net proceeds working capital, investment in
from the sale of the securities for financing transactions and capital
general corporate purposes. Those expenditures. We will describe in the
purposes include the repayment or supplement any proposed use of
refinancing of debt, acquisitions in proceeds other than for general
the ordinary course of business, corporate purposes.
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<PAGE>
DESCRIPTION OF DEBT SECURITIES
DEBT SECURITIES concerning that series of debt.
But to change the payment of
The following summary applies only principal or interest, every
to the debt securities of FINOVA holder in that series must
Capital. If we issue debt securities consent.
of FINOVA Group, we will describe
those securities and the indenture * FINOVA Capital may discharge the
under which they are issued in the debt issued in any series at any
applicable supplement. time by depositing sufficient
funds with the trustee to pay
The debt securities of FINOVA the obligations when due. All
Capital will be issued under one or amounts due to you on the debt
more indentures between FINOVA Capital would be paid by the trustee
and one or more U.S. banking from the deposited funds.
institutions (a "trustee"). The
indentures may but need not have * If FINOVA Capital fails to meet
separate trustees for senior and its obligations on the debt, it
subordinated debt. We will list the will be in default. Defaults for
trustee for each series of securities senior debt securities are
in the applicable supplement. described on pages 11 and 12 of
this prospectus.
The following summary of certain
provisions of the indentures is not GENERAL
complete. You should look at the
indenture that applies to your The debt securities of FINOVA Group
offering ("your indenture"). The and FINOVA Capital offered by this
indentures are filed as exhibits to prospectus will be limited to $3.0
the Registration Statement. To obtain billion principal amount. The
a copy of your indenture, see "Where indentures do not limit the amount of
You Can Find More Information" on page debt securities FINOVA Capital could
2. offer under them. FINOVA Capital can
issue debt securities in one or more
All capitalized terms have the series, in each case as authorized by
meanings specified in the indentures. us from time to time. Each series may
differ as to its terms. The debt
GENERAL INDENTURE PROVISIONS THAT securities will be FINOVA Capital's
APPLY TO SENIOR AND SUBORDINATED DEBT unsecured general obligations and may
or may not be subordinated to FINOVA
* The indentures do not limit the Capital's other general indebtedness.
amount of debt that FINOVA Those that are not subordinated are
Capital may issue nor provide called "senior debt securities." The
holders any protection should others are "subordinated debt
there be a highly leveraged securities."
transaction involving our
company. We may issue additional The supplement will address the
debt securities without your following terms of the debt
consent. securities:
* If FINOVA Capital redeems debt * Their title.
which is convertible into its
capital stock or other * Any limits on the principal
securities, your right to amounts to be issued.
convert that debt into capital
stock or other securities will * The dates on which the principal
expire on the redemption date. is payable.
* The indentures allow FINOVA * The rates (which may be fixed or
Capital to merge or to variable) at which they shall
consolidate with another bear interest, or the method for
company, or sell all or determining rates.
substantially all of its assets
to another company. If these * The dates from which the
events occur, the other company interest will accrue and will be
will be required to assume payable, or the method of
FINOVA Capital's determining those dates, and any
responsibilities on the debt, record dates for the payments
and FINOVA Capital will be due.
released from all liabilities
and obligations. * Any provisions for redemption,
conversion or exchange, at our
* The indentures provide that option or otherwise, including
holders of a majority of the the periods, prices and terms of
total principal amount of the redemption or conversion.
debt outstanding in any series
may vote to change our * Any sinking fund or similar
obligations or your rights provisions, whether mandatory or
at the holder's option, along
7
<PAGE>
with the periods, prices and OWNERSHIP OF THE GLOBAL SECURITIES;
terms of redemption, purchase or BENEFICIAL OWNERSHIP. So long as the
repayment. depositary or its nominee is the
registered owner of a global security,
* The amount or percentage payable that entity will be the sole holder of
if we accelerate their maturity, the debt securities represented by
if other than the principal that instrument. The trustee and we
amount. are only required to treat the
depositary or its nominee as the legal
* Any changes to the events of owner of those securities for all
default or covenants set forth purposes under your indenture.
in your indenture.
Each actual purchaser of debt
* The terms of subordination, if securities represented by a global
any. security (a "beneficial owner") will
not be entitled to receive physical
* Whether the series can be delivery of certificated securities,
reopened. will not be considered the holder of
those securities for any purpose under
* Any other terms consistent with your indenture, and will not be able
your indenture. to transfer or exchange the global
securities, unless this prospectus or
We may authorize and determine the the supplement provide to the
terms of a series of debt securities contrary. As a result, each beneficial
by resolution of our board of owner must rely on the procedures of
directors or one of its committees or the depositary to exercise any rights
through one or more supplemental of a holder under your indenture. In
indentures. addition, if the beneficial owner is
not a direct or indirect participant
FORM OF DEBT SECURITIES in the depositary (each a
"participant") the beneficial owner
The debt securities will be issued must rely on the procedures of the
in registered form. Unless the participant through which it owns its
supplement otherwise provides, debt beneficial interest in the global
securities will be issued as one or security.
more global securities. This means
that we will not issue certificates to The laws of some jurisdictions
each holder. We generally will issue require that certain purchasers of
global securities in the total securities take physical delivery of
principal amount of the debt the securities in certificated form.
securities distributed in that series. Those laws and the above conditions
We will issue debt securities only in may impair the ability to transfer
denominations of $1,000 or integral beneficial interests in the global
multiples of that amount, unless the securities.
supplement states otherwise.
THE DEPOSITORY TRUST COMPANY
GLOBAL SECURITIES
The following is based on
IN GENERAL. Debt securities in information furnished by DTC and
global form will be deposited with or applies to the extent it is the
on behalf of a depositary. Global depositary, unless otherwise stated in
securities are represented by one or a supplement:
more global certificates for the
series registered in the name of the REGISTERED OWNER. The debt
depositary or its nominee. Debt securities will be issued as fully
securities in global form may not be registered securities in the name of
transferred except as a whole among Cede & Co. (DTC's partnership
the depositary, a nominee of or a nominee). One fully registered global
successor to the depositary and any security generally will be issued for
nominee of that successor. Unless each $200 million principal amount of
otherwise identified in the debt securities. The trustee will
supplement, the depositary will be The deposit the global securities with the
Depository Trust Company ("DTC"). depositary. The deposit of the global
securities with DTC and its
NO DEPOSITARY OR GLOBAL SECURITIES. registration in the name of Cede & Co.
If a depositary for a series is will not change the beneficial
unwilling or unable to continue as ownership of the securities.
depositary, and a successor is not
appointed by us within 90 days, we DTC ORGANIZATION. DTC is a
will issue debt securities of that limited-purpose trust company
series in definitive form in exchange organized under the New York Banking
for the global security or securities Law, a "banking organization" within
of that series. We also may determine the meaning of that law, a member of
at any time in our discretion not to the Federal Reserve System, a
use global securities for any series. "clearing corporation" within the
In that event, we will issue debt
securities in definitive form.
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meaning of the New York Uniform NOTICES AMONG THE DEPOSITARY,
Commercial Code and a "clearing PARTICIPANTS AND BENEFICIAL OWNERS.
agency" registered under the Notices and other communications by
provisions of Section 17A of the the depositary, its participants and
Securities Exchange Act of 1934, as the beneficial owners will be governed
amended. by arrangements among them, subject to
any legal requirements in effect.
DTC is owned by a number of its
direct participants and by the New VOTING PROCEDURES. Neither DTC nor
York Stock Exchange, Inc., the Cede & Co. will give consents for or
American Stock Exchange, Inc. and the vote the global securities. The
National Association of Securities depositary generally mails an omnibus
Dealers, Inc. Direct participants proxy to us just after the applicable
include securities brokers and record date. That proxy assigns Cede &
dealers, banks, trust companies, Co.'s consenting or voting rights to
clearing corporations and certain the direct participants to whose
other organizations who directly accounts the securities are credited
participate in DTC (each a "direct at that time.
participant"). Other entities
("indirect participants") may access PAYMENTS. Principal and interest
DTC's system by clearing transactions payments made by us will be delivered
through or maintaining a custodial to the depositary. DTC's practice is
relationship with direct participants, to credit direct participants'
either directly or indirectly. The accounts on the applicable payment
rules applicable to DTC and its date unless it has reason to believe
participants are on file with the SEC. it will not receive payment on that
date. Payments by participants to
DTC ACTIVITIES. DTC holds beneficial owners will be governed by
securities that its participants standing instructions and customary
deposit with it. DTC also facilitates practices, as is the case with
the settlement among participants of securities held for customers in
securities transactions, such as bearer form or registered in "street
transfers and pledges, in deposited name." Those payments will be the
securities through electronic responsibility of that participant,
computerized book-entry changes in not the depositary, the trustee or us,
participant's accounts. Doing so subject to any legal requirements in
eliminates the need for physical effect at that time.
movement of securities certificates.
We are responsible for payment of
PARTICIPANTS' RECORDS. Except as principal, interest and premium, if
otherwise provided in this prospectus any, to the trustee, who is
or a supplement, purchases of the debt responsible to pay it to the
securities must be made by or through depositary. The depositary is
direct participants, which will responsible for disbursing those
receive a credit for the securities on payments to direct participants. The
the depositary's records. The participants are responsible for
beneficial owner's ownership interest disbursing payments to the beneficial
is in turn to be recorded on the owners.
direct and indirect participants'
records. Beneficial owners will not TRANSFER OR EXCHANGE OF SECURITIES
receive written confirmations from the
depositary of their purchase, but they You may transfer or exchange the
are expected to receive them, along debt securities (other than a global
with periodic statements of their security) without service charge at
holdings, from the direct or indirect our office designated for that purpose
participants through whom they entered or at the office of any transfer agent
into the transaction. or security registrar identified under
your indenture. You must execute a
Transfers of interests in the proper form of transfer and pay any
global securities will be made on the taxes and other governmental charges
books of the participants on behalf of resulting from that action. You may
the beneficial owners. Certificates transfer or exchange the debt
representing the interest of the securities (other than a global
beneficial owners in the securities security) initially at our offices at
will not be issued unless the use of 1850 North Central Avenue, P.O. Box
global securities is suspended, as 2209, Phoenix, Arizona 85002-2209 or
provided above. at our office or agency established
for that purpose in New York, New
The depositary has no knowledge of York.
the actual beneficial owners of the
global securities. Its records only Debt securities in the several
reflect the identity of the direct denominations will be interchangeable
participants as owners of the without service charge, but we may
securities. Those participants may or require payment to cover taxes and
may not be the beneficial owners.
Participants are responsible for
keeping account of their holdings on
behalf of their customers.
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<PAGE>
other governmental charges. The * Leases of property in the
trustee noted in the supplement ordinary course of business or
initially will act as authenticating if the property is not needed in
agent under your indenture. the operation of our business.
SAME-DAY SETTLEMENT AND PAYMENT * Purchase money security
interests that are non-recourse
Unless the supplement otherwise to FINOVA Capital or designated
provides, the debt securities will be subsidiaries except to the
settled in immediately available extent of the property so
funds. We will make payments of acquired or any proceeds from
principal and interest in immediately that property, or both.
available funds.
* Governmental deposits or
PAYMENT AND PAYING AGENT security as a condition to the
transaction of business or the
If the debt securities are not held exercise of a privilege, or to
in global form, we will make payment maintain self-insurance, or to
of principal and premium, if any, participate in any fund in
against surrender of the debt connection with worker's
securities at the principal office of compensation, unemployment
the trustee in New York, New York. We insurance, pensions, social
will pay any installment of interest security or for appeal bonds.
on debt securities to the record
holder on the record date for that * Liens for taxes or assessments
interest. We can make those payments not yet due or which are payable
through the trustee, as noted above, without a penalty or are being
by check mailed by first class mail to contested in good faith and with
the registered holders at their adequate reserves, so long as
registered address or by wire transfer foreclosure or similar
to an eligible account of the proceedings are not commenced.
registered holder.
* Judgment liens that have not
If any payments of principal, remained undischarged or
premium or interest are not claimed unstayed for more than six
within three years of the date the months.
payment became due, those funds are to
be repaid to us. The beneficial owners * Incidental or undetermined
of those interests thereafter will construction, mechanics or
look only to us for payment for those similar liens arising in the
amounts. ordinary course of business
relating to obligations not
INDENTURE COVENANTS, DEFAULTS AND overdue or which are being
AMENDMENTS contested by FINOVA Capital or a
designated subsidiary in good
LIMITATION ON LIENS. The indentures faith and deposits for releases
prohibit FINOVA Capital from creating of such liens.
or permitting any lien or similar
encumberance (a "lien") on any of its
properties unless FINOVA Capital
secures the senior debt securities
equally and ratably with any other
obligation secured in that manner. The
indentures contain the following
exceptions to that prohibition:
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* Zoning restrictions, licenses, and your indenture. Immediately after
easements and similar that transaction, however, no default
encumbrances or defects if can exist. A purchase by a subsidiary
immaterial. of all or substantially all of the
assets of another corporation will not
* Other liens immaterial in the be a purchase of those assets by
aggregate incidental to FINOVA FINOVA Capital. If, however, any of
Capital's or a designated the transactions noted in this
subsidiary's business or paragraph occurs and results in a lien
property, other than for on any of FINOVA Capital's properties
indebtedness. (except as permitted above), FINOVA
Capital must simultaneously secure the
* Banker's liens and set off senior debt securities equally and
rights in the ordinary course of ratably with the debt secured by that
business. lien.
* Leasehold or purchase rights, DEFAULTS. Events of default under
exercisable for fair the indenture for any series are:
consideration, arising in the
ordinary course of business. * Failure for 30 days to pay
interest on any debt securities
* Liens on property or securities of that series.
existing when an entity becomes
a designated subsidiary or * Failure to pay principal (other
merges with FINOVA Capital or a than sinking fund redemptions)
designated subsidiary, provided or premium, if any, on debt
they are not incurred in securities of that series.
anticipation of those events.
* Failure for 30 days to pay any
* Liens on property or securities sinking fund installment on that
existing at the time of series.
acquisition.
* Violation of a covenant under
* Liens in a total amount less the indenture pertaining to that
than $25 million, excluding series that persists for at
liens covered by the exceptions least 90 days after FINOVA
noted above. Capital is notified by the
trustee or the holders of 25% of
* Liens securing indebtedness of the series.
FINOVA Capital or a designated
subsidiary provided those and * Default in other instruments or
similar liens on indebtedness do under any other series of debt
not exceed 10% of consolidated securities resulting in
net tangible assets, as that acceleration of indebtedness
term is defined in the over $15 million, unless that
indentures, excluding certain default is rescinded or
preexisting indebtedness and discharged within 10 days after
those liens permitted above. written notice by the trustee or
the holders of 10% of that
MERGER, CONSOLIDATION AND SALE OF series.
ASSETS. FINOVA Capital cannot merge
with or into, consolidate with, sell * Bankruptcy, insolvency or
or lease all or substantially all of similar event.
its assets to or purchase all or
substantially all the assets of * Any other event of default with
another corporation unless it will be respect to the debt securities
the surviving corporation or the of that series.
successor is incorporated in the U.S.
and assumes all of FINOVA Capital's
obligations under the debt securities
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If an event of default occurs and Unanimous consent is required for
continues, the trustee or the holders changes to extend the fixed maturity
of at least 25% of the series may of any debt securities, reduce the
declare those debt securities due and principal, redemption premium or rate
payable. FINOVA Capital is required to of interest, extend the time of
certify to the trustees annually as to payment of interest, change the form
its compliance with the indentures. A of currency, limit the right to sue
default under one series does not for payment on or after maturity of
necessarily mean that a default or an the debt securities, adversely affect
event of default will have occurred the right, if any, to convert or
under another series under that exchange the debt securities or
indenture or any other indenture. adversely affect the subordination
provisions, if any. Unanimous consent
Holders of a majority of the is also required to reduce the level
principal of a series may control of consents needed to approve any of
certain actions of the trustee and may those changes. The trustee must
waive past defaults for that series. consent to changes modifying its
Except as provided in your indenture, rights, duties or immunities.
the trustee will not be under any
obligation to exercise any of the SUBORDINATION
rights or powers vested in it by your
indenture at the request, order or The terms and conditions of any
direction of any holder unless one or subordination of subordinated debt
more of them shall have offered securities to other indebtedness of
reasonable indemnity to the trustee. FINOVA Capital will be described in
the supplement relating to the
If an event of default occurs and subordinated debt securities. The
is continuing, the trustee may terms will include a description of
reimburse itself for its reasonable the indebtedness ranking senior to the
compensation and expenses incurred out subordinated debt securities, the
of any sums held or received by it restrictions on payments to the
before making any payments to the holders of the subordinated debt
holders of the debt securities of the securities while a default exists with
defaulted series. respect to senior indebtedness, any
restrictions on payments to the
The right of any holders of debt holders of the subordinated debt
securities of a series to commence an securities following an event of
action for any remedy is subject to default and provisions requiring
certain conditions, including the holders of the subordinated debt
requirement that the holders of at securities to remit certain payments
least 25% of that series request that to holders of senior indebtedness.
the trustee take such action, and
offer reasonable indemnity to the Because of the subordination, if
trustee against its liabilities FINOVA Capital becomes insolvent,
incurred in doing so. holders of the subordinated debt
securities may recover less, ratably,
DEFEASANCE than other creditors of FINOVA
Capital, including holders of senior
FINOVA Capital may defease the debt indebtedness.
securities of a series, meaning it
would satisfy its duties under that CONVERSION
series before maturity. It may do so
by depositing with the trustee, in Debt securities may be convertible
trust for the benefit of the holders, into or exchangeable for common stock,
either enough funds to pay, or direct preferred stock, other debt
U.S. government obligations that, securities, warrants or other
together with the income of those securities of FINOVA Capital, or
obligations (without considering any securities of any other issuer or
reinvestment), will be sufficient to obligor. The supplement will describe
pay, the obligation of that series, the terms of any conversion rights.
including principal, premium, if any,
and interest. Certain other conditions CONCERNING THE TRUSTEES
must be met before it may do so.
FINOVA Capital must deliver an opinion The trustees may, but need not be,
of counsel that the holders of that banks in FINOVA Capital's credit
series will have no Federal income tax agreements and from time to time may
consequences as a result of that perform other banking, trust or
deposit. related services or investment banking
services on behalf of FINOVA Group,
MODIFICATION OF YOUR INDENTURE. The FINOVA Capital or our customers.
trustee and FINOVA Capital may amend
your indenture without consent of the
holders of debt securities to do
certain things, such as establishing
the form and terms of any series of
debt securities. FINOVA Capital must
obtain consent of holders of at least
two-thirds of the outstanding debt
securities affected by a change to
amend the terms of your indenture or
any supplemental indenture applicable
to your securities or the rights of
the holders of those debt securities.
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DESCRIPTION OF CAPITAL STOCK
The following summary of material designations, powers, preferences,
provisions of the common stock, the rights, qualifications, limitations
preferred stock, the junior and restrictions as the board
participating preferred stock (the determines. Thus, the board, without
"Junior Preferred Stock") and the stockholder approval, could authorize
rights to purchase the Junior the issuance of preferred stock with
Preferred Stock (the "Rights") of voting, conversion and other rights
FINOVA Group is not complete. You that could adversely affect the voting
should refer to the certificate of power and other rights of the holders
incorporation and bylaws of FINOVA of the common stock or that could make
Group, as amended, FINOVA Group's it more difficult for another company
certificate of designations for the to enter into certain business
Junior Preferred Stock and the Rights combinations with FINOVA Group. See
Agreement dated as of February 15, "-- Additional Provisions of the
1992, as amended and restated as of Certificate of Incorporation, the
September 14, 1995 (the "Rights Bylaws and Delaware Law -- Preferred
Agreement"), between FINOVA Group and Stock" below.
Harris Trust & Savings Bank, as
successor Rights Agent. To obtain SHAREHOLDER RIGHTS PLAN
copies of those documents, see "Where
You Can Find More Information" on page In 1992, FINOVA Group issued one
2. If we issue capital stock of FINOVA Right for each outstanding share of
Capital, we will describe those common stock. FINOVA Group has and
securities in the applicable will continue to issue one Right with
supplement. each newly issued share of its common
stock (including stock issued on
FINOVA Group is authorized by its conversion of preferred securities).
certificate of incorporation to issue The obligation to continue to issue
420,000,000 shares of capital stock, the Rights, however, will terminate on
consisting of 20,000,000 shares of the expiration, exchange or redemption
preferred stock, par value $.01 per of the Rights.
share, and 400,000,000 shares of
common stock, par value $.01 per Each Right entitles the registered
share. As of May 25, 1999, there holder to purchase from FINOVA Group
were 61,082,445 shares of common stock 1/200th of a share of the Junior
outstanding (excluding 3,555,481 Preferred Stock. The purchase price is
treasury shares held by FINOVA Group) $67.50 per 1/200th of a share, subject
and no shares of preferred stock to adjustment under certain
outstanding. However, FINOVA Group has circumstances.
authorized 600,000 shares of Junior
Preferred Stock which have been The Rights will trade only with the
reserved for issuance on the exercise common stock and FINOVA Group will not
of the Rights. issue separate certificates for the
Rights until the "Rights Distribution
COMMON STOCK Date." That date occurs on the first
to occur of the following events:
The holders of the common stock are
entitled to one vote per share. FINOVA * 10 days after a public
Group's certificate of incorporation announcement (the "Share
does not provide for cumulative voting Acquisition Date") that a person
in the election of directors. The or group of persons acting
board may declare dividends on the together has become the
common stock in its discretion, if beneficial owner of at least 20%
funds are legally available for those or more of FINOVA Group's common
purposes. On liquidation, common stock, directly or indirectly
stockholders are entitled to receive (becoming an "Acquiring
pro rata any remaining assets of Person"), or
FINOVA Group, after we satisfy or
provide for the satisfaction of all
liabilities as well as obligations on * 10 business days after the start
our preferred stock, if any. The or announcement of an intention
holders of common stock do not have to make a tender offer or
preemptive rights to subscribe for or exchange offer that would result
purchase any shares of capital stock in a person or group acting
or other securities of FINOVA Group. together beneficially owning 20%
or more of FINOVA Group's common
PREFERRED STOCK stock, directly or indirectly.
The board, however, may extend
Under FINOVA Group's certificate of that 10 business day deadline
incorporation, the board is prior to the time the person or
authorized, without stockholder group becomes an Acquiring
action, to issue preferred stock in Person.
one or more series, with the
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<PAGE>
The Rights may not be exercised may pay the redemption price in cash,
until the Rights Distribution Date. common stock or any other method
The Rights will expire on February 28, selected by the board. Upon
2002 unless we extend that date or, redemption, the right to exercise the
unless we redeem or exchange the Rights will terminate and the holders
Rights before then. will only have the right to receive
the redemption price.
The value of each 1/200th interest
in a share of Junior Preferred Stock NO RIGHTS AS A STOCKHOLDER. Rights
is intended to approximate the value holders, as Rights holders, have no
of one share of FINOVA Group common independent rights as stockholders of
stock, due to the dividend, FINOVA Group, including the right to
liquidation and voting rights of the vote or to receive dividends, until
Junior Preferred Stock, although there the Rights are exercised.
can be no assurance the value will be
the same. ANTITAKEOVER EFFECTS. The Rights
may discourage a takeover. The
HOW THE RIGHTS WORK. If a person or Rights will substantially dilute the
group becomes an Acquiring Person, ownership interest in our shares of
their Rights become void. The other any Acquiring Person. That dilution
Rights holders will have the right to would impair the ability of the
exercise their Rights, at the then Acquiring Person to change the
current exercise price, for FINOVA composition of our board. It also
Group common stock having a market would impact its ability to acquire
value of two times the exercise price FINOVA Group on terms not approved by
of the Right. That right to purchase, our board, including through a tender
however, will not exist if the Rights offer at a premium to the market
Distribution Date is due to a tender price, other than through an offer
or exchange offer for all of FINOVA conditioned on a substantial number of
Group's common stock and the Rights being acquired. The Rights
independent members of our board should not interfere with any merger
determine that the offer is at a fair or business combination approved by
price, on fair terms and is otherwise the board, since we may redeem the
in the best interests of FINOVA Group Rights before they become exercisable.
and its stockholders.
JUNIOR PREFERRED STOCK NOT
The other Rights holders also will REGISTERED. The Junior Preferred Stock
have the same exercise rights is not registered with the SEC or any
described above if, after a person or other securities administrator. If the
group becomes an Acquiring Person, Rights become exercisable, we intend
FINOVA Group is acquired in a merger to register with the SEC the Junior
or business combination or at least Preferred Stock exchangeable for the
half of our total assets and earning Rights.
power are sold. The exception is the
same as the one noted in the above ADDITIONAL PROVISIONS OF THE
paragraph, provided that the price CERTIFICATE OF INCORPORATION, THE
offered to the shareholders for each BYLAWS AND DELAWARE LAW
share of common stock is not less than
that paid in the tender or exchange FINOVA Group's certificate of
offer, and the consideration is in the incorporation and bylaws contain
same form as that paid in the tender provisions that could make more
or exchange offer. If the requirements difficult our acquisition by means of
of this exception are met, then the a tender offer, a proxy contest or
Rights will expire. otherwise. This description is only a
summary and does not provide all the
EXCHANGE OF RIGHTS. After a person information contained in FINOVA
or group becomes an Acquiring Person Group's certificate of incorporation
but before the Acquiring Person and bylaws. To obtain copies of these
acquires at least half of the documents, see "Where You Can Find
outstanding common stock, our board More Information" on page 2.
may exchange all or some of the Rights
at an exchange ratio of one share of Delaware law permits a corporation
common stock for 1/200th of a share of to eliminate or limit the personal
Junior Preferred Stock per Right, liability of its directors to the
subject to adjustment. corporation or to any of its
stockholders for monetary damages for
REDEMPTION OF RIGHTS. We may redeem a breach of fiduciary duty as a
all the Rights, but not some of them, director, except (i) for breach of the
for $.005 per Right at any time before director's duty of loyalty, (ii) for
the earlier of 15 days after the Share acts or omissions not in good faith or
Acquisition Date or the expiration which involve intentional misconduct
date noted above. The board may or a knowing violation of law, (iii)
determine the conditions, terms and for unlawful dividends and stock
effective date for the redemption. We
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<PAGE>
purchases and redemptions or NUMBER OF DIRECTORS; REMOVAL;
(iv) for any transaction from which FILLING VACANCIES. FINOVA Group's
the director derived an improper certificate of incorporation provides
personal benefit. FINOVA Group's that the number of directors will be
certificate of incorporation provides fixed in the manner provided in the
that no director will be personally bylaws, subject to any rights of
liable to FINOVA Group or its preferred stockholders to elect
stockholders for monetary damages for additional directors under specified
any breach of his or her fiduciary circumstances. FINOVA Group's bylaws
duty as a director, except as provided provide that, subject to any rights of
by Delaware law. holders of preferred stock to elect
directors under specified
BOARD OF DIRECTORS. FINOVA Group's circumstances, the number of directors
certificate of incorporation and will be fixed from time to time
bylaws divide the board into three exclusively by directors constituting
classes of directors, with the classes a majority of the total number of
to be as nearly equal in number as directors that FINOVA Group would have
possible. The stockholders elect one if there were no vacancies on the
class of directors each year for a board, but must consist of between 3
three-year term. and 17 directors.
The classification of directors In addition, FINOVA Group's bylaws
makes it more difficult for provide that, subject to any rights of
stockholders to change the composition preferred stockholders, and unless the
of the board. At least two annual board otherwise determines, any
meetings of stockholders, instead of vacancies will be filled only by the
one, generally will be required to affirmative vote of a majority of the
change a majority of the board. That remaining directors, though less than
delay may help ensure that FINOVA a quorum. Accordingly, absent an
Group's directors, if confronted by a amendment to the bylaws, the board
proxy contest, tender or exchange could prevent any stockholder from
offer or extraordinary corporate enlarging the board and filling the
transaction, would have sufficient new directorships with that
time to review the proposal as well as stockholder's own nominees.
any available alternatives to the
proposal and to act in what they Under Delaware law, unless
believe to be the best interest of the otherwise provided in the certificate
stockholders. The classification of incorporation, directors serving on
provisions apply to every election of a classified board may only be removed
directors, regardless of whether a by the stockholders for cause. In
change in the composition of the board addition, FINOVA Group's certificate
would be beneficial to FINOVA Group of incorporation and bylaws provide
and its stockholders and whether or that directors may be removed only for
not a majority of the stockholders cause and only upon the affirmative
believe that such a change is vote of holders of at least 80% of the
desirable. voting power of all the then
outstanding shares of stock entitled
The classification provisions also to vote generally in the election of
could discourage a third party from directors, voting together as a single
initiating a proxy contest, tender class.
offer or other attempt to obtain
control of FINOVA Group, even though STOCKHOLDER ACTION BY WRITTEN
an attempt might be beneficial to CONSENT; SPECIAL MEETINGS.
FINOVA Group and its stockholders. The Stockholders of FINOVA Group must act
classification of the board thus only through an annual or special
increases the likelihood that meeting. Stockholders cannot act by
incumbent directors will retain their written consent in lieu of a meeting.
positions. In addition, because the Only the Chairman or a majority of the
classification provisions may whole board of FINOVA Group may call a
discourage accumulations of large special meeting. Stockholders of
blocks of FINOVA Group's stock by FINOVA Group are not able to call a
purchasers whose objective is to take special meeting to require that the
control of FINOVA Group and remove a board do so. At a special meeting,
majority of the board, the stockholders may consider only the
classification of the board could business specified in the notice of
reduce the likelihood of fluctuations meeting given by FINOVA Group.
in the market price of the common Preferred stockholders may be given
stock that might result from different rights from those noted
accumulations of large blocks. above.
Accordingly, stockholders could be
deprived of certain opportunities to The provisions of FINOVA Group's
sell their shares of common stock at a certificate of incorporation and
higher market price than otherwise bylaws prohibiting stockholder action
might be the case. by written consent may have the effect
15
<PAGE>
of delaying consideration of a A stockholder's notice proposing to
stockholder proposal until the next nominate a person for election as a
annual meeting, unless a special director must contain certain
meeting is called by the Chairman or information, including, without
at the request of a majority of the limitation, the identity and address
whole board. These provisions also of the nominating stockholder, the
would prevent the holders of a class and number of shares of stock of
majority of stock from unilaterally FINOVA Group beneficially owned by the
using the written consent procedure to stockholder and all information
take stockholder action. Moreover, a regarding the proposed nominee that
stockholder could not force would be required to be included in a
stockholder consideration of a proxy statement soliciting proxies for
proposal over the opposition of the the proposed nominee. A stockholder's
Chairman and the board by calling a notice relating to the conduct of
special meeting of stockholders prior business other than the nomination of
to the time the Chairman or a majority directors must contain certain
of the whole board believes that information about that business and
consideration to be appropriate. about the proposing stockholder,
including, without limitation, a brief
ADVANCE NOTICE PROVISIONS FOR description of the business the
STOCKHOLDER NOMINATIONS AND stockholder proposes to bring before
STOCKHOLDER PROPOSALS. The bylaws the meeting, the reasons for
establish an advance notice procedure conducting that business at such
for stockholders to nominate meeting, the name and address of such
directors, or bring other business stockholder, the class and number of
before an annual meeting of shares of stock of FINOVA Group
stockholders of FINOVA Group. beneficially owned by that stockholder
and any material interest of the
A person may not be nominated for a stockholder in the business so
director position unless that person proposed. If the Chairman or other
is nominated by or at the direction of officer presiding at a meeting
the board or by a stockholder who has determines that a person was not
given appropriate notice to FINOVA nominated, or other business was not
Group's Secretary during the periods brought before the meeting, in
noted below prior to the meeting. accordance with these procedures, the
Similarly, stockholders may not bring person will not be eligible for
business before an annual meeting election as a director, or the
unless the stockholder has given business will not be conducted at the
FINOVA Group's Secretary appropriate meeting, as appropriate.
notice of their or its intention to
bring that business before the Advance notice of nominations or
meeting. FINOVA Group's Secretary must proposed business by stockholders
receive the nomination or proposal gives the board time to consider the
between 70 and 90 days before the qualifications of the proposed
first anniversary of the prior year's nominees, the merits of the proposals
annual meeting. If FINOVA Group's and, to the extent deemed necessary or
annual meeting date is advanced by desirable by the board, to inform
more than 20 days or delayed by more stockholders about those matters. The
than 70 days from that anniversary board also may recommend positions
date, then we must receive the notice regarding those nominees or proposals,
between 90 days before the meeting and so that stockholders can better decide
the later of the 70th day before the whether to attend the meeting or to
meeting or 10 days after the meeting grant a proxy regarding the nominee or
date is first publicly announced. that business.
If the board increases the number Although the bylaws do not give the
of directors and if we have not board any power to approve or
publicly announced nominees for each disapprove stockholder nominations for
open position within 80 days before the election of directors or proposals
the first anniversary of the prior for action, these procedures may
year's annual meeting, stockholders preclude a contest for the election of
may nominate directors for the new directors or the consideration of
position, but only those newly created stockholder proposals if the proper
positions, if FINOVA Group's Secretary procedures are not followed, and of
receives the notice no later than 10 discouraging or deterring a third
days following public announcement of party from conducting a solicitation
that change. of proxies to elect its own slate of
directors or to approve its own
Stockholders may nominate directors
only at a special meeting by sending
appropriate notice for receipt by our
Secretary between the 90th day before
the meeting and the later of the 70th
day before the meeting or the 10th day
after the first public announcement of
the meeting date.
16
<PAGE>
proposal, without regard to whether or traded. The NYSE currently requires
consideration of such nominees or stockholder approval in several
proposals might be harmful or instances, including where the present
beneficial to FINOVA Group and its or potential issuance of shares could
stockholders. result in an increase in the number of
shares of common stock, or in the
PREFERRED STOCK. FINOVA Group's amount of voting securities,
certificate of incorporation outstanding of at least 20%, subject
authorizes the board to establish one to certain exceptions. If the approval
or more series of preferred stock and of FINOVA Group's stockholders is not
to determine, with respect to any required for the issuance of shares of
series of preferred stock, the terms preferred stock or common stock, the
and rights of that series, including: board may determine not to seek
stockholder approval.
* the designation of the series,
Although the board has no intention
* the number of shares of the at the present time of doing so, it
series, which the board may could issue a series of preferred
(except where otherwise provided stock that could, depending on its
by the terms of that series) terms, impede a merger, tender offer
increase or decrease (but not or other takeover attempt. The board
below the number of shares will make any determination to issue
thereof then outstanding), shares with those terms based on its
judgment as to the best interests of
* whether dividends, if any, will FINOVA Group and its stockholders. The
be cumulative or noncumulative board, in so acting, could issue
and the dividend rate of the preferred stock having terms that
series, if any, could discourage an acquisition
attempt in which an acquiror would
* the dates at which dividends, if change the composition of the board,
any, will be payable, including a tender offer or other
transaction. An acquisition attempt
* the redemption rights and price could be discouraged in this manner
or prices, if any, for shares of even if some, or a majority, of FINOVA
the series, Group's stockholders might believe it
to be in their best interests or in
* the terms and amounts of any which stockholders might receive a
sinking fund provided for the premium for their stock over the then
purchase or redemption of shares current market price of the stock.
of the series,
MERGER/SALE OF ASSETS. FINOVA
* the amounts payable on shares of Group's certificate of incorporation
the series in the event of any provides that certain "business
voluntary or involuntary combinations" must be approved by the
liquidation, dissolution or holders of at least 66 2/3% of the
winding up of the FINOVA Group's voting power of the shares not owned
affairs, by an "interested shareholder", unless
the business combinations are approved
* whether the shares of the series by the "Continuing Directors" or meet
will be convertible into shares certain requirements regarding price
of any other class or series, or and procedure. The terms quoted in
any other security, of FINOVA this paragraph are defined in the
Group or any other corporation, certificate of incorporation.
and, if so, the specification of
another class or series or AMENDMENT OF THE CERTIFICATE OF
another security, the conversion INCORPORATION AND BYLAWS. Under
price or prices or rate or Delaware law, stockholders may adopt,
rates, any adjustments to the amend or repeal the bylaws and, with
prices or rates, the date or approval of the board, the certificate
dates as of which the shares of incorporation of a corporation. In
shall be convertible and all addition, a corporation's board may
other terms and conditions upon adopt, amend or repeal the bylaws if
which the conversion may be allowed by the certificate of
made, incorporation. FINOVA Group's
certificate of incorporation requires
* restrictions on the issuance of a vote of:
shares of the same series or of
any other class or series and * at least 80% of the outstanding
shares of voting stock, voting
* the voting rights, if any, of together as a single class, to
the holders of shares of the amend provisions of the
series. certificate of incorporation
relating to the prohibition of
FINOVA Group believes that the stockholder action without a
ability of the board to issue one or meeting; the number, election
more series of preferred stock will and term of FINOVA Group's
provide FINOVA Group with flexibility directors; and the removal of
in structuring possible future directors;
financings and acquisitions, and in
meeting other corporate needs which * at least 66 2/3% of the
might arise. The authorized shares of outstanding shares of voting
preferred stock, as well as shares of stock, voting together as a
common stock, will be available for single class, to amend the
issuance without further action by provisions of the certificate
FINOVA Group's stockholders, unless of incorporation relating to
approval is required by applicable law to approval of certain business
or the rules of any stock exchange or combinations; and
automated quotation system on which
FINOVA Group's securities are listed
17
<PAGE>
* at least a majority of the subsequent to that date, the board and
outstanding shares of voting 66 2/3% of the outstanding voting
stock, voting together as a stock not owned by the interested
single class, to amend all other stockholder approved the business
provisions of the certificate of combination. Except as specified by
incorporation. Delaware law, an interested
stockholder includes (x) any person
FINOVA Group's certificate of that is the owner of 15% or more of
incorporation further provides that the outstanding voting stock of the
the bylaws may be amended by the board corporation, or is an affiliate or
or by the affirmative vote of the associate of the corporation and was
holders of at least 80% of the voting the owner of 15% or more of the
power of the outstanding shares of outstanding voting stock of the
voting stock, voting together as a corporation, at any time within three
single class. These supermajority years immediately prior to the
voting requirements make the amendment relevant date, and (y) the affiliates
by stockholders of the bylaws or of and associates of that person.
any of the provisions of the
certificate of incorporation described Under some circumstances, Delaware
above more difficult, even if a law makes it more difficult for an
majority of FINOVA Group's "interested stockholder" to enter
stockholders believe that amendment into various business combinations
would be in their best interests. with a corporation for a three-year
period, although stockholders may
ANTITAKEOVER LEGISLATION. Subject adopt an amendment to a corporation's
to exceptions, Delaware law does certificate of incorporation or
not allow a corporation to engage bylaws excluding the corporation from
in a business combination with any those restrictions. However, FINOVA
"interested stockholder" for a Group's certificate of incorporation
three-year period following the date and bylaws do not exclude FINOVA
that the stockholder becomes an Group from the restrictions imposed
interested stockholder, unless (i) under Delaware law. These provisions
prior to that date, the board approved of Delaware law may encourage
either the business combination or the companies interested in acquiring
transaction which resulted in the FINOVA Group to negotiate in advance
stockholder becoming an interested with the board, since the stockholder
stockholder, (ii) on that date, the approval requirement would be avoided
interested stockholder owned at least if a majority of the board approves
85% of the voting stock of the either the business combination or
corporation outstanding at the time the transaction which results in the
the transaction commenced (excluding stockholder becoming an interested
certain shares) or (iii) on or stockholder.
DESCRIPTION OF DEPOSITARY SHARES
The following summary of certain deposit agreement between us and a
provisions of the Deposit Agreement, bank or trust company selected by us
the depositary shares and depositary having its principal office in the
receipts is not complete. You should U.S. and having a combined capital and
refer to the forms of Deposit surplus of at least $50 million.
Agreement and depositary receipts Subject to the terms of the deposit
relating to each series of preferred agreement, each owner of depositary
stock that will be filed with the SEC. shares will be entitled, in proportion
To obtain copies of these documents to the applicable fractional interests
once filed, see "Where You Can in shares of preferred stock
Find More Information" on page 2. underlying the depositary shares to
all the rights and preferences of the
GENERAL preferred stock underlying the
depositary shares. Those rights
We may offer fractional interests include dividend, voting, redemption,
in shares of preferred stock, instead conversion and liquidation rights.
of shares of preferred stock. If we
do, we will have a depositary issue to The depositary shares will be
the public receipts for depositary evidenced by depositary receipts
shares, each of which will represent issued under the deposit agreement.
fractional interests of a particular Individuals purchasing the fractional
series of preferred stock. interests in shares of the related
series of preferred stock will receive
We will deposit shares of any depositary receipts according to the
series of preferred stock underlying terms of the offering described in the
the depositary shares under a separate supplement.
18
<PAGE>
DIVIDENDS AND OTHER DISTRIBUTIONS redemption date, the number of
depositary shares representing the
The depositary will distribute all preferred stock. The depositary shares
cash dividends or other cash to be redeemed will be selected by lot
distributions received for the or pro rata as determined by the
preferred stock to the record holders depositary when less than all
of depositary shares representing the outstanding depositary shares will be
preferred stock in proportion to the redeemed.
number of depositary shares owned by
those holders on the relevant record After the redemption date, the
date. The depositary will distribute depositary shares redeemed will no
only the amount that can be longer be outstanding. When this
distributed without attributing to any occurs, all rights of the holders will
holder of depositary shares a fraction cease, except the right to receive
of one cent. The undistributed balance money, securities or other property
will be added to and treated as part payable upon redemption and any money,
of the next amount received by the securities or other property that the
depositary for distribution to record holders of depositary shares were
holders of depositary shares. entitled to on the redemption upon
surrender to the depositary of the
If there is a distribution other depositary receipts evidencing the
than in cash, the depositary will depositary shares redeemed.
distribute property received by it to
the record holders of depositary VOTING THE PREFERRED STOCK
shares, in proportion, if possible, to
the number of depositary shares owned Upon receipt of notice of any
by those holders, unless the meeting at which the holders of the
depositary determines (after preferred stock are entitled to vote,
consulting with us) that it cannot the depositary will mail all relevant
make the distribution. If this occurs, information to the record holders of
the depositary may, with our approval, the depositary shares representing the
sell the property and distribute the preferred stock. The record holders
net proceeds from the sale to the may instruct the depositary how to
holders of depositary shares. vote the shares of preferred stock
underlying their depositary shares.
The deposit agreement also will The depositary will try, if practical,
state how any subscription or similar to vote the number of shares of
rights offered by us to holders of the preferred stock underlying the
preferred stock will be made available depositary shares according to the
to holders of depositary shares. instructions, and we will agree to
take all reasonable action requested
CONVERSION AND EXCHANGE by the depositary so the depositary
may follow the instructions.
If any series of preferred stock
underlying the depositary shares is AMENDMENT AND TERMINATION OF
subject to conversion or exchange, DEPOSITARY AGREEMENT
each record holder of depositary
receipts may convert or exchange the The form of depositary receipt and
depositary shares represented by those any provision of the deposit agreement
depositary receipts. may be amended by agreement between us
and the depositary. However, any
REDEMPTION OF DEPOSITARY SHARES amendment that materially and
adversely alters the rights of the
If a series of the preferred stock existing holders of depositary shares
underlying the depositary shares is will not be effective unless approved
subject to redemption, the depositary by the record holders of at least a
will redeem the depositary shares from majority of the depositary shares then
the proceeds received by the outstanding. We or the depositary may
depositary in the redemption, in whole only terminate the deposit agreement
or in part, of the series of the if (a) all related outstanding
preferred stock held by the depositary shares have been redeemed
depositary. The depositary will mail or (b) there has been a final
notice of redemption within 30 to 60 distribution of the preferred stock of
days prior to the date fixed for the relevant series in connection with
redemption to the record holders of our liquidation, dissolution or
the depositary shares to be redeemed winding up and that distribution has
at their addresses appearing in the been distributed to the holders of the
depositary's books. The redemption related depositary shares.
price per depositary share will equal
the applicable fraction of the
redemption price per share payable on
such series of the preferred stock.
Whenever we redeem shares of preferred
stock held by the depositary, the
depositary will redeem as of the same
19
<PAGE>
CHARGES OF DEPOSITARY MISCELLANEOUS
We will pay all transfer and other The depositary will send to the
taxes and governmental charges arising holders of depositary shares all
solely from the existence of the reports and communications from us
depositary arrangements. We will pay that we must furnish to the holders of
associated charges of the depositary preferred stock.
for the initial deposit of the
preferred stock and any redemption of We and the depositary will not be
the preferred stock. Holders of liable if we are prevented or delayed
depositary shares will pay transfer by law or any circumstance beyond our
and other taxes and governmental control in performing our obligations
charges and any other charges stated under the deposit agreement. Those
in the deposit agreement to be for obligations will be limited to
their accounts. performance in good faith of duties
set forth in the deposit agreement. We
RESIGNATION AND REMOVAL OF DEPOSITARY and the depositary will not be
obligated to prosecute or defend any
The depositary may resign by legal proceeding connected with any
delivering notice to us, and we may depositary shares or preferred stock
remove the depositary. Resignations or unless satisfactory indemnity is
removals will take effect upon the furnished. We and the depositary may
appointment and acceptance of a rely upon written advice of counsel or
successor depositary. We must appoint accountants, or information provided
a successor depositary within 60 days by persons presenting preferred stock
after delivery of the notice of for deposit, holders of depositary
resignation or removal. The successor shares, or other persons believed to
depositary must be a bank or trust be competent and on documents believed
company having its principal office in to be genuine.
the U.S. and having a combined capital
and surplus of at least $50 million.
DESCRIPTION OF WARRANTS
We may issue warrants for the for the warrants and will not act for
purchase of debt securities, preferred or on behalf of the holders or
stock or common stock. We may issue beneficial owners of warrants. This
warrants independently or together summary of certain provisions of the
with debt securities, common stock or warrants is not complete. You should
preferred stock or attached to or refer to the provisions of the warrant
separate from the offered securities. agreement that will be filed with the
We will issue each series of warrants SEC as part of the offering of any
under a separate warrant agreement warrants. To obtain a copy of this
between us and a bank or trust document, see "Where You Can Find More
company, as warrant agent. The warrant Information" on page 2.
agent will act solely as our agent
PLAN OF DISTRIBUTION
FINOVA Group and FINOVA Capital securities laws and other laws. The
may offer securities directly or underwriters' obligations to purchase
through underwriters, dealers or securities will be subject to
agents. The supplement will identify conditions and generally will require
those underwriters, dealers or agents them to purchase all of the securities
and will describe the plan of if any are purchased.
distribution, including commissions
to be paid. If we do not name a firm Unless otherwise noted in the
in the supplement, that firm may not supplement, the securities will be
directly or indirectly participate in offered by the underwriters, if any,
any underwriting of those securities, when, as and if issued by us,
although it may participate in the delivered to and accepted by the
distribution of securities under underwriters and subject to their
circumstances entitling it to a right to reject orders in whole or in
dealer's allowance or agent's part.
commission.
FINOVA Group and FINOVA Capital
Any underwriting agreement probably may sell securities to dealers, as
will entitle the underwriters to principals. Those dealers then may
indemnity against some civil
liabilities under the Federal
20
<PAGE>
resell the securities to the public at * Stabilizing transactions permit
varying prices set by those dealers bids to purchase the underlying
from time to time. security so long as the
stabilizing bids do not exceed a
FINOVA Group and FINOVA Capital specified maximum.
also may offer securities through
agents. Agents generally act on a * Short covering transactions
"best efforts" basis during their involve purchases of the
appointment, meaning they are not securities in the open market
obligated to purchase securities. after the distribution is
completed to cover short
Dealers and agents may be entitled positions.
to indemnification as underwriters by
us against some liabilities under * Penalty bids permit the
the Federal securities laws and other underwriters to reclaim a
laws. selling concession from a dealer
when the securities originally
FINOVA Group and FINOVA Capital or sold by the dealer are purchased
the underwriters or agents may solicit in a covering transaction to
offers by institutions approved by us cover short positions.
to purchase securities under contracts
providing for future payment. Those activities may cause the
Permitted institutions include price of the securities to be higher
commercial and savings banks, than it would otherwise be. The
insurance companies, pension funds, underwriters may engage in some
investment companies, educational and activities on any exchange or other
charitable institutions and others. market in which the securities may be
Conditions apply to those purchases. traded. If commenced, the underwriters
may discontinue those activities at
Any underwriter may engage in any time.
over-allotment, stabilizing trans-
actions, short covering transactions The supplement or pricing
and penalty bids in accordance with supplement, as applicable, will set
Regulation M under the Securities forth the anticipated delivery date of
Exchange Act of 1934. the securities being sold at that
time.
* Over-allotment involves sales in
excess of the offering size,
which creates a short position.
LEGAL MATTERS
Unless otherwise noted in a will pass on the legality of the
supplement, William J. Hallinan, Esq., securities offered through this
Senior Vice President-General Counsel prospectus and any supplement. Brown &
of FINOVA Group and FINOVA Capital, or Wood LLP will act as counsel for any
Richard Lieberman, Esq., Vice underwriters or agents, unless
President-Associate General Counsel of otherwise noted in a supplement.
FINOVA Group and FINOVA Capital,
EXPERTS
The financial statements express an unqualified opinion and
incorporated in this prospectus by include an explanatory paragraph
reference from FINOVA Group Inc.'s relating to the restatements
and FINOVA Capital Corporation's described in Note T of FINOVA Group
Annual Reports on Form 10-K/A for the Inc.'s and Note R of FINOVA Capital
year ended December 31, 1998 have Corporation's financial statements)
been audited by Deloitte & Touche which is incorporated herein by
LLP, independent auditors, as stated reference, and have been so
in their reports dated February 10, incorporated in reliance upon the
1999, April 23, 1999 as to Note T for reports of such firm given upon their
The FINOVA Group Inc. and Note R for authority as experts in accounting
FINOVA Capital Corporation (which and auditing.
21
<PAGE>
YOU SHOULD RELY ONLY ON THE
INFORMATION CONTAINED OR $3,000,000,000
INCORPORATED BY REFERENCE IN THIS
PROSPECTUS. WE HAVE AUTHORIZED NO ONE
TO PROVIDE YOU WITH DIFFERENT
INFORMATION.
WE ARE NOT MAKING AN OFFER OF THESE
SECURITIES IN ANY LOCATION WHERE THE
OFFER IS NOT PERMITTED.
YOU SHOULD NOT ASSUME THAT THE
INFORMATION IN THIS PROSPECTUS, THE FINOVA GROUP INC.
INCLUDING INFORMATION INCORPORATED BY FINOVA CAPITAL CORPORATION
REFERENCE, IS ACCURATE AS OF ANY DATE
OTHER THAN THE DATE ON THE FRONT OF
THE PROSPECTUS. DEBT SECURITIES, COMMON STOCK,
PREFERRED STOCK, DEPOSITARY SHARES
------------- AND WARRANTS
TABLE OF CONTENTS
Page
----
Where You Can Find More
Information................... 2
The Companies................... 2
Selected Financial Information.. 5 ---------------------------
Ratio Of Income To Total
Fixed Charges................. 5 PROSPECTUS
Ratio Of Income To Combined
Fixed Charges And Preferred ---------------------------
Stock Dividends............... 5
Special Note Regarding
Forward-Looking Statements.... 6
Use Of Proceeds................. 6
Description Of Debt Securities.. 7
Description Of Capital Stock.... 13
Description Of Depositary
Shares........................ 18
Description Of Warrants......... 20
Plan Of Distribution............ 20
Legal Matters................... 21
Experts......................... 21 _____________, 1999
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The estimated amounts of the expenses of and related to the offering
are as follows:
Registration fee................................ $ 834,000.00
Rating agency fees*............................. $1,500,000.00
Printing fees*.................................. $ 150,000.00
Legal fees and expenses*........................ $ 250,000.00
Accounting fees and expenses*................... $ 412,500.00
Blue sky fees and expenses*..................... $ 3,000.00
New York Stock Exchange listing fees*........... $ 30,000.00
Trustee fees and expenses*...................... $ 300,000.00
Miscellaneous expenses*......................... $ 20,500.00
-------------
Total*........................ $3,500,000.00
=============
- -----------
* Estimated
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The General Corporation Law of the State of Delaware (the "DGCL"), the
state of incorporation of each of the Registrants, and the Certificate of
Incorporation and Bylaws of each of the Registrants provide for indemnification
of directors and officers. Section 145 of the DGCL provides generally that a
person sued as a director, officer, employee or agent of a corporation may be
indemnified by the corporation for reasonable expenses, including attorneys'
fees, if, in cases other than actions brought by or in the right of the
corporation, he or she has acted in good faith and in a manner he or she
reasonably believed to be in, or not opposed to, the best interests of the
corporation (and in the case of a criminal proceeding, had no reasonable cause
to believe that his or her conduct was unlawful). Section 145 provides that no
indemnification for any claim or matter may be made, in the case of an action
brought by or in the right of the corporation, if the person has been adjudged
to be liable, unless the Court of Chancery or other court determines that
indemnity is fair and reasonable despite the adjudication of liability.
Indemnification is mandatory in the case of a director, officer, employee or
agent who has been successful on the merits, or otherwise, in defense of a suit
against him or her.
Directors and officers of each of the Registrants are covered under
policies of directors' and officers' liability insurance with coverage
aggregating $100,000,000. The directors serving each of the Registrants are
parties to Indemnification Agreements with each respective Registrant (the
"Indemnification Agreements"). The Indemnification Agreements provide
substantially the same scope of coverage afforded by provisions in the
Certificate of Incorporation and Bylaws and are designed to provide greater
assurance to the directors that indemnification will be available because as
contracts, the Indemnification Agreements may not be unilaterally modified by
the Registrants' Boards of Directors or stockholders. The Indemnification
Agreements generally are intended to provide indemnification for any amounts a
director is legally obligated to pay because of claims arising out of the
director's service to the Registrants or any other subsidiary of the
Registrants.
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ITEM 16. EXHIBITS
1.1 Form of Senior Debt Securities Underwriting Agreement (incorporated by
reference to Exhibit 1.1 to the joint Registration Statement of The
FINOVA Group Inc. and FINOVA Capital Corporation on Form S-3, SEC File
No. 333-38171 (the "1997 S-3"))
4.1 Restated Certificate of Incorporation of The FINOVA Group Inc.*
4.2 Amended and Restated Bylaws of The FINOVA Group Inc. (incorporated by
reference to Exhibit 3.B to The FINOVA Group Inc.'s Annual Report on
Form 10-K for the year ended December 31, 1995)
4.3 Amended and Restated Rights Agreement between The FINOVA Group Inc.
and Bank One, Arizona, N.A. (incorporated by reference to Exhibit 4.1
to The FINOVA Group Inc.'s Current Report on Form 8-K, dated September
21, 1995)
4.4 Form of Junior Participating Preferred Share Purchase Right (included
as an exhibit to Exhibit 4.3 above)
4.5 Acceptance of Successor trustee to Appointment under Rights Agreement
(incorporated by reference to Exhibit 4 to The FINOVA Group Inc.'s
Current Report on Form 8-K, dated November 30, 1995)
4.6 Amended and Restated Certificate of Incorporation of FINOVA Capital
Corporation (incorporated by reference to Exhibit 3.A to FINOVA
Capital Corporation's Annual Report on Form 10-K for the year ended
December 31, 1996)
4.7 Bylaws of FINOVA Capital Corporation (incorporated by reference to
Exhibit 3.B to FINOVA Capital Corporation's Annual Report on Form 10-K
for the year ended December 31, 1996)
4.8.A Indenture, dated as of May 15, 1999, between FINOVA Capital
Corporation and The First National Bank of Chicago, as trustee.*
4.8.B Indenture, dated as of May 15, 1999, between FINOVA Capital
Corporation and Norwest Bank Minnesota, National Association, as
trustee.*
4.8.C Indenture, dated as of May 15, 1999, between FINOVA Capital
Corporation and FMB Bank, as trustee.*
4.9 Form of Convertible Debt Security**
4.10 Form of Preferred Stock Certificate of Designations**
4.11 Form of Fixed Rate Note (incorporated by reference to Exhibit 4.11 to
the 1997 S-3)
4.12 Form of Floating Rate Note (incorporated by reference to Exhibit 4.12
to the 1997 S-3)
4.13 Form of deposit agreement**
4.14 Form of Deposit Receipt**
4.15 Form of Warrant**
4.16 Form of Warrant Agreement**
5.1 Opinion of Richard Lieberman, Esq. as to the legality of the
securities to be issued***
12.1 Statement of Computation of Ratios of The FINOVA Group Inc.*
12.2 Statement of Computation of Ratios of FINOVA Capital Corporation*
23.1 Consent of Deloitte & Touche LLP*
23.2 Consent of Richard Lieberman, Esq.(included in Exhibit 5.1)
24.1 Power of Attorney***
25.1 Form T-1 Statement of Eligibility of The First National Bank of
Chicago.*
25.2 Form T-1 Statement of Eligibility of Norwest Bank Minnesota,
National Association.*
25.3 Form T-1 Statement of Eligibility of FMB Bank.*
- ----------
* Filed herewith.
** To be filed with a Current Report on Form 8-K or a Post-Effective Amendment
to Registration Statement
*** Previously filed.
ITEM 17. UNDERTAKINGS
The undersigned Registrants hereby undertake:
(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;
(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 this registration statement; and
II-2
<PAGE>
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in this registration
statement or any material change to such information in this
registration statement;
provided however, that subparagraphs (i) and (ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in the periodic reports filed with or furnished to the
Commission by the Registrants pursuant to Section 13 or Section 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 herein, 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.
The undersigned Registrants hereby further undertake that, for the
purposes of determining any liability under the Securities Act of 1933, each
filing of the Registrants' annual reports pursuant to Section 13(a) or Section
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 Exchange Act of 1934) that is incorporated by reference in this
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.
The undersigned Registrants hereby further undertake that:
(1) For purposes 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 Registrants 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.
(2) 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.
The undersigned Registrants hereby further undertake to file an
application for the purpose of determining the eligibility of the trustee 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.
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 provisions described under Item 15 of this
registration statement, or otherwise (other than insurance), the Registrant has
been advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in such Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Registrants of expenses incurred
or paid by a director, officer or controlling person of the Registrants 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 Registrants will, unless in the opinion of 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 such Act and will be governed by the final adjudication
of such issue.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the 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 amended
registration statement on Form S-3/A to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Phoenix, State of
Arizona, on the 28th day of May, 1999.
THE FINOVA GROUP INC.
By: /s/ Bruno A. Marszowski
---------------------------
Bruno A. Marszowski
Senior Vice President-Controller
and Chief Financial Officer
(Principal Financial and
Accounting Officer)
Pursuant to the requirement of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
* Director, Chairman, President and May 28, 1999
- --------------------------- Chief Executive Officer (Principal
Samuel L. Eichenfield Executive Officer)
/s/ Bruno A. Marszowski Senior Vice President-Controller May 28, 1999
- --------------------------- and Chief Financial Officer
Bruno A. Marszowski (Principal Financial and
Accounting Officer)
* Director May 28, 1999
- ---------------------------
Robert H. Clark, Jr.
* Director May 28, 1999
- ---------------------------
Constance R. Curran
* Director May 28, 1999
- ---------------------------
G. Robert Durham
* Director May 28, 1999
- ---------------------------
James L. Johnson
* Director May 28, 1999
- ---------------------------
Kenneth R. Smith
* Director May 28, 1999
- ---------------------------
Shoshana B. Tancer
* Director May 28, 1999
- ---------------------------
John W. Teets
* Signed pursuant to Powers of Attorney dated March 16, 1999.
/s/ Bruno A. Marszowski
- ---------------------------
Bruno A. Marszowski
Attorney-in-Fact
May 28, 1999
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the 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 amended
registration statement on Form S-3/A to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Phoenix, State of
Arizona, on the 28th day of May, 1999.
FINOVA CAPITAL CORPORATION
By: /s/ Bruno A. Marszowski
---------------------------
Bruno A. Marszowski
Senior Vice President-Controller
and Chief Financial Officer
(Principal Financial and
Accounting Officer)
Pursuant to the requirement of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
* Director, Chairman, President and May 28, 1999
- --------------------------- Chief Executive Officer (Principal
Samuel L. Eichenfield Executive Officer)
/s/ Bruno A. Marszowski Senior Vice President-Controller May 28, 1999
- --------------------------- and Chief Financial Officer
Bruno A. Marszowski (Principal Financial and
Accounting Officer)
* Director May 28, 1999
- ---------------------------
Meilee Smythe
* Director May 28, 1999
- ---------------------------
W. Carroll Bumpers
* Director May 28, 1999
- ---------------------------
Gregory C. Smalis
* Signed pursuant to a Power of Attorney dated March 16, 1999.
/s/ Bruno A. Marszowski
- ---------------------------
Attorney-in-Fact
May 28, 1999
II-5
<PAGE>
EXHIBIT INDEX
Exhibit No. Description
- ----------- -----------
1.1 Form of Senior Debt Securities Underwriting Agreement (incorporated by
reference to Exhibit 1.1 to the joint Registration Statement of The
FINOVA Group Inc. and FINOVA Capital Corporation on Form S-3, SEC File
No. 333-38171 (the "1997 S-3"))
4.1 Restated Certificate of Incorporation of The FINOVA Group Inc.*
4.2 Amended and Restated Bylaws of The FINOVA Group Inc. (incorporated by
reference to Exhibit 3.B to The FINOVA Group Inc.'s Annual Report on
Form 10-K for the year ended December 31, 1995)
4.3 Amended and Restated Rights Agreement between The FINOVA Group Inc.
and Bank One, Arizona, N.A. (incorporated by reference to Exhibit 4.1
to The FINOVA Group Inc.'s Current Report on Form 8-K, dated September
21, 1995)
4.4 Form of Junior Participating Preferred Share Purchase Right (included
as an exhibit to Exhibit 4.3 above)
4.5 Acceptance of Successor trustee to Appointment under Rights Agreement
(incorporated by reference to Exhibit 4 to The FINOVA Group Inc.'s
Current Report on Form 8-K, dated November 30, 1995)
4.6 Amended and Restated Certificate of Incorporation of FINOVA Capital
Corporation (incorporated by reference to Exhibit 3.A to FINOVA
Capital Corporation's Annual Report on Form 10-K for the year ended
December 31, 1996)
4.7 Bylaws of FINOVA Capital Corporation (incorporated by reference to
Exhibit 3.B to FINOVA Capital Corporation's Annual Report on Form 10-K
for the year ended December 31, 1996)
4.8.A Indenture, dated as of May 15, 1999, between FINOVA Capital
Corporation and The First National Bank of Chicago, as trustee.*
4.8.B Indenture, dated as of May 15, 1999, between FINOVA Capital
Corporation and Norwest Bank Minnesota, National Association, as
trustee.*
4.8.C Indenture, dated as of May 15, 1999, between FINOVA Capital
Corporation and FMB Bank, as trustee.*
4.9 Form of Convertible Debt Security**
4.10 Form of Preferred Stock Certificate of Designations**
4.11 Form of Fixed Rate Note (incorporated by reference to Exhibit 4.11 to
the 1997 S-3)
4.12 Form of Floating Rate Note (incorporated by reference to Exhibit 4.12
to the 1997 S-3)
4.13 Form of deposit agreement**
4.14 Form of Deposit Receipt**
4.15 Form of Warrant**
4.16 Form of Warrant Agreement**
5.1 Opinion of Richard Lieberman, Esq. as to the legality of the
securities to be issued***
12.1 Statement of Computation of Ratios of The FINOVA Group Inc.*
12.2 Statement of Computation of Ratios of FINOVA Capital Corporation*
23.1 Consent of Deloitte & Touche LLP*
23.2 Consent of Richard Lieberman, Esq.(included in Exhibit 5.1)
24.1 Power of Attorney***
25.1 Form T-1 Statement of Eligibility of The First National Bank of
Chicago.*
25.2 Form T-1 Statement of Eligibility of Norwest Bank Minnesota,
National Association.*
25.3 Form T-1 Statement of Eligibility of FMB Bank.*
- ----------
* Filed herewith.
** To be filed with a Current Report on Form 8-K or a Post-Effective Amendment
to Registration Statement
*** Previously filed.
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
THE FINOVA GROUP INC.
1. The name of the corporation (which is hereinafter referred to as the
"Corporation") is "The FINOVA Group Inc."
2. The original Certificate of Incorporation was filed with the Secretary
of State of the State of Delaware on December 16, 1991, under the name GFC
Financial Corporation.
3. This Amended and Restated Certificate of Incorporation has been duly
proposed by resolutions adopted and declared advisable by the Board of Directors
of the Corporation, duly adopted by the stockholders of the Corporation at a
meeting and duly executed and acknowledged by the officers of the Corporation in
accordance with the provisions of Sections 103, 222, 242 and 245 of the General
Corporation Law of the State of Delaware and, upon filing with the Secretary of
State in accordance with Section 103, shall thenceforth supersede the original
Certificate of Incorporation and shall, as it may thereafter be amended in
accordance with its terms and applicable law, be the Certificate of
Incorporation of the Corporation.
4. The text of the Certificate of Incorporation of the Corporation is
hereby amended and restated to read in its entirety as follows:
ARTICLE I
The name of the corporation (which is hereinafter referred to as the
"Corporation") is:
The FINOVA Group Inc.
ARTICLE II
The address of the Corporation's registered office in the State of Delaware
is The Corporation Trust Center, 1209 Orange Street in the City of Wilmington,
County of New Castle. The name of the Corporation's registered agent at such
address is The Corporation Trust Company.
ARTICLE III
The purpose of the Corporation shall be to engage in any lawful act or
activity for which corporations may be organized and incorporated under the
General Corporation Law of the State of Delaware (the "GCL").
ARTICLE IV
The total number of shares of stock which the Corporation shall have
authority to issue is Four Hundred and Twenty Million (420,000,000), consisting
of Twenty Million (20,000,000) shares of Preferred Stock, par value $.01 per
share (hereinafter referred to as "Preferred Stock"), and Four Hundred Million
(400,000,000) shares of Common Stock, par value $.01 per share (hereinafter
referred to as "Common Stock").
1
<PAGE>
The Preferred Stock may be issued from time to time in one or more series.
The Board of Directors is hereby authorized to provide for the issuance of
shares of Preferred Stock in series and, by filing a certificate pursuant to the
applicable law of the State of Delaware (hereinafter referred to as "Preferred
Stock Designation"), to establish from time to time the number of shares to be
included in each such series, and to fix the designation, powers, preferences
and rights of the shares of each such series and the qualifications, limitations
and restrictions thereof. The authority of the Board of Directors with respect
to each series shall include, but not be limited to, determination of the
following:
(a) The designation of the series, which may be by distinguishing number,
letter or title.
(b) The number of shares of the series, which number the Board of Directors
may thereafter (except where otherwise provided in the Preferred Stock
Designation) increase or decrease (but not below the number of shares thereof
then outstanding).
(c) Whether dividends, if any, shall be cumulative or noncumulative and the
dividend rate of the series.
(d) Dates at which dividends, if any, shall be payable.
(e) The redemption rights and price or prices, if any, for shares of the
series.
(f) The terms and amount of any sinking fund provided for the purchase or
redemption of shares of the series.
(g) The amounts payable on, and the preferences, if any, of shares of the
series in the event of any voluntary or involuntary liquidation, dissolution or
winding up of the affairs of the Corporation.
(h) Whether the shares of the series shall be convertible into shares of
any other class or series, or any other security, of the Corporation or any
other corporation, and, if so, the specification of such other class or series
of such other security, the conversion price or prices or rate or rates, any
adjustments thereof, the date or dates at which such shares shall be convertible
and all other terms and conditions upon which such conversion may be made.
(i) Restrictions on the issuance of shares of the same series or of any
other class or series.
(j) The voting rights, if any, of the holders of shares of the series.
The Common Stock shall be subject to the express terms of the Preferred
Stock and any series thereof. Each share of Common Stock shall be equal to each
other share of Common Stock. The holders of shares of Common Stock shall be
entitled to one vote for each such share upon all questions presented to the
stockholders.
Except as may be provided in this Certificate of Incorporation or in a
Preferred Stock Designation, or as may be required by law, the Common Stock
shall have the exclusive right to vote for the election of directors and for all
other purposes, and holders of Preferred Stock shall not be entitled to receive
notice of any meeting of stockholders at which they are not entitled to vote.
The Corporation shall be entitled to treat the person in whose name any
share of its stock is registered as the owner thereof for all purposes and shall
not be bound to recognize any equitable or other claim to, or interest in, such
share on the part of any other person, whether or not the Corporation shall have
notice thereof, except as expressly provided by applicable law.
2
<PAGE>
ARTICLE V
The Board of Directors is hereby authorized to create and issue, whether or
not in connection with the issuance and sale of any of its stock or other
securities or property, rights entitling the holders thereof to purchase from
the Corporation shares of stock or other securities of the Corporation or any
other corporation. The times at which and the terms upon which such rights are
to be issued will be determined by the Board of Directors and set forth in the
contracts or instruments that evidence such rights. The authority of the Board
of Directors with respect to such rights shall include, but not be limited to,
determination of the following:
(a) The initial purchase price per share or other unit of the stock or
other securities or property to be purchased upon exercise of such rights.
(b) Provisions relating to the times at which and the circumstances under
which such rights may be exercised or sold or otherwise transferred, either
together with or separately from, any other stock, or other securities of the
Corporation.
(c) Provisions which adjust the number or exercise price of such rights or
amount or nature of the stock or other securities or property receivable upon
exercise of such rights in the event of a combination, split or recapitalization
of any stock of the Corporation, a change in ownership of the Corporation's
stock or other securities or a reorganization, merger, consolidation, sale of
assets or other occurrence relating to the Corporation or any stock of the
Corporation, and provisions restricting the ability of the Corporation to enter
into any such transaction absent an assumption by the other party or parties
thereto of the obligations of the Corporation under such rights.
(d) Provisions which deny the holder of a specified percentage of the
outstanding stock or other securities of the Corporation the right to exercise
such rights and/or cause the rights held by such holder to become void.
(e) Provisions which permit the Corporation to redeem or exchange such
rights.
(f) The appointment of a rights agent with respect to such rights.
ARTICLE VI
In furtherance of, and not in limitation of, the powers conferred by law,
the Board of Directors is expressly authorized and empowered:
(a) to adopt, amend or repeal the Bylaws of the Corporation; provided,
however, that the Bylaws adopted by the Board of Directors under the powers
hereby conferred may be amended or repealed by the Board of Directors or by the
stockholders having voting power with respect thereto, provided further that in
the case of amendments by stockholders, the affirmative vote of the holders of
at least 80 percent of the voting power of the then outstanding Voting Stock,
voting together as a single class, shall be required to alter, amend or repeal
any provision of the Bylaws; and
(b) from time to time to determine whether and to what extent, and at what
times and places, and under what conditions and regulations, the accounts and
books of the Corporation, or any of them, shall be open to inspection of
stockholders; and, except as so determined or as expressly provided in this
Certificate of Incorporation or in any Preferred Stock Designation, no
stockholder shall have any right to inspect any account, book or document of the
Corporation other than such rights as may be conferred by applicable law.
3
<PAGE>
The Corporation may in its Bylaws confer powers upon the Board of Directors
in addition to the foregoing and in addition to the powers and authorities
expressly conferred upon the Board of Directors by applicable law.
Notwithstanding anything contained in this Certificate of Incorporation to the
contrary, the affirmative vote of the holders of at least 80 percent of the
voting power of the then outstanding Voting Stock, voting together as a single
class, shall be required to amend, repeal or adopt any provision inconsistent
with paragraph (a) of this Article VI. For the purposes of this Certificate of
Incorporation, "Voting Stock" shall mean the outstanding shares of capital stock
of the Corporation entitled to vote generally in the election of directors.
ARTICLE VII
Subject to the rights of the holders of any series of Preferred Stock or
any other series or class of stock as set forth in the Certificate of
Incorporation to elect additional directors under specific circumstances, any
action required or permitted to be taken by the stockholders of the Corporation
must be effected at a duly called annual or special meeting of stockholders of
the Corporation and may not be affected by any consent in writing in lieu of a
meeting of such stockholders. Notwithstanding anything contained in this
Certificate of Incorporation to the contrary, the affirmative vote of at least
80 percent of the voting power of the then outstanding Voting Stock, voting
together as a single class, shall be required to amend, repeal or adopt any
provision inconsistent with this Article VII.
ARTICLE VIII
Subject to the rights of the holders of any series of Preferred Stock or
any other series or class of stock as set forth in the Certificate of
Incorporation to elect additional directors under specified circumstances, the
number of directors of the Corporation shall be fixed by the Bylaws of the
Corporation and may be increased or decreased from time to time in such a manner
as may be prescribed by the Bylaws.
Unless and except to the extent that the Bylaws of the Corporation shall so
require, the election of directors of the Corporation need not be by written
ballot.
The directors, other than those who may be elected by the holders of any
series of Preferred Stock or any other series or class of stock as set forth in
the Certificate of Incorporation, shall be divided into three classes, as nearly
equal in number as possible. One class of directors shall be initially elected
for a term expiring at the annual meeting of stockholders to be held in 1993,
another class shall be initially elected for a term expiring at the annual
meeting of stockholders to be held in 1994, and another class shall be initially
elected for a term expiring at the annual meeting of stockholders to be held in
1995. Members of each class shall hold office until their successors are elected
and qualified. At each succeeding annual meeting of the stockholders of the
Corporation, the successors of the class of directors whose term expires at that
meeting shall be elected by a plurality vote of all votes cast at such meeting
to hold office for a term expiring at the annual meeting of stockholders held in
the third year following the year of their election.
Subject to the rights of the holders of any series of Preferred Stock or
any other series or class of stock as set forth in the Certificate of
Incorporation to elect additional directors under specified circumstances, any
director may be removed from office at any time, but only for cause and only by
the affirmative vote of the holders of at least 80 percent of the voting power
of the then outstanding Voting Stock, voting together as a single class.
Notwithstanding anything contained in this Certificate of Incorporation to
the contrary, the affirmative vote of the holders of at least 80 percent of the
voting power of the then outstanding Voting Stock, voting together as a single
class, shall be required to amend, repeal or adopt any provision inconsistent
with this Article VIII.
4
<PAGE>
ARTICLE IX
Section 1. Vote Required for Certain Business Combinations.
(A) Higher Vote for Certain Business Combinations. In addition to any
affirmative vote required by law or this Certificate of Incorporation, and
except as otherwise expressly provided in Section 2 of this Article IX:
(i) any merger or consolidation of the Corporation or any Subsidiary
(as hereinafter defined) with (a) any Interested Stockholder (as
hereinafter defined), or (b) any other corporation (whether or not itself
an Interested Stockholder) which is, or after such merger or consolidation
would be, an Affiliate (as hereinafter defined) of an Interested
Stockholder; or
(ii) any sale, lease, exchange, mortgage, pledge, transfer or other
disposition (in one transaction or a series of transactions) to or with any
Interested Stockholder, including all Affiliates of the Interested
Stockholder, of any assets of the Corporation or any Subsidiary having an
aggregate Fair Market Value (as hereinafter defined) of $10,000,000 or
more; or
(iii) the issuance or transfer by the Corporation or any Subsidiary
(in one transaction or a series of transactions) of any securities of the
Corporation or any Subsidiary to any Interested Stockholder, including all
Affiliates of the Interested Stockholder, in exchange for cash, securities
or other property (or a combination thereof) having an aggregate Fair
Market Value of $10,000,000 or more; or
(iv) the adoption of any plan or proposal for the liquidation or
dissolution of the Corporation proposed by or on behalf of an Interested
Stockholder or any Affiliates of an Interested Stockholder; or
(v) any reclassification of securities (including any reverse stock
split), or recapitalization of the Corporation, or any merger or
consolidation of the Corporation with any of its Subsidiaries or any other
transaction (whether or not an Interested Stockholder is a party thereto)
which has the effect, directly or indirectly, of increasing the
proportionate share of the outstanding shares of any class of equity or
convertible securities of the Corporation or any Subsidiary which are
directly or indirectly owned by any Interested Stockholder or one or more
Affiliates of the Interested Stockholder;
shall require the affirmative vote of the holders of at least 66 2/3% of the
voting power of the then outstanding Voting Stock, voting together as a single
class, including the affirmative vote of the holders of at least 66 2/3% of the
voting power of the then outstanding Voting Stock not owned directly or
indirectly by any Interested Stockholder or any Affiliate of any Interested
Stockholder. Such affirmative vote shall be required notwithstanding the fact
that no vote may be required, or that a lesser percentage may be permitted, by
law or in any agreement with any national securities exchange or otherwise.
(B) Definition of "Business Combination." The term "Business Combination"
as used in this Article IX shall mean any transaction described in any one or
more of clauses (i) through (v) of paragraph A of this Section 1.
Section 2. When Higher Vote is Not Required. The provisions of Section 1 of
this Article IX shall not be applicable to any particular Business Combination,
and such Business Combination shall require only such affirmative vote as is
required by law or any other provision of this Certificate of Incorporation, if
the conditions specified in either of the following paragraph (A) or (B) are
met:
5
<PAGE>
(A) Approval by Continuing Directors. The Business Combination shall have
been approved by a majority of the Continuing Directors (as hereinafter
defined).
(B) Price and Procedure Requirements. All of the following conditions shall
have been met:
(i) The aggregate amount of the cash and the Fair Market Value (as
hereinafter defined) as of the date of the consummation of the Business
Combination of consideration other than cash, to be received per share by
holders of Common Stock in such Business Combination, shall be at least
equal to the highest of the following:
(a) (if applicable) the highest per share price (including any
brokerage commissions, transfer taxes and soliciting dealers' fees)
paid by the Interested Stockholder for any shares of Common Stock
acquired by it (1) within the two-year period immediately prior to the
first public announcement of the proposal of such Business Combination
(the "Announcement Date"), or (2) in the transaction in which it
became an Interested Stockholder, whichever is higher;
(b) the Fair Market Value per share of Common Stock on the
Announcement Date or on the date on which the Interested Stockholder
became an Interested Stockholder (the "Determination Date"), whichever
is higher; and
(c) (if applicable) the price per share equal to the Fair Market
Value per share of Common Stock determined pursuant to paragraph
(B)(i)(b) above, multiplied by the ratio of (1) the highest per share
(including any brokerage commissions, transfer taxes and soliciting
dealers' fees) paid by the Interested Stockholder for any shares of
Common Stock acquired by it within the two-year period immediately
prior to the Announcement Date to (2) the Fair Market Value per share
of Common Stock on the first day in such two-year period upon which
the Interested Stockholder acquired any shares of Common Stock.
(ii) The aggregate amount of the cash and the Fair Market Value as of
the date of the consummation of the Business Combination of consideration
other than cash to be received per share by holders of shares of any other
class, other than Common Stock or Excluded Preferred Stock, of outstanding
Voting Stock shall be at least equal to the highest of the following (it
being intended that the requirements of this paragraph (B)(ii) shall be
required to be met with respect to every such class of outstanding Voting
Stock, whether or not the Interested Stockholder has previously acquired
any shares of a particular class of Voting Stock):
(a) (if applicable) the highest per share price (including any
brokerage commissions, transfer taxes and soliciting dealers' fees)
paid by the Interested Stockholder for any shares of such class of
Voting Stock acquired by it (1) within the two-year period immediately
prior to the Announcement Date, or (2) in the transaction in which it
became an Interested Stockholder, whichever is higher;
(b) (if applicable) the highest preferential amount per share to
which the holders of shares of such class of Voting Stock are entitled
in the event of any voluntary or involuntary liquidation, dissolution
or winding up of the Corporation;
(c) the Fair Market Value per share of such class of Voting Stock
on the Announcement Date or on the Determination Date, whichever is
higher; and
6
<PAGE>
(d) (if applicable) the price per share equal to the Fair Market
Value per share of such class of Voting Stock determined pursuant to
paragraph (B)(ii)(c) above, multiplied by the ratio of (1) the highest
per share price (including any brokerage commissions, transfer taxes
and soliciting dealers' fees) paid by the Interested Stockholder for
any shares of such class of Voting Stock acquired by it within the
two-year period immediately prior to the Announcement Date to (2) the
Fair Market Value per share of such class of Voting Stock on the first
day in such two-year period upon which the Interested Stockholder
acquired any shares of such class of Voting Stock.
(iii) The consideration to be received by holders of a particular
class of outstanding Voting Stock (including Common Stock and other than
Excluded Preferred Stock) shall be in cash or in the same form as the
Interested Stockholder has previously paid for shares of such class of
Voting Stock. If the Interested Stockholder has paid for shares of any
class of Voting Stock with varying forms of consideration, the form of
consideration for such class of Voting Stock shall be either cash or the
form used to acquire the largest number of shares of such class of Voting
Stock previously acquired by it.
(iv) After such Interested Stockholder has become an Interested
Stockholder and prior to the consummation of such Business Combination: (a)
there shall have been no failure to declare and pay at the regular date
therefor any full quarterly dividends (whether or not cumulative) on any
outstanding preferred stock, except as approved by a majority of the
Continuing Directors; (b) there shall have been no reduction in the annual
rate of dividends paid on the Common Stock (except as necessary to reflect
any subdivision of the Common Stock), except as approved by a majority of
the Continuing Directors; (c) there shall have been an increase in the
annual rate of dividends as necessary fully to reflect any recapitalization
(including any reverse stock split), reorganization or any similar
reorganization which has the effect of reducing the number of outstanding
shares of the Common Stock, unless the failure so to increase such annual
rate is approved by a majority of the Continuing Directors; and (d) such
Interested Stockholder shall not have become the Beneficial Owner of any
additional Voting Stock except as part of the transaction which results in
such Interested Stockholder becoming an Interested Stockholder.
(v) After such Interested Stockholder has become an Interested
Stockholder, such Interested Stockholder shall not have received the
benefit, directly or indirectly (except proportionately as a shareholder),
of any loans, advances, guarantees, pledges or other financial assistance
or any tax credits or other tax advantages provided by the Corporation,
whether in anticipation of or in connection with such Business Combination
or otherwise.
(vi) A proxy or information statement describing the proposed Business
Combination and complying with the requirements of the Securities Exchange
Act of 1934 and the rules and regulations thereunder (or any subsequent
provisions replacing such Act, rules or regulations) shall be mailed to
shareholders of the Corporation at least thirty (30) days prior to the
consummation of such Business Combination (whether or not such proxy or
information statement is required to be marked pursuant to such Act or
subsequent provisions).
Section 3. Certain Definitions. For purposes of this Article IX:
(A) "Person" shall mean any individual, firm, corporation or other
entity.
(B) "Interested Stockholder" shall mean any Person (other than the
Corporation or any Subsidiary) who or which:
(i) itself, or along with its Affiliates, is the Beneficial
Owner, directly or indirectly, of more than 10% of the then outstanding
Voting Stock; or
<PAGE>
(ii) is an Affiliate of the Corporation and at any time within
the two-year period immediately prior to the date in question was
itself, or along with its Affiliates, the Beneficial Owner, directly or
indirectly, of 10% or more of the then outstanding Voting Stock; or
(iii) is an assignee of or has otherwise succeeded to any
Voting Stock which was at any time within the two-year period
immediately prior to the date in question beneficially owned by an
Interested Stockholder, if such assignment or succession shall have
occurred in the course of a transaction or series of transactions not
involving a public offering within the meaning of the Securities Act of
1933.
(C) "Beneficial Owner" shall have the meaning ascribed to such term in Rule
13d-3 of the General Rules and Regulations of the Securities Exchange Act of
1934, as in effect on February 1, 1992. In addition, a Person shall be the
"Beneficial Owner" of any Voting Stock which such Person or any of its
Affiliates or Associates has (a) the right to acquire (whether such right is
exercisable immediately or only after the passage of time), pursuant to any
agreement, arrangement or understanding or upon the exercise of conversion
rights, exchange rights, warrants or options, or otherwise, or (b) the right to
vote pursuant to any agreement, arrangement or understanding (but neither such
Person nor any such Affiliate or Associate shall be deemed to be the Beneficial
Owner of any shares of Voting Stock solely by reason of a revocable proxy
granted for a particular meeting of stockholders, pursuant to a public
solicitation of proxies for such meeting, and with respect to which shares
neither such Person nor any such Affiliate or Associate is otherwise deemed the
Beneficial Owner).
(D) For the purpose of determining whether a Person is an Interested
Stockholder pursuant to paragraph (B) of this Section 3, the number of shares of
Voting Stock deemed to be outstanding shall include shares deemed owned through
application of paragraph C of this Section 3 but shall not include any other
shares of Voting Stock which may be issuable pursuant to any agreement,
arrangement or understanding, or upon exercise of conversion rights, warrants or
options or otherwise.
(E) "Affiliate" and "Associate" shall have the respective meanings ascribed
to such terms in Rule 12b-2 of the General Rules and Regulations under the
Securities Exchange Act of 1934, as in effect on February 1, 1992.
(F) "Subsidiary" shall mean any corporation of which a majority of any
share of equity security is owned, directly or indirectly, by the Corporation,
provided, however, that for the purposes of the definition of Interested
Stockholder set forth in paragraph (B) of this Section 3, the term "Subsidiary"
shall mean only a corporation of which a majority of each share of equity
security is owned, directly or indirectly, by the Corporation.
(G) "Continuing Director" shall mean any member of the Board of Directors
of the Corporation (the "Board") who is unaffiliated with the Interested
Stockholder and was a member of the Board prior to the time that the Interested
Stockholder became an Interested Stockholder, and any director who is thereafter
chosen to fill any vacancy on the Board or who is elected and who, in either
event, is unaffiliated with the Interested Stockholder and in connection with
his or her initial assumption of office is recommended for appointment or
election by a majority of Continuing Directors then on the Board.
7
<PAGE>
(H) "Fair Market Value" shall mean (i) in the case of stock, the highest
closing sale price during the 30-day period immediately preceding the date in
question of a share of such stock on the Composite Tape for New York Stock
Exchange listed stocks, or, if such stock is not quoted on the Composite Tape,
on the New York Stock Exchange, or, if such stock is not listed on such
exchange, on the principal United States securities exchange registered under
the Securities Exchange Act of 1934 on which such stock is listed, or, if such
stock is not listed on any such exchange, the highest closing bid quotation with
respect to a share of such stock during the 30-day period preceding the date in
question on the National Association of Securities Dealers, Inc. Automated
Quotations System or any system then in use in its stead, or if no such
quotations are available, the fair market value on the date in question of a
share of such stock as determined by the Board in accordance with Section 4 of
this Article IX; and (ii) in the case of property other than cash or stock, the
fair market value of such property on the date in question as determined by the
Board in accordance with Section 4 of this Article IX.
(I) In the event of any Business Combination in which the Corporation
survives, the phrase "other consideration to be received" as used in paragraphs
(B)(i) and (ii) and Section 2 of this Article IX shall include the shares of
Common Stock and/or the shares of any other class of outstanding Voting Stock
retained by the holders of such shares.
(J) "Excluded Preferred Stock" means any series of Preferred Stock with
respect to which a majority of the Continuing Directors have approved a
Preferred Stock Designation creating such series that expressly provides that
the provisions of this Article IX shall not apply.
Section 4. The Continuing Directors of the Corporation shall have the power
and duty to determine for the purposes of this Article IX, on the basis of
information known to them after reasonable inquiry, all facts necessary to
determine compliance with this Article IX, including, without limitation (i)
whether a Person is an Interested Stockholder, (ii) the number of shares of
Voting Stock beneficially owned by any Person, (iii) whether a Person is an
Affiliate or Associate of another, (iv) whether the applicable conditions set
forth in paragraph (B) of Section 2 of this Article IX have been met with
respect to any Business Combination, (v) the Fair Market Value of stock or other
property in accordance with paragraph (H) of Section 3 of this Article IX, and
(vi) whether the assets which are the subject of any Business Combination have,
or the consideration to be received for the issuance or transfer of securities
by the Corporation or any Subsidiary in any Business Combination has, an
aggregate Fair Market Value of $10,000,000 or more.
Section 5. No Effect on Fiduciary Obligations of Interested Stockholders.
Nothing contained in this Article IX shall be construed to relieve any
Interested Stockholder from any fiduciary obligation imposed by law.
Section 6. Amendment, Repeal, etc. Notwithstanding any other provisions of
this Certificate of Incorporation or the Bylaws of the Corporation (and
notwithstanding the fact that a lesser percentage may be permitted by law, this
Certificate of Incorporation or the Bylaws of the Corporation), but in addition
to any affirmative vote of the holders of any particular class of the Voting
Stock required by law or this Certificate of Incorporation, the affirmative vote
of the holders of 66 2/3% of the voting power of the shares of the then
outstanding Voting Stock voting together as a single class, including the
affirmative vote of the holders of 66 2/3% of the voting power of the then
outstanding Voting Stock not owned directly or indirectly by any Interested
Stockholder or any Affiliate of any Interested Stockholder, shall be required to
amend or repeal, or adopt any provisions inconsistent with, this Article IX of
this Certificate of Incorporation.
8
<PAGE>
ARTICLE X
Each person who is or was or had agreed to become a director or officer of
the Corporation, or each such person who is or was serving or who had agreed to
serve at the request of the Board of Directors or an officer of the Corporation
as an employee or agent of the Corporation or as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or other
enterprise (including the heirs, executor, administrators or estate of such
person), shall be indemnified by the Corporation, in accordance with the Bylaws
of the Corporation, to the fullest extent permitted from time to time by the
General Corporation Law of the State of Delaware as the same exists or may
hereafter be amended (but, in the case of any such amendment, only to the extent
that such amendment permits the Corporation to provide broader indemnification
rights than said law permitted the Corporation to provide prior to such
amendment) or any other applicable laws as presently or hereafter in effect.
Without limiting the generality or the effect of the foregoing, the Corporation
may enter into one or more agreements with any person which provide for
indemnification greater or different than that provided in this Article X. Any
amendment or repeal of this Article X shall not adversely affect any right or
protection existing hereunder in respect of any act or omission occurring prior
to such amendment or repeal.
ARTICLE XI
A director of the Corporation shall not be personally liable to the
Corporation 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 General Corporation Law of the
State of Delaware, or (iv) for any transaction from which the director derived
an improper personal benefit. Any amendment or repeal of this Article XI shall
not adversely affect any right or protection of a director of the Corporation
existing hereunder in respect of any act or omission occurring prior to such
amendment or repeal.
ARTICLE XII
Except as may be expressly provided in this Certificate of Incorporation,
the Corporation reserves the right at any time and from time to time to amend,
alter, change or repeal any provision contained in this Certificate of
Incorporation or a Preferred Stock Designation, and any other provisions
authorized by the laws of the State of Delaware at the time in force may be
added or inserted, in the manner now or hereafter prescribed herein or by
applicable law, and all rights, preferences and privileges of whatsoever nature
conferred upon stockholders, directors or any other persons whomsoever by and
pursuant to this Certificate of Incorporation in its present form or as
hereafter amended are granted subject to the right reserved in this Article XII;
provided, however, that any amendment or repeal of Article X or Article XI of
this Certificate of Incorporation shall not adversely affect any right or
protection existing hereunder in respect of any act or omission occurring prior
to such amendment or repeal; and provided further that no Preferred Stock
Designation shall be amended after the issuance of any shares of the series of
Preferred Stock created thereby, except in accordance with the terms of such
Preferred Stock Designation and the requirements of applicable law.
IN WITNESS WHEREOF, said The FINOVA Group Inc. has caused this Restated
Certificate of Incorporation to be signed by its President and attested by its
Secretary and has caused its corporate seal to be hereunto affixed, this 20th
day of May, 1999.
THE FINOVA GROUP INC.
By: /s/ S. L. Eichenfield
-------------------------
S. L. Eichenfield, President
Attest: /s/ W. J. Hallinan
---------------------------
W. J. Hallinan, Secretary
================================================================================
FINOVA CAPITAL CORPORATION
AND
THE FIRST NATIONAL BANK OF CHICAGO
TRUSTEE
---------------------------------------
Indenture
Dated as of May 15, 1999
---------------------------------------
Providing for the Issuance of
Debt Securities
================================================================================
<PAGE>
THIS CROSS REFERENCE SHEET, SHOWING THE LOCATION IN THE INDENTURE OF THE
PROVISIONS INSERTED PURSUANT TO SECTION 310-318(A), INCLUSIVE, OF THE TRUST
INDENTURE ACT OF 1939, IS NOT TO BE CONSIDERED A PART OF THE INDENTURE.
TRUST INDENTURE ACT CROSS REFERENCE SHEET
Sections of Trust Sections of
Indenture Act Indenture
- ----------------- -----------
310(a)(1).................................................... 10.06
310(a)(2).................................................... 10.06
310(a)(3).................................................... Not applicable
310(a)(4).................................................... Not applicable
310(b)....................................................... 10.07
311.......................................................... 10.03
312.......................................................... 9.02
313.......................................................... 9.03
314(a)....................................................... 9.04
314(b)....................................................... Not applicable
314(c)....................................................... 14.03
314(d)....................................................... Not applicable
314(e)....................................................... 14.03
315(a)....................................................... 10.01
315(b)....................................................... 10.11
315(c)....................................................... 10.01
315(d)....................................................... 10.01
315(e)....................................................... 6.08
316(a)....................................................... 6.06 and 7.03
316(b)....................................................... 6.07
317(a)....................................................... 6.03 and 6.04
317(b)....................................................... 5.03
318(a)....................................................... 14.05
<PAGE>
TABLE OF CONTENTS*
Page
----
PARTIES.................................................................. 1
RECITALS................................................................. 1
TABLE OF CONTENTS
Page
----
ARTICLE ONE
DEFINITIONS
SECTION 1.01. Terms. .................................................... 1
SECTION 1.02. Definitions................................................ 2
ARTICLE TWO
FORM, EXECUTION, DELIVERY, TRANSFER AND EXCHANGE OF SECURITIES
SECTION 2.01. Forms Generally; Record Dates; Place of Payment,
Denominations and Numbering of Securities ............... 7
SECTION 2.02. Terms of Series............................................ 8
SECTION 2.03. Certificate of Authentication Necessary to Make
Securities Valid ........................................ 10
SECTION 2.04. Form of Certificate of Authentication...................... 10
SECTION 2.05. Registration, Transfer and Exchange of Securities.......... 11
SECTION 2.06. Replacing Securities Mutilated, Destroyed, Lost or Stolen.. 14
SECTION 2.07. Rights to Interest......................................... 14
SECTION 2.08. Temporary Securities....................................... 14
ARTICLE THREE
ISSUE OF SECURITIES
SECTION 3.01. Authentication, Delivery and Dating........................ 15
ARTICLE FOUR
REDEMPTION OF SECURITIES; SINKING FUND
SECTION 4.01. Applicability of Right of Redemption....................... 17
SECTION 4.02. Notice of Redemption....................................... 17
- ----------
* The Table of Contents is not part of the Indenture.
i
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SECTION 4.03. Securities of Any Series to be Canceled and
Discharged on Specific Conditions ....................... 18
SECTION 4.04. Applicability of Sinking Fund.............................. 18
SECTION 4.05. Mandatory Sinking Fund Obligation.......................... 19
SECTION 4.06. Optional Redemption at Sinking Fund Redemption Price....... 19
SECTION 4.07. Application of Sinking Fund Payments....................... 19
ARTICLE FIVE
PARTICULAR COVENANTS OF THE COMPANY
SECTION 5.01. To Pay Principal, Premium, if any, and Interest............ 20
SECTION 5.02. To Maintain Office or Agency in New York................... 20
SECTION 5.03. The Company, or Paying Agent, to Hold in Trust Moneys
for Payment of Principal, Premium, if any, and Interest.. 21
SECTION 5.04. Restrictions Upon Liens Upon Property of the Company
and Restricted Subsidiaries ............................. 22
SECTION 5.05. Maintenance of Corporate Existence......................... 24
SECTION 5.06. Restrictions on Consolidation, Merger, Sale, Etc........... 24
SECTION 5.07. Annual Statement Concerning Compliance with Covenants...... 25
SECTION 5.08. Compliance with Covenants and Conditions May Be
Waived by Holders of Securities ......................... 25
ARTICLE SIX
REMEDIES OF TRUSTEE AND SECURITYHOLDERS
SECTION 6.01. Events of Default.......................................... 25
SECTION 6.02. Acceleration of Maturity of Principal on Default........... 27
SECTION 6.03. The Company, Failing for 30 Days to Pay Any Installment
of Interest or Sinking Fund Payment or Failing to Pay
Principal When Due, Will Pay to Trustee at its Request
Whole Amount Due........................................ 28
SECTION 6.04. Trustee Appointed Attorney-in-Fact for Securityholders
to File Claims .......................................... 28
SECTION 6.05. Application of Moneys Collected by Trustee................. 29
SECTION 6.06. Securityholders May Direct Proceedings and Waive Defaults.. 30
SECTION 6.07. Limitations on Rights of Securityholders to
Institute Proceedings ................................... 30
SECTION 6.08. Assessment of Costs and Attorneys' Fees in Legal
Proceedings ............................................. 31
SECTION 6.09. Remedies Cumulative........................................ 31
ARTICLE SEVEN
CONCERNING THE SECURITYHOLDERS
SECTION 7.01. Evidence of Action by Securityholders...................... 32
SECTION 7.02. Proof of Execution of Instruments and of Holding
of Securities ........................................... 32
SECTION 7.03. Securities Owned by the Company or Other Obligor
on the Securities to be Disregarded in Certain Cases..... 32
SECTION 7.04. Revocation by Securityholders of Consents to Action........ 33
ii
<PAGE>
ARTICLE EIGHT
SECURITYHOLDERS' MEETINGS
SECTION 8.01. Purposes of Meetings....................................... 33
SECTION 8.02. Call of Meetings by Trustee................................ 33
SECTION 8.03. Call of Meetings by Company or Securityholders............. 34
SECTION 8.04. Qualifications for Voting.................................. 34
SECTION 8.05. Regulation of Meetings..................................... 34
SECTION 8.06. Voting .................................................... 35
SECTION 8.07. No Delay of Rights by Meeting.............................. 35
iii
<PAGE>
ARTICLE NINE
REPORTS BY THE COMPANY AND THE TRUSTEE AND SECURITYHOLDERS' LISTS
SECTION 9.01. Company to Furnish Trustee Names and Address of Holders.... 35
SECTION 9.02. Preservation of Information; Communications to Holders..... 36
SECTION 9.03. Reports by Trustee......................................... 36
SECTION 9.04. Reports by Company......................................... 36
ARTICLE TEN
CONCERNING THE TRUSTEE
SECTION 10.01. Certain Rights of Trustee................................. 37
SECTION 10.02. Not Responsible for Recitals or Issuance of Securities.... 38
SECTION 10.03. May Hold Securities....................................... 38
SECTION 10.04. Money Held in Trust....................................... 38
SECTION 10.05. Compensation and Reimbursement............................ 39
SECTION 10.06. Corporate Trustee Required; Eligibility................... 39
SECTION 10.07. Resignation and Removal; Appointment of Successor......... 39
SECTION 10.08. Acceptance of Appointment by Successor.................... 41
SECTION 10.09. Merger, Conversion, Consolidation or Succession
to Business ............................................ 42
SECTION 10.10. Appointment of Authenticating Agent....................... 42
SECTION 10.11. Notice of Defaults........................................ 43
ARTICLE ELEVEN
DEFEASANCE
SECTION 11.01. Discharge of Indenture Upon Payment of Securities......... 44
SECTION 11.02. Discharge of Securities of Any Series Upon
Deposit of Moneys ...................................... 44
SECTION 11.03. Interest on Moneys Deposited.............................. 44
iv
<PAGE>
ARTICLE TWELVE
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS, DIRECTORS AND EMPLOYEES
SECTION 12.01. Liability Solely Corporate................................ 45
ARTICLE THIRTEEN
SUPPLEMENTAL INDENTURES
SECTION 13.01. Without Consent of Securityholders, the Company and
Trustee May Enter Into Supplemental Indentures for
Specified Purposes...................................... 46
SECTION 13.02. Modification of Indenture by Supplemental Indenture
With Consent of Securityholders ........................ 47
SECTION 13.03. Upon Request of the Company, Trustee to Join in
Execution of Supplemental Indenture .................... 48
SECTION 13.04. Effect of Supplemental Indenture.......................... 48
SECTION 13.05. Matters Provided for in Supplemental Indenture May Be
Noted on Securities, or New Securities Appropriately
Modified May Be Issued in Exchange for Outstanding
Securities.............................................. 48
SECTION 13.06. Supplemental Indentures to Conform to Trust Indenture
Act of 1939 ............................................ 49
ARTICLE FOURTEEN
MISCELLANEOUS PROVISIONS
SECTION 14.01. Consolidation, Merger, Sale or Lease...................... 49
SECTION 14.02. Rights Under Indenture Confined to Parties and
Holders of Securities .................................. 50
SECTION 14.03. Evidence of Compliance.................................... 50
SECTION 14.04. Cancellation of Securities................................ 51
SECTION 14.05. Provisions Required by Trust Indenture Act of 1939
to Control ............................................. 51
SECTION 14.06. Action of Authorized Committee Deemed to be Action
of Board of Directors 51
SECTION 14.07. Notices. ................................................. 51
SECTION 14.08. Act of Holders............................................ 52
SECTION 14.09. Payments Due on Non-Business Days......................... 53
SECTION 14.10. Execution in Counterparts................................. 53
SECTION 14.11. Indenture Deemed a New York Contract...................... 53
v
<PAGE>
INDENTURE, dated as of May 15 1999, between FINOVA CAPITAL CORPORATION, a
corporation organized and existing under the laws of the State of Delaware
(hereinafter called the "Company"), party of the first part, and THE FIRST
NATIONAL BANK OF CHICAGO, a national banking association, as trustee
(hereinafter called the "Trustee"), party of the second part.
RECITALS
The Company is authorized and empowered to borrow money for its corporate
purposes and to issue its bonds, debentures, notes and other obligations for
money so borrowed.
The Company has duly authorized the issue, in one or more series as in this
Indenture provided, from time to time of its debt securities (hereinafter called
the "Securities") and, to provide the general terms and conditions upon which
the Securities are to be authenticated, issued and delivered, the Company has
duly authorized the execution and delivery of this Indenture.
The Trustee has power to enter into this Indenture and to accept and
execute the trusts herein created.
The Company represents that all acts and things necessary to make the
Securities, when executed by the Company and authenticated and delivered by the
Trustee as in this Indenture provided and issued, the valid, binding and legal
obligations of the Company, will, at the time of such execution, authentication
and delivery, have been done and performed; that all acts and things necessary
to constitute these presents a valid indenture and agreement according to its
terms have been done and performed; that the execution of this Indenture has in
all respects been duly authorized and the issue hereunder of the Securities
will, at the time of the issue thereof, have in all respects been duly
authorized; and that the Company, in the exercise of each and every legal right
and power in it vested, executes this Indenture and proposes to make, execute,
issue and deliver the Securities.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That, in consideration of the premises and of the acceptance and purchase
of the Securities by the holders thereof, the Company covenants and agrees with
the Trustee, for the equal benefit of all the holders from time to time of the
Securities, without preference, priority or distinction of any thereof over any
other thereof by reason of priority in time of issuance or negotiation, or
otherwise, as follows:
ARTICLE ONE
DEFINITIONS
SECTION 1.01. TERMS. Unless otherwise defined in this Indenture or the
context otherwise requires, all terms used herein shall have the meanings
assigned to them in the Trust Indenture Act of 1939.
1
<PAGE>
SECTION 1.02. DEFINITIONS. Unless the context otherwise requires, the terms
defined in this Section 1.02 shall for all purposes of this Indenture have the
meanings hereinafter set forth, the following definitions to be equally
applicable to both the singular and the plural forms of any of the terms herein
defined:
ACT:
The term "Act," when used with respect to any holders, has the meaning
specified in Section 14.08.
AUTHENTICATING AGENT:
The term "Authenticating Agent" means the Trustee and/or the authenticating
agent, if any, appointed by the Trustee and acting pursuant to Section 10.10.
BOARD RESOLUTION:
The term "Board Resolution" means a copy of a resolution or resolutions
certified by the Secretary or an Assistant Secretary of the Company to have been
duly adopted by the Board of Directors or any committee of the Board of
Directors (or committee of officers or other representatives of the Company, to
the extent that any such committee or committees have been authorized by the
Board of Directors to establish or approve the matters contemplated by Section
2.02 or any other provision hereof) and to be in full force and effect on the
date of such certification, and delivered to the Trustee.
BUSINESS DAY:
The term "Business day" shall mean a day which in The City of New York is
not a day on which banking institutions are authorized or obligated by law or
executive order to close.
COMMISSION:
The term "Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934 or,
if at any time after the execution of this Indenture such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
COMPANY:
The term "Company" shall mean FINOVA Capital Corporation and, subject to
the provisions of Section 14.01, shall also include its successors and assigns.
CONSOLIDATED NET TANGIBLE ASSETS:
The term "Consolidated Net Tangible Assets" means the total of all assets
reflected on a consolidated balance sheet of the Company and its consolidated
Subsidiaries, prepared in accordance with generally accepted accounting
principles, at their net book values (after deducting related depreciation,
depletion, amortization and all other valuation reserves which, in accordance
2
<PAGE>
with such principles, should be set aside in connection with the business
conducted), but excluding goodwill, unamortized debt discount and all other like
intangible assets, all as determined in accordance with such principles, less
the aggregate of the current liabilities of the Company and its consolidated
Subsidiaries reflected on such balance sheet, all as determined in accordance
with such principles. For purposes of this definition, "current liabilities"
include all indebtedness for money borrowed, incurred, issued, assumed or
guaranteed by the Company and its consolidated Subsidiaries, and other payables
and accruals, in each case payable on demand or due within one year of the date
of determination of Consolidated Net Tangible Assets, but shall exclude any
portion of long-term debt maturing within one year of the date of such
determination, all as reflected on such consolidated balance sheet of the
Company and its consolidated Subsidiaries, prepared in accordance with generally
accepted accounting principles.
DEPOSITARY:
With respect to the Securities of any series issuable or issued in whole or
in part in global form, the Person designated as Depositary by the Company
pursuant to Section 2.02 until a successor Depositary shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Depositary" shall mean or include each Person who is then a Depositary
hereunder, and if at any time there is more than one such Person, "Depositary"
as used with respect to the Securities of any such series shall mean the
"Depositary" with respect to the Securities of that series.
EVENT OF DEFAULT:
The term "event of default" shall have the meaning specified in Section
6.01.
INDENTURE:
The term "Indenture" or "this Indenture" shall mean this instrument and all
indentures supplemental hereto.
INTEREST PAYMENT DATE:
The term "Interest Payment Date" when used with respect to any Security
shall mean the Stated Maturity of an installment of interest on such Security.
LIEN:
The term "Lien" means any lien, charge, claim, security interest, pledge,
hypothecation, right of another under any conditional sale or other title
retention agreement, or any other encumbrance affecting title to property.
Without limiting the generality of the foregoing, the sale of property used or
useful in the business of the seller with the intention of retaining the use
thereof under a lease, or any other comparable arrangement commonly referred to
as a "sale and leaseback," shall be deemed to create a Lien on such property.
3
<PAGE>
MANDATORY SINKING FUND PAYMENT:
The term "Mandatory Sinking Fund Payment" shall have the meaning specified
in Section 4.04.
MATURITY:
The term "Maturity," with respect to any Security, shall mean the date on
which the principal of such Security shall become due and payable as therein and
herein provided, whether by declaration, call for redemption or otherwise.
OFFICERS' CERTIFICATE:
The term "Officers' Certificate," when used with respect to the Company,
shall mean a certificate signed by the Chairman of the Board of Directors, the
President or any Vice President and by the Treasurer, any Assistant Treasurer,
the Controller, any Assistant Controller, the Secretary or any Assistant
Secretary of the Company.
OPINION OF COUNSEL:
The term "Opinion of Counsel" shall mean an opinion in writing signed by
legal counsel, who may be counsel for the Company.
OPTIONAL SINKING FUND PAYMENT:
The term "Optional Sinking Fund Payment" shall have the meaning specified
in Section 4.04.
OUTSTANDING:
The term "outstanding," when used as of any particular time with reference
to Securities, shall mean, as of the date of determination and subject to
Section 7.03, all Securities theretofore authenticated and delivered by the
Trustee under this Indenture, except
(a) Securities or portions thereof for which (i) funds, or as provided
in Section 11.02 hereof, direct obligations of the United States of
America, sufficient to pay the principal thereof, premium, if any, thereon
and all unpaid interest thereon to Maturity or to the date fixed for the
redemption thereof shall have been deposited in trust for such purpose as
provided herein 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), and (ii) in
case of redemption, notice of redemption thereof shall have been duly given
or provision satisfactory to the Trustee for the giving of such notice
shall have been made;
(b) Securities which shall have been cancelled or surrendered to the
Trustee for cancellation; and
4
<PAGE>
(c) Securities in lieu of or in substitution for which other
Securities shall have been authenticated and delivered pursuant to Section
2.05 or 2.06 and Securities paid pursuant to Section 2.06;
PROVIDED, HOWEVER, that in determining whether the holders of the requisite
principal amount of outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Securities owned
by the Company or any other obligor upon the Securities or any affiliate of the
Company or of such other obligor shall be disregarded and deemed not to be
outstanding, except that, in determining whether the Trustee shall be protected
in relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Securities which the Trustee knows to be so owned shall
be so disregarded. Securities so owned which have been pledged in good faith may
be regarded as outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Securities and that
the pledgee is not the Company or any other obligor upon the Securities or any
affiliate of the Company or of such other obligor.
PAYING AGENT:
The term "paying agent" means any Person authorized by the Company to pay
the principal of, or any premium or interest on, or any Additional Amounts with
respect to, any Security or any Coupon on behalf of the Company.
PERSON:
The term "Person" shall mean an individual, a corporation, a partnership, a
joint venture, an association, a joint stock company, a trust, an unincorporated
organization or a government or an agency or political subdivision thereof.
PRINCIPAL OFFICE OF THE TRUSTEE:
The term "Principal Office of the Trustee," or other similar term, shall
mean the principal corporate trust office of the Trustee at which its principal
trust business is administered. As of the date hereof, the Principal Office of
the Trustee is located at One First National Plaza #0126, Chicago, IL 60670
(telephone: (312) 407-8810; telecopier: (312) 407-1708).
RECORD DATE:
The term "Record Date" shall mean, with respect to any interest payable on
any Security on any Interest Payment Date, the close of business on the date
specified in such Security or, in the case of defaulted interest, the close of
business on any subsequent record date established as provided in Section 2.01
(in each case whether or not such day is a business day).
REDEMPTION DATE:
The term "Redemption Date" when used with respect to any Security to be
redeemed, in whole or in part, shall mean the date fixed for such redemption by
or pursuant to this Indenture and the terms of such Security.
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REDEMPTION PRICE:
The term "Redemption Price" when used with respect to any Security to be
redeemed shall mean the price (exclusive of accrued interest) at which it is to
be redeemed pursuant to this Indenture and the terms of such Security.
RESPONSIBLE OFFICERS:
"Responsible Officers" of the Trustee hereunder shall mean and include the
chairman and any vice chairman of the board of directors, the president, the
chairman and any vice chairman of the executive committee of the board of
directors, or any officer in the corporate trust department of the Trustee
customarily performing functions similar to those performed by the persons who
at the time shall be such officers, respectively, or to whom any corporate trust
matter is referred because of his knowledge of, and familiarity with, a
particular subject.
RESTRICTED SUBSIDIARY:
The term "Restricted Subsidiary" means any Subsidiary which is designated
as such by Board Resolution and at least a majority of the shares of Voting
Stock of which shall at the time be owned, directly, by the Company or by one or
more Restricted Subsidiaries or by the Company and one or more Restricted
Subsidiaries.
SECURITY:
The term "Security" shall mean any note or notes, bond or bonds, debenture
or debentures, or any other evidences of indebtedness, as the case may be,
authenticated and delivered under this Indenture; PROVIDED, HOWEVER, that, if at
any time there is more than one Person acting as Trustee under this Indenture,
"Securities," with respect to any such Person, shall mean Securities
authenticated and delivered under this Indenture, exclusive, however, of
Securities of any series as to which such Person is not Trustee.
SECURITY CO-REGISTRAR:
The term "Security Co-Registrar" has the meaning specified in Section 2.05.
SECURITY REGISTER; SECURITY REGISTRAR:
The terms "Security Register" and "Security Registrar" have the respective
meanings specified in Section 2.05.
SECURITYHOLDER; HOLDER OF SECURITIES; HOLDER; REGISTERED HOLDER:
The term "Securityholder" or "holder of Securities" or "holder" or
"registered holder," with respect to a Security, shall mean the Person in whose
name such Security or Securities shall be registered in the register kept for
that purpose hereunder.
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STATED MATURITY:
The term "Stated Maturity" when used with respect to any Security or any
installment of interest thereon shall mean the date specified in such Security
as the fixed date on which the principal (or any portion thereof) of or premium,
if any, on such Security or such installment of interest is due and payable.
SUBSIDIARY:
The term "Subsidiary" shall mean any corporation at least a majority of the
Voting Stock of which shall at the time be owned, directly or indirectly, by the
Company, or one or more Subsidiaries, or by the Company and one or more
Subsidiaries.
TRUST INDENTURE ACT OF 1939 OR TRUST INDENTURE ACT:
The term "Trust Indenture Act of 1939" or "Trust Indenture Act" shall mean
such Act as amended from time to time except as provided in Section 13.06 or
otherwise required by law.
TRUSTEE:
The term "Trustee" shall mean the trustee hereunder for the time being,
whether original or successor, and if at any time there is more than one such
trustee, "Trustee" as used with respect to the Securities of any series shall
mean the trustee with respect to Securities of that series.
UNRESTRICTED SUBSIDIARY:
The term "Unrestricted Subsidiary" shall mean any Subsidiary other than a
Restricted Subsidiary.
VOTING STOCK:
The term "Voting Stock" means stock of any class or classes (however
designated) having ordinary voting power for the election of a majority of the
members of the board of directors (or any governing body) of such corporation,
other than stock having such power only by reason of the happening of a
contingency.
Certain other terms, relating principally to provisions included in this
Indenture in compliance with the Trust Indenture Act of 1939, are defined in
Article Ten.
ARTICLE TWO
FORM, EXECUTION, DELIVERY, TRANSFER AND EXCHANGE OF SECURITIES
SECTION 2.01. FORMS GENERALLY; RECORD DATES; PLACE OF PAYMENT, DENOMINATIONS AND
NUMBERING OF SECURITIES. The Securities of each series shall be issuable in
registered form and shall be in substantially such form as shall be established
by or pursuant to a Board Resolution or in one or more indentures supplemental
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hereto, in each case with such appropriate insertions, omissions, substitutions
and other variations as are required or permitted by this Indenture, and may
have such letters, numbers or other marks of identification or designation and
such legends or endorsements printed, lithographed or engraved thereon as the
officers of the Company executing the same may approve (execution thereof to be
conclusive evidence of such approval) 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 the Securities may be listed, or to conform to
usage. The Securities shall be issued, except as otherwise provided with respect
to any series of Securities pursuant to Section 2.02, in the denomination of
$1,000 and any larger denomination which is an integral multiple of $1,000
approved by the Company, such approval to be evidenced by the execution thereof.
If Securities of a series are issuable in whole or in part in global
form, any such Security may provide that it shall represent the aggregate amount
of outstanding Securities from time to time endorsed thereon and may also
provide that the aggregate amount of outstanding Securities represented thereby
may from time to time be reduced to reflect exchanges or increased to reflect
the issuance of additional Securities. Any endorsement of a Security in global
form to reflect the amount, or any increase or decrease in the amount, of
outstanding Securities represented thereby shall be made in such manner and by
such Person or Persons, as shall be specified therein or in the Company order of
authentication delivered to the Trustee pursuant to Section 2.04.
The Person in whose name any Security is registered at the close of
business on any Record Date with respect to any Interest Payment Date shall be
entitled to receive the interest payable on such Interest Payment Date
notwithstanding the cancellation of such Security upon any transfer or exchange
thereof subsequent to such Record Date and prior to such Interest Payment Date;
PROVIDED, HOWEVER, that, if and to the extent the Company shall default in the
payment of the interest due on such Interest Payment Date, the defaulted
interest shall be paid to the Persons in whose names the outstanding Securities
are registered on a subsequent record date, such record date to be not less than
5 days prior to the date of payment of such defaulted interest, established by
notice given by mail by or on behalf of the Company to the holders of Securities
not less than 15 days preceding such subsequent record date.
The principal of and interest and premium, if any, on the Securities shall
be payable at each office or agency of the Company designated pursuant to
Section 5.02 for such purpose; provided, however, that interest may at the
option of the Company be paid by check mailed to the address of the Person
entitled thereto as such address shall appear in the Security Register
(including the records of any Security Co-Registrar). Such payments will be made
in such coin or currency of the United States of America as at the time of
payment shall be legal tender for the payment of public and private debts.
SECTION 2.02. TERMS OF SERIES. The aggregate principal amount of Securities
which may be authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established by or pursuant to a Board Resolution, and set forth in an Officers'
Certificate, or established in one or more indentures supplemental hereto, prior
to the issuance of Securities of any series:
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(a) the title of the Securities of the series (which shall distinguish
the Securities of the series from the Securities of all other series,
except to the extent that additional Securities of an existing series are
being issued);
(b) any limit upon the aggregate principal amount of the Securities of
the series which may be outstanding under this Indenture (except as
otherwise provided in Section 2.06, 2.08, 4.02 or 13.05);
(c) the date or dates on which the principal of the Securities of the
series is payable;
(d) the rate or rates at which the Securities of the series shall bear
interest, if any, or the method by which such rate or rates shall be
determined, the date or dates from which such interest shall accrue, or the
method by which such date or dates shall be determined, the interest
payment dates on which such interest shall be payable and the record dates
for the determination of holders to whom interest is payable;
(e) the place or places where the principal of, premium, if any, and
interest on Securities of the series shall be payable;
(f) the price or prices at which, the period or periods within 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, if the Company
is to have that option;
(g) the obligation, if any, of the Company to redeem, purchase or
repay Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a holder thereof and the price or prices at
which the period or periods within which and the terms and conditions upon
which Securities of the series shall be redeemed, purchased or repaid, in
whole or in part, pursuant to such obligation;
(h) if other than denominations of $1,000 or any integral multiple
thereof, the denominations in which Securities of the series shall be
issuable;
(i) if other than the principal amount thereof, the portion of the
principal amount of the Securities of the series which shall be payable
upon declaration of acceleration of the Maturity thereof pursuant to
Section 6.02;
(j) the issuance of the Securities of such series in whole or in part
in global form and, if so, the identity of the Depositary for such
Securities in global form, and the terms and conditions, if any, upon which
interests in such Securities in global form may be exchanged, in whole or
in part, for the individual Securities represented thereby;
(k) any deletions from, modifications of or additions to the events of
default or covenants of the Company with respect to any of such Securities,
whether or not such events of default or covenants are consistent with the
events of default or covenants set forth herein;
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(l) the terms and conditions, if any, upon which the payment of
Securities of such series shall be subordinated to other indebtedness of
the Company (including, without limitation, the indebtedness which ranks
senior to such Securities; restrictions on payments to holders of such
Securities while a default with respect to such senior indebtedness is
continuing; restrictions, if any, on payments to the holders of such
securities following an event of default; and any requirements for holders
of such Securities to remit certain payments to the holders of such senior
indebtedness);
(m) if there is more than one Trustee, the identity of the Trustee
and, if not the Trustee, the identity of each Security Registrar, paying
agent or Authenticating Agent with respect to such Securities; and
(n) any other terms of the Securities of the series (which terms shall
not be inconsistent with the provisions of this Indenture).
All Securities of any one series shall be substantially identical except as
to denomination and except as may otherwise be provided by or pursuant to such
Board Resolution, and set forth in such Officers' Certificate, or in any such
indenture supplemental hereto. If any of the terms of a series of Securities are
established by action taken pursuant to a Board Resolution, a copy of such Board
Resolution shall be delivered to the Trustee at or prior to the delivery of the
Officers' Certificate setting forth the terms of such series. All Securities of
any one series need not be issued at the same time and, unless otherwise so
provided by the Company, a series may be reopened for issuances of additional
Securities of such series or to establish additional terms of such series of
Securities.
SECTION 2.03. CERTIFICATE OF AUTHENTICATION NECESSARY TO MAKE SECURITIES
VALID. The Securities shall be signed in the name and on behalf of the Company
by the manual or facsimile signature of its Chairman of the Board of Directors,
its President or one of its Vice Presidents and by its Secretary or an Assistant
Secretary. The Securities shall then be delivered to the Trustee or the
Authenticating Agent for authentication by it, and thereupon, as provided
herein, the Trustee or the Authenticating Agent shall authenticate and deliver
such Securities. In case any officer of the Company who shall have signed any of
the Securities shall cease to be such officer of the Company before the
Securities so signed shall have been actually authenticated and delivered by the
Trustee or the Authenticating Agent, such Securities may nevertheless be issued,
authenticated and delivered as though the person who signed such Securities had
not ceased to be such officer of the Company; and also any of the Securities may
be signed on behalf of the Company by any person who at the time of the
execution of such Securities shall be the proper officer of the Company, even
though at the date of the execution of this Indenture such person may not have
been such officer of the Company.
SECTION 2.04. FORM OF CERTIFICATE OF AUTHENTICATION. Only such of the
Securities as shall bear thereon a certificate substantially in the form of the
Trustee's certificate of authentication hereinafter recited, executed by the
Trustee or the Authenticating Agent, shall be valid or become obligatory for any
purpose or entitle the holder thereof to any right or benefit under this
Indenture, and the certificate of authentication by the Trustee or the
Authenticating Agent upon any such Security executed on behalf of the Company as
aforesaid shall be conclusive evidence, and the only evidence, that the Security
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so authenticated has been duly authenticated and delivered hereunder and that
the holder thereof is entitled to the benefits of this Indenture.
The Trustee's certificate of authentication on all Securities shall be in
substantially the following form:
This is one of the Securities issued under the Indenture described herein.
THE FIRST NATIONAL BANK OF
CHICAGO
as Trustee
By:
--------------------------
Authorized Signatory
or (if an Authenticating Agent is appointed pursuant to Section 10.10)
By: (Name of Agent)
as Authenticating Agent
By: --------------------------
Authorized Signatory
SECTION 2.05. REGISTRATION, TRANSFER AND EXCHANGE OF SECURITIES. The
Company shall cause to be kept a register (herein sometimes referred to as the
"Security Register") in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of Securities and of
transfers of Securities. Unless and until otherwise determined by the Company,
by Board Resolution, the Security Register initially shall be kept at the
Principal Office of the Trustee. The Trustee is hereby appointed "Security
Registrar" for the purpose of registering Securities and transfers of Securities
as herein provided. The Company may appoint one or more "Security Co-Registrars"
for such purpose. The Security Registrar and any Security Co-Registrars are
herein sometimes referred to, and are appointed as, the "Security Registrar."
Upon surrender for registration of transfer of any Security of any series
at any office or agency of the Company designated pursuant to Section 5.02 for
such purpose or at the office of any Security Co-Registrar, the Company shall
execute and the Trustee or the Authenticating Agent shall authenticate and
deliver a Security or Securities of such series for a like aggregate principal
amount, in such authorized denomination or denominations and registered in such
name or names as may be requested. The transfer of any security shall not be
valid as against the Company or the Trustee unless registered at such offices or
agency by the registered holder, or by his attorney duly authorized in writing.
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Securities of any series in their several authorized denominations are
exchangeable for a Security or Securities of such series in authorized
denominations and of a like aggregate principal amount. Securities to be
exchanged as aforesaid shall be surrendered for that purpose by the registered
holder thereof at such offices or agency, and the Company shall execute and the
Trustee or the Authenticating Agent shall authenticate and deliver in exchange
therefor the Security or Securities in such authorized denomination or
denominations as the Securityholder making the exchange shall have requested and
shall be entitled to receive. The Company shall not be required to make any
exchange or effect registration of transfer of (i) any Security which shall have
been designated for redemption in whole or in part except, in the case of any
Security to be redeemed in part, the portion thereof not so to be redeemed, or
(ii) any Security for a period of 15 days next preceding any selection of
Securities for redemption.
Notwithstanding any other provision of this Section, unless and until it is
exchanged in whole or in part for the individual Securities represented thereby,
in definitive form, a Security in global form representing all or a portion of
the Securities of a series may not be transferred except as a whole by the
Depositary for such series to a nominee of such Depositary or by a nominee of
such Depositary to such Depositary or another nominee of such Depositary or by
such Depositary or any such nominee to a successor Depositary for such series or
a nominee of such successor Depositary.
All Securities presented or surrendered for registration of transfer,
exchange or payment shall (if so required by the Company or the Trustee or any
Security Registrar or Security Co-Registrar or any Authenticating Agent) be duly
endorsed by, or accompanied by a written instrument or instruments of transfer
(in form satisfactory to the Company and the Security Registrar or any Security
Co-Registrar) duly executed by, the registered holder or by his attorney duly
authorized in writing.
If at any time the Depositary for the Securities of a series represented by
one or more Securities in global form notifies the Company that it is unwilling
or unable to continue as Depositary for the Securities of such series or if at
any time the Depositary for the Securities of such series shall no longer be
eligible under Section 2.01, the Company shall appoint a successor Depositary
with respect to the Securities of such series. If a successor Depositary for the
Securities of such series is not appointed by the Company within 90 days after
the Company receives such notice or becomes aware of such ineligibility, the
Company's election pursuant to Section 2.02 that such Securities be represented
by one or more Securities in global form shall no longer be effective with
respect to the Securities of such series and the Company will execute, and the
Trustee, upon receipt of a Company order for the authentication and delivery of
definitive Securities of such series, will authenticate and deliver, Securities
of such series in definitive form, in authorized denominations, in an aggregate
principal amount and like terms and tenor equal to the principal amount of the
Security or Securities in global form representing such series in exchange for
such Security or Securities in global form.
The Company may at any time and in its sole discretion determine that
individual Securities of any series issued in global form shall no longer be
represented by such Security or Securities in global form. In such event the
Company will execute, and the Trustee, upon receipt of a Company order for the
authentication and delivery of definitive Securities of such series and of the
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same terms and tenor, will authenticate and deliver Securities of such series in
definitive form, in authorized denominations, and in aggregate principal amount
equal to the principal amount of the Security or Securities in global form
representing such series in exchange for such Security or Securities in global
form.
If specified by the Company pursuant to Section 2.02 with respect to a
series of Securities issued in global form, the Depositary for such series of
Securities may surrender a Security in global form for such series of Securities
in exchange in whole or in part for Securities of such series in definitive form
and of like terms and tenor on such terms as are acceptable to the Company and
such Depositary. Thereupon, the Company shall execute, and the Trustee upon
receipt of a Company order for the authentication and delivery of definitive
Securities of such series, shall authenticate and deliver, without service
charge to the holders:
(a) to each Person specified by such Depositary a new definitive
Security or Securities of the same series and of the same tenor, in
authorized denominations, in aggregate principal amount equal to and in
exchange for such Person's beneficial interest in the Security in global
form; and
(b) to such Depositary a new Security in global form in a denomination
equal to the difference, if any, between the principal amount of the
surrendered Security in global form and the aggregate principal amount of
the definitive Securities delivered to holders pursuant to clause (a)
above.
Upon the exchange of a Security in global form for Securities in definitive
form, such Security in global form shall be cancelled by the Trustee or an agent
of the Company or the Trustee. Securities issued in definitive form in exchange
for a Security in global form pursuant to this Section 2.05 shall be registered
in such names and in such authorized denominations as the Depositary for such
Security in global form, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee or an agent of the Company
or the Trustee in writing. The Trustee or such agent shall deliver such
Securities to or as directed by the Persons in whose names such Securities are
so registered or to the Depositary.
Whenever any securities are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the Securities which
the holder making the exchange is entitled to receive.
No service charge shall be made for any registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
applicable tax or other governmental charge payable in connection therewith.
The Company and the Trustee, and the agents of either, may deem and treat
the Person in whose name any Security is registered as the absolute owner of
such Security (whether or not such Security shall be overdue and notwithstanding
any notation of ownership or other writing thereon) for all purposes whatsoever
(subject to the provisions set forth herein relating to Record Dates and record
dates for the payment of any defaulted interest), and the Company and the
Trustee, and the agents of either, shall not be affected by any notice to the
contrary.
None of the Company, the Trustee, any Authenticating Agent, any paying
agent or the Security Registrar will have any responsibility or liability for
any aspect of the records relating to or payments made on account of beneficial
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ownership interests of a Security in global form or for maintaining, supervising
or reviewing any records relating to such beneficial ownership interest and each
of them may act or refrain from acting without liability on any information
relating to such records provided by the Depositary.
SECTION 2.06. REPLACING SECURITIES MUTILATED, DESTROYED, LOST OR STOLEN. In
case any temporary or definitive Security of a particular series shall become
mutilated or be destroyed, lost or stolen, then upon the conditions hereinafter
set forth the Company in its discretion may execute, and thereupon the Trustee
or the Authenticating Agent shall authenticate and deliver, a new Security of
the same series of like tenor and principal amount and bearing a different
number, in exchange and substitution for and upon cancellation of the mutilated
Security or in lieu of and substitution for the Security so destroyed, lost or
stolen; provided, however, that if any such mutilated, destroyed, lost or stolen
Security shall have become payable upon the maturity thereof, the Company may,
instead of issuing a substitute Security, pay such Security without requiring
the surrender thereof. The applicant for any substitute Security or for payment
of any such mutilated, destroyed, lost or stolen Security shall furnish to the
Company and to the Trustee evidence satisfactory to them, in their discretion,
of the ownership of and the destruction, loss or theft of such Security and
shall furnish to the Company and to the Trustee indemnity satisfactory to them,
in their discretion, and, if required, shall reimburse the Company and the
Trustee for all expenses (including counsel fees and any tax or other
governmental charge that may be imposed in relation thereto) in connection with
the preparation, issue and authentication of such substitute Security or the
payment of such mutilated, destroyed, lost or stolen Security, and shall comply
with such other reasonable regulations as the Company and the Trustee, or either
of them, may prescribe. Any such new Security delivered pursuant to this Section
2.06 shall constitute an additional contractual obligation on the part of the
Company, whether or not the allegedly destroyed, lost or stolen Security shall
be at any time enforceable by anyone, and shall be equally and proportionately
entitled to the benefit of this Indenture with all other Securities of the same
series issued hereunder. All Securities shall be held and owned upon the express
condition that, to the extent permitted by law, the foregoing provisions are
exclusive with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Securities and shall preclude any and all other rights or
remedies.
SECTION 2.07. RIGHTS TO INTEREST. Subject to the provisions set forth
herein relating to Record Dates and record dates for the payment of any
defaulted interest, each Security delivered pursuant to any provision of this
Indenture in exchange or substitution for, or upon registration of transfer of,
any other Security shall carry all the rights to interest accrued and unpaid,
and to accrue, which were carried by such other Security.
SECTION 2.08. TEMPORARY SECURITIES. Pending the preparation of definitive
Securities of any series the Company may execute and the Trustee or the
Authenticating Agent shall authenticate and deliver temporary Securities of such
series (printed or lithographed). Temporary Securities shall be issuable in any
authorized denomination, and substantially in the form of the definitive
Securities but with such omissions, insertions and variations as may be
appropriate for temporary Securities, all as may be determined by the Company.
In the case of Securities of any series, such temporary Securities may be in
global form, representing all of the outstanding Securities of such series and
tenor. Every such temporary Security of a particular series shall be
authenticated by the Trustee or the Authenticating Agent upon the same
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conditions and in substantially the same manner, and with the same effect, as
the definitive Securities of such series. Without unreasonable delay, and except
in the case of temporary Securities in global form which shall be exchanged in
accordance with the provisions thereof, the Company will execute and deliver to
the Trustee definitive Securities of such series and thereupon any or all
temporary Securities of such series may be surrendered in exchange for
definitive Securities of the same series, at the principal corporate trust
office of the Trustee or any office or agency of the Company designated pursuant
to Section 5.02 for such purpose or at the office of any Security Co-Registrar,
and the Trustee or the Authenticating Agent shall authenticate and deliver in
exchange for such temporary Securities an equal aggregate principal amount of
definitive Securities of the same series. Such exchange shall be made by the
Company at its own expense and without any charge therefor except that the
Company may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto. Until so exchanged,
the temporary Securities of a particular series shall in all respects be
entitled to the same benefits under this Indenture as definitive Securities of
the same series authenticated and delivered hereunder.
ARTICLE THREE
ISSUE OF SECURITIES
SECTION 3.01. AUTHENTICATION, DELIVERY AND DATING. 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 or the
Authenticating Agent for authentication. The Trustee or the Authenticating Agent
shall thereupon authenticate and deliver such Securities to or upon the written
order of the Company, signed by its Chairman of the Board of Directors, its
President or a Vice President, without any further action by the Company. 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 315 of the Trust Indenture Act)
shall be fully protected in relying upon:
(a) a Board Resolution relating thereto and, if applicable, an
appropriate record of any action taken pursuant to such resolution,
certified by the Secretary or an Assistant Secretary of the Company;
(b) an executed supplemental indenture, if any;
(c) an Officers' Certificate; and
(d) an Opinion of Counsel prepared in accordance with Section 14.03,
which shall state
(1) that the form and terms of such Securities have been
established by or pursuant to one or more Board Resolutions, by a
supplemental indenture as permitted by Section 13.01(g), or by both
such resolution or resolutions and such supplemental indenture, in
conformity with the provisions of this Indenture;
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(2) that the supplemental indenture, if any, when executed and
delivered by the Company and the Trustee, will constitute a valid and
legally binding obligation of the Company;
(3) that such Securities, when authenticated and delivered by the
Trustee or the Authenticating Agent and issued by the Company in the
manner and subject to any conditions specified in such Opinion of
Counsel, will constitute valid and legally binding obligations of the
Company, enforceable in accordance with their terms, and will be
entitled to the benefits of this Indenture;
(4) that the Company has the corporate power to issue such
Securities, and has duly taken all necessary corporate action with
respect to such issuance;
(5) that the issuance of such Securities will not contravene the
charter or by-laws of the Company or result in any violation of any of
the terms or provisions of any law or regulation or of any indenture,
mortgage or other agreement by which the Company is bound and under
which long-term debt of the Company as reflected in its latest
financial statements on file with the Securities and Exchange
Commission is outstanding; and
(6) that all requirements of this Indenture applicable to the
Company in respect of the execution and delivery by the Company of
such Securities and of such supplemental indenture, if any, have been
complied with and that, assuming (a) all requisite corporate
authorization on the part of the Trustee, (b) continued compliance by
the Trustee with the terms of the Indenture specifically applicable to
the Trustee, and (c) due authentication and delivery of such
Securities by the Trustee or the Authenticating Agent, the execution
and delivery of such supplemental indenture, if any, will not violate
the terms of this Indenture, and that, other than compliance with
federal and state securities laws, no authorization, approval or
consent by any regulatory or statutory or other public authority is
required in connection with the execution and delivery of such
supplemental indenture or for the creation, issuance, authentication
and delivery of the Securities pursuant to this Indenture.
If the Company shall establish pursuant to Section 2.02 that Securities of
a series may be issued in whole or in part in global form, then the Company
shall execute and the Trustee shall, in accordance with this Section and the
Company order of authentication with respect to such series, authenticate and
deliver one or more Securities in global form that (i) shall represent and shall
be denominated in an aggregate amount equal to the aggregate principal amount of
the outstanding Securities of such series and tenor to be represented by one or
more Securities in global form, (ii) shall be registered, in the name of the
Depositary for such Security or Securities in global form or the nominee of such
Depositary, (iii) shall be delivered to such Depositary or pursuant to such
Depositary's instruction, and (iv) shall bear a legend substantially to the
following effect: "Unless this certificate is presented by an authorized
representative of The Depository Trust Company, a New York corporation ("DTC")
to Issuer or its agent for transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
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Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein." Each Depositary designated pursuant
to Section 2.02 for a Security in global form must, at the time of its
designation and at all times while it serves as Depositary, be a clearing agency
registered under the Securities Exchange Act of 1934 and any other applicable
statute or regulation.
The Trustee shall have the right to decline to authenticate and deliver any
Securities under this Section 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 which is not reasonably
acceptable to the Trustee.
Each Security shall be dated the date of its authentication.
ARTICLE FOUR
REDEMPTION OF SECURITIES; SINKING FUND
SECTION 4.01. APPLICABILITY OF RIGHT OF REDEMPTION. Redemption of
Securities (other than pursuant to a sinking fund or analogous provision)
permitted by the terms of any series of Securities shall be made in accordance
with such terms and Sections 4.02 and 4.03; provided, however, that if any such
terms of a series of Securities shall conflict with any provision of this
Article, the terms of such series shall govern.
SECTION 4.02. NOTICE OF REDEMPTION. The election of the Company to redeem
any Securities of any series shall be evidenced by or pursuant to a Board
Resolution. If the Company shall elect to redeem the Securities of any series in
whole or in part as aforesaid, it shall fix a date for redemption and give
notice of its election so to redeem by mailing or causing to be mailed written
notice, postage prepaid, at least 30 days prior to the redemption date, to all
holders of Securities to be redeemed as a whole or in part, addressed to them at
their respective addresses as the same shall then appear on the Security
Register of the Company. Any notice which shall be mailed in the manner herein
provided shall be conclusively presumed to have been duly given, whether or not
the holder shall receive such notice. Failure to mail such notice, or any defect
in the notice mailed, to the holder of any Security designated for redemption as
a whole or in part shall not affect the validity of the proceedings for the
redemption of any other Security.
Each notice of redemption shall identify the Securities to the redeemed
(including CUSIP number) and shall state such election on the part of the
Company, the Redemption Date and place of payment of the Securities to be
redeemed and the Redemption Price and that the Securities designated in such
notice for redemption are required to be presented on or after such Redemption
Date and at such place for payment and that interest to the Redemption Date on
the Securities and portions of Securities called for redemption will be paid as
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specified in said notice and shall cease to accrue thereon on such date. If less
than all the outstanding Securities of a series are to be redeemed, the notice
shall also designate the Securities or portions of Securities that are to be
redeemed. If any Security is to be redeemed in part only, the notice shall also
state that upon presentation of such Security on or after the redemption date at
said place, such Security will be canceled and a new Security or Securities of
the same series, in an aggregate principal amount equal to the unredeemed
portion of such Security will be issued and delivered without charge to the
holder.
Notice having been so given, the Securities and portions of Securities to
be redeemed shall on the Redemption Date specified in such notice become due and
payable at the applicable Redemption Price, together with interest accrued
thereon to the Redemption Date, and from and after the Redemption Date so
specified (unless the Company shall default in the payment of the Redemption
Price of such Securities or any such accrued interest) interest on such
Securities and portions of Securities shall cease to accrue, and upon
presentation of such Securities at said place of payment and redemption in
accordance with said notice, such Securities and portions of Securities shall be
paid by the Company at the applicable Redemption Price, together with interest
accrued to the Redemption Date (except that, if the Redemption Date shall be an
Interest Payment Date, the interest payable on such date shall be paid to the
registered holders of such Securities at the close of business on the applicable
Record Date, subject to the provisions of Section 2.01).
If the Company shall at any time elect to redeem less than all the
Securities of a series then outstanding, it shall at least 45 days prior to the
Redemption Date (unless a shorter notice shall be satisfactory to the Trustee)
notify the Trustee of the principal amount of Securities to be redeemed, and
thereupon the Trustee shall select, in such manner as the Trustee shall deem
appropriate and fair, the Securities (or portions thereof) of such series to be
redeemed. No Security of a denomination of $1,000 shall be redeemed in part and
Securities may be redeemed in part only in integral multiples of $1,000. The
Trustee shall promptly notify the Company in writing of the Securities and
portions of Securities so selected.
SECTION 4.03. SECURITIES OF ANY SERIES TO BE CANCELED AND DISCHARGED ON
SPECIFIC CONDITIONS. If Securities of any Series at the time outstanding are to
be redeemed under circumstances to which Section 11.02 is applicable, the
Company shall deliver to the Trustee (1) proof satisfactory to the Trustee that
notice of redemption thereof on a specified redemption date has been given as
hereinbefore provided, or (2) proof satisfactory to the Trustee that
arrangements have been made insuring to the satisfaction of the Trustee that
such notice will be so given, or (3) a written instrument in form and substance
satisfactory to the Trustee executed by the Company, and expressed to be
irrevocable, authorizing the Trustee to give such notice for and on behalf of
the Company.
SECTION 4.04. APPLICABILITY OF SINKING FUND. Redemption of Securities
permitted or required pursuant to a sinking fund for the retirement of
Securities of a series by the terms of such series of Securities shall be made
in accordance with such terms of such series of Securities and this Article;
PROVIDED, HOWEVER, that if any such terms of a series of Securities shall
conflict with any provision of this Article, the terms of such series shall
govern.
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
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Fund Payment." If provided for by the terms of Securities of any series, the
cash amount of any Mandatory Sinking Fund Payment may be subject to reduction as
provided in Section 4.05.
SECTION 4.05. MANDATORY SINKING FUND OBLIGATION. The Company may, at its
option, satisfy any Mandatory Sinking Fund Payment obligation, in whole or in
part, with respect to a particular series of Securities by (1) delivering to the
Trustee outstanding Securities of such series in transferable form theretofore
purchased or otherwise acquired by the Company or redeemed at the election of
the Company pursuant to Section 4.01 or (2) receiving credit for Securities of
such series (not previously so credited) acquired by the Company and theretofore
delivered to the Trustee. The Trustee shall credit such Mandatory Sinking Fund
Payment obligation with an amount equal to the redemption price specified in
such Securities for redemption through operation of the sinking fund and the
amount of such Mandatory Sinking Fund Payment shall be reduced accordingly. If
the Company shall elect so to satisfy any Mandatory Sinking Fund Payment
obligation, it shall deliver to the Trustee not less than 45 days prior to the
relevant sinking fund payment date a written notice signed on behalf of the
Company by its Chairman of the Board of Directors, its President, one of its
Vice Presidents, its Treasurer or one of its Assistant Treasurers, which shall
designate the Securities (and portions thereof, if any) to be so delivered or
credited and which shall be accompanied by such Securities (to the extent not
theretofore delivered) in transferable form. In case of the failure of the
Company, at or before the time so required, to give such notice and deliver such
Securities, the Mandatory Sinking Fund Payment obligation shall be paid entirely
in funds.
SECTION 4.06. OPTIONAL REDEMPTION AT SINKING FUND REDEMPTION PRICE. In
addition to the sinking fund requirements of Section 4.05, to the extent, if
any, provided for by the terms of a particular series of Securities, the Company
may, at its option, make an Optional Sinking Fund Payment with respect to such
Securities. Unless otherwise provided by such terms, (a) to the extent that the
right of the Company to make such Optional Sinking Fund Payment shall not be
exercised in any year, it shall not be cumulative or carried forward to any
subsequent year, and (b) such optional payment shall operate to reduce the
amount of any Mandatory Sinking Fund Payment obligation as to Securities of the
same series. If the Company intends to exercise its right to make such optional
payment in any year it shall deliver to the Trustee not less than 45 days prior
to the relevant sinking fund payment date a certificate signed by its Chairman
of the Board of Directors, its President, one of its Vice Presidents, its
Treasurer or one of its Assistant Treasurers stating that the Company will
exercise such optional right, and specifying the amount which the Company will
pay on or before the next succeeding sinking fund payment date. Such certificate
shall also state that no event of default has occurred and is continuing.
SECTION 4.07. APPLICATION OF SINKING FUND PAYMENTS. If the sinking fund
payment or payments made in funds pursuant to either Section 4.05 or 4.06 with
respect to a particular series of Securities plus any unused balance of any
preceding sinking fund payments made in funds with respect to such series shall
exceed $50,000 (or a lesser sum if the Company shall so request), it shall be
applied by the Trustee on the sinking fund payment date next following the date
of such payment, unless the date of such payment shall be a sinking fund payment
date, in which case such payment shall be applied on such sinking fund payment
date, to the redemption of Securities of such series at the redemption price
specified pursuant to Section 4.04. The Trustee shall select in the manner
provided in Section 4.02, for redemption on such sinking fund payment date, a
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sufficient principal amount of Securities of such sinking fund payment date, a
sufficient principal amount of Securities of such series to absorb said funds,
as nearly as may be, and shall, at the expense and in the name of the Company,
thereupon cause notice of redemption of the Securities to be given in
substantially the manner provided in Section 4.02 for the redemption of
Securities in part at the option of the Company, except that the notice of
redemption shall also state that the Securities are being redeemed for the
sinking fund. Any sinking fund moneys not so applied by the Trustee to the
redemption of Securities of such series shall be added to the next sinking fund
payment received in funds by the Trustee and, together with such payment, shall
be applied in accordance with the provisions of this Section 4.07. Any and all
sinking fund moneys held by the Trustee on the last sinking fund payment date
with respect to Securities of such series, and not held for the payment or
redemption of particular Securities of such series, shall be applied by the
Trustee to the payment of the principal of the Securities of such series at
maturity.
On or prior to each sinking fund payment date, the Company shall pay to the
Trustee a sum equal to all interest accrued to the date fixed for redemption on
Securities to be redeemed on such sinking fund payment date pursuant to this
Section 4.07.
The Trustee shall not redeem any Securities of a series with sinking fund
moneys or mail any notice of redemption of Securities of such series by
operation of the sinking fund during the continuance of a default in payment of
interest on any Securities of such series or of any event of default (other than
an event of default occurring as a consequence of this paragraph) of which the
Trustee has actual knowledge, except that if the notice of redemption of any
Securities of such series shall theretofore have been mailed in accordance with
the provisions hereof, the Trustee shall redeem such Securities if funds
sufficient for that purpose shall be deposited with the Trustee in accordance
with the terms of this Article Four. Except as aforesaid, any moneys in the
sinking fund at the time any such default or event of default shall occur and
any moneys thereafter paid into the sinking fund shall, during the continuance
of such default or event of default, be held as security for the payment of all
the Securities of such series; provided, however, that in case such default or
event of default shall have been cured or waived as provided herein, such moneys
shall thereafter be applied on the next sinking fund payment date on which such
moneys are required to be applied pursuant to the provisions of this Section
4.07.
ARTICLE FIVE
PARTICULAR COVENANTS OF THE COMPANY
The Company hereby covenants and agrees as follows:
SECTION 5.01. TO PAY PRINCIPAL, PREMIUM, IF ANY, AND INTEREST. The Company
will duly and punctually pay the principal of and premium, if any, on each of
the Securities, and the interest which shall have accrued thereon, at the date
and place and in the manner provided in the Securities and in this Indenture.
SECTION 5.02. TO MAINTAIN OFFICE OR AGENCY IN NEW YORK. The Company will
maintain in the city in the United States in which the Company has its principal
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business office and, if (a) 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 the Securities may be listed or (b) Securities of any series
are issued in definitive form, in The City of New York, and may maintain
elsewhere, an office or agency where Securities may be presented or surrendered
for payment, where Securities may be surrendered for transfer or exchange and
where notices and demands to or upon the Company in respect of the Securities
and this Indenture may be served. The Company will give prompt written notice to
the Trustee of the location, and any change in the location, of any such office
or agency. If at any time the Company shall fail to maintain such required
office or agency, or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at the
Principal Office of the Trustee. The Company hereby initially appoints the
Trustee as its agent to receive all such presentations, surrenders, notices and
demands.
The Company may also from time to time designate one or more other offices
or agencies where the Securities may be presented or surrendered for any or all
of such purposes and may from time to time rescind such designations; PROVIDED,
HOWEVER, that no such designation shall in any manner result in the creation of
a Security Register or Security Co-Registrar in addition to the Security
Register required to be kept pursuant to Section 2.05 and any Security
Co-Registrar appointed pursuant to Section 2.05. The Company will give prompt
written notice to the Trustee of any such designation and any change in the
location of any such other office or agency.
SECTION 5.03. THE COMPANY, OR PAYING AGENT, TO HOLD IN TRUST MONEYS FOR
PAYMENT OF PRINCIPAL, PREMIUM, IF ANY, AND INTEREST. If the Company shall at any
time act as its own paying agent with respect to any series of Securities, then,
on or before the date on which the principal of and premium, if any, or interest
on any of the Securities of that series by their terms or as a result of the
calling thereof for redemption shall become payable, the Company will set apart
and segregate and hold in trust for the benefit of the holders of such
Securities a sum sufficient to pay such principal and premium, if any, or
interest which shall have so become payable and will notify the Trustee of its
failure to act in that regard and of any failure by the Company or any other
obligor upon the Securities of that series to make any such payment. If the
Company shall appoint, and at the time have, a paying agent for the payment of
the principal of and premium, if any, or interest on any series of Securities,
then, on or before the date on which the principal of and premium, if any, or
interest on any of the Securities of that series shall become payable as
aforesaid, whether by their terms or as a result of the calling thereof for
redemption, the Company will pay to such paying agent a sum sufficient to pay
such principal and premium, if any, or interest, to be held in trust for the
benefit of the holders of such Securities. If such paying agent shall be other
than the Trustee, the Company will cause such paying agent to execute and
deliver to the Trustee an instrument in which such paying agent shall agree with
the Trustee, subject to the provisions of this Section 5.03 and of Section
11.03, (1) that such paying agent shall hold all sums held by such paying agent
for the payment of the principal of and premium, if any, or interest on the
Securities of that series in trust for the benefit of the holders of such
Securities; (2) that such paying agent shall give to the Trustee notice of any
default by the Company or any other obligor upon the Securities of that series
in the making of any payment of the principal of and premium, if any, or
interest on the Securities of that series when the same shall have become due
and payable; and (3) that such paying agent shall, at any time during the
continuance of any such default, upon the written request of the Trustee,
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deliver to the Trustee all sums so held in trust by it. The Company hereby
appoints The First National Bank of Chicago to act as its paying agent
hereunder.
Anything in this Section 5.03 to the contrary notwithstanding, the Company
may at any time, for the purpose of obtaining a release or satisfaction of this
Indenture or for any other reason, pay or cause to be paid to the Trustee all
sums held in trust by it or by any paying agent other than the Trustee as
required by this Section 5.03, such sums to be held by the Trustee upon the same
trusts as those upon which such sums were held by the Company or such paying
agent.
Any money deposited with the Trustee or any paying agent, or then held by
the Company, in trust for the payment of the principal of, premium, if any, or
interest on any Security and remaining unclaimed for three years after such
principal, premium, if any, or interest has become due and payable shall be paid
to the Company on Company request, or (if then held by the Company) shall be
discharged from such trust; and the holder of such Security shall thereafter, as
an unsecured general creditor, look only to the Company for payment thereof, and
all liability of the Trustee or such paying agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; PROVIDED, HOWEVER, that the Trustee or such paying agent, before being
required to make any such repayment, may at the expense of the Company cause to
be published once, in a newspaper published in the English language, customarily
published on each Business Day and of general circulation in the Borough of
Manhattan, The City of New York, notice that such money remains unclaimed and
that, after a date specified therein, which shall not be less than 30 days from
the date of such publication, any unclaimed balance of such money then remaining
will be repaid to the Company.
SECTION 5.04. RESTRICTIONS UPON LIENS UPON PROPERTY OF THE COMPANY AND
RESTRICTED SUBSIDIARIES. The Company will not at any time directly or
indirectly, and will not permit any Restricted Subsidiary to, create, assume,
incur or suffer to be created, assumed or incurred or to exist any Lien upon any
of the properties of any character of the Company or any Restricted Subsidiary
without making effective provision whereby the Securities then outstanding shall
be secured equally and ratably with (or prior to) any other obligation or
indebtedness so secured, so long as such other obligation or indebtedness
remains secured; EXCEPT, HOWEVER, that, notwithstanding the foregoing, the
Company or any Restricted Subsidiary, without so securing the Securities, may
(1) lease property to others in the ordinary course of the
business of the Company or any Restricted Subsidiary or lease or
sublease any property if the property subject thereto is not needed by
the Company or any Restricted Subsidiary in the operation of its
business;
(2) create, assume and incur such Liens or permit such Liens to
be created, assumed, incurred or to exist provided, in each case, the
Lien secures indebtedness for borrowed money, including purchase money
indebtedness, which is incurred to finance the acquisition of the
property subject to such Lien and in respect of which the creditor has
no recourse against the Company or any Restricted Subsidiary except
recourse to such property or to the proceeds of any sale or lease of
such property or both;
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(3) make any deposit with or give any form of security to any
governmental agency or other body created or approved by law or
governmental regulation in order to enable the Company or such
Restricted Subsidiary to maintain self-insurance, or to participate in
any fund in connection with workmen's compensation, unemployment
insurance, old-age pensions, or other social security, or to share in
any privileges or other benefits available to corporations
participating in any such arrangement, or for any other purpose at any
time required by law or regulation promulgated by any governmental
agency or office as a condition to the transaction of any business or
the exercise of any privilege or license, or deposit assets of the
Company or such Restricted Subsidiary with any surety company or clerk
of any court, or in escrow, as collateral in connection with, or in
lieu of, any bond on appeal by the Company or such Restricted
Subsidiary from any judgment or decree against it, or in connection
with any other proceedings in actions at law or suits in equity by or
against the Company or such Restricted Subsidiary;
(4) incur or suffer to be incurred or to exist upon any of its
property or assets (a) Liens for taxes, assessments or other
governmental charges or levies which are not yet due or are payable
without penalty or of which the amount, applicability or validity is
being contested by the Company or such Restricted Subsidiary in good
faith by appropriate proceedings and the Company or such Restricted
Subsidiary shall have set aside on its books reserves which it deems
to be adequate with respect thereto (segregated to the extent required
by generally accepted accounting principles), PROVIDED that
foreclosure, distraint, sale or similar proceedings have not been
commenced, (b) the Liens of any judgment, if such judgment shall not
have remained undischarged, or unstayed on appeal or otherwise, for
more than six months, (c) undetermined Liens or charges incident to
construction, (d) materialmen's, mechanics', workmen's, repairmen's or
other like Liens arising in the ordinary course of business in respect
of obligations which are not overdue or which are being contested by
the Company or such Restricted Subsidiary in good faith by appropriate
proceedings, or deposits to obtain the release of such Liens, or (e)
any encumbrances consisting of zoning restrictions, licenses,
easements and restrictions on the use of real property and minor
defects and irregularities in the title thereto, which do not
materially impair the use of such property by the Company or such
Restricted Subsidiary in the operation of its business or the value of
such property for the purpose of such business;
(5) create other Liens incidental to the conduct of its business
or the ownership of its property and assets which were not incurred in
connection with the borrowing of money or the obtaining of advances or
credit, and which do not in the aggregate materially detract from the
value of its property or assets or materially impair the use thereof
in the operation of its business;
(6) create or suffer to be created or to exist in favor of any
lender of moneys or holder of commercial paper of the Company or a
Restricted Subsidiary in the ordinary course of business a banker's
lien or right of offset in the holder of such indebtedness or moneys
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of the Company or a Restricted Subsidiary deposited with such lender
or holder in the ordinary course of business;
(7) create or suffer to be created or to exist with respect to
any of its property leasehold or purchase rights, exercisable for a
fair consideration, in favor of any Person which arise in transactions
entered into in the ordinary course of business;
(8) assume any Lien or permit any Lien to be assumed or exist if
any such Lien is on property or shares of stock of a corporation at
the time the corporation becomes a Restricted Subsidiary or merges
into or consolidates with the Company or a Restricted Subsidiary;
provided, however, that any such Lien may not be assumed or permitted
to exist if such Lien is incurred in anticipation of such corporation
becoming a Restricted Subsidiary or in anticipation of such merger or
consolidation;
(9) assume any Lien or permit any Lien to be assumed or exist if
any such Lien is on property at the time the Company or a Restricted
Subsidiary acquires the property; provided, however, that any such
Lien may not extend to any other property owned by the Company or a
Restricted Subsidiary at the time such Lien is assumed;
(10) assume, create or suffer to be created or to exist, such
Liens in an amount not to exceed in the aggregate $25,000,000 at any
one time outstanding, excluding Liens covered by other provisions of
clauses (1) through (9) above; and
(11) create or suffer to be created or to exist in favor of any
lender of moneys, any Lien that secures indebtedness of the Company or
a Restricted Subsidiary; provided that the sum of the following does
not exceed 10% of Consolidated Net Tangible Assets: (a) such
indebtedness; PLUS (b) other indebtedness of the Company and its
Restricted Subsidiaries secured by Liens on property of the Company
and its Restricted Subsidiaries, EXCLUDING indebtedness secured by a
Lien existing as of December 31, 1991 and EXCLUDING indebtedness
secured by a Lien permitted by one of clauses (1) through (10) above.
SECTION 5.05. MAINTENANCE OF CORPORATE EXISTENCE. Subject to Section 5.06,
the Company will do or cause to be done all things necessary to preserve and
keep in full force and effect its corporate existence and that of each
Subsidiary and the rights and franchises of the Company and its Subsidiaries;
provided, however, that the Company shall not be required to preserve the
corporate existence of any Subsidiary or any such right or franchise if pursuant
to a Board Resolution, the Company shall determine that the preservation thereof
is no longer desirable in the conduct of the business of the Company and the
other Subsidiaries taken as a whole and that the loss thereof is not on balance
materially disadvantageous to the holders.
SECTION 5.06. RESTRICTIONS ON CONSOLIDATION, MERGER, SALE, ETC. The Company
will not consolidate with any other corporation or accept a merger of any other
corporation into the Company or permit the Company to be merged into any other
corporation, or sell or lease all or substantially all its assets to another
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corporation, or purchase all or substantially all the assets of another
corporation, unless (i) either the Company shall be the continuing corporation,
or the successor, transferee or lessee corporation (if other than the Company)
shall be organized under the laws of the United States or any state thereof or
the District of Columbia and shall expressly assume, by indenture supplemental
hereto, executed and delivered by such corporation prior to or simultaneously
with such consolidation, merger, sale or lease, the due and punctual payment of
the principal of and interest and premium, if any, on all the Securities,
according to their tenor, and the due and punctual performance and observance of
all the covenants and conditions of this Indenture to be performed or observed
by the Company, and (ii) immediately after such consolidation, merger, sale,
lease or purchase the Company or the successor, transferee or lessee corporation
(if other than the Company) would not be in default in the performance of any
covenant or condition of this Indenture. A purchase by a Subsidiary of all or
substantially all of the assets of another corporation shall not be deemed to be
a purchase of such assets by the Company.
SECTION 5.07. ANNUAL STATEMENT CONCERNING COMPLIANCE WITH COVENANTS. The
Company will deliver to the Trustee, within 120 days after the end of each
fiscal year, a written statement signed by the principal executive officer, the
principal financial officer or the principal accounting officer of the Company,
stating that
(a) a review of the activities of the Company during such year with
regard to its compliance with this Indenture has been made under his
supervision, and
(b) to the best of his knowledge, based on such review, the Company
has fulfilled all its obligations under this Indenture throughout such
year, or, if there has been a default in the fulfillment of any such
obligation, specifying each such default known to him and the nature and
status thereof.
SECTION 1.01. COMPLIANCE WITH COVENANTS AND CONDITIONS MAY BE WAIVED BY
HOLDERS OF SECURITIES. Anything in this Indenture to the contrary
notwithstanding, the Company or any Restricted Subsidiary may fail or omit in
any particular instance to comply with a covenant or condition set forth in
Section 5.04 or 5.06 with respect to any series of Securities if the Company
shall have obtained and filed with the Trustee, prior to the time of such
failure or omission, evidence (as provided in Article Seven) of the consent of
the holders of at least 66K% in aggregate principal amount of the Securities of
such series at the time outstanding, either waiving such compliance in such
instance or generally waiving compliance with such covenant or condition, but no
such waiver shall extend to or affect any obligation not waived by the terms of
such waiver or impair any right consequent thereon.
ARTICLE SIX
REMEDIES OF TRUSTEE AND SECURITYHOLDERS
SECTION 6.01. EVENTS OF DEFAULT. Except where otherwise indicated by the
context or where the term is otherwise defined for a specific purpose, the term
"event of default" as used in this Indenture with respect to Securities of any
series shall mean one of the following described events unless it is either
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inapplicable to a particular series or it is specifically deleted or modified in
the supplemental indenture, if any, under which such series of Securities is
issued:
(a) the failure of the Company to pay any installment of interest on
any Security of such series, when and as the same shall become payable,
which failure shall have continued unremedied for a period of 30 days;
(b) the failure of the Company to pay the principal of (and premium,
if any, on) any Security of such series, when and as the same shall become
payable, whether at maturity as therein expressed, by call for redemption
(otherwise than pursuant to a sinking fund), by declaration as authorized
by this Indenture or otherwise;
(c) the failure of the Company to pay a sinking fund installment, if
any, when and as the same shall become payable by the terms of a Security
of such series, which failure shall have continued unremedied for a period
of 30 days;
(d) the failure of the Company, subject to the provisions of Section
5.08, to observe and perform any other of the covenants or agreements on
the part of the Company contained in this Indenture (other than a covenant
or agreement which has been expressly included in this Indenture solely for
the benefit of a series of Securities other than that series), which
failure shall not have been remedied to the satisfaction of the Trustee, or
without provision deemed by the Trustee to be adequate for the remedying
thereof having been made, for a period of 90 days after written notice
shall have been given to the Company by the Trustee or shall have been
given to the Company and the Trustee by holders of 25% or more in aggregate
principal amount of the Securities of such series then outstanding,
specifying such failure and requiring the Company to remedy the same;
(e) an event of default, as defined in any mortgage, indenture or
instrument, including this Indenture, under which there may be issued, or
by which there may be secured or evidenced, any indebtedness for money
borrowed of the Company, whether such indebtedness now exists or shall
hereafter be created, shall happen and shall result in such indebtedness in
an amount in excess of $15,000,000 becoming or being declared due and
payable prior to the date on which it would otherwise become due and
payable, and such acceleration shall not have been rescinded or annulled,
or such indebtedness shall not have been discharged, within a period of 10
days after there has been given, by registered or certified mail, to the
Company by the Trustee or to the Company and the Trustee by the holders of
at least 10% in principal amount of the outstanding Securities of such
series a written notice specifying such event of default and requiring the
Company to cause such acceleration to be rescinded or annulled or to cause
such indebtedness to be discharged;
(f) the entry by a court having jurisdiction in the premises of a
decree or order for relief in respect of the Company in an involuntary case
under the Federal bankruptcy laws, as now or hereafter constituted, or any
other applicable Federal or State bankruptcy, insolvency or other similar
law now or hereafter in effect, or appointing a receiver, liquidator,
assignee, custodian, trustee or sequestrator (or similar official) of the
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Company or for substantially all of its property, or ordering the
winding-up or liquidation of its affairs, which decree or order shall have
remained unstayed and in effect for a period of 90 consecutive days;
(g) the commencement by the Company of a voluntary case under the
Federal bankruptcy laws, as now or hereafter constituted, or any other
applicable Federal or State bankruptcy, insolvency or other similar law now
or hereafter in effect, or the consent by the Company to the entry of an
order for relief in an involuntary case under any such law, or the consent
by the Company to the appointment of or taking possession by a receiver,
liquidator, assignee, trustee, custodian or sequestrator (or similar
official) of the Company or for substantially all of its property, or the
making by it of an assignment for the benefit of its creditors; or
(h) the occurrence of any other event of default with respect to
Securities of such series as provided in an Officers' Certificate delivered
pursuant to Section 2.02 or a supplemental indenture applicable to such
series of Securities pursuant to Section 13.01(b).
SECTION 6.02. ACCELERATION OF MATURITY OF PRINCIPAL ON DEFAULT. If any one
or more of the above-described events of default shall happen with respect to
Securities of any series at the time outstanding, then, and in each and every
such case, during the continuance of any such event of default, the Trustee or
the holders of 25% or more in principal amount of the Securities of such series
then outstanding may, and upon the written request of the holders of a majority
in principal amount of such Securities then outstanding the Trustee shall,
declare the principal of all the Securities of such series then outstanding, if
not then due and payable, to be due and payable, and upon any such declaration
the same shall become and be immediately due and payable, anything in this
Indenture or in the Securities of such series contained to the contrary
notwithstanding. This provision, however, is subject to the condition that, if
at any time after the principal of all the Securities of such series shall have
been so declared to be due and payable, all arrears of interest if any, upon all
the Securities of such series (with interest, to the extent that interest
thereon shall be legally enforceable, on any overdue installment of interest at
the rate borne by the Securities of such series) and the reasonable charges and
expenses of the Trustee, its agents and attorneys, and all other sums payable
under this Indenture (except the principal of the Securities of such series
which would not be due and payable were it not for such declaration), shall be
paid by the Company, and every other default and event of default under this
Indenture shall have been made good to the reasonable satisfaction of the
Trustee or of the holders of a majority in principal amount of the Securities of
such series then outstanding, or provision deemed by the Trustee or by such
holders to be adequate therefor shall have been made, then and in every such
case the holders of a majority in principal amount of the Securities of such
series then outstanding may, on behalf of the holders of all the Securities of
such series, waive the event of default by reason of which the principal of the
Securities of such series shall have been so declared to be due and payable and
may rescind and annul such declaration and its consequences; but no such waiver,
rescission or annulment shall extend to or affect any subsequent default or
event of default or impair any right consequent thereon. Any declaration by the
Trustee pursuant to this Section 6.02 shall be by written notice to the Company,
and any declaration or waiver by the holders of Securities of any series
pursuant to this Section 6.02 shall be by written notice to the Company and the
Trustee.
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The Company and the Trustee may, to the extent provided in Section 13.01,
enter into one or more indentures supplemental hereto with respect to any series
of the Securities which may provide for additional or different events of
default with respect to such series of Securities.
SECTION 6.03. THE COMPANY, FAILING FOR 30 DAYS TO PAY ANY INSTALLMENT OF
INTEREST OR SINKING FUND PAYMENT OR FAILING TO PAY PRINCIPAL WHEN DUE, WILL PAY
TO TRUSTEE AT ITS REQUEST WHOLE AMOUNT DUE. If the Company shall fail for a
period of 30 days to pay any installment of interest on the Securities of any
series or shall fail to pay the principal of and premium, if any, on any of the
Securities of such series when and as the same shall become due and payable,
whether at maturity, or by call for redemption (otherwise than pursuant to the
sinking fund), by declaration as authorized by this Indenture, or otherwise, or
shall fail for a period of 30 days to make any sinking fund payment as to a
series of Securities, then, upon demand by the Trustee, the Company will pay to
the Trustee for the benefit of the holders of Securities of such series then
outstanding the whole amount which then shall have become due and payable on all
the Securities of such series, with interest on the overdue principal and
premium, if any, and (so far as the same may be legally enforceable) on the
overdue installments of interest at the rate borne by the Securities of such
series, and reasonable compensation to the Trustee, its agents and attorneys,
and any other reasonable expenses and liabilities incurred by the Trustee under
this Indenture without negligence or bad faith.
In case the Company shall fail forthwith to pay such amounts upon such
demand, the Trustee, in its own name and as trustee of an express trust, shall
be entitled and empowered to institute any action or proceeding 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 any other obligor upon the
Securities of such series, and collect the moneys adjudged or decreed to be
payable out of the property of the Company or any other obligor upon the
Securities of such series, and collect the moneys adjudged or decreed to be
payable out of the property of the Company or any other obligor upon the
Securities of such securities, wherever situated, in the manner provided by law.
Every recovery of judgment in any such action or other proceeding, subject to
the payment of the expenses, disbursements and compensation of the Trustee, its
agents and attorneys, shall be for the ratable benefit of the holders of such
series of Securities which shall be the subject of such action or proceeding.
All rights of action upon or under any of the Securities or this Indenture may
be enforced by the Trustee without the possession of any of the Securities and
without the production of any thereof at any trial or any proceeding relative
thereto.
SECTION 6.04. TRUSTEE APPOINTED ATTORNEY-IN-FACT FOR SECURITYHOLDERS TO
FILE CLAIMS. The Trustee is hereby appointed, and each and every holder of the
Securities, by receiving and holding the same, shall be conclusively deemed to
have appointed the Trustee, the true and lawful attorney-in-fact of such holder,
with authority to make or file (whether or not the Company shall be in default
in respect of the payment of the principal of, or interest on, any of the
Securities), in its own name and as trustee of an express trust or otherwise as
it shall deem advisable, in any receivership, insolvency, liquidation,
bankruptcy, reorganization or other judicial proceeding relative to the Company
or any other obligor upon the Securities or to their respective creditors or
property, any and all claims, proofs of claim, proofs of debt, petitions,
consents, other papers and documents and amendments of any thereof, as may be
necessary or advisable in order to have the claims of the Trustee and of the
holders of the Securities allowed in any such proceeding and to collect and
receive any moneys or other property payable or deliverable on any such claim,
and to execute and deliver any and all other papers and documents and to do and
perform any and all other acts and things, as it may deem necessary or advisable
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in order to enforce in any such proceeding any of the claims of the Trustee and
of any of such holders in respect of any of the Securities; and any receiver,
assignee, trustee, custodian or debtor in any such proceeding is hereby
authorized, and each and every holder of the Securities, by receiving and
holding the same, shall be conclusively deemed to have authorized any such
receiver, assignee, trustee, custodian or debtor, to make any such payment or
delivery only to or on the order of the Trustee, and to pay to the Trustee any
amount due if for compensation and expenses, including counsel fees, incurred by
it to the date of such payment or delivery; PROVIDED, HOWEVER, that nothing
herein contained shall be deemed to authorize or empower the Trustee to consent
to or accept or adopt, on behalf of any holder of Securities, any plan of
reorganization or readjustment of the Company affecting the Securities or the
rights of any holder thereof, or to authorize or empower the Trustee to vote in
respect of the claim of any holder of any Securities in any such proceeding.
SECTION 6.05. APPLICATION OF MONEYS COLLECTED BY TRUSTEE. Any moneys
collected by the Trustee with respect to a series of Securities under this
Article Six shall be applied in the order following, at the date or dates fixed
by the Trustee for the distribution of such moneys, upon presentation of the
several Securities, and stamping thereon the payment, if only partially paid,
and upon surrender thereof if fully paid:
First: To the payment of all costs and expenses in
connection with the collection of such moneys and all amounts due
to the Trustee under Section 10.05.
Second: In case the principal of the outstanding Securities
of such series shall not have become due and be unpaid, to the
payment of interest on the Securities of such series, in the
order of the maturity of the installments of such interest, with
interest (to the extent that such interest has been collected by
the Trustee) upon the overdue installments of interest at the
rate borne by such Securities, such payments to be made ratably
to the Persons entitled thereto.
Third: In case the principal of the outstanding Securities
of such series shall have become due, by declaration or
otherwise, to the payment of the whole amount then owing and
unpaid upon the Securities of such series for principal and
premium, if any, and interest, with interest on the overdue
principal and premium, if any, and (to the extent that such
interest has been collected by the Trustee) upon overdue
installments of interest at the rate borne by the Securities of
such series, and in case such moneys shall be insufficient to pay
in full the whole amounts so due and unpaid upon the Securities
of such series, then to the payment of such principal and
premium, if any, and interest without preference or priority of
principal and premium, if any, over interest, or of interest over
principal and premium, if any, or of any installment of interest
over any other installment of interest, or of any Security of
such series over any other Security of such series, ratably to
the aggregate of such principal and premium, if any, and accrued
and unpaid interest.
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Any surplus then remaining shall be paid to the Company or to such other
Persons as shall be entitled to receive it.
SECTION 6.06. SECURITYHOLDERS MAY DIRECT PROCEEDINGS AND WAIVE DEFAULTS.
The holders of a majority in principal amount of the Securities of any series at
the time outstanding may direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee hereunder, or of exercising
any trust or power hereby conferred upon the Trustee with respect to the
Securities of such series, PROVIDED, HOWEVER, that, subject to the provisions of
Section 10.02, the Trustee shall have the right to decline to follow any such
direction if the Trustee being advised by counsel determines that the action so
directed may not lawfully be taken. Prior to any declaration accelerating the
maturity of the Securities of any series, the holders of a majority in aggregate
principal amount of such series of Securities at the time outstanding may on
behalf of the holders of all of the Securities of such series waive any past
default or event of default hereunder and its consequences except a default in
the payment of interest or any premium on or the principal of the Securities of
such series. Upon any such waiver 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 event of default or impair any right consequent
thereon. Whenever any default or event of default hereunder shall have been
waived as permitted by this Section 6.06, said default or event of default shall
for all purposes of the Securities of such series and this Indenture be deemed
to have been cured and to be not continuing.
SECTION 6.07. LIMITATIONS ON RIGHTS OF SECURITYHOLDERS TO INSTITUTE
PROCEEDINGS. No holder of any Security of any series shall have any right to
institute any action, suit or proceeding at law or in equity for the execution
of any trust hereunder or for the appointment of a receiver or for any other
remedy hereunder, in each case with respect to an event of default with respect
to such series of Securities, unless such holder previously shall have given to
the Trustee written notice of the happening of one or more of the events of
default herein specified with respect to such series of Securities, and unless
also the holders of 25% in principal amount of the Securities of such series
then outstanding shall have requested the Trustee in writing to take action in
respect of the matter complained of, and unless also there shall been offered to
the Trustee security and indemnity satisfactory to it against the costs,
expenses and liabilities to be incurred therein or thereby, and the Trustee, for
60 days after receipt of such notification, request and offer of indemnity,
shall have neglected or refused to institute any such action, suit or
proceeding; and such notification, request and offer of indemnity are hereby
declared in every such case to be conditions precedent to any such action, suit
or proceeding by any holder of any Security of such series; it being understood
and intended that no one or more of the holders of Securities of such series
shall have any right in any manner whatsoever by his or their action to enforce
any right hereunder, except in the manner herein provided, and that every
action, suit or proceeding at law or in equity shall be instituted, had and
maintained in the manner herein provided and for the equal benefit of all
holders of the outstanding Securities of such series; PROVIDED, HOWEVER, that
nothing in this Indenture or in the Securities of such series contained shall
affect or impair the obligation of the Company, which is absolute and
unconditional, to pay the principal of, premium, if any, and interest on the
Securities of such series to the respective holders of such Securities at the
respective due dates in such Securities stated, or affect or impair the right,
which is also absolute and unconditional, of such holders to institute suit to
enforce the payment thereof; PROVIDED, FURTHER, that in the event property or
assets are conveyed, transferred, assigned, mortgaged or pledged to the Trustee
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as security for one or more series of Securities, no holder of Securities shall
be entitled to take any action or institute any suit to enforce the payment of
his Securities, whether for principal, interest or premium, if any, to the
extent that the taking of such action or the institution or prosecution of any
such suit or the entry of judgment therein would under applicable law result in
a surrender, impairment, waiver or loss of the lien of this Indenture, if any,
upon the trust estate so created by such conveyance, transfer, assignment,
mortgage or pledge, or any part thereof, as security for Securities held by any
other holder.
SECTION 6.08. ASSESSMENT OF COSTS AND ATTORNEYS' FEES IN LEGAL PROCEEDINGS.
All parties to this Indenture and the holders of the Securities agree that the
court may in its discretion require, in any action, suit or proceeding for the
enforcement of any right or remedy under this Indenture, or in any action, suit
or proceeding against the Trustee for any action taken or omitted by it as
Trustee, the filing by any party litigant in such action, suit or proceeding of
an undertaking to pay the costs of such action, suit or proceeding, and that
such court may in its discretion assess reasonable costs, including reasonably
attorney's fees, against any party litigant in such action, suit or proceeding,
having due regard to the merits and good faith of the claims or defenses made by
such party litigant; PROVIDED, HOWEVER, that the provisions of this Section 6.08
shall not apply to any action, suit or proceeding instituted by the Trustee, to
any action, suit or proceeding instituted by any one or more holders of
Securities holding in the aggregate more than 10% in principal amount of the
Securities of any series outstanding, or to any action, suit or proceeding
instituted by any holder of Securities of any series for the enforcement of the
payment of the principal of or premium, if any, or the interest on, any of the
Securities of such series, on or after the respective due dates expressed in
such Securities.
SECTION 6.09. REMEDIES CUMULATIVE. No remedy herein conferred upon or
reserved to the Trustee or to the holders of Securities of any series is
intended to be exclusive of any other remedy or remedies, and each and every
remedy shall be cumulative and shall be in addition to every other remedy given
hereunder or now or hereafter existing at law or in equity or by statute. No
delay or omission of the Trustee or of any holder of the Securities of any
series to exercise any right or power accruing upon any default or event of
default shall impair any such right or power or shall be construed to be a
waiver of any such default or event of default or an acquiescence therein, and
every power and remedy given by this Article Six to the Trustee and to the
holders of Securities of any series, respectively, may be exercised from time to
time and as often as may be deemed expedient by the Trustee or by the holders of
Securities of such series, as the case may be. In case the Trustee or any holder
of Securities of any series shall have proceeded to enforce any right under this
Indenture and the proceedings for the enforcement thereof shall have been
discontinued or abandoned because of waiver or for any other reason or shall
have been adjudicated adversely to the Trustee or to such holder of Securities,
then and in every such case the Company, the Trustee and the holders of the
Securities of such series shall severally and respectively be restored to their
former positions and rights hereunder and thereafter all rights, remedies and
powers of the Trustee and the holders of the Securities of such series shall
continue as though no such proceedings had been taken, except as to any matters
so waived or adjudicated.
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ARTICLE SEVEN
CONCERNING THE SECURITYHOLDERS
SECTION 7.01. EVIDENCE OF ACTION BY SECURITYHOLDERS. Whenever in this
Indenture it is provided that the holders of a specified percentage or a
majority in aggregate principal amount of the Securities or of any series of
Securities 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
specified percentage or majority have joined therein may be evidenced (a) by any
instrument or any number of instruments of similar tenor executed by
Securityholders in person or by agent or proxy appointed in writing, or (b) by
the record of the holders of Securities voting in favor thereof at any meeting
of Securityholders duly called and held in accordance with the provisions of
Article Eight, or (c) by a combination of such instrument or instruments and any
such record of such a meeting of Securityholders.
SECTION 7.02. PROOF OF EXECUTION OF INSTRUMENTS AND OF HOLDING OF
SECURITIES. Proof of the execution of any instrument by a Securityholder 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:
The fact and date of the execution by any person of any such instrument may
be proved (a) by the certificate of any notary public or other officer in any
jurisdiction who, by the laws thereof, has power to take acknowledgements or
proof of deeds to be recorded within such jurisdiction, that the person who
signed such instrument did acknowledge before such notary public or other
officer the execution thereof, or (b) by the affidavit of a witness of such
execution sworn to before any such notary or other officer. Where such execution
is by a person acting in other than his individual capacity, such certificate or
affidavit shall also constitute sufficient proof of his authority.
The ownership of Securities shall be proved by the Security Register of
such Securities or by a certificate of the Security Registrar thereof.
The Trustee may accept such other proof or may require such additional
proof of any matter referred to in this Section 7.02 as it shall deem
appropriate or necessary.
SECTION 7.03. SECURITIES OWNED BY THE COMPANY OR OTHER OBLIGOR ON THE
SECURITIES TO BE DISREGARDED IN CERTAIN CASES. In determining whether the
holders of the requisite principal amount of the Securities have concurred in
any direction, request, waiver or consent under this Indenture, Securities which
are owned by the Company or by any other obligor on the Securities or by any
Person directly or indirectly controlling, or controlled by, or under direct or
indirect common control with, the Company or any such other obligor shall be
disregarded, except that for the purpose of determining whether the Trustee
shall be protected in relying on any such direction, request, waiver or consent,
only Securities which the Trustee knows are so owned shall be disregarded.
Securities so owned which have been pledged in good faith may be regarded as
outstanding for the purposes of this Section 7.03 if the pledgee shall establish
to the satisfaction of the Trustee the pledgee's right to vote such Securities
and that the pledgee is not a Person directly or indirectly controlling, or
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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 7.04. REVOCATION BY SECURITYHOLDERS OF CONSENTS TO ACTION. At any
time prior to (but not after) the evidencing to the Trustee, as provided in
Section 7.01, of the taking of any action by the holders of the percentage in
aggregate principal amount of the Securities or of any series of Securities
specified in this Indenture in connection with such action, any holder of a
Security which 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 at its principal office and upon proof of holding as provided
in Section 7.02, 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, irrespective of whether or not any notation in regard thereto
is made upon such Security or any Security issued in exchange or substitution
therefor.
ARTICLE EIGHT
SECURITYHOLDERS' MEETINGS
SECTION 8.01. PURPOSES OF MEETINGS. A meeting of Securityholders may be
called at any time and from time to time pursuant to the provisions of this
Article Eight for any of the following purposes:
(a) to give any notice to the Company or to the Trustee, or to give
any directions to the Trustee, or to consent to the waiving of any default
hereunder and its consequences, or to take any other action authorized to
be taken by Securityholders pursuant to any of the provisions of Article
Six;
(b) to remove the Trustee and nominate a successor trustee pursuant to
the provisions of Article Ten;
(c) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to the provisions of Section 13.02; or
(d) to take any other action authorized to be taken by or on behalf of
the holders of any specified aggregate principal amount of the Securities
of any one or more or all series, as the case may be, under any other
provision of this Indenture or under applicable law.
SECTION 8.02. CALL OF MEETINGS BY TRUSTEE. The Trustee may at any time call
a meeting of Securityholders of all series that may be affected by the action
proposed to be taken, to take any action specified in Section 8.01, to be held
at such time and at such place as the Trustee shall determine. Notice of every
meeting of the Securityholders of a series, setting forth the time and the place
of such meeting and in general terms the action proposed to be taken at such
meeting, shall be mailed to holders of Securities of such series at their
addresses as they shall appear on the Security Register (including the records
of any Security Co-Registrar). Such notice shall be mailed not less than 20 nor
more than 90 days prior to the date fixed for the meeting.
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SECTION 8.03. CALL OF MEETINGS BY COMPANY OR SECURITYHOLDERS. In case at
any time the Company, pursuant to a resolution of its Board of Directors, or the
holders of at least 10% in aggregate principal amount of the Securities of a
series then outstanding that may be affected by the action proposed to be taken,
shall have requested the Trustee to call a meeting of Securityholders of such
series, by written request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Trustee shall not have mailed the
notice of such meeting within 20 days after receipt of such request, then the
Company or such Securityholders may determine the time and the place for such
meeting and may call such meeting to take any action authorized in Section 8.01,
by mailing notice thereof as provided in Section 8.02.
SECTION 8.04. QUALIFICATIONS FOR VOTING. To be entitled to vote at any
meeting of Securityholders a Person shall (a) be a holder of one or more
Securities of a series affected by the action proposed to be taken at the
meeting or (b) be a person appointed by an instrument in writing as proxy by a
holder of one or more such Securities. The only persons who shall be entitled to
be present or to speak at any meeting of Securityholders shall be the persons
entitled to vote at such meeting and their counsel and any representatives of
the Trustee and its counsel and any representatives of the Company and its
counsel.
SECTION 8.05. REGULATION OF MEETINGS. Notwithstanding any other provisions
of this Indenture, the Trustee may make such reasonable regulations as it may
deem advisable for any meeting of Securityholders, in regard to proof of the
holding of Securities and of the appointment of proxies, and in regard to the
appointment and duties of inspectors of votes, the submission and examination of
proxies, certificates and other evidence of the right to vote, and such other
matters concerning the conduct of the meeting as it shall think fit.
The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Securityholders as provided in Section 8.03, in which case the
Company or the Securityholders calling the meeting, as the case may be, shall in
like manner appoint a temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by majority vote of the meeting.
Subject to the provisions of Section 7.03, at any meeting of
Securityholders of a series each Securityholder of such series or such
Securityholder's proxy shall be entitled to one vote for each $1,000 principal
amount of Securities of such series outstanding held or represented by him;
PROVIDED, HOWEVER, that no vote shall be cast or counted at any meeting in
respect of any Security challenged as not outstanding and ruled by the chairman
of the meeting to be not outstanding. The chairman of the meeting shall have no
right to vote other than by virtue of Securities of such series held by him or
instruments in writing as aforesaid duly designating him as the person to vote
on behalf of other Securityholders of such series. At any meeting of the
Securityholders duly called pursuant to the provisions of Section 8.02 or 8.03
the presence of persons holding or representing Securities in an aggregate
principal amount sufficient to take action upon the business for the transaction
of which such meeting was called shall be necessary to constitute a quorum, and
any such meeting may be adjourned from time to time by a majority of those
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present, whether or not constituting a quorum, and the meeting may be held as so
adjourned without further notice.
SECTION 8.06. VOTING. The vote upon any resolution submitted to any meeting
of Securityholders of a series shall be by written ballots on which shall be
subscribed the signatures of the holders of Securities of such series or of
their representatives by proxy and the principal amounts of the Securities of
such series held or represented by them. The permanent chairman of the meeting
shall appoint two inspectors of votes who shall count all votes cast at the
meeting for or against any resolution and who shall make and file with the
secretary of the meeting their verified written reports in duplicate of all
votes cast at the meeting. A record in duplicate of the proceedings of each
meeting of Securityholders shall be prepared by the secretary of the meeting and
there shall be attached to said record the original reports of the inspectors of
votes on any vote by ballot taken thereat and affidavits by one or more persons
having knowledge of the facts setting forth a copy of the notice of the meeting
and showing that said notice was mailed as provided in Section 8.02. The record
shall show the principal amounts of the Securities voting in favor of or against
any resolution. The record shall be signed and verified by the affidavits of the
permanent chairman and secretary of the meeting and one of the duplicates shall
be delivered to the Company and the other to the Trustee to be preserved by the
Trustee.
Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
SECTION 8.07. NO DELAY OF RIGHTS BY MEETING. Nothing contained in this
Article Eight shall be deemed or construed to authorize or permit, by reason of
any call of a meeting of Securityholders of any series or any rights expressly
or impliedly conferred hereunder to make such call, any hindrance or delay in
the exercise of any right or rights conferred upon or reserved to the Trustee or
to the Securityholders of such series under any of the provisions of this
Indenture or of the Securities of such series.
ARTICLE NINE
REPORTS BY THE COMPANY AND THE TRUSTEE
AND SECURITYHOLDERS' LISTS
SECTION 9.01. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESS OF HOLDERS. In
accordance with Section 312(a) of the Trust Indenture Act, the Company shall
furnish or cause to be furnished to the Trustee:
(a) semi-annually with respect to Securities of each series on January
15 and July 15 of each year or upon such other dates as are set forth in or
pursuant to the Board Resolution or indenture supplemental hereto
authorizing such series, a list, in each case, in such form as the Trustee
may reasonably require, of the names and addresses of holders as of the
applicable date; and
(b) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the
time such list is furnished;
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provided, however, that so long as the Trustee is the Security Registrar no such
list shall be required to be furnished.
SECTION 9.02. PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS. The
Trustee shall comply with the obligations imposed upon it pursuant to Section
312 of the Trust Indenture Act.
Every holder of Securities, by receiving and holding the same, agrees with
the Company and the Trustee that neither the Company, the Trustee, any paying
agent or any Security Registrar shall be held accountable by reason of the
disclosure of any such information as to the names and addresses of the holders
of Securities in accordance with Section 312 of the Trust Indenture Act,
regardless of the source from which such information was derived, and that the
Trustee shall not be held accountable by reason of mailing any material pursuant
to a request made under Section 312(b) of the Trust Indenture Act.
SECTION 9.03. REPORTS BY TRUSTEE.
(a) Within 60 days after May 15 of each year commencing with the first
May 15 following the first issuance of Securities, if required by Section
313(a) of the Trust Indenture Act, the Trustee shall transmit, pursuant to
Section 313(c) of the Trust Indenture Act, a brief report dated as of such
May 15 with respect to any of the events specified in said Section 313(a)
which may have occurred since the later of the immediately preceding May 15
and the date of this Indenture.
(b) The Trustee shall transmit the reports required by Section 313(b)
of the Trust Indenture Act and Section 10.11 hereof at the times specified
therein.
(c) Reports pursuant to this Section shall be transmitted in the
manner and to the Persons required by Sections 313(c) and 313(d) of the
Trust Indenture Act.
SECTION 9.04. REPORTS BY COMPANY. The Company, pursuant to Section 314(a)
of the Trust Indenture Act, shall:
(a) 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) which the Company may be required to file
with the Commission pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934; or, if the Company is not required to file
information, documents or reports pursuant to either of said Sections, then
it shall file with the Trustee and the Commission, in accordance with rules
and regulations prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents and reports which may be
required pursuant to Section 13 of the Securities Exchange Act of 1934 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;
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(b) file with the Trustee and the Commission, in accordance with rules
and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by
the Company with the conditions and covenants of this Indenture as may be
required from time to time by such rules and regulations; and
(c) transmit to the holders within 30 days after the filing thereof
with the Trustee, in the manner and to the extent provided in Section
313(c) of the Trust Indenture Act, such summaries of any information,
documents and reports required to be filed by the Company pursuant to
paragraphs (1) and (2) of this Section as may be required by rules and
regulations prescribed from time to time by the Commission.
ARTICLE TEN
CONCERNING THE TRUSTEE
SECTION 10.01. CERTAIN RIGHTS OF TRUSTEE. Subject to Sections 315(a)
through 315(d) of the Trust Indenture Act:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, coupon or other paper or document reasonably
believed by it to be genuine and to have been signed or presented by the
proper party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by an Officers' Certificate and any resolution of
the Board of Directors or any committee thereof (or committee of officers
or other representatives of the Company, to the extent any such committee
or committees have been so authorized by the Board of Directors) may be
sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other
evidence shall be herein specifically prescribed) may, in the absence of
bad faith on its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the advice of such
counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by or pursuant to this Indenture at the
request or direction of any of the holders of Securities of any series
pursuant to this Indenture, unless such holders shall have offered to the
Trustee reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such request
or direction;
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(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, coupon or other paper or document, but the Trustee, in its
discretion, may make such further inquiry or investigation into such facts
or matters as it may see fit, and, if the Trustee shall determine to make
such further inquiry or investigation, it shall be entitled to examine,
during business hours and upon reasonable notice, the books, records and
premises of the Company, personally or by agent or attorney; 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 10.02. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES. The
recitals contained herein and in the Securities, except those referring or
relating to the Trustee or any of its agents, and except for the Trustee's
certificate of authentication, shall be taken as the statements of the Company
and neither the Trustee nor any Authenticating Agent assumes any responsibility
for their correctness. The Trustee makes no representations as to the validity
or sufficiency of this Indenture or of the Securities, except that the Trustee
represents that it is duly authorized to execute and deliver this Indenture,
authenticate the Securities and perform its obligations hereunder and that the
statements made by it in a Statement of Eligibility on Form T-1 supplied to the
Company are and will be true and accurate, subject to the qualifications set
forth therein. Neither the Trustee nor any Authenticating Agent shall be
accountable for the use or application by the Company of the Securities or the
proceeds thereof.
SECTION 10.03. MAY HOLD SECURITIES. The Trustee, any Authenticating Agent,
any Security Registrar or any other Person that may be an agent of the Trustee
or the Company, in its individual or any other capacity, may become the owner or
pledgee of Securities and, subject to Sections 310(b) and 311 of the Trust
Indenture Act, may otherwise deal with the Company with the same rights it would
have if it were not Trustee, Authenticating Agent, Security Registrar or such
other Person.
SECTION 10.04. MONEY HELD IN TRUST. Money held by the Trustee in trust
hereunder need not be segregated from other funds except to the extent required
by law and, subject to Section 11.02 hereof, may be invested in direct
obligations of the United States of America in such amounts and with such
maturities that will ensure that the principal of such obligations, together
with the income thereon (without consideration of any reinvestment thereof),
will be sufficient to pay all sums due for principal of, premium, if any, and
interest on the Securities, as they become due from time to time. The Trustee
shall be under no liability for interest on any money received by it or for
losses on any investments made by it pursuant to this Section 10.04 except as
otherwise agreed with the Company.
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SECTION 10.05. COMPENSATION AND REIMBURSEMENT. The Company agrees:
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by the Trustee hereunder (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(2) to reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Trustee
in accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or advance
as may be attributable to the Trustee's negligence or bad faith; and
(3) to indemnify the Trustee and its agents for, and to hold them
harmless against, any loss, liability or expense incurred without
negligence or bad faith on their part (excluding, for so long as no
event of default hereunder has occurred and is continuing, any
settlement that has not been approved by the Company in writing prior
to any such settlement) arising out of or in connection with the
acceptance or administration of the trust or trusts hereunder,
including the costs and expenses of defending themselves against any
claim or liability in connection with the exercise or performance of
any of their powers or duties hereunder, except to the extent that any
such loss, liability or expense was due to the Trustee's negligence or
bad faith.
The obligations of the Company under this Section to compensate and
indemnify the Trustee and each predecessor Trustee for expenses, disbursements
and advances shall constitute additional indebtedness hereunder and shall
survive the satisfaction and discharge of this Indenture.
SECTION 10.06. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY. There shall at all
times be a Trustee hereunder that is a corporation permitted by the Trust
Indenture Act to act as trustee under an indenture qualified under the Trust
Indenture Act and that has a combined capital and surplus (computed in
accordance with Section 310(a)(2) of the Trust Indenture Act) of at least
$25,000,000. If at any time the Trustee shall cease to be eligible in accordance
with the provisions of this Section, it shall resign immediately in the manner
and with the effect hereinafter specified in this Article.
SECTION 10.07. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee pursuant to Section
10.08.
(b) The Trustee may resign at any time with respect to the Securities
of one or more series by giving written notice thereof to the Company. If
the instrument of acceptance by a successor Trustee required by Section
10.08 shall not have been delivered to the Trustee within 30 days after the
giving of such notice of resignation, the resigning Trustee may petition
any court of competent jurisdiction for the appointment of a successor
Trustee with respect to such series.
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(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the holders of a majority in principal
amount of the outstanding Securities of such series, delivered to the
Trustee and the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with the obligations imposed
upon it under Section 310(b) of the Trust Indenture Act with respect
to Securities of any series after written request therefor by the
Company or any holder of a Security of such series who has been a bona
fide holder of a Security of such series for at least six months; or
(2) the Trustee shall cease to be eligible under Section 10.06
and shall fail to resign after written request therefor by the Company
or any such holder; or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of
its property shall be appointed or any public officer shall take
charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation;
then, in any such case, (i) the Company, by or pursuant to a Board Resolution,
may remove the Trustee with respect to all Securities or the Securities of such
series, or (ii) subject to Section 315(e) of the Trust Indenture Act, any holder
of a Security who has been a bona fide holder of a Security of such series for
at least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Trustee with
respect to all Securities of such series and the appointment of a successor
Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause,
with respect to the Securities of one or more series which shall occur only
with the express prior written consent of the Company, the Company, by or
pursuant to a Board Resolution, shall promptly appoint a successor Trustee
or Trustees with respect to the Securities of that or those series (it
being understood that any such successor Trustee may be appointed with
respect to the Securities of one or more or all of such series and that at
any time there shall be only one Trustee with respect to the Securities of
any particular series) and shall comply with the applicable requirements of
Section 10.08. If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor Trustee with
respect to the Securities of any series shall be appointed by Act of the
holders of a majority in principal amount of the outstanding Securities of
such series delivered to the Company and the retiring Trustee, the
successor Trustee so appointed shall, forthwith upon its acceptance of such
appointment in accordance with the applicable requirements of Section
10.08, become the successor Trustee with respect to the Securities of such
series and to that extent supersede the successor Trustee appointed by the
Company. If no successor Trustee with respect to the Securities of any
series shall have been so appointed by the Company or the holders of
Securities and accepted appointment in the manner required by Section
10.08, any holder of a Security who has been a bona fide holder of a
Security of such series for at least six months may, on behalf of himself
and all others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
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(f) The Company shall give notice of each resignation and each removal
of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of any
series by mailing written notice of such event by first-class mail, postage
prepaid, to the holders of Securities of such series as their names and
addresses appear in the Security Register. Each notice shall include the
name of the successor Trustee with respect to the Securities of such series
and the address of its Corporate Trust Office.
SECTION 10.08. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) Upon the appointment hereunder of any successor Trustee with respect to
all Securities, such successor Trustee so appointed shall execute, acknowledge
and deliver to the Company and 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 hereunder of the retiring Trustee; but, on the request of the Company or
such successor Trustee, such retiring Trustee, upon payment of its charges,
shall execute and deliver an instrument transferring to such successor Trustee
all the rights, powers and trusts of the retiring Trustee and, subject to
Section 5.03, shall duly assign, transfer and deliver to such successor Trustee
all property and money held by such retiring Trustee hereunder, subject
nevertheless to its claim, if any, provided for in Section 10.05.
(b) Upon the appointment hereunder of any successor Trustee with respect to
the Securities of one or more (but not all) series, the Company, the retiring
Trustee and such successor Trustee shall execute and deliver 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, such successor Trustee all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates, (2) if the retiring Trustee is not retiring with respect to all
Securities, 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
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 notice given to, or received by, or 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 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 with respect to the Securities of that or those series to which
the appointment of such successor Trustee relates other than as hereinafter
expressly set forth, 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 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 such successor Trustee, such retiring Trustee, upon
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payment of its charges with respect to the Securities of that or those series to
which the appointment of such successor relates and subject to Section 5.03
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 Person appointed hereunder as a 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 Person shall accept its appointment hereunder as a successor Trustee
unless at the time of such acceptance such successor Person shall be qualified
and eligible under this Article.
SECTION 10.09. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.
Any corporation into which the Trustee may be merged or converted or with which
it may be consolidated, or any corporation resulting from any merger, conversion
or consolidation to which the Trustee shall be a party, or any corporation
succeeding to all or substantially all of the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder, without the execution
or filing of any paper or any further act on the part of any of the parties
hereto. In case any Securities shall have been authenticated but not delivered
by the Trustee then in office, any successor by merger, conversion or
consolidation to such authenticating Trustee may adopt such authentication and
deliver the Securities so authenticated with the same effect as if such
successor Trustee had itself authenticated such Securities.
SECTION 10.10. APPOINTMENT OF AUTHENTICATING AGENT. The Trustee may appoint
one or more Authenticating Agents acceptable to the Company with respect to one
or more series of Securities which shall be authorized to act on behalf of the
Trustee to authenticate Securities of that or those series issued upon original
issue, exchange, registration of transfer, partial redemption or pursuant to
Section 2.06, 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. Wherever reference is made in this
Indenture to the authentication and delivery of Securities by the Trustee or the
Trustee's certificate of authentication, such reference shall be deemed to
include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Company and, except as
provided in or pursuant to this Indenture, shall at all times be a corporation
that would be permitted by the Trust Indenture Act to act as trustee under an
indenture qualified under the Trust Indenture Act, is authorized under
applicable law and by its charter to act as an Authenticating Agent and has a
combined capital and surplus (computed in accordance with Section 310(a)(2) of
the Trust Indenture Act) of at least $5,000,000. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect specified in this Section.
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Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any Corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall be the successor of
such Authenticating Agent hereunder, provided such Corporation shall be
otherwise eligible under this Section, without the execution or filing of any
paper or any further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and the Company. The Trustee may at any time terminate
the agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall (i) mail written notice
of such appointment by first-class mail, postage prepaid, to all holders of
Securities of the series with respect to which such Authenticating Agent shall
serve, as their names and addresses appear in the Security Register. Any
successor Authenticating Agent, upon acceptance of its appointment hereunder,
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The provisions of Sections 2.05, 10.02 and 10.03 shall be applicable to
each Authenticating Agent.
If all of the Securities of any series may not be originally issued at one
time, and if the Trustee does not have an office capable of authenticating
Securities upon original issuance located in a Place of Payment where the
Company wishes to have Securities of such series authenticated upon original
issuance, the Trustee, if so requested in writing (which writing need not be
accompanied by or contained in an Officers' Certificate by the Company), shall
appoint in accordance with this Section an Authenticating Agent having an office
in a Place of Payment designated by the Company with respect to such series of
Securities.
SECTION 10.11. NOTICE OF DEFAULTS. The Trustee shall, within ninety days
after the occurrence of a default with respect to the Securities of any series,
mail to all holders of Securities of that series entitled to receive reports
pursuant to Section 9.03, notice of all defaults with respect to that series
known to the Trustee, unless such defaults shall have been cured before the
giving of such notice; provided, however, that, except in the case of default in
the payment of the principal of, premium, if any, or interest on any of the
Securities of such series or in the making of any sinking fund payment with
respect to such series, the Trustee shall be protected in withholding such
notice if and so long as the board of directors or trustees, the executive
committee, or a trust committee of directors or trustees or Responsible Officers
of the Trustee in good faith determines that the withholding of such notice is
in the interests of the holders of Securities of such series. For the purpose of
this Section, the term "default" means any event which is, or after notice or
lapse of time or both would become, an event of default hereunder.
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ARTICLE ELEVEN
DEFEASANCE
SECTION 11.01. DISCHARGE OF INDENTURE UPON PAYMENT OF SECURITIES. If and
when the principal of, and the premium, if any, and the interest on, all the
Securities outstanding hereunder and all other sums due hereunder shall have
been well and truly paid at the times and in the manner therein and herein
expressed, this Indenture shall cease and determine, and, at the written request
of the Company, accompanied by the Officers' Certificate and Opinion of Counsel
required by Section 14.03, and upon proof being given to the reasonable
satisfaction of the Trustee that all the Securities have been paid or satisfied
and upon payment of the costs, charges and expenses incurred or to be incurred
by the Trustee in relation thereto or in carrying out the provisions of this
Indenture, the Trustee shall cancel this Indenture and execute and deliver to
the company such instruments as shall be requisite to evidence the satisfaction
hereof.
SECTION 11.02. DISCHARGE OF SECURITIES OF ANY SERIES UPON DEPOSIT OF
MONEYS. If, at any time after the date hereof, the Company shall deposit with
the Trustee, in trust for the benefit of the holders thereof, (i) funds
sufficient to pay, or (ii) such amount of direct obligations of the United
States of America as will or will together with the income thereon without
consideration of any reinvestment thereof be sufficient to pay, all sums due for
principal of, premium, if any, and interest on the Securities of a particular
series, as they shall become due from time to time, and shall pay all costs,
charges and expenses incurred or to be incurred by the Trustee in relation
thereto or in carrying out the provisions of this Indenture in relation thereto,
this Indenture shall cease to be of further effect with respect to Securities of
such series (except as to (i) rights of registration of transfer, substitution
and exchange of Securities of such series, (ii) rights of holders to receive
payments of principal of, premium, if any, and interest on the Securities of
such series as they shall become due from time to time and other rights, duties
and obligations of Securityholders as beneficiaries hereof with respect to the
amounts so deposited with the Trustee, and (iii) the rights, obligations and
immunities of the Trustee hereunder (for which purposes the Securities of such
series shall be deemed outstanding)), and the Trustee, on the written request of
the Company, accompanied by the Officers' Certificate and Opinion of Counsel
required by Section 14.03, and an Opinion of Counsel to the effect that holders
of the Securities of such series will not recognize income, gain or loss for
Federal income tax purposes as a result of the Company's action under this
Section 11.02 and will be subject to Federal income tax in the same amount, in
the same manner and at the same times as would have been the case if such action
had not been taken, shall execute and deliver to the Company such instruments as
shall be requisite to evidence the satisfaction thereof with respect to
Securities of such series. The Trustee shall apply the moneys so deposited
solely to the payment to the holders of the Securities of such series of all
sums due thereon for principal, premium, if any, and interest, and the Trustee
shall have no claim for itself, for fees, expenses or otherwise, to such moneys
so deposited.
SECTION 11.03. INTEREST ON MONEYS DEPOSITED. Neither the Trustee nor any
other paying agent shall be required to pay interest on any moneys deposited
pursuant to the provisions of this Indenture, except such as it shall agree with
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the Company to pay thereon. Any moneys so deposited for the payment of the
principal of, premium, if any, of interest on the Securities of any series and
remaining unclaimed for three years after the date of the maturity of the
Securities of such series or the date fixed for the redemption of all the
Securities of such series at the time outstanding, as the case may be, shall be
repaid by the Trustee or such other paying agent to the Company upon its written
request and thereafter, anything in this Indenture to the contrary
notwithstanding, any rights of the holders of Securities of such series in
respect of which such moneys shall have been deposited shall be enforceable only
against the Company, and all liability of the Trustee or such other paying agent
with respect to such moneys shall thereafter cease.
Subject to the provisions of the foregoing paragraph, any moneys which at
any time shall be deposited by the Company or on its behalf with the Trustee or
any other paying agent for the purpose of paying the principal of, premium, if
any, and interest on any of the Securities shall be and are hereby assigned,
transferred and set over to the Trustee or such other paying agent in trust for
the respective holders of the Securities for the purpose for which such moneys
shall have been deposited; but such moneys need not be segregated from other
funds except to the extent required by law.
ARTICLE TWELVE
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS, DIRECTORS AND EMPLOYEES
SECTION 12.01. LIABILITY SOLELY CORPORATE. No recourse shall be had for the
paying of the principal of, or the premium, if any, or interest on, any Security
or for any claim based thereon or otherwise in respect thereof or of the
indebtedness represented thereby, or upon any obligation, covenant or agreement
of this Indenture, against any incorporator, stockholder, officer, director or
employee, as such, past, present or future, of the Company or of any successor
corporation, either directly or through the Company or any successor
corporation, whether by virtue of any constitutional provision, statute or rule
of law, or by the enforcement of any assessment or penalty or otherwise; it
being expressly agreed and understood that this Indenture and the Securities are
solely corporate obligations, and that no personal liability whatsoever shall
attach to, or be incurred by, any incorporator, stockholder, officer, director
or employee, as such, past, present or future, of the Company or of any
successor corporation, either directly or through the Company or any successor
corporation, because of the incurring of the indebtedness hereby authorized or
under or by reason of any of the obligations, covenants, promises or agreements
contained in this Indenture or in any of the Securities or to be implied
herefrom or therefrom, and that all liability, if any, of that character against
every such incorporator, stockholder, officer, director and employee is, by the
acceptance of the Securities and as a condition of, and as part of the
consideration for, the execution of this Indenture and the issue of the
Securities expressly waived and released.
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ARTICLE THIRTEEN
SUPPLEMENTAL INDENTURES
SECTION 13.01. WITHOUT CONSENT OF SECURITYHOLDERS, THE COMPANY AND TRUSTEE
MAY ENTER INTO SUPPLEMENTAL INDENTURES FOR SPECIFIED PURPOSES. The Company (when
authorized by resolution of its Board of Directors) and the Trustee, at any time
and from time to time, may enter into one or more indentures supplemental
hereto, in form satisfactory to the Trustee, for any one or more of the
following purposes:
(a) to add to the covenants and agreements of the Company, to be
observed thereafter and during the period, if any, in such supplemental
indenture or indentures expressed, to surrender any right or power
hereunder conferred upon the Company, and to add events of default, in each
case for the protection or benefit of the holders of all or any series of
the Securities (and if such covenants, agreements, surrender of rights or
powers and events of default are to be for the benefit of fewer than all
series of Securities, stating that such covenants, agreements, surrender of
rights or powers and events of default are expressly being included for the
benefit of such series as shall be identified therein);
(b) to change or eliminate any provisions of the Indenture with
respect to all or any series of the Securities not then outstanding (and,
if such change is applicable to fewer than all such series of the
Securities, specifying the series to which such change is applicable), and
to specify the rights and remedies of the Trustee and the holders of such
Securities in connection therewith;
(c) to evidence the succession of another corporation to the Company,
the Trustee, or successive successions, and the assumption by a successor,
transferee or lessee corporation of the covenants and obligations of the
Company or Trustee, as the case may be, contained in the Securities of one
or more series or in this Indenture;
(d) to cure any ambiguity or to correct or supplement any provision
contained herein or in any indenture supplemental hereto which may be
defective or inconsistent with any other provision contained herein or in
any supplemental indenture, or to make any other provision in regard to
matters or questions arising under this Indenture which the Board of
Directors of the Company may deem necessary or desirable and which shall
not adversely affect the interests of the holders of the Securities;
(e) to convey, transfer, assign, mortgage or pledge to the Trustee as
security for the Securities any property or assets which the Company may be
required to convey, transfer, assign, mortgage or pledge in accordance with
the provisions of Section 5.04;
(f) to prohibit the authentication and delivery of additional series
of Securities;
(g) to add to or change any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the issuance of
Securities in bearer form, registrable or not registrable as to principal
and with or without interest coupons;
46
<PAGE>
(h) to establish the form and terms of the Securities of any series as
permitted in Sections 2.01 and 2.02, or to authorize the issuance of
additional Securities of a series previously authorized or to add to the
conditions, limitations or restrictions on the authorized amount, terms or
purposes of issue, authentication or delivery of the Securities of any
series, as herein set forth, or other conditions, limitations or
restrictions thereafter to be observed; and
(i) to modify, alter, amend or supplement this Indenture in any other
respect which is not materially adverse to the holders, so long as such
change does not require the consent of the holders pursuant to any other
provision of this Indenture and is not inconsistent with any other
provisions of this Indenture and which, in the judgment of the Trustee, is
not to the prejudice of the Trustee and maintains adequate protection to
the Trustee when the same becomes operative.
Subject to the provisions of Section 13.03, the Trustee is authorized to
join with the Company in the execution of any such supplemental indenture, to
make the further agreements and stipulations which may be therein contained and
to accept the conveyance, transfer, assignment, mortgage or pledge of any
property or assets thereunder.
Any supplemental indenture authorized by the provisions of this Section
13.01 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 13.02.
SECTION 13.02. MODIFICATION OF INDENTURE BY SUPPLEMENTAL INDENTURE WITH
CONSENT OF SECURITYHOLDERS. With the consent (evidenced as provided in Article
Seven) of the holders of not less than 66K% in aggregate principal amount of the
Securities at the time outstanding which are affected by such indenture
supplemental hereto, the Company, when authorized by a resolution of its Board
of Directors, and the Trustee may from time to time and at any time enter into
an indenture or indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture or of modifying in any manner the rights of the holders of the
Securities of any series to be affected; provided, however, that no such
supplemental indenture shall (i) extend the fixed maturity of any Securities, or
reduce the rate or extend the time of payment of interest thereon, or reduce the
amount of the principal thereof, or reduce any premium payable upon the
redemption thereof, or make the principal thereof or interest or premium thereon
payable in any coin or currency other than that provided in the Securities, or
impair the right to institute suit for the enforcement of any such payment on or
after the maturity thereof as provided in Section 6.07, without the consent of
the holder of each Security so affected, or (ii) reduce the aforesaid percentage
of Securities of any series, the holders of which are required to consent to any
such supplemental indenture, without the consent of the holders of all the
Securities then outstanding, or (iii) modify, without the written consent of the
Trustee, the rights, duties or immunities of the Trustee.
A supplemental indenture which changes or eliminates any provision of this
Indenture which has expressly been included solely for the benefit of one or
more particular series of Securities, or which modifies the rights of the
holders of Securities of such series with respect to such provision, shall be
deemed not to affect the rights under this Indenture of the holders of
Securities of any other series.
47
<PAGE>
It shall not be necessary for the consent of the Securityholders under this
Section 13.02 to approve the particular form of any proposed supplemental
Indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of this Section 13.02, the
Company shall mail a notice, setting forth in general terms the substance of
such supplemental indenture, to the holders of Securities affected by such
supplemental indenture at their addresses as the same shall then appear in the
register of the Company. Any failure of the Company to mail such notice, or any
defect therein, shall not, however, in any way impair or affect the validity of
any such supplemental indenture.
SECTION 13.03. UPON REQUEST OF THE COMPANY, TRUSTEE TO JOIN IN EXECUTION OF
SUPPLEMENTAL INDENTURE. Upon the request of the Company, accompanied by the
Officers' Certificate and Opinion of Counsel required by Section 14.03 and by
(a) a supplemental indenture duly executed on behalf of the Company,
(b) a copy of a resolution of the Board of Directors of the Company,
certified by the Secretary or an Assistant Secretary of the Company,
authorizing the execution of said supplemental indenture,
(c) an Opinion of Counsel, stating that said supplemental indenture
complies with, and that the execution thereof is authorized or permitted
by, the provisions of this Indenture, and
(d) if said supplemental indenture shall be executed pursuant to
Section 13.02, evidence (as provided in Article Seven) of the consent
thereto of the Securityholders required to consent thereto as in Section
13.02 provided,
the Trustee shall join with the Company in the execution of said supplemental
indenture unless said 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 said
supplemental indenture.
SECTION 13.04. EFFECT OF SUPPLEMENTAL INDENTURE. Upon the execution of any
supplemental indenture pursuant to the provisions of this Article Thirteen, this
Indenture shall be and be deemed to be modified and amended in accordance
therewith and, except as herein otherwise expressly provided, the respective
rights, limitations of rights, obligations, duties and immunities under this
Indenture of the Trustee, the Company and the holders of all of the Securities
or of the Securities of any series affected, as the case may be, 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 13.05. MATTERS PROVIDED FOR IN SUPPLEMENTAL INDENTURE MAY BE NOTED
ON SECURITIES, OR NEW SECURITIES APPROPRIATELY MODIFIED MAY BE ISSUED IN
EXCHANGE FOR OUTSTANDING SECURITIES. Securities authenticated and delivered
after the execution of any supplemental indenture pursuant to the provisions of
48
<PAGE>
this Article Thirteen may bear a notation in form approved by the Trustee as to
any matter provided for in such supplemental indenture. If the Company or the
Trustee shall so determine, new Securities so modified as to conform, in the
opinion of the Trustee and 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 then outstanding in equal aggregate principal
amounts, and such exchange shall be made without cost to the holders of the
Securities.
SECTION 13.06. SUPPLEMENTAL INDENTURES TO CONFORM TO TRUST INDENTURE ACT OF
1939. Every supplemental indenture executed pursuant to the provisions of this
Article Thirteen shall conform to the requirements of the Trust Indenture Act of
1939 as then in effect.
ARTICLE FOURTEEN
MISCELLANEOUS PROVISIONS
SECTION 14.01. CONSOLIDATION, MERGER, SALE OR LEASE. Subject to the
provisions of Section 5.06, nothing contained in this Indenture or in the
Securities shall be deemed to prevent the consolidation or merger of the Company
with or into any other corporation, or the merger into the Company of any other
corporation, or the sale or lease by the Company of its property and assets as,
or substantially as, an entirety, or otherwise.
Upon any consolidation or merger, or any sale other than for cash or lease
of all or substantially all of the assets of the Company in accordance with the
provisions of Section 5.06, the corporation formed by such consolidation or into
which the Company shall have been merged or to which such sale or lease shall
have been made shall succeed to and be substituted for the Company with the same
effect as if it had been named herein as a party hereto, and thereafter from
time to time such corporation may exercise each and every right and power of the
Company under this Indenture, in the name of the Company or in its own name; and
any act or proceeding by any provision of this Indenture required or permitted
to be done by the Board of Directors or any officer of the Company may be done
with like force and effect by the like board or officer of any corporation that
shall at the time be the successor of the Company hereunder. In the event of any
such sale or conveyance, but not any such lease, the Company (or any successor
corporation which shall theretofore have become such in the manner described in
Section 5.06) shall be discharged from all obligations and covenants under this
Indenture and the Securities and may thereupon be dissolved and liquidated.
Anything in this Section 14.01 to the contrary notwithstanding, no such
consolidation or merger shall be entered into, and no such conveyance or
transfer shall be made, by the Company with or to another corporation or Person
which has outstanding any obligations secured by a Lien if as a result thereof,
any of the properties of any character owned by the Company immediately prior
thereto would be subject to such Lien, unless simultaneously therewith or prior
thereto effective provision shall be made to secure all of the Securities
equally and ratably with (or prior to) such other secured obligations.
49
<PAGE>
SECTION 14.02. RIGHTS UNDER INDENTURE CONFINED TO PARTIES AND HOLDERS OF
SECURITIES. Nothing in this Indenture expressed and nothing that may be implied
from any of the provisions hereof is intended, or shall be construed, to confer
upon, or to give to, any Person other than the parties hereto and their
successors and the holders of the Securities any right, remedy or claim under or
by reason of this Indenture or any covenant, condition, stipulation, promise or
agreement hereof, and all covenants, conditions, stipulations, promises and
agreements in this Indenture contained shall be for the sole and exclusive
benefit of the parties hereto and their successors and of the holders of the
Securities.
SECTION 14.03. EVIDENCE OF COMPLIANCE. As evidence of compliance with the
conditions precedent provided for in this Indenture (including any covenants
compliance with which constitutes a condition precedent) which relate to the
authentication and delivery of the Securities, to the satisfaction and discharge
of this Indenture or to any other action to be taken by the Trustee at the
request or upon the application of the Company, the Company will furnish to the
Trustee an Officers' Certificate, stating that such conditions precedent have
been complied with and an Opinion of Counsel stating that in the opinion of such
Counsel such conditions precedent have been complied with. Such Opinion of
counsel may be in the form and contain such assumptions, qualifications and
limitations as customarily appear in legal opinions issued in the jurisdiction
in which any such opinion of counsel is rendered.
Each certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture shall include (1) a statement that the
person making such certificate or opinion has read such condition or covenant;
(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, such examination or investigation as is necessary to enable the
expression of an informed opinion as to whether or not such condition or
covenant has been complied with has been made; and (4) a statement as to whether
or not, in the opinion of such person, such condition or covenant has been
complied with.
Notwithstanding any provision of this Indenture authorizing the Trustee
conclusively to rely upon any certificates or opinions, the Trustee, before
granting any application by the Company or taking or refraining from taking any
other action in reliance thereon, may require any further evidence or make any
further investigation as to the facts or matters stated therein which it may, in
good faith, deem reasonable in the circumstances, and in connection therewith
the Trustee may examine or cause to be examined the pertinent books, records and
premises of the Company or of any Subsidiary; and the Trustee shall, in any such
case, require such further evidence or make such further investigation as may be
requested by the holders of a majority in principal amount of the Securities
then outstanding, PROVIDED THAT, if payment to the Trustee of the costs,
expenses and liabilities likely to be incurred by it in making such
investigation is not reasonably assured to the Trustee by the security afforded
to it by the terms of this Indenture, the Trustee before making such
investigation may require reasonable indemnity against such costs, expenses and
liabilities. Any further evidence which may be requested by the Trustee pursuant
to any of the provisions of this paragraph shall be furnished by the Company at
its own expense; and any cost, expenses and liabilities incurred by the Trustee
pursuant to any of the provisions of this paragraph shall be paid by the
Company, or, if paid by the Trustee, shall be repaid by the Company, upon
demand, with interest at the highest rate borne by the Securities, and, until
50
<PAGE>
such repayment, shall be secured by a lien on any moneys held by the Trustee
hereunder prior to any rights therein of the holders of Securities.
SECTION 14.04. CANCELLATION OF SECURITIES. All Securities paid, redeemed,
exchanged, surrendered for registration of transfer or retired pursuant to the
sinking fund or otherwise shall, if surrendered to the Company or to any paying
agent, be delivered to the Trustee for cancellation and shall be cancelled by it
or, if surrendered to the Trustee, shall be cancelled by it, and, except as
otherwise provided in Sections 2.04, 2.05, 2.07, 4.02, 4.07 and 13.05, no
Securities shall be issued under the Indenture in lieu thereof The Trustee shall
make appropriate notations in its records in respect of all such Securities and
shall destroy such Securities and deliver a certificate of such destruction to
the Company. If the Company shall 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
surrendered to the Trustee for cancellation.
SECTION 14.05. PROVISIONS REQUIRED BY TRUST INDENTURE ACT OF 1939 TO
CONTROL. If any provision of this Indenture limits, qualifies or conflicts with
any duties under any required provision of the Trust Indenture Act imposed
hereon by Section 318(c) thereof, such required provision shall control.
SECTION 14.06. ACTION OF AUTHORIZED COMMITTEE DEEMED TO BE ACTION OF BOARD
OF DIRECTORS. Whenever action is required by this Indenture by the Board of
Directors of the Company and there is at the time constituted a committee of the
Board of Directors duly authorized to take such action, such action by said
committee shall be deemed to be the action of the Board of Directors and shall
be sufficient for all purposes of this Indenture where action by the Board of
Directors is specified.
SECTION 14.07. NOTICES. Any notice or demand authorized by this Indenture
to be given to the Company shall be sufficiently given for all purposes, if it
shall be given or made in writing, by hand, telecopier (with confirmation of
receipt) or certified or registered mail (confirmation of receipt requested) to
the Company addressed to it at P.O. Box 2209, 1850 N. Central Avenue, Phoenix,
Arizona 85002-2209 (telephone: (602) 207-4900; telecopier: (602) 207-5543) to
the attention of its General Counsel or at such other address as may have been
furnished in writing to the Trustee by the Company. Any notice, direction,
request or demand to or upon the Trustee shall be sufficiently given, for all
purposes, if it shall be given or made in writing, by hand, telecopier (with
confirmation of receipt) or certified or registered mail (confirmation of
receipt requested) to The First National Bank of Chicago, One First National
Plaza #0126, Chicago, IL 60670 (telephone: (312) 407-8810; telecopier: (312)
407-1708) to the attention of its Corporate Trust Office, or at such other
address as may have been furnished in writing to the Company by the Trustee. Any
notice required or permitted to be given to Securityholders shall be
sufficiently given if given by first class mail, postage prepaid, to such
holders, at their addresses as the same shall appear on the Security Register. A
failure to give notice with respect to any particular holder or any defect
therein shall not affect the sufficiency of notice given to any other holder.
Notice may be waived in writing by the Person entitled to receive such notice
either before or after such event and such waiver shall be the equivalent of
receipt of such notice.
51
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SECTION 14.08. ACT OF HOLDERS.
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by or pursuant to this Indenture to be given or taken
by holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such holders in person or by an agent duly
appointed in writing. Except as herein otherwise expressly provided, such action
shall become effective when such instrument or instruments or record or both are
delivered to the Trustee and, where it is hereby expressly required, to the
Company. Such instrument or instruments and any such record (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as the
"Act" of the holders signing such instrument or instruments. Proof of execution
of any such instrument or of a writing appointing any such agent, or of the
holding by any Person of a Security, shall be sufficient for any purpose of this
Indenture and (subject to Section 315 of the Trust Indenture Act) conclusive in
favor of the Trustee and the Company and any agent of the Trustee or the
Company, if made in the manner provided in this Section.
Without limiting the generality of this Section, unless otherwise provided
in or pursuant to this Indenture, a holder, including a Depositary that is a
holder of a global Security, may make, give or take, by a proxy, or proxies,
duly appointed in writing, any request, demand, authorization, direction,
notice, consent, waiver or other action provided in or pursuant to this
Indenture to be made, given or taken by holders, and a Depositary that is a
holder of a global Security may provide for the beneficial owners of interests
in any such global Security to direct such Depositary in taking such action
through such Depositary's standing instructions and customary practices. The
Depositary shall report only one result of its solicitation of proxies to the
Trustee.
(b) The fact and date of the execution by any Person of any such instrument
or writing may be proved in any reasonable manner which the Trustee deems
sufficient and in accordance with such reasonable rules as the Trustee may
determine; and the Trustee may in any instance require further proof with
respect to any of the matters referred to in this Section.
(c) The ownership, principal amount and serial numbers of Securities held
by any Person, and the date of the commencement and the date of the termination
of holding the same, shall be proved by the Security Register.
(d) If the Company shall solicit from the holders of any Securities any
request, demand, authorization, direction, notice, consent, waiver or other Act,
the Company shall, by Board Resolution, fix in advance a record date for the
determination of holders of Securities entitled to give such request, demand,
authorization, direction, notice, consent, waiver or other Act. Such request,
demand, authorization, direction, notice, consent, waiver or other Act may be
given before or after such record date, but only the holders of Securities of
record at the close of business on such record date shall be deemed to be
holders for the purpose of determining whether holders of the requisite
proportion of outstanding Securities have authorized or agreed or consented to
such request, demand, authorization, direction, notice, consent, waiver or other
Act, and for that purpose the outstanding Securities shall be computed as of
such record date; provided that no such authorization, agreement or consent by
52
<PAGE>
the holders of Securities 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.
(e) Any request, demand, authorization, direction, notice, consent, waiver
or other action by the holder of any Security shall bind every future holder of
the same Security and the holder of every Security issued upon the registration
of transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done or suffered to be done by the Trustee, any Security Registrar or
the Company in reliance thereon, whether or not notation of such action is made
upon such Security.
SECTION 14.09. PAYMENTS DUE ON NON-BUSINESS DAYS. In any case where the
date of maturity of interest on or principal of the Securities or the date fixed
for redemption of any Securities shall not be a business day, then payment of
interest, 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 date of maturity
and no interest shall accrue for the period after such date.
SECTION 14.10. EXECUTION IN COUNTERPARTS. This Indenture may be executed in
any number of counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but one and the
same instrument.
SECTION 14.11. INDENTURE DEEMED A NEW YORK CONTRACT. This Indenture and
each Security shall be deemed to be a contract made under the law of the State
of New York, and for all purposes shall be construed in accordance with the law
of said State.
53
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WITNESS WHEREOF, FINOVA CAPITAL CORPORATION has caused this Indenture to be
executed in its corporate name by one of its officers thereunto duly authorized
and to be attested by its Secretary or one of its Assistant Secretaries, and The
First National Bank of Chicago, has caused this Indenture to be executed in its
corporate name by one of its authorized officers thereunto duly authorized, all
as of May 15, 1999.
FINOVA CAPITAL CORPORATION
By: /s/ Meilee Smythe
-----------------------------
Attest:
/s/ Richard Lieberman
- -------------------------------
THE FIRST NATIONAL BANK OF
CHICAGO, as Trustee
By: Mark J. Frye
-----------------------------
Attest:
/s/ Jeffrey L. Kinney
- --------------------------------
54
================================================================================
FINOVA CAPITAL CORPORATION
AND
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION
TRUSTEE
---------------------------------------
Indenture
Dated as of May 15, 1999
---------------------------------------
Providing for the Issuance of
Debt Securities
================================================================================
<PAGE>
THIS CROSS REFERENCE SHEET, SHOWING THE LOCATION IN THE INDENTURE OF THE
PROVISIONS INSERTED PURSUANT TO SECTION 310-318(A), INCLUSIVE, OF THE TRUST
INDENTURE ACT OF 1939, IS NOT TO BE CONSIDERED A PART OF THE INDENTURE.
TRUST INDENTURE ACT CROSS REFERENCE SHEET
Sections of Trust Sections of
Indenture Act Indenture
- ----------------- -----------
310(a)(1).................................................... 10.06
310(a)(2).................................................... 10.06
310(a)(3).................................................... Not applicable
310(a)(4).................................................... Not applicable
310(b)....................................................... 10.07
311.......................................................... 10.03
312.......................................................... 9.02
313.......................................................... 9.03
314(a)....................................................... 9.04
314(b)....................................................... Not applicable
314(c)....................................................... 14.03
314(d)....................................................... Not applicable
314(e)....................................................... 14.03
315(a)....................................................... 10.01
315(b)....................................................... 10.11
315(c)....................................................... 10.01
315(d)....................................................... 10.01
315(e)....................................................... 6.08
316(a)....................................................... 6.06 and 7.03
316(b)....................................................... 6.07
317(a)....................................................... 6.03 and 6.04
317(b)....................................................... 5.03
318(a)....................................................... 14.05
<PAGE>
TABLE OF CONTENTS*
Page
----
PARTIES.................................................................. 1
RECITALS................................................................. 1
TABLE OF CONTENTS
Page
----
ARTICLE ONE
DEFINITIONS
SECTION 1.01. Terms. .................................................... 1
SECTION 1.02. Definitions................................................ 2
ARTICLE TWO
FORM, EXECUTION, DELIVERY, TRANSFER AND EXCHANGE OF SECURITIES
SECTION 2.01. Forms Generally; Record Dates; Place of Payment,
Denominations and Numbering of Securities ............... 7
SECTION 2.02. Terms of Series............................................ 8
SECTION 2.03. Certificate of Authentication Necessary to Make
Securities Valid ........................................ 10
SECTION 2.04. Form of Certificate of Authentication...................... 10
SECTION 2.05. Registration, Transfer and Exchange of Securities.......... 11
SECTION 2.06. Replacing Securities Mutilated, Destroyed, Lost or Stolen.. 14
SECTION 2.07. Rights to Interest......................................... 14
SECTION 2.08. Temporary Securities....................................... 14
ARTICLE THREE
ISSUE OF SECURITIES
SECTION 3.01. Authentication, Delivery and Dating........................ 15
ARTICLE FOUR
REDEMPTION OF SECURITIES; SINKING FUND
SECTION 4.01. Applicability of Right of Redemption....................... 17
SECTION 4.02. Notice of Redemption....................................... 17
- ----------
* The Table of Contents is not part of the Indenture.
i
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SECTION 4.03. Securities of Any Series to be Canceled and
Discharged on Specific Conditions ....................... 18
SECTION 4.04. Applicability of Sinking Fund.............................. 18
SECTION 4.05. Mandatory Sinking Fund Obligation.......................... 19
SECTION 4.06. Optional Redemption at Sinking Fund Redemption Price....... 19
SECTION 4.07. Application of Sinking Fund Payments....................... 19
ARTICLE FIVE
PARTICULAR COVENANTS OF THE COMPANY
SECTION 5.01. To Pay Principal, Premium, if any, and Interest............ 20
SECTION 5.02. To Maintain Office or Agency in New York................... 20
SECTION 5.03. The Company, or Paying Agent, to Hold in Trust Moneys
for Payment of Principal, Premium, if any, and Interest.. 21
SECTION 5.04. Restrictions Upon Liens Upon Property of the Company
and Restricted Subsidiaries ............................. 22
SECTION 5.05. Maintenance of Corporate Existence......................... 24
SECTION 5.06. Restrictions on Consolidation, Merger, Sale, Etc........... 24
SECTION 5.07. Annual Statement Concerning Compliance with Covenants...... 25
SECTION 5.08. Compliance with Covenants and Conditions May Be
Waived by Holders of Securities ......................... 25
ARTICLE SIX
REMEDIES OF TRUSTEE AND SECURITYHOLDERS
SECTION 6.01. Events of Default.......................................... 25
SECTION 6.02. Acceleration of Maturity of Principal on Default........... 27
SECTION 6.03. The Company, Failing for 30 Days to Pay Any Installment
of Interest or Sinking Fund Payment or Failing to Pay
Principal When Due, Will Pay to Trustee at its Request
Whole Amount Due........................................ 28
SECTION 6.04. Trustee Appointed Attorney-in-Fact for Securityholders
to File Claims .......................................... 28
SECTION 6.05. Application of Moneys Collected by Trustee................. 29
SECTION 6.06. Securityholders May Direct Proceedings and Waive Defaults.. 30
SECTION 6.07. Limitations on Rights of Securityholders to
Institute Proceedings ................................... 30
SECTION 6.08. Assessment of Costs and Attorneys' Fees in Legal
Proceedings ............................................. 31
SECTION 6.09. Remedies Cumulative........................................ 31
ARTICLE SEVEN
CONCERNING THE SECURITYHOLDERS
SECTION 7.01. Evidence of Action by Securityholders...................... 32
SECTION 7.02. Proof of Execution of Instruments and of Holding
of Securities ........................................... 32
SECTION 7.03. Securities Owned by the Company or Other Obligor
on the Securities to be Disregarded in Certain Cases..... 32
SECTION 7.04. Revocation by Securityholders of Consents to Action........ 33
ii
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ARTICLE EIGHT
SECURITYHOLDERS' MEETINGS
SECTION 8.01. Purposes of Meetings....................................... 33
SECTION 8.02. Call of Meetings by Trustee................................ 33
SECTION 8.03. Call of Meetings by Company or Securityholders............. 34
SECTION 8.04. Qualifications for Voting.................................. 34
SECTION 8.05. Regulation of Meetings..................................... 34
SECTION 8.06. Voting .................................................... 35
SECTION 8.07. No Delay of Rights by Meeting.............................. 35
iii
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ARTICLE NINE
REPORTS BY THE COMPANY AND THE TRUSTEE AND SECURITYHOLDERS' LISTS
SECTION 9.01. Company to Furnish Trustee Names and Address of Holders.... 35
SECTION 9.02. Preservation of Information; Communications to Holders..... 36
SECTION 9.03. Reports by Trustee......................................... 36
SECTION 9.04. Reports by Company......................................... 36
ARTICLE TEN
CONCERNING THE TRUSTEE
SECTION 10.01. Certain Rights of Trustee................................. 37
SECTION 10.02. Not Responsible for Recitals or Issuance of Securities.... 38
SECTION 10.03. May Hold Securities....................................... 38
SECTION 10.04. Money Held in Trust....................................... 38
SECTION 10.05. Compensation and Reimbursement............................ 39
SECTION 10.06. Corporate Trustee Required; Eligibility................... 39
SECTION 10.07. Resignation and Removal; Appointment of Successor......... 39
SECTION 10.08. Acceptance of Appointment by Successor.................... 41
SECTION 10.09. Merger, Conversion, Consolidation or Succession
to Business ............................................ 42
SECTION 10.10. Appointment of Authenticating Agent....................... 42
SECTION 10.11. Notice of Defaults........................................ 43
ARTICLE ELEVEN
DEFEASANCE
SECTION 11.01. Discharge of Indenture Upon Payment of Securities......... 44
SECTION 11.02. Discharge of Securities of Any Series Upon
Deposit of Moneys ...................................... 44
SECTION 11.03. Interest on Moneys Deposited.............................. 44
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ARTICLE TWELVE
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS, DIRECTORS AND EMPLOYEES
SECTION 12.01. Liability Solely Corporate................................ 45
ARTICLE THIRTEEN
SUPPLEMENTAL INDENTURES
SECTION 13.01. Without Consent of Securityholders, the Company and
Trustee May Enter Into Supplemental Indentures for
Specified Purposes...................................... 46
SECTION 13.02. Modification of Indenture by Supplemental Indenture
With Consent of Securityholders ........................ 47
SECTION 13.03. Upon Request of the Company, Trustee to Join in
Execution of Supplemental Indenture .................... 48
SECTION 13.04. Effect of Supplemental Indenture.......................... 48
SECTION 13.05. Matters Provided for in Supplemental Indenture May Be
Noted on Securities, or New Securities Appropriately
Modified May Be Issued in Exchange for Outstanding
Securities.............................................. 48
SECTION 13.06. Supplemental Indentures to Conform to Trust Indenture
Act of 1939 ............................................ 49
ARTICLE FOURTEEN
MISCELLANEOUS PROVISIONS
SECTION 14.01. Consolidation, Merger, Sale or Lease...................... 49
SECTION 14.02. Rights Under Indenture Confined to Parties and
Holders of Securities .................................. 50
SECTION 14.03. Evidence of Compliance.................................... 50
SECTION 14.04. Cancellation of Securities................................ 51
SECTION 14.05. Provisions Required by Trust Indenture Act of 1939
to Control ............................................. 51
SECTION 14.06. Action of Authorized Committee Deemed to be Action
of Board of Directors 51
SECTION 14.07. Notices. ................................................. 51
SECTION 14.08. Act of Holders............................................ 52
SECTION 14.09. Payments Due on Non-Business Days......................... 53
SECTION 14.10. Execution in Counterparts................................. 53
SECTION 14.11. Indenture Deemed a New York Contract...................... 53
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INDENTURE, dated as of May 15 1999, between FINOVA CAPITAL CORPORATION, a
corporation organized and existing under the laws of the State of Delaware
(hereinafter called the "Company"), party of the first part, and NORWEST BANK
MINNESOTA, NATIONAL ASSOCIATION, a national banking association, as trustee
(hereinafter called the "Trustee"), party of the second part.
RECITALS
The Company is authorized and empowered to borrow money for its corporate
purposes and to issue its bonds, debentures, notes and other obligations for
money so borrowed.
The Company has duly authorized the issue, in one or more series as in this
Indenture provided, from time to time of its debt securities (hereinafter called
the "Securities") and, to provide the general terms and conditions upon which
the Securities are to be authenticated, issued and delivered, the Company has
duly authorized the execution and delivery of this Indenture.
The Trustee has power to enter into this Indenture and to accept and
execute the trusts herein created.
The Company represents that all acts and things necessary to make the
Securities, when executed by the Company and authenticated and delivered by the
Trustee as in this Indenture provided and issued, the valid, binding and legal
obligations of the Company, will, at the time of such execution, authentication
and delivery, have been done and performed; that all acts and things necessary
to constitute these presents a valid indenture and agreement according to its
terms have been done and performed; that the execution of this Indenture has in
all respects been duly authorized and the issue hereunder of the Securities
will, at the time of the issue thereof, have in all respects been duly
authorized; and that the Company, in the exercise of each and every legal right
and power in it vested, executes this Indenture and proposes to make, execute,
issue and deliver the Securities.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That, in consideration of the premises and of the acceptance and purchase
of the Securities by the holders thereof, the Company covenants and agrees with
the Trustee, for the equal benefit of all the holders from time to time of the
Securities, without preference, priority or distinction of any thereof over any
other thereof by reason of priority in time of issuance or negotiation, or
otherwise, as follows:
ARTICLE ONE
DEFINITIONS
SECTION 1.01. TERMS. Unless otherwise defined in this Indenture or the
context otherwise requires, all terms used herein shall have the meanings
assigned to them in the Trust Indenture Act of 1939.
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SECTION 1.02. DEFINITIONS. Unless the context otherwise requires, the terms
defined in this Section 1.02 shall for all purposes of this Indenture have the
meanings hereinafter set forth, the following definitions to be equally
applicable to both the singular and the plural forms of any of the terms herein
defined:
ACT:
The term "Act," when used with respect to any holders, has the meaning
specified in Section 14.08.
AUTHENTICATING AGENT:
The term "Authenticating Agent" means the Trustee and/or the authenticating
agent, if any, appointed by the Trustee and acting pursuant to Section 10.10.
BOARD RESOLUTION:
The term "Board Resolution" means a copy of a resolution or resolutions
certified by the Secretary or an Assistant Secretary of the Company to have been
duly adopted by the Board of Directors or any committee of the Board of
Directors (or committee of officers or other representatives of the Company, to
the extent that any such committee or committees have been authorized by the
Board of Directors to establish or approve the matters contemplated by Section
2.02 or any other provision hereof) and to be in full force and effect on the
date of such certification, and delivered to the Trustee.
BUSINESS DAY:
The term "Business day" shall mean a day which in The City of New York is
not a day on which banking institutions are authorized or obligated by law or
executive order to close.
COMMISSION:
The term "Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934 or,
if at any time after the execution of this Indenture such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
COMPANY:
The term "Company" shall mean FINOVA Capital Corporation and, subject to
the provisions of Section 14.01, shall also include its successors and assigns.
CONSOLIDATED NET TANGIBLE ASSETS:
The term "Consolidated Net Tangible Assets" means the total of all assets
reflected on a consolidated balance sheet of the Company and its consolidated
Subsidiaries, prepared in accordance with generally accepted accounting
principles, at their net book values (after deducting related depreciation,
depletion, amortization and all other valuation reserves which, in accordance
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<PAGE>
with such principles, should be set aside in connection with the business
conducted), but excluding goodwill, unamortized debt discount and all other like
intangible assets, all as determined in accordance with such principles, less
the aggregate of the current liabilities of the Company and its consolidated
Subsidiaries reflected on such balance sheet, all as determined in accordance
with such principles. For purposes of this definition, "current liabilities"
include all indebtedness for money borrowed, incurred, issued, assumed or
guaranteed by the Company and its consolidated Subsidiaries, and other payables
and accruals, in each case payable on demand or due within one year of the date
of determination of Consolidated Net Tangible Assets, but shall exclude any
portion of long-term debt maturing within one year of the date of such
determination, all as reflected on such consolidated balance sheet of the
Company and its consolidated Subsidiaries, prepared in accordance with generally
accepted accounting principles.
DEPOSITARY:
With respect to the Securities of any series issuable or issued in whole or
in part in global form, the Person designated as Depositary by the Company
pursuant to Section 2.02 until a successor Depositary shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Depositary" shall mean or include each Person who is then a Depositary
hereunder, and if at any time there is more than one such Person, "Depositary"
as used with respect to the Securities of any such series shall mean the
"Depositary" with respect to the Securities of that series.
EVENT OF DEFAULT:
The term "event of default" shall have the meaning specified in Section
6.01.
INDENTURE:
The term "Indenture" or "this Indenture" shall mean this instrument and all
indentures supplemental hereto.
INTEREST PAYMENT DATE:
The term "Interest Payment Date" when used with respect to any Security
shall mean the Stated Maturity of an installment of interest on such Security.
LIEN:
The term "Lien" means any lien, charge, claim, security interest, pledge,
hypothecation, right of another under any conditional sale or other title
retention agreement, or any other encumbrance affecting title to property.
Without limiting the generality of the foregoing, the sale of property used or
useful in the business of the seller with the intention of retaining the use
thereof under a lease, or any other comparable arrangement commonly referred to
as a "sale and leaseback," shall be deemed to create a Lien on such property.
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MANDATORY SINKING FUND PAYMENT:
The term "Mandatory Sinking Fund Payment" shall have the meaning specified
in Section 4.04.
MATURITY:
The term "Maturity," with respect to any Security, shall mean the date on
which the principal of such Security shall become due and payable as therein and
herein provided, whether by declaration, call for redemption or otherwise.
OFFICERS' CERTIFICATE:
The term "Officers' Certificate," when used with respect to the Company,
shall mean a certificate signed by the Chairman of the Board of Directors, the
President or any Vice President and by the Treasurer, any Assistant Treasurer,
the Controller, any Assistant Controller, the Secretary or any Assistant
Secretary of the Company.
OPINION OF COUNSEL:
The term "Opinion of Counsel" shall mean an opinion in writing signed by
legal counsel, who may be counsel for the Company.
OPTIONAL SINKING FUND PAYMENT:
The term "Optional Sinking Fund Payment" shall have the meaning specified
in Section 4.04.
OUTSTANDING:
The term "outstanding," when used as of any particular time with reference
to Securities, shall mean, as of the date of determination and subject to
Section 7.03, all Securities theretofore authenticated and delivered by the
Trustee under this Indenture, except
(a) Securities or portions thereof for which (i) funds, or as provided
in Section 11.02 hereof, direct obligations of the United States of
America, sufficient to pay the principal thereof, premium, if any, thereon
and all unpaid interest thereon to Maturity or to the date fixed for the
redemption thereof shall have been deposited in trust for such purpose as
provided herein 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), and (ii) in
case of redemption, notice of redemption thereof shall have been duly given
or provision satisfactory to the Trustee for the giving of such notice
shall have been made;
(b) Securities which shall have been cancelled or surrendered to the
Trustee for cancellation; and
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(c) Securities in lieu of or in substitution for which other
Securities shall have been authenticated and delivered pursuant to Section
2.05 or 2.06 and Securities paid pursuant to Section 2.06;
PROVIDED, HOWEVER, that in determining whether the holders of the requisite
principal amount of outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Securities owned
by the Company or any other obligor upon the Securities or any affiliate of the
Company or of such other obligor shall be disregarded and deemed not to be
outstanding, except that, in determining whether the Trustee shall be protected
in relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Securities which the Trustee knows to be so owned shall
be so disregarded. Securities so owned which have been pledged in good faith may
be regarded as outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Securities and that
the pledgee is not the Company or any other obligor upon the Securities or any
affiliate of the Company or of such other obligor.
PAYING AGENT:
The term "paying agent" means any Person authorized by the Company to pay
the principal of, or any premium or interest on, or any Additional Amounts with
respect to, any Security or any Coupon on behalf of the Company.
PERSON:
The term "Person" shall mean an individual, a corporation, a partnership, a
joint venture, an association, a joint stock company, a trust, an unincorporated
organization or a government or an agency or political subdivision thereof.
PRINCIPAL OFFICE OF THE TRUSTEE:
The term "Principal Office of the Trustee," or other similar term, shall
mean the principal corporate trust office of the Trustee at which its principal
trust business is administered. As of the date hereof, the Principal Office of
the Trustee is located at Sixth Street and Marquette Avenue, Minneapolis, MN
55479-0069 (telephone: (612) 667-2344; telecopier: (612) 667-9825).
RECORD DATE:
The term "Record Date" shall mean, with respect to any interest payable on
any Security on any Interest Payment Date, the close of business on the date
specified in such Security or, in the case of defaulted interest, the close of
business on any subsequent record date established as provided in Section 2.01
(in each case whether or not such day is a business day).
REDEMPTION DATE:
The term "Redemption Date" when used with respect to any Security to be
redeemed, in whole or in part, shall mean the date fixed for such redemption by
or pursuant to this Indenture and the terms of such Security.
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REDEMPTION PRICE:
The term "Redemption Price" when used with respect to any Security to be
redeemed shall mean the price (exclusive of accrued interest) at which it is to
be redeemed pursuant to this Indenture and the terms of such Security.
RESPONSIBLE OFFICERS:
"Responsible Officers" of the Trustee hereunder shall mean and include the
chairman and any vice chairman of the board of directors, the president, the
chairman and any vice chairman of the executive committee of the board of
directors, or any officer in the corporate trust department of the Trustee
customarily performing functions similar to those performed by the persons who
at the time shall be such officers, respectively, or to whom any corporate trust
matter is referred because of his knowledge of, and familiarity with, a
particular subject.
RESTRICTED SUBSIDIARY:
The term "Restricted Subsidiary" means any Subsidiary which is designated
as such by Board Resolution and at least a majority of the shares of Voting
Stock of which shall at the time be owned, directly, by the Company or by one or
more Restricted Subsidiaries or by the Company and one or more Restricted
Subsidiaries.
SECURITY:
The term "Security" shall mean any note or notes, bond or bonds, debenture
or debentures, or any other evidences of indebtedness, as the case may be,
authenticated and delivered under this Indenture; PROVIDED, HOWEVER, that, if at
any time there is more than one Person acting as Trustee under this Indenture,
"Securities," with respect to any such Person, shall mean Securities
authenticated and delivered under this Indenture, exclusive, however, of
Securities of any series as to which such Person is not Trustee.
SECURITY CO-REGISTRAR:
The term "Security Co-Registrar" has the meaning specified in Section 2.05.
SECURITY REGISTER; SECURITY REGISTRAR:
The terms "Security Register" and "Security Registrar" have the respective
meanings specified in Section 2.05.
SECURITYHOLDER; HOLDER OF SECURITIES; HOLDER; REGISTERED HOLDER:
The term "Securityholder" or "holder of Securities" or "holder" or
"registered holder," with respect to a Security, shall mean the Person in whose
name such Security or Securities shall be registered in the register kept for
that purpose hereunder.
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STATED MATURITY:
The term "Stated Maturity" when used with respect to any Security or any
installment of interest thereon shall mean the date specified in such Security
as the fixed date on which the principal (or any portion thereof) of or premium,
if any, on such Security or such installment of interest is due and payable.
SUBSIDIARY:
The term "Subsidiary" shall mean any corporation at least a majority of the
Voting Stock of which shall at the time be owned, directly or indirectly, by the
Company, or one or more Subsidiaries, or by the Company and one or more
Subsidiaries.
TRUST INDENTURE ACT OF 1939 OR TRUST INDENTURE ACT:
The term "Trust Indenture Act of 1939" or "Trust Indenture Act" shall mean
such Act as amended from time to time except as provided in Section 13.06 or
otherwise required by law.
TRUSTEE:
The term "Trustee" shall mean the trustee hereunder for the time being,
whether original or successor, and if at any time there is more than one such
trustee, "Trustee" as used with respect to the Securities of any series shall
mean the trustee with respect to Securities of that series.
UNRESTRICTED SUBSIDIARY:
The term "Unrestricted Subsidiary" shall mean any Subsidiary other than a
Restricted Subsidiary.
VOTING STOCK:
The term "Voting Stock" means stock of any class or classes (however
designated) having ordinary voting power for the election of a majority of the
members of the board of directors (or any governing body) of such corporation,
other than stock having such power only by reason of the happening of a
contingency.
Certain other terms, relating principally to provisions included in this
Indenture in compliance with the Trust Indenture Act of 1939, are defined in
Article Ten.
ARTICLE TWO
FORM, EXECUTION, DELIVERY, TRANSFER AND EXCHANGE OF SECURITIES
SECTION 2.01. FORMS GENERALLY; RECORD DATES; PLACE OF PAYMENT, DENOMINATIONS AND
NUMBERING OF SECURITIES. The Securities of each series shall be issuable in
registered form and shall be in substantially such form as shall be established
by or pursuant to a Board Resolution or in one or more indentures supplemental
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hereto, in each case with such appropriate insertions, omissions, substitutions
and other variations as are required or permitted by this Indenture, and may
have such letters, numbers or other marks of identification or designation and
such legends or endorsements printed, lithographed or engraved thereon as the
officers of the Company executing the same may approve (execution thereof to be
conclusive evidence of such approval) 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 the Securities may be listed, or to conform to
usage. The Securities shall be issued, except as otherwise provided with respect
to any series of Securities pursuant to Section 2.02, in the denomination of
$1,000 and any larger denomination which is an integral multiple of $1,000
approved by the Company, such approval to be evidenced by the execution thereof.
If Securities of a series are issuable in whole or in part in global
form, any such Security may provide that it shall represent the aggregate amount
of outstanding Securities from time to time endorsed thereon and may also
provide that the aggregate amount of outstanding Securities represented thereby
may from time to time be reduced to reflect exchanges or increased to reflect
the issuance of additional Securities. Any endorsement of a Security in global
form to reflect the amount, or any increase or decrease in the amount, of
outstanding Securities represented thereby shall be made in such manner and by
such Person or Persons, as shall be specified therein or in the Company order of
authentication delivered to the Trustee pursuant to Section 2.04.
The Person in whose name any Security is registered at the close of
business on any Record Date with respect to any Interest Payment Date shall be
entitled to receive the interest payable on such Interest Payment Date
notwithstanding the cancellation of such Security upon any transfer or exchange
thereof subsequent to such Record Date and prior to such Interest Payment Date;
PROVIDED, HOWEVER, that, if and to the extent the Company shall default in the
payment of the interest due on such Interest Payment Date, the defaulted
interest shall be paid to the Persons in whose names the outstanding Securities
are registered on a subsequent record date, such record date to be not less than
5 days prior to the date of payment of such defaulted interest, established by
notice given by mail by or on behalf of the Company to the holders of Securities
not less than 15 days preceding such subsequent record date.
The principal of and interest and premium, if any, on the Securities shall
be payable at each office or agency of the Company designated pursuant to
Section 5.02 for such purpose; provided, however, that interest may at the
option of the Company be paid by check mailed to the address of the Person
entitled thereto as such address shall appear in the Security Register
(including the records of any Security Co-Registrar). Such payments will be made
in such coin or currency of the United States of America as at the time of
payment shall be legal tender for the payment of public and private debts.
SECTION 2.02. TERMS OF SERIES. The aggregate principal amount of Securities
which may be authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established by or pursuant to a Board Resolution, and set forth in an Officers'
Certificate, or established in one or more indentures supplemental hereto, prior
to the issuance of Securities of any series:
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(a) the title of the Securities of the series (which shall distinguish
the Securities of the series from the Securities of all other series,
except to the extent that additional Securities of an existing series are
being issued);
(b) any limit upon the aggregate principal amount of the Securities of
the series which may be outstanding under this Indenture (except as
otherwise provided in Section 2.06, 2.08, 4.02 or 13.05);
(c) the date or dates on which the principal of the Securities of the
series is payable;
(d) the rate or rates at which the Securities of the series shall bear
interest, if any, or the method by which such rate or rates shall be
determined, the date or dates from which such interest shall accrue, or the
method by which such date or dates shall be determined, the interest
payment dates on which such interest shall be payable and the record dates
for the determination of holders to whom interest is payable;
(e) the place or places where the principal of, premium, if any, and
interest on Securities of the series shall be payable;
(f) the price or prices at which, the period or periods within 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, if the Company
is to have that option;
(g) the obligation, if any, of the Company to redeem, purchase or
repay Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a holder thereof and the price or prices at
which the period or periods within which and the terms and conditions upon
which Securities of the series shall be redeemed, purchased or repaid, in
whole or in part, pursuant to such obligation;
(h) if other than denominations of $1,000 or any integral multiple
thereof, the denominations in which Securities of the series shall be
issuable;
(i) if other than the principal amount thereof, the portion of the
principal amount of the Securities of the series which shall be payable
upon declaration of acceleration of the Maturity thereof pursuant to
Section 6.02;
(j) the issuance of the Securities of such series in whole or in part
in global form and, if so, the identity of the Depositary for such
Securities in global form, and the terms and conditions, if any, upon which
interests in such Securities in global form may be exchanged, in whole or
in part, for the individual Securities represented thereby;
(k) any deletions from, modifications of or additions to the events of
default or covenants of the Company with respect to any of such Securities,
whether or not such events of default or covenants are consistent with the
events of default or covenants set forth herein;
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(l) the terms and conditions, if any, upon which the payment of
Securities of such series shall be subordinated to other indebtedness of
the Company (including, without limitation, the indebtedness which ranks
senior to such Securities; restrictions on payments to holders of such
Securities while a default with respect to such senior indebtedness is
continuing; restrictions, if any, on payments to the holders of such
securities following an event of default; and any requirements for holders
of such Securities to remit certain payments to the holders of such senior
indebtedness);
(m) if there is more than one Trustee, the identity of the Trustee
and, if not the Trustee, the identity of each Security Registrar, paying
agent or Authenticating Agent with respect to such Securities; and
(n) any other terms of the Securities of the series (which terms shall
not be inconsistent with the provisions of this Indenture).
All Securities of any one series shall be substantially identical except as
to denomination and except as may otherwise be provided by or pursuant to such
Board Resolution, and set forth in such Officers' Certificate, or in any such
indenture supplemental hereto. If any of the terms of a series of Securities are
established by action taken pursuant to a Board Resolution, a copy of such Board
Resolution shall be delivered to the Trustee at or prior to the delivery of the
Officers' Certificate setting forth the terms of such series. All Securities of
any one series need not be issued at the same time and, unless otherwise so
provided by the Company, a series may be reopened for issuances of additional
Securities of such series or to establish additional terms of such series of
Securities.
SECTION 2.03. CERTIFICATE OF AUTHENTICATION NECESSARY TO MAKE SECURITIES
VALID. The Securities shall be signed in the name and on behalf of the Company
by the manual or facsimile signature of its Chairman of the Board of Directors,
its President or one of its Vice Presidents and by its Secretary or an Assistant
Secretary. The Securities shall then be delivered to the Trustee or the
Authenticating Agent for authentication by it, and thereupon, as provided
herein, the Trustee or the Authenticating Agent shall authenticate and deliver
such Securities. In case any officer of the Company who shall have signed any of
the Securities shall cease to be such officer of the Company before the
Securities so signed shall have been actually authenticated and delivered by the
Trustee or the Authenticating Agent, such Securities may nevertheless be issued,
authenticated and delivered as though the person who signed such Securities had
not ceased to be such officer of the Company; and also any of the Securities may
be signed on behalf of the Company by any person who at the time of the
execution of such Securities shall be the proper officer of the Company, even
though at the date of the execution of this Indenture such person may not have
been such officer of the Company.
SECTION 2.04. FORM OF CERTIFICATE OF AUTHENTICATION. Only such of the
Securities as shall bear thereon a certificate substantially in the form of the
Trustee's certificate of authentication hereinafter recited, executed by the
Trustee or the Authenticating Agent, shall be valid or become obligatory for any
purpose or entitle the holder thereof to any right or benefit under this
Indenture, and the certificate of authentication by the Trustee or the
Authenticating Agent upon any such Security executed on behalf of the Company as
aforesaid shall be conclusive evidence, and the only evidence, that the Security
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so authenticated has been duly authenticated and delivered hereunder and that
the holder thereof is entitled to the benefits of this Indenture.
The Trustee's certificate of authentication on all Securities shall be in
substantially the following form:
This is one of the Securities issued under the Indenture described herein.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION
as Trustee
By:
--------------------------
Authorized Signatory
or (if an Authenticating Agent is appointed pursuant to Section 10.10)
By: (Name of Agent)
as Authenticating Agent
By: --------------------------
Authorized Signatory
SECTION 2.05. REGISTRATION, TRANSFER AND EXCHANGE OF SECURITIES. The
Company shall cause to be kept a register (herein sometimes referred to as the
"Security Register") in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of Securities and of
transfers of Securities. Unless and until otherwise determined by the Company,
by Board Resolution, the Security Register initially shall be kept at the
Principal Office of the Trustee. The Trustee is hereby appointed "Security
Registrar" for the purpose of registering Securities and transfers of Securities
as herein provided. The Company may appoint one or more "Security Co-Registrars"
for such purpose. The Security Registrar and any Security Co-Registrars are
herein sometimes referred to, and are appointed as, the "Security Registrar."
Upon surrender for registration of transfer of any Security of any series
at any office or agency of the Company designated pursuant to Section 5.02 for
such purpose or at the office of any Security Co-Registrar, the Company shall
execute and the Trustee or the Authenticating Agent shall authenticate and
deliver a Security or Securities of such series for a like aggregate principal
amount, in such authorized denomination or denominations and registered in such
name or names as may be requested. The transfer of any security shall not be
valid as against the Company or the Trustee unless registered at such offices or
agency by the registered holder, or by his attorney duly authorized in writing.
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Securities of any series in their several authorized denominations are
exchangeable for a Security or Securities of such series in authorized
denominations and of a like aggregate principal amount. Securities to be
exchanged as aforesaid shall be surrendered for that purpose by the registered
holder thereof at such offices or agency, and the Company shall execute and the
Trustee or the Authenticating Agent shall authenticate and deliver in exchange
therefor the Security or Securities in such authorized denomination or
denominations as the Securityholder making the exchange shall have requested and
shall be entitled to receive. The Company shall not be required to make any
exchange or effect registration of transfer of (i) any Security which shall have
been designated for redemption in whole or in part except, in the case of any
Security to be redeemed in part, the portion thereof not so to be redeemed, or
(ii) any Security for a period of 15 days next preceding any selection of
Securities for redemption.
Notwithstanding any other provision of this Section, unless and until it is
exchanged in whole or in part for the individual Securities represented thereby,
in definitive form, a Security in global form representing all or a portion of
the Securities of a series may not be transferred except as a whole by the
Depositary for such series to a nominee of such Depositary or by a nominee of
such Depositary to such Depositary or another nominee of such Depositary or by
such Depositary or any such nominee to a successor Depositary for such series or
a nominee of such successor Depositary.
All Securities presented or surrendered for registration of transfer,
exchange or payment shall (if so required by the Company or the Trustee or any
Security Registrar or Security Co-Registrar or any Authenticating Agent) be duly
endorsed by, or accompanied by a written instrument or instruments of transfer
(in form satisfactory to the Company and the Security Registrar or any Security
Co-Registrar) duly executed by, the registered holder or by his attorney duly
authorized in writing.
If at any time the Depositary for the Securities of a series represented by
one or more Securities in global form notifies the Company that it is unwilling
or unable to continue as Depositary for the Securities of such series or if at
any time the Depositary for the Securities of such series shall no longer be
eligible under Section 2.01, the Company shall appoint a successor Depositary
with respect to the Securities of such series. If a successor Depositary for the
Securities of such series is not appointed by the Company within 90 days after
the Company receives such notice or becomes aware of such ineligibility, the
Company's election pursuant to Section 2.02 that such Securities be represented
by one or more Securities in global form shall no longer be effective with
respect to the Securities of such series and the Company will execute, and the
Trustee, upon receipt of a Company order for the authentication and delivery of
definitive Securities of such series, will authenticate and deliver, Securities
of such series in definitive form, in authorized denominations, in an aggregate
principal amount and like terms and tenor equal to the principal amount of the
Security or Securities in global form representing such series in exchange for
such Security or Securities in global form.
The Company may at any time and in its sole discretion determine that
individual Securities of any series issued in global form shall no longer be
represented by such Security or Securities in global form. In such event the
Company will execute, and the Trustee, upon receipt of a Company order for the
authentication and delivery of definitive Securities of such series and of the
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same terms and tenor, will authenticate and deliver Securities of such series in
definitive form, in authorized denominations, and in aggregate principal amount
equal to the principal amount of the Security or Securities in global form
representing such series in exchange for such Security or Securities in global
form.
If specified by the Company pursuant to Section 2.02 with respect to a
series of Securities issued in global form, the Depositary for such series of
Securities may surrender a Security in global form for such series of Securities
in exchange in whole or in part for Securities of such series in definitive form
and of like terms and tenor on such terms as are acceptable to the Company and
such Depositary. Thereupon, the Company shall execute, and the Trustee upon
receipt of a Company order for the authentication and delivery of definitive
Securities of such series, shall authenticate and deliver, without service
charge to the holders:
(a) to each Person specified by such Depositary a new definitive
Security or Securities of the same series and of the same tenor, in
authorized denominations, in aggregate principal amount equal to and in
exchange for such Person's beneficial interest in the Security in global
form; and
(b) to such Depositary a new Security in global form in a denomination
equal to the difference, if any, between the principal amount of the
surrendered Security in global form and the aggregate principal amount of
the definitive Securities delivered to holders pursuant to clause (a)
above.
Upon the exchange of a Security in global form for Securities in definitive
form, such Security in global form shall be cancelled by the Trustee or an agent
of the Company or the Trustee. Securities issued in definitive form in exchange
for a Security in global form pursuant to this Section 2.05 shall be registered
in such names and in such authorized denominations as the Depositary for such
Security in global form, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee or an agent of the Company
or the Trustee in writing. The Trustee or such agent shall deliver such
Securities to or as directed by the Persons in whose names such Securities are
so registered or to the Depositary.
Whenever any securities are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the Securities which
the holder making the exchange is entitled to receive.
No service charge shall be made for any registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
applicable tax or other governmental charge payable in connection therewith.
The Company and the Trustee, and the agents of either, may deem and treat
the Person in whose name any Security is registered as the absolute owner of
such Security (whether or not such Security shall be overdue and notwithstanding
any notation of ownership or other writing thereon) for all purposes whatsoever
(subject to the provisions set forth herein relating to Record Dates and record
dates for the payment of any defaulted interest), and the Company and the
Trustee, and the agents of either, shall not be affected by any notice to the
contrary.
None of the Company, the Trustee, any Authenticating Agent, any paying
agent or the Security Registrar will have any responsibility or liability for
any aspect of the records relating to or payments made on account of beneficial
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ownership interests of a Security in global form or for maintaining, supervising
or reviewing any records relating to such beneficial ownership interest and each
of them may act or refrain from acting without liability on any information
relating to such records provided by the Depositary.
SECTION 2.06. REPLACING SECURITIES MUTILATED, DESTROYED, LOST OR STOLEN. In
case any temporary or definitive Security of a particular series shall become
mutilated or be destroyed, lost or stolen, then upon the conditions hereinafter
set forth the Company in its discretion may execute, and thereupon the Trustee
or the Authenticating Agent shall authenticate and deliver, a new Security of
the same series of like tenor and principal amount and bearing a different
number, in exchange and substitution for and upon cancellation of the mutilated
Security or in lieu of and substitution for the Security so destroyed, lost or
stolen; provided, however, that if any such mutilated, destroyed, lost or stolen
Security shall have become payable upon the maturity thereof, the Company may,
instead of issuing a substitute Security, pay such Security without requiring
the surrender thereof. The applicant for any substitute Security or for payment
of any such mutilated, destroyed, lost or stolen Security shall furnish to the
Company and to the Trustee evidence satisfactory to them, in their discretion,
of the ownership of and the destruction, loss or theft of such Security and
shall furnish to the Company and to the Trustee indemnity satisfactory to them,
in their discretion, and, if required, shall reimburse the Company and the
Trustee for all expenses (including counsel fees and any tax or other
governmental charge that may be imposed in relation thereto) in connection with
the preparation, issue and authentication of such substitute Security or the
payment of such mutilated, destroyed, lost or stolen Security, and shall comply
with such other reasonable regulations as the Company and the Trustee, or either
of them, may prescribe. Any such new Security delivered pursuant to this Section
2.06 shall constitute an additional contractual obligation on the part of the
Company, whether or not the allegedly destroyed, lost or stolen Security shall
be at any time enforceable by anyone, and shall be equally and proportionately
entitled to the benefit of this Indenture with all other Securities of the same
series issued hereunder. All Securities shall be held and owned upon the express
condition that, to the extent permitted by law, the foregoing provisions are
exclusive with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Securities and shall preclude any and all other rights or
remedies.
SECTION 2.07. RIGHTS TO INTEREST. Subject to the provisions set forth
herein relating to Record Dates and record dates for the payment of any
defaulted interest, each Security delivered pursuant to any provision of this
Indenture in exchange or substitution for, or upon registration of transfer of,
any other Security shall carry all the rights to interest accrued and unpaid,
and to accrue, which were carried by such other Security.
SECTION 2.08. TEMPORARY SECURITIES. Pending the preparation of definitive
Securities of any series the Company may execute and the Trustee or the
Authenticating Agent shall authenticate and deliver temporary Securities of such
series (printed or lithographed). Temporary Securities shall be issuable in any
authorized denomination, and substantially in the form of the definitive
Securities but with such omissions, insertions and variations as may be
appropriate for temporary Securities, all as may be determined by the Company.
In the case of Securities of any series, such temporary Securities may be in
global form, representing all of the outstanding Securities of such series and
tenor. Every such temporary Security of a particular series shall be
authenticated by the Trustee or the Authenticating Agent upon the same
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conditions and in substantially the same manner, and with the same effect, as
the definitive Securities of such series. Without unreasonable delay, and except
in the case of temporary Securities in global form which shall be exchanged in
accordance with the provisions thereof, the Company will execute and deliver to
the Trustee definitive Securities of such series and thereupon any or all
temporary Securities of such series may be surrendered in exchange for
definitive Securities of the same series, at the principal corporate trust
office of the Trustee or any office or agency of the Company designated pursuant
to Section 5.02 for such purpose or at the office of any Security Co-Registrar,
and the Trustee or the Authenticating Agent shall authenticate and deliver in
exchange for such temporary Securities an equal aggregate principal amount of
definitive Securities of the same series. Such exchange shall be made by the
Company at its own expense and without any charge therefor except that the
Company may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto. Until so exchanged,
the temporary Securities of a particular series shall in all respects be
entitled to the same benefits under this Indenture as definitive Securities of
the same series authenticated and delivered hereunder.
ARTICLE THREE
ISSUE OF SECURITIES
SECTION 3.01. AUTHENTICATION, DELIVERY AND DATING. 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 or the
Authenticating Agent for authentication. The Trustee or the Authenticating Agent
shall thereupon authenticate and deliver such Securities to or upon the written
order of the Company, signed by its Chairman of the Board of Directors, its
President or a Vice President, without any further action by the Company. 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 315 of the Trust Indenture Act)
shall be fully protected in relying upon:
(a) a Board Resolution relating thereto and, if applicable, an
appropriate record of any action taken pursuant to such resolution,
certified by the Secretary or an Assistant Secretary of the Company;
(b) an executed supplemental indenture, if any;
(c) an Officers' Certificate; and
(d) an Opinion of Counsel prepared in accordance with Section 14.03,
which shall state
(1) that the form and terms of such Securities have been
established by or pursuant to one or more Board Resolutions, by a
supplemental indenture as permitted by Section 13.01(g), or by both
such resolution or resolutions and such supplemental indenture, in
conformity with the provisions of this Indenture;
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(2) that the supplemental indenture, if any, when executed and
delivered by the Company and the Trustee, will constitute a valid and
legally binding obligation of the Company;
(3) that such Securities, when authenticated and delivered by the
Trustee or the Authenticating Agent and issued by the Company in the
manner and subject to any conditions specified in such Opinion of
Counsel, will constitute valid and legally binding obligations of the
Company, enforceable in accordance with their terms, and will be
entitled to the benefits of this Indenture;
(4) that the Company has the corporate power to issue such
Securities, and has duly taken all necessary corporate action with
respect to such issuance;
(5) that the issuance of such Securities will not contravene the
charter or by-laws of the Company or result in any violation of any of
the terms or provisions of any law or regulation or of any indenture,
mortgage or other agreement by which the Company is bound and under
which long-term debt of the Company as reflected in its latest
financial statements on file with the Securities and Exchange
Commission is outstanding; and
(6) that all requirements of this Indenture applicable to the
Company in respect of the execution and delivery by the Company of
such Securities and of such supplemental indenture, if any, have been
complied with and that, assuming (a) all requisite corporate
authorization on the part of the Trustee, (b) continued compliance by
the Trustee with the terms of the Indenture specifically applicable to
the Trustee, and (c) due authentication and delivery of such
Securities by the Trustee or the Authenticating Agent, the execution
and delivery of such supplemental indenture, if any, will not violate
the terms of this Indenture, and that, other than compliance with
federal and state securities laws, no authorization, approval or
consent by any regulatory or statutory or other public authority is
required in connection with the execution and delivery of such
supplemental indenture or for the creation, issuance, authentication
and delivery of the Securities pursuant to this Indenture.
If the Company shall establish pursuant to Section 2.02 that Securities of
a series may be issued in whole or in part in global form, then the Company
shall execute and the Trustee shall, in accordance with this Section and the
Company order of authentication with respect to such series, authenticate and
deliver one or more Securities in global form that (i) shall represent and shall
be denominated in an aggregate amount equal to the aggregate principal amount of
the outstanding Securities of such series and tenor to be represented by one or
more Securities in global form, (ii) shall be registered, in the name of the
Depositary for such Security or Securities in global form or the nominee of such
Depositary, (iii) shall be delivered to such Depositary or pursuant to such
Depositary's instruction, and (iv) shall bear a legend substantially to the
following effect: "Unless this certificate is presented by an authorized
representative of The Depository Trust Company, a New York corporation ("DTC")
to Issuer or its agent for transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
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Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein." Each Depositary designated pursuant
to Section 2.02 for a Security in global form must, at the time of its
designation and at all times while it serves as Depositary, be a clearing agency
registered under the Securities Exchange Act of 1934 and any other applicable
statute or regulation.
The Trustee shall have the right to decline to authenticate and deliver any
Securities under this Section 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 which is not reasonably
acceptable to the Trustee.
Each Security shall be dated the date of its authentication.
ARTICLE FOUR
REDEMPTION OF SECURITIES; SINKING FUND
SECTION 4.01. APPLICABILITY OF RIGHT OF REDEMPTION. Redemption of
Securities (other than pursuant to a sinking fund or analogous provision)
permitted by the terms of any series of Securities shall be made in accordance
with such terms and Sections 4.02 and 4.03; provided, however, that if any such
terms of a series of Securities shall conflict with any provision of this
Article, the terms of such series shall govern.
SECTION 4.02. NOTICE OF REDEMPTION. The election of the Company to redeem
any Securities of any series shall be evidenced by or pursuant to a Board
Resolution. If the Company shall elect to redeem the Securities of any series in
whole or in part as aforesaid, it shall fix a date for redemption and give
notice of its election so to redeem by mailing or causing to be mailed written
notice, postage prepaid, at least 30 days prior to the redemption date, to all
holders of Securities to be redeemed as a whole or in part, addressed to them at
their respective addresses as the same shall then appear on the Security
Register of the Company. Any notice which shall be mailed in the manner herein
provided shall be conclusively presumed to have been duly given, whether or not
the holder shall receive such notice. Failure to mail such notice, or any defect
in the notice mailed, to the holder of any Security designated for redemption as
a whole or in part shall not affect the validity of the proceedings for the
redemption of any other Security.
Each notice of redemption shall identify the Securities to the redeemed
(including CUSIP number) and shall state such election on the part of the
Company, the Redemption Date and place of payment of the Securities to be
redeemed and the Redemption Price and that the Securities designated in such
notice for redemption are required to be presented on or after such Redemption
Date and at such place for payment and that interest to the Redemption Date on
the Securities and portions of Securities called for redemption will be paid as
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specified in said notice and shall cease to accrue thereon on such date. If less
than all the outstanding Securities of a series are to be redeemed, the notice
shall also designate the Securities or portions of Securities that are to be
redeemed. If any Security is to be redeemed in part only, the notice shall also
state that upon presentation of such Security on or after the redemption date at
said place, such Security will be canceled and a new Security or Securities of
the same series, in an aggregate principal amount equal to the unredeemed
portion of such Security will be issued and delivered without charge to the
holder.
Notice having been so given, the Securities and portions of Securities to
be redeemed shall on the Redemption Date specified in such notice become due and
payable at the applicable Redemption Price, together with interest accrued
thereon to the Redemption Date, and from and after the Redemption Date so
specified (unless the Company shall default in the payment of the Redemption
Price of such Securities or any such accrued interest) interest on such
Securities and portions of Securities shall cease to accrue, and upon
presentation of such Securities at said place of payment and redemption in
accordance with said notice, such Securities and portions of Securities shall be
paid by the Company at the applicable Redemption Price, together with interest
accrued to the Redemption Date (except that, if the Redemption Date shall be an
Interest Payment Date, the interest payable on such date shall be paid to the
registered holders of such Securities at the close of business on the applicable
Record Date, subject to the provisions of Section 2.01).
If the Company shall at any time elect to redeem less than all the
Securities of a series then outstanding, it shall at least 45 days prior to the
Redemption Date (unless a shorter notice shall be satisfactory to the Trustee)
notify the Trustee of the principal amount of Securities to be redeemed, and
thereupon the Trustee shall select, in such manner as the Trustee shall deem
appropriate and fair, the Securities (or portions thereof) of such series to be
redeemed. No Security of a denomination of $1,000 shall be redeemed in part and
Securities may be redeemed in part only in integral multiples of $1,000. The
Trustee shall promptly notify the Company in writing of the Securities and
portions of Securities so selected.
SECTION 4.03. SECURITIES OF ANY SERIES TO BE CANCELED AND DISCHARGED ON
SPECIFIC CONDITIONS. If Securities of any Series at the time outstanding are to
be redeemed under circumstances to which Section 11.02 is applicable, the
Company shall deliver to the Trustee (1) proof satisfactory to the Trustee that
notice of redemption thereof on a specified redemption date has been given as
hereinbefore provided, or (2) proof satisfactory to the Trustee that
arrangements have been made insuring to the satisfaction of the Trustee that
such notice will be so given, or (3) a written instrument in form and substance
satisfactory to the Trustee executed by the Company, and expressed to be
irrevocable, authorizing the Trustee to give such notice for and on behalf of
the Company.
SECTION 4.04. APPLICABILITY OF SINKING FUND. Redemption of Securities
permitted or required pursuant to a sinking fund for the retirement of
Securities of a series by the terms of such series of Securities shall be made
in accordance with such terms of such series of Securities and this Article;
PROVIDED, HOWEVER, that if any such terms of a series of Securities shall
conflict with any provision of this Article, the terms of such series shall
govern.
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
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Fund Payment." If provided for by the terms of Securities of any series, the
cash amount of any Mandatory Sinking Fund Payment may be subject to reduction as
provided in Section 4.05.
SECTION 4.05. MANDATORY SINKING FUND OBLIGATION. The Company may, at its
option, satisfy any Mandatory Sinking Fund Payment obligation, in whole or in
part, with respect to a particular series of Securities by (1) delivering to the
Trustee outstanding Securities of such series in transferable form theretofore
purchased or otherwise acquired by the Company or redeemed at the election of
the Company pursuant to Section 4.01 or (2) receiving credit for Securities of
such series (not previously so credited) acquired by the Company and theretofore
delivered to the Trustee. The Trustee shall credit such Mandatory Sinking Fund
Payment obligation with an amount equal to the redemption price specified in
such Securities for redemption through operation of the sinking fund and the
amount of such Mandatory Sinking Fund Payment shall be reduced accordingly. If
the Company shall elect so to satisfy any Mandatory Sinking Fund Payment
obligation, it shall deliver to the Trustee not less than 45 days prior to the
relevant sinking fund payment date a written notice signed on behalf of the
Company by its Chairman of the Board of Directors, its President, one of its
Vice Presidents, its Treasurer or one of its Assistant Treasurers, which shall
designate the Securities (and portions thereof, if any) to be so delivered or
credited and which shall be accompanied by such Securities (to the extent not
theretofore delivered) in transferable form. In case of the failure of the
Company, at or before the time so required, to give such notice and deliver such
Securities, the Mandatory Sinking Fund Payment obligation shall be paid entirely
in funds.
SECTION 4.06. OPTIONAL REDEMPTION AT SINKING FUND REDEMPTION PRICE. In
addition to the sinking fund requirements of Section 4.05, to the extent, if
any, provided for by the terms of a particular series of Securities, the Company
may, at its option, make an Optional Sinking Fund Payment with respect to such
Securities. Unless otherwise provided by such terms, (a) to the extent that the
right of the Company to make such Optional Sinking Fund Payment shall not be
exercised in any year, it shall not be cumulative or carried forward to any
subsequent year, and (b) such optional payment shall operate to reduce the
amount of any Mandatory Sinking Fund Payment obligation as to Securities of the
same series. If the Company intends to exercise its right to make such optional
payment in any year it shall deliver to the Trustee not less than 45 days prior
to the relevant sinking fund payment date a certificate signed by its Chairman
of the Board of Directors, its President, one of its Vice Presidents, its
Treasurer or one of its Assistant Treasurers stating that the Company will
exercise such optional right, and specifying the amount which the Company will
pay on or before the next succeeding sinking fund payment date. Such certificate
shall also state that no event of default has occurred and is continuing.
SECTION 4.07. APPLICATION OF SINKING FUND PAYMENTS. If the sinking fund
payment or payments made in funds pursuant to either Section 4.05 or 4.06 with
respect to a particular series of Securities plus any unused balance of any
preceding sinking fund payments made in funds with respect to such series shall
exceed $50,000 (or a lesser sum if the Company shall so request), it shall be
applied by the Trustee on the sinking fund payment date next following the date
of such payment, unless the date of such payment shall be a sinking fund payment
date, in which case such payment shall be applied on such sinking fund payment
date, to the redemption of Securities of such series at the redemption price
specified pursuant to Section 4.04. The Trustee shall select in the manner
provided in Section 4.02, for redemption on such sinking fund payment date, a
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sufficient principal amount of Securities of such sinking fund payment date, a
sufficient principal amount of Securities of such series to absorb said funds,
as nearly as may be, and shall, at the expense and in the name of the Company,
thereupon cause notice of redemption of the Securities to be given in
substantially the manner provided in Section 4.02 for the redemption of
Securities in part at the option of the Company, except that the notice of
redemption shall also state that the Securities are being redeemed for the
sinking fund. Any sinking fund moneys not so applied by the Trustee to the
redemption of Securities of such series shall be added to the next sinking fund
payment received in funds by the Trustee and, together with such payment, shall
be applied in accordance with the provisions of this Section 4.07. Any and all
sinking fund moneys held by the Trustee on the last sinking fund payment date
with respect to Securities of such series, and not held for the payment or
redemption of particular Securities of such series, shall be applied by the
Trustee to the payment of the principal of the Securities of such series at
maturity.
On or prior to each sinking fund payment date, the Company shall pay to the
Trustee a sum equal to all interest accrued to the date fixed for redemption on
Securities to be redeemed on such sinking fund payment date pursuant to this
Section 4.07.
The Trustee shall not redeem any Securities of a series with sinking fund
moneys or mail any notice of redemption of Securities of such series by
operation of the sinking fund during the continuance of a default in payment of
interest on any Securities of such series or of any event of default (other than
an event of default occurring as a consequence of this paragraph) of which the
Trustee has actual knowledge, except that if the notice of redemption of any
Securities of such series shall theretofore have been mailed in accordance with
the provisions hereof, the Trustee shall redeem such Securities if funds
sufficient for that purpose shall be deposited with the Trustee in accordance
with the terms of this Article Four. Except as aforesaid, any moneys in the
sinking fund at the time any such default or event of default shall occur and
any moneys thereafter paid into the sinking fund shall, during the continuance
of such default or event of default, be held as security for the payment of all
the Securities of such series; provided, however, that in case such default or
event of default shall have been cured or waived as provided herein, such moneys
shall thereafter be applied on the next sinking fund payment date on which such
moneys are required to be applied pursuant to the provisions of this Section
4.07.
ARTICLE FIVE
PARTICULAR COVENANTS OF THE COMPANY
The Company hereby covenants and agrees as follows:
SECTION 5.01. TO PAY PRINCIPAL, PREMIUM, IF ANY, AND INTEREST. The Company
will duly and punctually pay the principal of and premium, if any, on each of
the Securities, and the interest which shall have accrued thereon, at the date
and place and in the manner provided in the Securities and in this Indenture.
SECTION 5.02. TO MAINTAIN OFFICE OR AGENCY IN NEW YORK. The Company will
maintain in the city in the United States in which the Company has its principal
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business office and, if (a) 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 the Securities may be listed or (b) Securities of any series
are issued in definitive form, in The City of New York, and may maintain
elsewhere, an office or agency where Securities may be presented or surrendered
for payment, where Securities may be surrendered for transfer or exchange and
where notices and demands to or upon the Company in respect of the Securities
and this Indenture may be served. The Company will give prompt written notice to
the Trustee of the location, and any change in the location, of any such office
or agency. If at any time the Company shall fail to maintain such required
office or agency, or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at the
Principal Office of the Trustee. The Company hereby initially appoints the
Trustee as its agent to receive all such presentations, surrenders, notices and
demands.
The Company may also from time to time designate one or more other offices
or agencies where the Securities may be presented or surrendered for any or all
of such purposes and may from time to time rescind such designations; PROVIDED,
HOWEVER, that no such designation shall in any manner result in the creation of
a Security Register or Security Co-Registrar in addition to the Security
Register required to be kept pursuant to Section 2.05 and any Security
Co-Registrar appointed pursuant to Section 2.05. The Company will give prompt
written notice to the Trustee of any such designation and any change in the
location of any such other office or agency.
SECTION 5.03. THE COMPANY, OR PAYING AGENT, TO HOLD IN TRUST MONEYS FOR
PAYMENT OF PRINCIPAL, PREMIUM, IF ANY, AND INTEREST. If the Company shall at any
time act as its own paying agent with respect to any series of Securities, then,
on or before the date on which the principal of and premium, if any, or interest
on any of the Securities of that series by their terms or as a result of the
calling thereof for redemption shall become payable, the Company will set apart
and segregate and hold in trust for the benefit of the holders of such
Securities a sum sufficient to pay such principal and premium, if any, or
interest which shall have so become payable and will notify the Trustee of its
failure to act in that regard and of any failure by the Company or any other
obligor upon the Securities of that series to make any such payment. If the
Company shall appoint, and at the time have, a paying agent for the payment of
the principal of and premium, if any, or interest on any series of Securities,
then, on or before the date on which the principal of and premium, if any, or
interest on any of the Securities of that series shall become payable as
aforesaid, whether by their terms or as a result of the calling thereof for
redemption, the Company will pay to such paying agent a sum sufficient to pay
such principal and premium, if any, or interest, to be held in trust for the
benefit of the holders of such Securities. If such paying agent shall be other
than the Trustee, the Company will cause such paying agent to execute and
deliver to the Trustee an instrument in which such paying agent shall agree with
the Trustee, subject to the provisions of this Section 5.03 and of Section
11.03, (1) that such paying agent shall hold all sums held by such paying agent
for the payment of the principal of and premium, if any, or interest on the
Securities of that series in trust for the benefit of the holders of such
Securities; (2) that such paying agent shall give to the Trustee notice of any
default by the Company or any other obligor upon the Securities of that series
in the making of any payment of the principal of and premium, if any, or
interest on the Securities of that series when the same shall have become due
and payable; and (3) that such paying agent shall, at any time during the
continuance of any such default, upon the written request of the Trustee,
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deliver to the Trustee all sums so held in trust by it. The Company hereby
appoints Norwest Bank Minnesota, National Bank to act as its paying agent
hereunder.
Anything in this Section 5.03 to the contrary notwithstanding, the Company
may at any time, for the purpose of obtaining a release or satisfaction of this
Indenture or for any other reason, pay or cause to be paid to the Trustee all
sums held in trust by it or by any paying agent other than the Trustee as
required by this Section 5.03, such sums to be held by the Trustee upon the same
trusts as those upon which such sums were held by the Company or such paying
agent.
Any money deposited with the Trustee or any paying agent, or then held by
the Company, in trust for the payment of the principal of, premium, if any, or
interest on any Security and remaining unclaimed for three years after such
principal, premium, if any, or interest has become due and payable shall be paid
to the Company on Company request, or (if then held by the Company) shall be
discharged from such trust; and the holder of such Security shall thereafter, as
an unsecured general creditor, look only to the Company for payment thereof, and
all liability of the Trustee or such paying agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; PROVIDED, HOWEVER, that the Trustee or such paying agent, before being
required to make any such repayment, may at the expense of the Company cause to
be published once, in a newspaper published in the English language, customarily
published on each Business Day and of general circulation in the Borough of
Manhattan, The City of New York, notice that such money remains unclaimed and
that, after a date specified therein, which shall not be less than 30 days from
the date of such publication, any unclaimed balance of such money then remaining
will be repaid to the Company.
SECTION 5.04. RESTRICTIONS UPON LIENS UPON PROPERTY OF THE COMPANY AND
RESTRICTED SUBSIDIARIES. The Company will not at any time directly or
indirectly, and will not permit any Restricted Subsidiary to, create, assume,
incur or suffer to be created, assumed or incurred or to exist any Lien upon any
of the properties of any character of the Company or any Restricted Subsidiary
without making effective provision whereby the Securities then outstanding shall
be secured equally and ratably with (or prior to) any other obligation or
indebtedness so secured, so long as such other obligation or indebtedness
remains secured; EXCEPT, HOWEVER, that, notwithstanding the foregoing, the
Company or any Restricted Subsidiary, without so securing the Securities, may
(1) lease property to others in the ordinary course of the
business of the Company or any Restricted Subsidiary or lease or
sublease any property if the property subject thereto is not needed by
the Company or any Restricted Subsidiary in the operation of its
business;
(2) create, assume and incur such Liens or permit such Liens to
be created, assumed, incurred or to exist provided, in each case, the
Lien secures indebtedness for borrowed money, including purchase money
indebtedness, which is incurred to finance the acquisition of the
property subject to such Lien and in respect of which the creditor has
no recourse against the Company or any Restricted Subsidiary except
recourse to such property or to the proceeds of any sale or lease of
such property or both;
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(3) make any deposit with or give any form of security to any
governmental agency or other body created or approved by law or
governmental regulation in order to enable the Company or such
Restricted Subsidiary to maintain self-insurance, or to participate in
any fund in connection with workmen's compensation, unemployment
insurance, old-age pensions, or other social security, or to share in
any privileges or other benefits available to corporations
participating in any such arrangement, or for any other purpose at any
time required by law or regulation promulgated by any governmental
agency or office as a condition to the transaction of any business or
the exercise of any privilege or license, or deposit assets of the
Company or such Restricted Subsidiary with any surety company or clerk
of any court, or in escrow, as collateral in connection with, or in
lieu of, any bond on appeal by the Company or such Restricted
Subsidiary from any judgment or decree against it, or in connection
with any other proceedings in actions at law or suits in equity by or
against the Company or such Restricted Subsidiary;
(4) incur or suffer to be incurred or to exist upon any of its
property or assets (a) Liens for taxes, assessments or other
governmental charges or levies which are not yet due or are payable
without penalty or of which the amount, applicability or validity is
being contested by the Company or such Restricted Subsidiary in good
faith by appropriate proceedings and the Company or such Restricted
Subsidiary shall have set aside on its books reserves which it deems
to be adequate with respect thereto (segregated to the extent required
by generally accepted accounting principles), PROVIDED that
foreclosure, distraint, sale or similar proceedings have not been
commenced, (b) the Liens of any judgment, if such judgment shall not
have remained undischarged, or unstayed on appeal or otherwise, for
more than six months, (c) undetermined Liens or charges incident to
construction, (d) materialmen's, mechanics', workmen's, repairmen's or
other like Liens arising in the ordinary course of business in respect
of obligations which are not overdue or which are being contested by
the Company or such Restricted Subsidiary in good faith by appropriate
proceedings, or deposits to obtain the release of such Liens, or (e)
any encumbrances consisting of zoning restrictions, licenses,
easements and restrictions on the use of real property and minor
defects and irregularities in the title thereto, which do not
materially impair the use of such property by the Company or such
Restricted Subsidiary in the operation of its business or the value of
such property for the purpose of such business;
(5) create other Liens incidental to the conduct of its business
or the ownership of its property and assets which were not incurred in
connection with the borrowing of money or the obtaining of advances or
credit, and which do not in the aggregate materially detract from the
value of its property or assets or materially impair the use thereof
in the operation of its business;
(6) create or suffer to be created or to exist in favor of any
lender of moneys or holder of commercial paper of the Company or a
Restricted Subsidiary in the ordinary course of business a banker's
lien or right of offset in the holder of such indebtedness or moneys
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of the Company or a Restricted Subsidiary deposited with such lender
or holder in the ordinary course of business;
(7) create or suffer to be created or to exist with respect to
any of its property leasehold or purchase rights, exercisable for a
fair consideration, in favor of any Person which arise in transactions
entered into in the ordinary course of business;
(8) assume any Lien or permit any Lien to be assumed or exist if
any such Lien is on property or shares of stock of a corporation at
the time the corporation becomes a Restricted Subsidiary or merges
into or consolidates with the Company or a Restricted Subsidiary;
provided, however, that any such Lien may not be assumed or permitted
to exist if such Lien is incurred in anticipation of such corporation
becoming a Restricted Subsidiary or in anticipation of such merger or
consolidation;
(9) assume any Lien or permit any Lien to be assumed or exist if
any such Lien is on property at the time the Company or a Restricted
Subsidiary acquires the property; provided, however, that any such
Lien may not extend to any other property owned by the Company or a
Restricted Subsidiary at the time such Lien is assumed;
(10) assume, create or suffer to be created or to exist, such
Liens in an amount not to exceed in the aggregate $25,000,000 at any
one time outstanding, excluding Liens covered by other provisions of
clauses (1) through (9) above; and
(11) create or suffer to be created or to exist in favor of any
lender of moneys, any Lien that secures indebtedness of the Company or
a Restricted Subsidiary; provided that the sum of the following does
not exceed 10% of Consolidated Net Tangible Assets: (a) such
indebtedness; PLUS (b) other indebtedness of the Company and its
Restricted Subsidiaries secured by Liens on property of the Company
and its Restricted Subsidiaries, EXCLUDING indebtedness secured by a
Lien existing as of December 31, 1991 and EXCLUDING indebtedness
secured by a Lien permitted by one of clauses (1) through (10) above.
SECTION 5.05. MAINTENANCE OF CORPORATE EXISTENCE. Subject to Section 5.06,
the Company will do or cause to be done all things necessary to preserve and
keep in full force and effect its corporate existence and that of each
Subsidiary and the rights and franchises of the Company and its Subsidiaries;
provided, however, that the Company shall not be required to preserve the
corporate existence of any Subsidiary or any such right or franchise if pursuant
to a Board Resolution, the Company shall determine that the preservation thereof
is no longer desirable in the conduct of the business of the Company and the
other Subsidiaries taken as a whole and that the loss thereof is not on balance
materially disadvantageous to the holders.
SECTION 5.06. RESTRICTIONS ON CONSOLIDATION, MERGER, SALE, ETC. The Company
will not consolidate with any other corporation or accept a merger of any other
corporation into the Company or permit the Company to be merged into any other
corporation, or sell or lease all or substantially all its assets to another
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corporation, or purchase all or substantially all the assets of another
corporation, unless (i) either the Company shall be the continuing corporation,
or the successor, transferee or lessee corporation (if other than the Company)
shall be organized under the laws of the United States or any state thereof or
the District of Columbia and shall expressly assume, by indenture supplemental
hereto, executed and delivered by such corporation prior to or simultaneously
with such consolidation, merger, sale or lease, the due and punctual payment of
the principal of and interest and premium, if any, on all the Securities,
according to their tenor, and the due and punctual performance and observance of
all the covenants and conditions of this Indenture to be performed or observed
by the Company, and (ii) immediately after such consolidation, merger, sale,
lease or purchase the Company or the successor, transferee or lessee corporation
(if other than the Company) would not be in default in the performance of any
covenant or condition of this Indenture. A purchase by a Subsidiary of all or
substantially all of the assets of another corporation shall not be deemed to be
a purchase of such assets by the Company.
SECTION 5.07. ANNUAL STATEMENT CONCERNING COMPLIANCE WITH COVENANTS. The
Company will deliver to the Trustee, within 120 days after the end of each
fiscal year, a written statement signed by the principal executive officer, the
principal financial officer or the principal accounting officer of the Company,
stating that
(a) a review of the activities of the Company during such year with
regard to its compliance with this Indenture has been made under his
supervision, and
(b) to the best of his knowledge, based on such review, the Company
has fulfilled all its obligations under this Indenture throughout such
year, or, if there has been a default in the fulfillment of any such
obligation, specifying each such default known to him and the nature and
status thereof.
SECTION 1.01. COMPLIANCE WITH COVENANTS AND CONDITIONS MAY BE WAIVED BY
HOLDERS OF SECURITIES. Anything in this Indenture to the contrary
notwithstanding, the Company or any Restricted Subsidiary may fail or omit in
any particular instance to comply with a covenant or condition set forth in
Section 5.04 or 5.06 with respect to any series of Securities if the Company
shall have obtained and filed with the Trustee, prior to the time of such
failure or omission, evidence (as provided in Article Seven) of the consent of
the holders of at least 66K% in aggregate principal amount of the Securities of
such series at the time outstanding, either waiving such compliance in such
instance or generally waiving compliance with such covenant or condition, but no
such waiver shall extend to or affect any obligation not waived by the terms of
such waiver or impair any right consequent thereon.
ARTICLE SIX
REMEDIES OF TRUSTEE AND SECURITYHOLDERS
SECTION 6.01. EVENTS OF DEFAULT. Except where otherwise indicated by the
context or where the term is otherwise defined for a specific purpose, the term
"event of default" as used in this Indenture with respect to Securities of any
series shall mean one of the following described events unless it is either
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inapplicable to a particular series or it is specifically deleted or modified in
the supplemental indenture, if any, under which such series of Securities is
issued:
(a) the failure of the Company to pay any installment of interest on
any Security of such series, when and as the same shall become payable,
which failure shall have continued unremedied for a period of 30 days;
(b) the failure of the Company to pay the principal of (and premium,
if any, on) any Security of such series, when and as the same shall become
payable, whether at maturity as therein expressed, by call for redemption
(otherwise than pursuant to a sinking fund), by declaration as authorized
by this Indenture or otherwise;
(c) the failure of the Company to pay a sinking fund installment, if
any, when and as the same shall become payable by the terms of a Security
of such series, which failure shall have continued unremedied for a period
of 30 days;
(d) the failure of the Company, subject to the provisions of Section
5.08, to observe and perform any other of the covenants or agreements on
the part of the Company contained in this Indenture (other than a covenant
or agreement which has been expressly included in this Indenture solely for
the benefit of a series of Securities other than that series), which
failure shall not have been remedied to the satisfaction of the Trustee, or
without provision deemed by the Trustee to be adequate for the remedying
thereof having been made, for a period of 90 days after written notice
shall have been given to the Company by the Trustee or shall have been
given to the Company and the Trustee by holders of 25% or more in aggregate
principal amount of the Securities of such series then outstanding,
specifying such failure and requiring the Company to remedy the same;
(e) an event of default, as defined in any mortgage, indenture or
instrument, including this Indenture, under which there may be issued, or
by which there may be secured or evidenced, any indebtedness for money
borrowed of the Company, whether such indebtedness now exists or shall
hereafter be created, shall happen and shall result in such indebtedness in
an amount in excess of $15,000,000 becoming or being declared due and
payable prior to the date on which it would otherwise become due and
payable, and such acceleration shall not have been rescinded or annulled,
or such indebtedness shall not have been discharged, within a period of 10
days after there has been given, by registered or certified mail, to the
Company by the Trustee or to the Company and the Trustee by the holders of
at least 10% in principal amount of the outstanding Securities of such
series a written notice specifying such event of default and requiring the
Company to cause such acceleration to be rescinded or annulled or to cause
such indebtedness to be discharged;
(f) the entry by a court having jurisdiction in the premises of a
decree or order for relief in respect of the Company in an involuntary case
under the Federal bankruptcy laws, as now or hereafter constituted, or any
other applicable Federal or State bankruptcy, insolvency or other similar
law now or hereafter in effect, or appointing a receiver, liquidator,
assignee, custodian, trustee or sequestrator (or similar official) of the
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Company or for substantially all of its property, or ordering the
winding-up or liquidation of its affairs, which decree or order shall have
remained unstayed and in effect for a period of 90 consecutive days;
(g) the commencement by the Company of a voluntary case under the
Federal bankruptcy laws, as now or hereafter constituted, or any other
applicable Federal or State bankruptcy, insolvency or other similar law now
or hereafter in effect, or the consent by the Company to the entry of an
order for relief in an involuntary case under any such law, or the consent
by the Company to the appointment of or taking possession by a receiver,
liquidator, assignee, trustee, custodian or sequestrator (or similar
official) of the Company or for substantially all of its property, or the
making by it of an assignment for the benefit of its creditors; or
(h) the occurrence of any other event of default with respect to
Securities of such series as provided in an Officers' Certificate delivered
pursuant to Section 2.02 or a supplemental indenture applicable to such
series of Securities pursuant to Section 13.01(b).
SECTION 6.02. ACCELERATION OF MATURITY OF PRINCIPAL ON DEFAULT. If any one
or more of the above-described events of default shall happen with respect to
Securities of any series at the time outstanding, then, and in each and every
such case, during the continuance of any such event of default, the Trustee or
the holders of 25% or more in principal amount of the Securities of such series
then outstanding may, and upon the written request of the holders of a majority
in principal amount of such Securities then outstanding the Trustee shall,
declare the principal of all the Securities of such series then outstanding, if
not then due and payable, to be due and payable, and upon any such declaration
the same shall become and be immediately due and payable, anything in this
Indenture or in the Securities of such series contained to the contrary
notwithstanding. This provision, however, is subject to the condition that, if
at any time after the principal of all the Securities of such series shall have
been so declared to be due and payable, all arrears of interest if any, upon all
the Securities of such series (with interest, to the extent that interest
thereon shall be legally enforceable, on any overdue installment of interest at
the rate borne by the Securities of such series) and the reasonable charges and
expenses of the Trustee, its agents and attorneys, and all other sums payable
under this Indenture (except the principal of the Securities of such series
which would not be due and payable were it not for such declaration), shall be
paid by the Company, and every other default and event of default under this
Indenture shall have been made good to the reasonable satisfaction of the
Trustee or of the holders of a majority in principal amount of the Securities of
such series then outstanding, or provision deemed by the Trustee or by such
holders to be adequate therefor shall have been made, then and in every such
case the holders of a majority in principal amount of the Securities of such
series then outstanding may, on behalf of the holders of all the Securities of
such series, waive the event of default by reason of which the principal of the
Securities of such series shall have been so declared to be due and payable and
may rescind and annul such declaration and its consequences; but no such waiver,
rescission or annulment shall extend to or affect any subsequent default or
event of default or impair any right consequent thereon. Any declaration by the
Trustee pursuant to this Section 6.02 shall be by written notice to the Company,
and any declaration or waiver by the holders of Securities of any series
pursuant to this Section 6.02 shall be by written notice to the Company and the
Trustee.
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The Company and the Trustee may, to the extent provided in Section 13.01,
enter into one or more indentures supplemental hereto with respect to any series
of the Securities which may provide for additional or different events of
default with respect to such series of Securities.
SECTION 6.03. THE COMPANY, FAILING FOR 30 DAYS TO PAY ANY INSTALLMENT OF
INTEREST OR SINKING FUND PAYMENT OR FAILING TO PAY PRINCIPAL WHEN DUE, WILL PAY
TO TRUSTEE AT ITS REQUEST WHOLE AMOUNT DUE. If the Company shall fail for a
period of 30 days to pay any installment of interest on the Securities of any
series or shall fail to pay the principal of and premium, if any, on any of the
Securities of such series when and as the same shall become due and payable,
whether at maturity, or by call for redemption (otherwise than pursuant to the
sinking fund), by declaration as authorized by this Indenture, or otherwise, or
shall fail for a period of 30 days to make any sinking fund payment as to a
series of Securities, then, upon demand by the Trustee, the Company will pay to
the Trustee for the benefit of the holders of Securities of such series then
outstanding the whole amount which then shall have become due and payable on all
the Securities of such series, with interest on the overdue principal and
premium, if any, and (so far as the same may be legally enforceable) on the
overdue installments of interest at the rate borne by the Securities of such
series, and reasonable compensation to the Trustee, its agents and attorneys,
and any other reasonable expenses and liabilities incurred by the Trustee under
this Indenture without negligence or bad faith.
In case the Company shall fail forthwith to pay such amounts upon such
demand, the Trustee, in its own name and as trustee of an express trust, shall
be entitled and empowered to institute any action or proceeding 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 any other obligor upon the
Securities of such series, and collect the moneys adjudged or decreed to be
payable out of the property of the Company or any other obligor upon the
Securities of such series, and collect the moneys adjudged or decreed to be
payable out of the property of the Company or any other obligor upon the
Securities of such securities, wherever situated, in the manner provided by law.
Every recovery of judgment in any such action or other proceeding, subject to
the payment of the expenses, disbursements and compensation of the Trustee, its
agents and attorneys, shall be for the ratable benefit of the holders of such
series of Securities which shall be the subject of such action or proceeding.
All rights of action upon or under any of the Securities or this Indenture may
be enforced by the Trustee without the possession of any of the Securities and
without the production of any thereof at any trial or any proceeding relative
thereto.
SECTION 6.04. TRUSTEE APPOINTED ATTORNEY-IN-FACT FOR SECURITYHOLDERS TO
FILE CLAIMS. The Trustee is hereby appointed, and each and every holder of the
Securities, by receiving and holding the same, shall be conclusively deemed to
have appointed the Trustee, the true and lawful attorney-in-fact of such holder,
with authority to make or file (whether or not the Company shall be in default
in respect of the payment of the principal of, or interest on, any of the
Securities), in its own name and as trustee of an express trust or otherwise as
it shall deem advisable, in any receivership, insolvency, liquidation,
bankruptcy, reorganization or other judicial proceeding relative to the Company
or any other obligor upon the Securities or to their respective creditors or
property, any and all claims, proofs of claim, proofs of debt, petitions,
consents, other papers and documents and amendments of any thereof, as may be
necessary or advisable in order to have the claims of the Trustee and of the
holders of the Securities allowed in any such proceeding and to collect and
receive any moneys or other property payable or deliverable on any such claim,
and to execute and deliver any and all other papers and documents and to do and
perform any and all other acts and things, as it may deem necessary or advisable
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in order to enforce in any such proceeding any of the claims of the Trustee and
of any of such holders in respect of any of the Securities; and any receiver,
assignee, trustee, custodian or debtor in any such proceeding is hereby
authorized, and each and every holder of the Securities, by receiving and
holding the same, shall be conclusively deemed to have authorized any such
receiver, assignee, trustee, custodian or debtor, to make any such payment or
delivery only to or on the order of the Trustee, and to pay to the Trustee any
amount due if for compensation and expenses, including counsel fees, incurred by
it to the date of such payment or delivery; PROVIDED, HOWEVER, that nothing
herein contained shall be deemed to authorize or empower the Trustee to consent
to or accept or adopt, on behalf of any holder of Securities, any plan of
reorganization or readjustment of the Company affecting the Securities or the
rights of any holder thereof, or to authorize or empower the Trustee to vote in
respect of the claim of any holder of any Securities in any such proceeding.
SECTION 6.05. APPLICATION OF MONEYS COLLECTED BY TRUSTEE. Any moneys
collected by the Trustee with respect to a series of Securities under this
Article Six shall be applied in the order following, at the date or dates fixed
by the Trustee for the distribution of such moneys, upon presentation of the
several Securities, and stamping thereon the payment, if only partially paid,
and upon surrender thereof if fully paid:
First: To the payment of all costs and expenses in
connection with the collection of such moneys and all amounts due
to the Trustee under Section 10.05.
Second: In case the principal of the outstanding Securities
of such series shall not have become due and be unpaid, to the
payment of interest on the Securities of such series, in the
order of the maturity of the installments of such interest, with
interest (to the extent that such interest has been collected by
the Trustee) upon the overdue installments of interest at the
rate borne by such Securities, such payments to be made ratably
to the Persons entitled thereto.
Third: In case the principal of the outstanding Securities
of such series shall have become due, by declaration or
otherwise, to the payment of the whole amount then owing and
unpaid upon the Securities of such series for principal and
premium, if any, and interest, with interest on the overdue
principal and premium, if any, and (to the extent that such
interest has been collected by the Trustee) upon overdue
installments of interest at the rate borne by the Securities of
such series, and in case such moneys shall be insufficient to pay
in full the whole amounts so due and unpaid upon the Securities
of such series, then to the payment of such principal and
premium, if any, and interest without preference or priority of
principal and premium, if any, over interest, or of interest over
principal and premium, if any, or of any installment of interest
over any other installment of interest, or of any Security of
such series over any other Security of such series, ratably to
the aggregate of such principal and premium, if any, and accrued
and unpaid interest.
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Any surplus then remaining shall be paid to the Company or to such other
Persons as shall be entitled to receive it.
SECTION 6.06. SECURITYHOLDERS MAY DIRECT PROCEEDINGS AND WAIVE DEFAULTS.
The holders of a majority in principal amount of the Securities of any series at
the time outstanding may direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee hereunder, or of exercising
any trust or power hereby conferred upon the Trustee with respect to the
Securities of such series, PROVIDED, HOWEVER, that, subject to the provisions of
Section 10.02, the Trustee shall have the right to decline to follow any such
direction if the Trustee being advised by counsel determines that the action so
directed may not lawfully be taken. Prior to any declaration accelerating the
maturity of the Securities of any series, the holders of a majority in aggregate
principal amount of such series of Securities at the time outstanding may on
behalf of the holders of all of the Securities of such series waive any past
default or event of default hereunder and its consequences except a default in
the payment of interest or any premium on or the principal of the Securities of
such series. Upon any such waiver 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 event of default or impair any right consequent
thereon. Whenever any default or event of default hereunder shall have been
waived as permitted by this Section 6.06, said default or event of default shall
for all purposes of the Securities of such series and this Indenture be deemed
to have been cured and to be not continuing.
SECTION 6.07. LIMITATIONS ON RIGHTS OF SECURITYHOLDERS TO INSTITUTE
PROCEEDINGS. No holder of any Security of any series shall have any right to
institute any action, suit or proceeding at law or in equity for the execution
of any trust hereunder or for the appointment of a receiver or for any other
remedy hereunder, in each case with respect to an event of default with respect
to such series of Securities, unless such holder previously shall have given to
the Trustee written notice of the happening of one or more of the events of
default herein specified with respect to such series of Securities, and unless
also the holders of 25% in principal amount of the Securities of such series
then outstanding shall have requested the Trustee in writing to take action in
respect of the matter complained of, and unless also there shall been offered to
the Trustee security and indemnity satisfactory to it against the costs,
expenses and liabilities to be incurred therein or thereby, and the Trustee, for
60 days after receipt of such notification, request and offer of indemnity,
shall have neglected or refused to institute any such action, suit or
proceeding; and such notification, request and offer of indemnity are hereby
declared in every such case to be conditions precedent to any such action, suit
or proceeding by any holder of any Security of such series; it being understood
and intended that no one or more of the holders of Securities of such series
shall have any right in any manner whatsoever by his or their action to enforce
any right hereunder, except in the manner herein provided, and that every
action, suit or proceeding at law or in equity shall be instituted, had and
maintained in the manner herein provided and for the equal benefit of all
holders of the outstanding Securities of such series; PROVIDED, HOWEVER, that
nothing in this Indenture or in the Securities of such series contained shall
affect or impair the obligation of the Company, which is absolute and
unconditional, to pay the principal of, premium, if any, and interest on the
Securities of such series to the respective holders of such Securities at the
respective due dates in such Securities stated, or affect or impair the right,
which is also absolute and unconditional, of such holders to institute suit to
enforce the payment thereof; PROVIDED, FURTHER, that in the event property or
assets are conveyed, transferred, assigned, mortgaged or pledged to the Trustee
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as security for one or more series of Securities, no holder of Securities shall
be entitled to take any action or institute any suit to enforce the payment of
his Securities, whether for principal, interest or premium, if any, to the
extent that the taking of such action or the institution or prosecution of any
such suit or the entry of judgment therein would under applicable law result in
a surrender, impairment, waiver or loss of the lien of this Indenture, if any,
upon the trust estate so created by such conveyance, transfer, assignment,
mortgage or pledge, or any part thereof, as security for Securities held by any
other holder.
SECTION 6.08. ASSESSMENT OF COSTS AND ATTORNEYS' FEES IN LEGAL PROCEEDINGS.
All parties to this Indenture and the holders of the Securities agree that the
court may in its discretion require, in any action, suit or proceeding for the
enforcement of any right or remedy under this Indenture, or in any action, suit
or proceeding against the Trustee for any action taken or omitted by it as
Trustee, the filing by any party litigant in such action, suit or proceeding of
an undertaking to pay the costs of such action, suit or proceeding, and that
such court may in its discretion assess reasonable costs, including reasonably
attorney's fees, against any party litigant in such action, suit or proceeding,
having due regard to the merits and good faith of the claims or defenses made by
such party litigant; PROVIDED, HOWEVER, that the provisions of this Section 6.08
shall not apply to any action, suit or proceeding instituted by the Trustee, to
any action, suit or proceeding instituted by any one or more holders of
Securities holding in the aggregate more than 10% in principal amount of the
Securities of any series outstanding, or to any action, suit or proceeding
instituted by any holder of Securities of any series for the enforcement of the
payment of the principal of or premium, if any, or the interest on, any of the
Securities of such series, on or after the respective due dates expressed in
such Securities.
SECTION 6.09. REMEDIES CUMULATIVE. No remedy herein conferred upon or
reserved to the Trustee or to the holders of Securities of any series is
intended to be exclusive of any other remedy or remedies, and each and every
remedy shall be cumulative and shall be in addition to every other remedy given
hereunder or now or hereafter existing at law or in equity or by statute. No
delay or omission of the Trustee or of any holder of the Securities of any
series to exercise any right or power accruing upon any default or event of
default shall impair any such right or power or shall be construed to be a
waiver of any such default or event of default or an acquiescence therein, and
every power and remedy given by this Article Six to the Trustee and to the
holders of Securities of any series, respectively, may be exercised from time to
time and as often as may be deemed expedient by the Trustee or by the holders of
Securities of such series, as the case may be. In case the Trustee or any holder
of Securities of any series shall have proceeded to enforce any right under this
Indenture and the proceedings for the enforcement thereof shall have been
discontinued or abandoned because of waiver or for any other reason or shall
have been adjudicated adversely to the Trustee or to such holder of Securities,
then and in every such case the Company, the Trustee and the holders of the
Securities of such series shall severally and respectively be restored to their
former positions and rights hereunder and thereafter all rights, remedies and
powers of the Trustee and the holders of the Securities of such series shall
continue as though no such proceedings had been taken, except as to any matters
so waived or adjudicated.
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ARTICLE SEVEN
CONCERNING THE SECURITYHOLDERS
SECTION 7.01. EVIDENCE OF ACTION BY SECURITYHOLDERS. Whenever in this
Indenture it is provided that the holders of a specified percentage or a
majority in aggregate principal amount of the Securities or of any series of
Securities 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
specified percentage or majority have joined therein may be evidenced (a) by any
instrument or any number of instruments of similar tenor executed by
Securityholders in person or by agent or proxy appointed in writing, or (b) by
the record of the holders of Securities voting in favor thereof at any meeting
of Securityholders duly called and held in accordance with the provisions of
Article Eight, or (c) by a combination of such instrument or instruments and any
such record of such a meeting of Securityholders.
SECTION 7.02. PROOF OF EXECUTION OF INSTRUMENTS AND OF HOLDING OF
SECURITIES. Proof of the execution of any instrument by a Securityholder 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:
The fact and date of the execution by any person of any such instrument may
be proved (a) by the certificate of any notary public or other officer in any
jurisdiction who, by the laws thereof, has power to take acknowledgements or
proof of deeds to be recorded within such jurisdiction, that the person who
signed such instrument did acknowledge before such notary public or other
officer the execution thereof, or (b) by the affidavit of a witness of such
execution sworn to before any such notary or other officer. Where such execution
is by a person acting in other than his individual capacity, such certificate or
affidavit shall also constitute sufficient proof of his authority.
The ownership of Securities shall be proved by the Security Register of
such Securities or by a certificate of the Security Registrar thereof.
The Trustee may accept such other proof or may require such additional
proof of any matter referred to in this Section 7.02 as it shall deem
appropriate or necessary.
SECTION 7.03. SECURITIES OWNED BY THE COMPANY OR OTHER OBLIGOR ON THE
SECURITIES TO BE DISREGARDED IN CERTAIN CASES. In determining whether the
holders of the requisite principal amount of the Securities have concurred in
any direction, request, waiver or consent under this Indenture, Securities which
are owned by the Company or by any other obligor on the Securities or by any
Person directly or indirectly controlling, or controlled by, or under direct or
indirect common control with, the Company or any such other obligor shall be
disregarded, except that for the purpose of determining whether the Trustee
shall be protected in relying on any such direction, request, waiver or consent,
only Securities which the Trustee knows are so owned shall be disregarded.
Securities so owned which have been pledged in good faith may be regarded as
outstanding for the purposes of this Section 7.03 if the pledgee shall establish
to the satisfaction of the Trustee the pledgee's right to vote such Securities
and that the pledgee is not a Person directly or indirectly controlling, or
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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 7.04. REVOCATION BY SECURITYHOLDERS OF CONSENTS TO ACTION. At any
time prior to (but not after) the evidencing to the Trustee, as provided in
Section 7.01, of the taking of any action by the holders of the percentage in
aggregate principal amount of the Securities or of any series of Securities
specified in this Indenture in connection with such action, any holder of a
Security which 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 at its principal office and upon proof of holding as provided
in Section 7.02, 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, irrespective of whether or not any notation in regard thereto
is made upon such Security or any Security issued in exchange or substitution
therefor.
ARTICLE EIGHT
SECURITYHOLDERS' MEETINGS
SECTION 8.01. PURPOSES OF MEETINGS. A meeting of Securityholders may be
called at any time and from time to time pursuant to the provisions of this
Article Eight for any of the following purposes:
(a) to give any notice to the Company or to the Trustee, or to give
any directions to the Trustee, or to consent to the waiving of any default
hereunder and its consequences, or to take any other action authorized to
be taken by Securityholders pursuant to any of the provisions of Article
Six;
(b) to remove the Trustee and nominate a successor trustee pursuant to
the provisions of Article Ten;
(c) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to the provisions of Section 13.02; or
(d) to take any other action authorized to be taken by or on behalf of
the holders of any specified aggregate principal amount of the Securities
of any one or more or all series, as the case may be, under any other
provision of this Indenture or under applicable law.
SECTION 8.02. CALL OF MEETINGS BY TRUSTEE. The Trustee may at any time call
a meeting of Securityholders of all series that may be affected by the action
proposed to be taken, to take any action specified in Section 8.01, to be held
at such time and at such place as the Trustee shall determine. Notice of every
meeting of the Securityholders of a series, setting forth the time and the place
of such meeting and in general terms the action proposed to be taken at such
meeting, shall be mailed to holders of Securities of such series at their
addresses as they shall appear on the Security Register (including the records
of any Security Co-Registrar). Such notice shall be mailed not less than 20 nor
more than 90 days prior to the date fixed for the meeting.
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SECTION 8.03. CALL OF MEETINGS BY COMPANY OR SECURITYHOLDERS. In case at
any time the Company, pursuant to a resolution of its Board of Directors, or the
holders of at least 10% in aggregate principal amount of the Securities of a
series then outstanding that may be affected by the action proposed to be taken,
shall have requested the Trustee to call a meeting of Securityholders of such
series, by written request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Trustee shall not have mailed the
notice of such meeting within 20 days after receipt of such request, then the
Company or such Securityholders may determine the time and the place for such
meeting and may call such meeting to take any action authorized in Section 8.01,
by mailing notice thereof as provided in Section 8.02.
SECTION 8.04. QUALIFICATIONS FOR VOTING. To be entitled to vote at any
meeting of Securityholders a Person shall (a) be a holder of one or more
Securities of a series affected by the action proposed to be taken at the
meeting or (b) be a person appointed by an instrument in writing as proxy by a
holder of one or more such Securities. The only persons who shall be entitled to
be present or to speak at any meeting of Securityholders shall be the persons
entitled to vote at such meeting and their counsel and any representatives of
the Trustee and its counsel and any representatives of the Company and its
counsel.
SECTION 8.05. REGULATION OF MEETINGS. Notwithstanding any other provisions
of this Indenture, the Trustee may make such reasonable regulations as it may
deem advisable for any meeting of Securityholders, in regard to proof of the
holding of Securities and of the appointment of proxies, and in regard to the
appointment and duties of inspectors of votes, the submission and examination of
proxies, certificates and other evidence of the right to vote, and such other
matters concerning the conduct of the meeting as it shall think fit.
The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Securityholders as provided in Section 8.03, in which case the
Company or the Securityholders calling the meeting, as the case may be, shall in
like manner appoint a temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by majority vote of the meeting.
Subject to the provisions of Section 7.03, at any meeting of
Securityholders of a series each Securityholder of such series or such
Securityholder's proxy shall be entitled to one vote for each $1,000 principal
amount of Securities of such series outstanding held or represented by him;
PROVIDED, HOWEVER, that no vote shall be cast or counted at any meeting in
respect of any Security challenged as not outstanding and ruled by the chairman
of the meeting to be not outstanding. The chairman of the meeting shall have no
right to vote other than by virtue of Securities of such series held by him or
instruments in writing as aforesaid duly designating him as the person to vote
on behalf of other Securityholders of such series. At any meeting of the
Securityholders duly called pursuant to the provisions of Section 8.02 or 8.03
the presence of persons holding or representing Securities in an aggregate
principal amount sufficient to take action upon the business for the transaction
of which such meeting was called shall be necessary to constitute a quorum, and
any such meeting may be adjourned from time to time by a majority of those
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present, whether or not constituting a quorum, and the meeting may be held as so
adjourned without further notice.
SECTION 8.06. VOTING. The vote upon any resolution submitted to any meeting
of Securityholders of a series shall be by written ballots on which shall be
subscribed the signatures of the holders of Securities of such series or of
their representatives by proxy and the principal amounts of the Securities of
such series held or represented by them. The permanent chairman of the meeting
shall appoint two inspectors of votes who shall count all votes cast at the
meeting for or against any resolution and who shall make and file with the
secretary of the meeting their verified written reports in duplicate of all
votes cast at the meeting. A record in duplicate of the proceedings of each
meeting of Securityholders shall be prepared by the secretary of the meeting and
there shall be attached to said record the original reports of the inspectors of
votes on any vote by ballot taken thereat and affidavits by one or more persons
having knowledge of the facts setting forth a copy of the notice of the meeting
and showing that said notice was mailed as provided in Section 8.02. The record
shall show the principal amounts of the Securities voting in favor of or against
any resolution. The record shall be signed and verified by the affidavits of the
permanent chairman and secretary of the meeting and one of the duplicates shall
be delivered to the Company and the other to the Trustee to be preserved by the
Trustee.
Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
SECTION 8.07. NO DELAY OF RIGHTS BY MEETING. Nothing contained in this
Article Eight shall be deemed or construed to authorize or permit, by reason of
any call of a meeting of Securityholders of any series or any rights expressly
or impliedly conferred hereunder to make such call, any hindrance or delay in
the exercise of any right or rights conferred upon or reserved to the Trustee or
to the Securityholders of such series under any of the provisions of this
Indenture or of the Securities of such series.
ARTICLE NINE
REPORTS BY THE COMPANY AND THE TRUSTEE
AND SECURITYHOLDERS' LISTS
SECTION 9.01. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESS OF HOLDERS. In
accordance with Section 312(a) of the Trust Indenture Act, the Company shall
furnish or cause to be furnished to the Trustee:
(a) semi-annually with respect to Securities of each series on January
15 and July 15 of each year or upon such other dates as are set forth in or
pursuant to the Board Resolution or indenture supplemental hereto
authorizing such series, a list, in each case, in such form as the Trustee
may reasonably require, of the names and addresses of holders as of the
applicable date; and
(b) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the
time such list is furnished;
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provided, however, that so long as the Trustee is the Security Registrar no such
list shall be required to be furnished.
SECTION 9.02. PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS. The
Trustee shall comply with the obligations imposed upon it pursuant to Section
312 of the Trust Indenture Act.
Every holder of Securities, by receiving and holding the same, agrees with
the Company and the Trustee that neither the Company, the Trustee, any paying
agent or any Security Registrar shall be held accountable by reason of the
disclosure of any such information as to the names and addresses of the holders
of Securities in accordance with Section 312 of the Trust Indenture Act,
regardless of the source from which such information was derived, and that the
Trustee shall not be held accountable by reason of mailing any material pursuant
to a request made under Section 312(b) of the Trust Indenture Act.
SECTION 9.03. REPORTS BY TRUSTEE.
(a) Within 60 days after May 15 of each year commencing with the first
May 15 following the first issuance of Securities, if required by Section
313(a) of the Trust Indenture Act, the Trustee shall transmit, pursuant to
Section 313(c) of the Trust Indenture Act, a brief report dated as of such
May 15 with respect to any of the events specified in said Section 313(a)
which may have occurred since the later of the immediately preceding May 15
and the date of this Indenture.
(b) The Trustee shall transmit the reports required by Section 313(b)
of the Trust Indenture Act and Section 10.11 hereof at the times specified
therein.
(c) Reports pursuant to this Section shall be transmitted in the
manner and to the Persons required by Sections 313(c) and 313(d) of the
Trust Indenture Act.
SECTION 9.04. REPORTS BY COMPANY. The Company, pursuant to Section 314(a)
of the Trust Indenture Act, shall:
(a) 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) which the Company may be required to file
with the Commission pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934; or, if the Company is not required to file
information, documents or reports pursuant to either of said Sections, then
it shall file with the Trustee and the Commission, in accordance with rules
and regulations prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents and reports which may be
required pursuant to Section 13 of the Securities Exchange Act of 1934 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;
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(b) file with the Trustee and the Commission, in accordance with rules
and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by
the Company with the conditions and covenants of this Indenture as may be
required from time to time by such rules and regulations; and
(c) transmit to the holders within 30 days after the filing thereof
with the Trustee, in the manner and to the extent provided in Section
313(c) of the Trust Indenture Act, such summaries of any information,
documents and reports required to be filed by the Company pursuant to
paragraphs (1) and (2) of this Section as may be required by rules and
regulations prescribed from time to time by the Commission.
ARTICLE TEN
CONCERNING THE TRUSTEE
SECTION 10.01. CERTAIN RIGHTS OF TRUSTEE. Subject to Sections 315(a)
through 315(d) of the Trust Indenture Act:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, coupon or other paper or document reasonably
believed by it to be genuine and to have been signed or presented by the
proper party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by an Officers' Certificate and any resolution of
the Board of Directors or any committee thereof (or committee of officers
or other representatives of the Company, to the extent any such committee
or committees have been so authorized by the Board of Directors) may be
sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other
evidence shall be herein specifically prescribed) may, in the absence of
bad faith on its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the advice of such
counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by or pursuant to this Indenture at the
request or direction of any of the holders of Securities of any series
pursuant to this Indenture, unless such holders shall have offered to the
Trustee reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such request
or direction;
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(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, coupon or other paper or document, but the Trustee, in its
discretion, may make such further inquiry or investigation into such facts
or matters as it may see fit, and, if the Trustee shall determine to make
such further inquiry or investigation, it shall be entitled to examine,
during business hours and upon reasonable notice, the books, records and
premises of the Company, personally or by agent or attorney; 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 10.02. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES. The
recitals contained herein and in the Securities, except those referring or
relating to the Trustee or any of its agents, and except for the Trustee's
certificate of authentication, shall be taken as the statements of the Company
and neither the Trustee nor any Authenticating Agent assumes any responsibility
for their correctness. The Trustee makes no representations as to the validity
or sufficiency of this Indenture or of the Securities, except that the Trustee
represents that it is duly authorized to execute and deliver this Indenture,
authenticate the Securities and perform its obligations hereunder and that the
statements made by it in a Statement of Eligibility on Form T-1 supplied to the
Company are and will be true and accurate, subject to the qualifications set
forth therein. Neither the Trustee nor any Authenticating Agent shall be
accountable for the use or application by the Company of the Securities or the
proceeds thereof.
SECTION 10.03. MAY HOLD SECURITIES. The Trustee, any Authenticating Agent,
any Security Registrar or any other Person that may be an agent of the Trustee
or the Company, in its individual or any other capacity, may become the owner or
pledgee of Securities and, subject to Sections 310(b) and 311 of the Trust
Indenture Act, may otherwise deal with the Company with the same rights it would
have if it were not Trustee, Authenticating Agent, Security Registrar or such
other Person.
SECTION 10.04. MONEY HELD IN TRUST. Money held by the Trustee in trust
hereunder need not be segregated from other funds except to the extent required
by law and, subject to Section 11.02 hereof, may be invested in direct
obligations of the United States of America in such amounts and with such
maturities that will ensure that the principal of such obligations, together
with the income thereon (without consideration of any reinvestment thereof),
will be sufficient to pay all sums due for principal of, premium, if any, and
interest on the Securities, as they become due from time to time. The Trustee
shall be under no liability for interest on any money received by it or for
losses on any investments made by it pursuant to this Section 10.04 except as
otherwise agreed with the Company.
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SECTION 10.05. COMPENSATION AND REIMBURSEMENT. The Company agrees:
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by the Trustee hereunder (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(2) to reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Trustee
in accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or advance
as may be attributable to the Trustee's negligence or bad faith; and
(3) to indemnify the Trustee and its agents for, and to hold them
harmless against, any loss, liability or expense incurred without
negligence or bad faith on their part (excluding, for so long as no
event of default hereunder has occurred and is continuing, any
settlement that has not been approved by the Company in writing prior
to any such settlement) arising out of or in connection with the
acceptance or administration of the trust or trusts hereunder,
including the costs and expenses of defending themselves against any
claim or liability in connection with the exercise or performance of
any of their powers or duties hereunder, except to the extent that any
such loss, liability or expense was due to the Trustee's negligence or
bad faith.
The obligations of the Company under this Section to compensate and
indemnify the Trustee and each predecessor Trustee for expenses, disbursements
and advances shall constitute additional indebtedness hereunder and shall
survive the satisfaction and discharge of this Indenture.
SECTION 10.06. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY. There shall at all
times be a Trustee hereunder that is a corporation permitted by the Trust
Indenture Act to act as trustee under an indenture qualified under the Trust
Indenture Act and that has a combined capital and surplus (computed in
accordance with Section 310(a)(2) of the Trust Indenture Act) of at least
$25,000,000. If at any time the Trustee shall cease to be eligible in accordance
with the provisions of this Section, it shall resign immediately in the manner
and with the effect hereinafter specified in this Article.
SECTION 10.07. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee pursuant to Section
10.08.
(b) The Trustee may resign at any time with respect to the Securities
of one or more series by giving written notice thereof to the Company. If
the instrument of acceptance by a successor Trustee required by Section
10.08 shall not have been delivered to the Trustee within 30 days after the
giving of such notice of resignation, the resigning Trustee may petition
any court of competent jurisdiction for the appointment of a successor
Trustee with respect to such series.
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(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the holders of a majority in principal
amount of the outstanding Securities of such series, delivered to the
Trustee and the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with the obligations imposed
upon it under Section 310(b) of the Trust Indenture Act with respect
to Securities of any series after written request therefor by the
Company or any holder of a Security of such series who has been a bona
fide holder of a Security of such series for at least six months; or
(2) the Trustee shall cease to be eligible under Section 10.06
and shall fail to resign after written request therefor by the Company
or any such holder; or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of
its property shall be appointed or any public officer shall take
charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation;
then, in any such case, (i) the Company, by or pursuant to a Board Resolution,
may remove the Trustee with respect to all Securities or the Securities of such
series, or (ii) subject to Section 315(e) of the Trust Indenture Act, any holder
of a Security who has been a bona fide holder of a Security of such series for
at least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Trustee with
respect to all Securities of such series and the appointment of a successor
Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause,
with respect to the Securities of one or more series which shall occur only
with the express prior written consent of the Company, the Company, by or
pursuant to a Board Resolution, shall promptly appoint a successor Trustee
or Trustees with respect to the Securities of that or those series (it
being understood that any such successor Trustee may be appointed with
respect to the Securities of one or more or all of such series and that at
any time there shall be only one Trustee with respect to the Securities of
any particular series) and shall comply with the applicable requirements of
Section 10.08. If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor Trustee with
respect to the Securities of any series shall be appointed by Act of the
holders of a majority in principal amount of the outstanding Securities of
such series delivered to the Company and the retiring Trustee, the
successor Trustee so appointed shall, forthwith upon its acceptance of such
appointment in accordance with the applicable requirements of Section
10.08, become the successor Trustee with respect to the Securities of such
series and to that extent supersede the successor Trustee appointed by the
Company. If no successor Trustee with respect to the Securities of any
series shall have been so appointed by the Company or the holders of
Securities and accepted appointment in the manner required by Section
10.08, any holder of a Security who has been a bona fide holder of a
Security of such series for at least six months may, on behalf of himself
and all others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
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(f) The Company shall give notice of each resignation and each removal
of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of any
series by mailing written notice of such event by first-class mail, postage
prepaid, to the holders of Securities of such series as their names and
addresses appear in the Security Register. Each notice shall include the
name of the successor Trustee with respect to the Securities of such series
and the address of its Corporate Trust Office.
SECTION 10.08. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) Upon the appointment hereunder of any successor Trustee with respect to
all Securities, such successor Trustee so appointed shall execute, acknowledge
and deliver to the Company and 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 hereunder of the retiring Trustee; but, on the request of the Company or
such successor Trustee, such retiring Trustee, upon payment of its charges,
shall execute and deliver an instrument transferring to such successor Trustee
all the rights, powers and trusts of the retiring Trustee and, subject to
Section 5.03, shall duly assign, transfer and deliver to such successor Trustee
all property and money held by such retiring Trustee hereunder, subject
nevertheless to its claim, if any, provided for in Section 10.05.
(b) Upon the appointment hereunder of any successor Trustee with respect to
the Securities of one or more (but not all) series, the Company, the retiring
Trustee and such successor Trustee shall execute and deliver 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, such successor Trustee all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates, (2) if the retiring Trustee is not retiring with respect to all
Securities, 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
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 notice given to, or received by, or 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 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 with respect to the Securities of that or those series to which
the appointment of such successor Trustee relates other than as hereinafter
expressly set forth, 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 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 such successor Trustee, such retiring Trustee, upon
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payment of its charges with respect to the Securities of that or those series to
which the appointment of such successor relates and subject to Section 5.03
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 Person appointed hereunder as a 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 Person shall accept its appointment hereunder as a successor Trustee
unless at the time of such acceptance such successor Person shall be qualified
and eligible under this Article.
SECTION 10.09. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.
Any corporation into which the Trustee may be merged or converted or with which
it may be consolidated, or any corporation resulting from any merger, conversion
or consolidation to which the Trustee shall be a party, or any corporation
succeeding to all or substantially all of the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder, without the execution
or filing of any paper or any further act on the part of any of the parties
hereto. In case any Securities shall have been authenticated but not delivered
by the Trustee then in office, any successor by merger, conversion or
consolidation to such authenticating Trustee may adopt such authentication and
deliver the Securities so authenticated with the same effect as if such
successor Trustee had itself authenticated such Securities.
SECTION 10.10. APPOINTMENT OF AUTHENTICATING AGENT. The Trustee may appoint
one or more Authenticating Agents acceptable to the Company with respect to one
or more series of Securities which shall be authorized to act on behalf of the
Trustee to authenticate Securities of that or those series issued upon original
issue, exchange, registration of transfer, partial redemption or pursuant to
Section 2.06, 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. Wherever reference is made in this
Indenture to the authentication and delivery of Securities by the Trustee or the
Trustee's certificate of authentication, such reference shall be deemed to
include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Company and, except as
provided in or pursuant to this Indenture, shall at all times be a corporation
that would be permitted by the Trust Indenture Act to act as trustee under an
indenture qualified under the Trust Indenture Act, is authorized under
applicable law and by its charter to act as an Authenticating Agent and has a
combined capital and surplus (computed in accordance with Section 310(a)(2) of
the Trust Indenture Act) of at least $5,000,000. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect specified in this Section.
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Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any Corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall be the successor of
such Authenticating Agent hereunder, provided such Corporation shall be
otherwise eligible under this Section, without the execution or filing of any
paper or any further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and the Company. The Trustee may at any time terminate
the agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall (i) mail written notice
of such appointment by first-class mail, postage prepaid, to all holders of
Securities of the series with respect to which such Authenticating Agent shall
serve, as their names and addresses appear in the Security Register. Any
successor Authenticating Agent, upon acceptance of its appointment hereunder,
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The provisions of Sections 2.05, 10.02 and 10.03 shall be applicable to
each Authenticating Agent.
If all of the Securities of any series may not be originally issued at one
time, and if the Trustee does not have an office capable of authenticating
Securities upon original issuance located in a Place of Payment where the
Company wishes to have Securities of such series authenticated upon original
issuance, the Trustee, if so requested in writing (which writing need not be
accompanied by or contained in an Officers' Certificate by the Company), shall
appoint in accordance with this Section an Authenticating Agent having an office
in a Place of Payment designated by the Company with respect to such series of
Securities.
The Trustee hereby appoints Norwest Bank Minnesota, National Association,
to act as Authenticating Agent hereunder.
SECTION 10.11. NOTICE OF DEFAULTS. The Trustee shall, within ninety days
after the occurrence of a default with respect to the Securities of any series,
mail to all holders of Securities of that series entitled to receive reports
pursuant to Section 9.03, notice of all defaults with respect to that series
known to the Trustee, unless such defaults shall have been cured before the
giving of such notice; provided, however, that, except in the case of default in
the payment of the principal of, premium, if any, or interest on any of the
Securities of such series or in the making of any sinking fund payment with
respect to such series, the Trustee shall be protected in withholding such
notice if and so long as the board of directors or trustees, the executive
committee, or a trust committee of directors or trustees or Responsible Officers
of the Trustee in good faith determines that the withholding of such notice is
in the interests of the holders of Securities of such series. For the purpose of
this Section, the term "default" means any event which is, or after notice or
lapse of time or both would become, an event of default hereunder.
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ARTICLE ELEVEN
DEFEASANCE
SECTION 11.01. DISCHARGE OF INDENTURE UPON PAYMENT OF SECURITIES. If and
when the principal of, and the premium, if any, and the interest on, all the
Securities outstanding hereunder and all other sums due hereunder shall have
been well and truly paid at the times and in the manner therein and herein
expressed, this Indenture shall cease and determine, and, at the written request
of the Company, accompanied by the Officers' Certificate and Opinion of Counsel
required by Section 14.03, and upon proof being given to the reasonable
satisfaction of the Trustee that all the Securities have been paid or satisfied
and upon payment of the costs, charges and expenses incurred or to be incurred
by the Trustee in relation thereto or in carrying out the provisions of this
Indenture, the Trustee shall cancel this Indenture and execute and deliver to
the company such instruments as shall be requisite to evidence the satisfaction
hereof.
SECTION 11.02. DISCHARGE OF SECURITIES OF ANY SERIES UPON DEPOSIT OF
MONEYS. If, at any time after the date hereof, the Company shall deposit with
the Trustee, in trust for the benefit of the holders thereof, (i) funds
sufficient to pay, or (ii) such amount of direct obligations of the United
States of America as will or will together with the income thereon without
consideration of any reinvestment thereof be sufficient to pay, all sums due for
principal of, premium, if any, and interest on the Securities of a particular
series, as they shall become due from time to time, and shall pay all costs,
charges and expenses incurred or to be incurred by the Trustee in relation
thereto or in carrying out the provisions of this Indenture in relation thereto,
this Indenture shall cease to be of further effect with respect to Securities of
such series (except as to (i) rights of registration of transfer, substitution
and exchange of Securities of such series, (ii) rights of holders to receive
payments of principal of, premium, if any, and interest on the Securities of
such series as they shall become due from time to time and other rights, duties
and obligations of Securityholders as beneficiaries hereof with respect to the
amounts so deposited with the Trustee, and (iii) the rights, obligations and
immunities of the Trustee hereunder (for which purposes the Securities of such
series shall be deemed outstanding)), and the Trustee, on the written request of
the Company, accompanied by the Officers' Certificate and Opinion of Counsel
required by Section 14.03, and an Opinion of Counsel to the effect that holders
of the Securities of such series will not recognize income, gain or loss for
Federal income tax purposes as a result of the Company's action under this
Section 11.02 and will be subject to Federal income tax in the same amount, in
the same manner and at the same times as would have been the case if such action
had not been taken, shall execute and deliver to the Company such instruments as
shall be requisite to evidence the satisfaction thereof with respect to
Securities of such series. The Trustee shall apply the moneys so deposited
solely to the payment to the holders of the Securities of such series of all
sums due thereon for principal, premium, if any, and interest, and the Trustee
shall have no claim for itself, for fees, expenses or otherwise, to such moneys
so deposited.
SECTION 11.03. INTEREST ON MONEYS DEPOSITED. Neither the Trustee nor any
other paying agent shall be required to pay interest on any moneys deposited
pursuant to the provisions of this Indenture, except such as it shall agree with
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the Company to pay thereon. Any moneys so deposited for the payment of the
principal of, premium, if any, of interest on the Securities of any series and
remaining unclaimed for three years after the date of the maturity of the
Securities of such series or the date fixed for the redemption of all the
Securities of such series at the time outstanding, as the case may be, shall be
repaid by the Trustee or such other paying agent to the Company upon its written
request and thereafter, anything in this Indenture to the contrary
notwithstanding, any rights of the holders of Securities of such series in
respect of which such moneys shall have been deposited shall be enforceable only
against the Company, and all liability of the Trustee or such other paying agent
with respect to such moneys shall thereafter cease.
Subject to the provisions of the foregoing paragraph, any moneys which at
any time shall be deposited by the Company or on its behalf with the Trustee or
any other paying agent for the purpose of paying the principal of, premium, if
any, and interest on any of the Securities shall be and are hereby assigned,
transferred and set over to the Trustee or such other paying agent in trust for
the respective holders of the Securities for the purpose for which such moneys
shall have been deposited; but such moneys need not be segregated from other
funds except to the extent required by law.
ARTICLE TWELVE
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS, DIRECTORS AND EMPLOYEES
SECTION 12.01. LIABILITY SOLELY CORPORATE. No recourse shall be had for the
paying of the principal of, or the premium, if any, or interest on, any Security
or for any claim based thereon or otherwise in respect thereof or of the
indebtedness represented thereby, or upon any obligation, covenant or agreement
of this Indenture, against any incorporator, stockholder, officer, director or
employee, as such, past, present or future, of the Company or of any successor
corporation, either directly or through the Company or any successor
corporation, whether by virtue of any constitutional provision, statute or rule
of law, or by the enforcement of any assessment or penalty or otherwise; it
being expressly agreed and understood that this Indenture and the Securities are
solely corporate obligations, and that no personal liability whatsoever shall
attach to, or be incurred by, any incorporator, stockholder, officer, director
or employee, as such, past, present or future, of the Company or of any
successor corporation, either directly or through the Company or any successor
corporation, because of the incurring of the indebtedness hereby authorized or
under or by reason of any of the obligations, covenants, promises or agreements
contained in this Indenture or in any of the Securities or to be implied
herefrom or therefrom, and that all liability, if any, of that character against
every such incorporator, stockholder, officer, director and employee is, by the
acceptance of the Securities and as a condition of, and as part of the
consideration for, the execution of this Indenture and the issue of the
Securities expressly waived and released.
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ARTICLE THIRTEEN
SUPPLEMENTAL INDENTURES
SECTION 13.01. WITHOUT CONSENT OF SECURITYHOLDERS, THE COMPANY AND TRUSTEE
MAY ENTER INTO SUPPLEMENTAL INDENTURES FOR SPECIFIED PURPOSES. The Company (when
authorized by resolution of its Board of Directors) and the Trustee, at any time
and from time to time, may enter into one or more indentures supplemental
hereto, in form satisfactory to the Trustee, for any one or more of the
following purposes:
(a) to add to the covenants and agreements of the Company, to be
observed thereafter and during the period, if any, in such supplemental
indenture or indentures expressed, to surrender any right or power
hereunder conferred upon the Company, and to add events of default, in each
case for the protection or benefit of the holders of all or any series of
the Securities (and if such covenants, agreements, surrender of rights or
powers and events of default are to be for the benefit of fewer than all
series of Securities, stating that such covenants, agreements, surrender of
rights or powers and events of default are expressly being included for the
benefit of such series as shall be identified therein);
(b) to change or eliminate any provisions of the Indenture with
respect to all or any series of the Securities not then outstanding (and,
if such change is applicable to fewer than all such series of the
Securities, specifying the series to which such change is applicable), and
to specify the rights and remedies of the Trustee and the holders of such
Securities in connection therewith;
(c) to evidence the succession of another corporation to the Company,
the Trustee, or successive successions, and the assumption by a successor,
transferee or lessee corporation of the covenants and obligations of the
Company or Trustee, as the case may be, contained in the Securities of one
or more series or in this Indenture;
(d) to cure any ambiguity or to correct or supplement any provision
contained herein or in any indenture supplemental hereto which may be
defective or inconsistent with any other provision contained herein or in
any supplemental indenture, or to make any other provision in regard to
matters or questions arising under this Indenture which the Board of
Directors of the Company may deem necessary or desirable and which shall
not adversely affect the interests of the holders of the Securities;
(e) to convey, transfer, assign, mortgage or pledge to the Trustee as
security for the Securities any property or assets which the Company may be
required to convey, transfer, assign, mortgage or pledge in accordance with
the provisions of Section 5.04;
(f) to prohibit the authentication and delivery of additional series
of Securities;
(g) to add to or change any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the issuance of
Securities in bearer form, registrable or not registrable as to principal
and with or without interest coupons;
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(h) to establish the form and terms of the Securities of any series as
permitted in Sections 2.01 and 2.02, or to authorize the issuance of
additional Securities of a series previously authorized or to add to the
conditions, limitations or restrictions on the authorized amount, terms or
purposes of issue, authentication or delivery of the Securities of any
series, as herein set forth, or other conditions, limitations or
restrictions thereafter to be observed; and
(i) to modify, alter, amend or supplement this Indenture in any other
respect which is not materially adverse to the holders, so long as such
change does not require the consent of the holders pursuant to any other
provision of this Indenture and is not inconsistent with any other
provisions of this Indenture and which, in the judgment of the Trustee, is
not to the prejudice of the Trustee and maintains adequate protection to
the Trustee when the same becomes operative.
Subject to the provisions of Section 13.03, the Trustee is authorized to
join with the Company in the execution of any such supplemental indenture, to
make the further agreements and stipulations which may be therein contained and
to accept the conveyance, transfer, assignment, mortgage or pledge of any
property or assets thereunder.
Any supplemental indenture authorized by the provisions of this Section
13.01 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 13.02.
SECTION 13.02. MODIFICATION OF INDENTURE BY SUPPLEMENTAL INDENTURE WITH
CONSENT OF SECURITYHOLDERS. With the consent (evidenced as provided in Article
Seven) of the holders of not less than 66K% in aggregate principal amount of the
Securities at the time outstanding which are affected by such indenture
supplemental hereto, the Company, when authorized by a resolution of its Board
of Directors, and the Trustee may from time to time and at any time enter into
an indenture or indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture or of modifying in any manner the rights of the holders of the
Securities of any series to be affected; provided, however, that no such
supplemental indenture shall (i) extend the fixed maturity of any Securities, or
reduce the rate or extend the time of payment of interest thereon, or reduce the
amount of the principal thereof, or reduce any premium payable upon the
redemption thereof, or make the principal thereof or interest or premium thereon
payable in any coin or currency other than that provided in the Securities, or
impair the right to institute suit for the enforcement of any such payment on or
after the maturity thereof as provided in Section 6.07, without the consent of
the holder of each Security so affected, or (ii) reduce the aforesaid percentage
of Securities of any series, the holders of which are required to consent to any
such supplemental indenture, without the consent of the holders of all the
Securities then outstanding, or (iii) modify, without the written consent of the
Trustee, the rights, duties or immunities of the Trustee.
A supplemental indenture which changes or eliminates any provision of this
Indenture which has expressly been included solely for the benefit of one or
more particular series of Securities, or which modifies the rights of the
holders of Securities of such series with respect to such provision, shall be
deemed not to affect the rights under this Indenture of the holders of
Securities of any other series.
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It shall not be necessary for the consent of the Securityholders under this
Section 13.02 to approve the particular form of any proposed supplemental
Indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of this Section 13.02, the
Company shall mail a notice, setting forth in general terms the substance of
such supplemental indenture, to the holders of Securities affected by such
supplemental indenture at their addresses as the same shall then appear in the
register of the Company. Any failure of the Company to mail such notice, or any
defect therein, shall not, however, in any way impair or affect the validity of
any such supplemental indenture.
SECTION 13.03. UPON REQUEST OF THE COMPANY, TRUSTEE TO JOIN IN EXECUTION OF
SUPPLEMENTAL INDENTURE. Upon the request of the Company, accompanied by the
Officers' Certificate and Opinion of Counsel required by Section 14.03 and by
(a) a supplemental indenture duly executed on behalf of the Company,
(b) a copy of a resolution of the Board of Directors of the Company,
certified by the Secretary or an Assistant Secretary of the Company,
authorizing the execution of said supplemental indenture,
(c) an Opinion of Counsel, stating that said supplemental indenture
complies with, and that the execution thereof is authorized or permitted
by, the provisions of this Indenture, and
(d) if said supplemental indenture shall be executed pursuant to
Section 13.02, evidence (as provided in Article Seven) of the consent
thereto of the Securityholders required to consent thereto as in Section
13.02 provided,
the Trustee shall join with the Company in the execution of said supplemental
indenture unless said 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 said
supplemental indenture.
SECTION 13.04. EFFECT OF SUPPLEMENTAL INDENTURE. Upon the execution of any
supplemental indenture pursuant to the provisions of this Article Thirteen, this
Indenture shall be and be deemed to be modified and amended in accordance
therewith and, except as herein otherwise expressly provided, the respective
rights, limitations of rights, obligations, duties and immunities under this
Indenture of the Trustee, the Company and the holders of all of the Securities
or of the Securities of any series affected, as the case may be, 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 13.05. MATTERS PROVIDED FOR IN SUPPLEMENTAL INDENTURE MAY BE NOTED
ON SECURITIES, OR NEW SECURITIES APPROPRIATELY MODIFIED MAY BE ISSUED IN
EXCHANGE FOR OUTSTANDING SECURITIES. Securities authenticated and delivered
after the execution of any supplemental indenture pursuant to the provisions of
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this Article Thirteen may bear a notation in form approved by the Trustee as to
any matter provided for in such supplemental indenture. If the Company or the
Trustee shall so determine, new Securities so modified as to conform, in the
opinion of the Trustee and 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 then outstanding in equal aggregate principal
amounts, and such exchange shall be made without cost to the holders of the
Securities.
SECTION 13.06. SUPPLEMENTAL INDENTURES TO CONFORM TO TRUST INDENTURE ACT OF
1939. Every supplemental indenture executed pursuant to the provisions of this
Article Thirteen shall conform to the requirements of the Trust Indenture Act of
1939 as then in effect.
ARTICLE FOURTEEN
MISCELLANEOUS PROVISIONS
SECTION 14.01. CONSOLIDATION, MERGER, SALE OR LEASE. Subject to the
provisions of Section 5.06, nothing contained in this Indenture or in the
Securities shall be deemed to prevent the consolidation or merger of the Company
with or into any other corporation, or the merger into the Company of any other
corporation, or the sale or lease by the Company of its property and assets as,
or substantially as, an entirety, or otherwise.
Upon any consolidation or merger, or any sale other than for cash or lease
of all or substantially all of the assets of the Company in accordance with the
provisions of Section 5.06, the corporation formed by such consolidation or into
which the Company shall have been merged or to which such sale or lease shall
have been made shall succeed to and be substituted for the Company with the same
effect as if it had been named herein as a party hereto, and thereafter from
time to time such corporation may exercise each and every right and power of the
Company under this Indenture, in the name of the Company or in its own name; and
any act or proceeding by any provision of this Indenture required or permitted
to be done by the Board of Directors or any officer of the Company may be done
with like force and effect by the like board or officer of any corporation that
shall at the time be the successor of the Company hereunder. In the event of any
such sale or conveyance, but not any such lease, the Company (or any successor
corporation which shall theretofore have become such in the manner described in
Section 5.06) shall be discharged from all obligations and covenants under this
Indenture and the Securities and may thereupon be dissolved and liquidated.
Anything in this Section 14.01 to the contrary notwithstanding, no such
consolidation or merger shall be entered into, and no such conveyance or
transfer shall be made, by the Company with or to another corporation or Person
which has outstanding any obligations secured by a Lien if as a result thereof,
any of the properties of any character owned by the Company immediately prior
thereto would be subject to such Lien, unless simultaneously therewith or prior
thereto effective provision shall be made to secure all of the Securities
equally and ratably with (or prior to) such other secured obligations.
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SECTION 14.02. RIGHTS UNDER INDENTURE CONFINED TO PARTIES AND HOLDERS OF
SECURITIES. Nothing in this Indenture expressed and nothing that may be implied
from any of the provisions hereof is intended, or shall be construed, to confer
upon, or to give to, any Person other than the parties hereto and their
successors and the holders of the Securities any right, remedy or claim under or
by reason of this Indenture or any covenant, condition, stipulation, promise or
agreement hereof, and all covenants, conditions, stipulations, promises and
agreements in this Indenture contained shall be for the sole and exclusive
benefit of the parties hereto and their successors and of the holders of the
Securities.
SECTION 14.03. EVIDENCE OF COMPLIANCE. As evidence of compliance with the
conditions precedent provided for in this Indenture (including any covenants
compliance with which constitutes a condition precedent) which relate to the
authentication and delivery of the Securities, to the satisfaction and discharge
of this Indenture or to any other action to be taken by the Trustee at the
request or upon the application of the Company, the Company will furnish to the
Trustee an Officers' Certificate, stating that such conditions precedent have
been complied with and an Opinion of Counsel stating that in the opinion of such
Counsel such conditions precedent have been complied with. Such Opinion of
counsel may be in the form and contain such assumptions, qualifications and
limitations as customarily appear in legal opinions issued in the jurisdiction
in which any such opinion of counsel is rendered.
Each certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture shall include (1) a statement that the
person making such certificate or opinion has read such condition or covenant;
(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, such examination or investigation as is necessary to enable the
expression of an informed opinion as to whether or not such condition or
covenant has been complied with has been made; and (4) a statement as to whether
or not, in the opinion of such person, such condition or covenant has been
complied with.
Notwithstanding any provision of this Indenture authorizing the Trustee
conclusively to rely upon any certificates or opinions, the Trustee, before
granting any application by the Company or taking or refraining from taking any
other action in reliance thereon, may require any further evidence or make any
further investigation as to the facts or matters stated therein which it may, in
good faith, deem reasonable in the circumstances, and in connection therewith
the Trustee may examine or cause to be examined the pertinent books, records and
premises of the Company or of any Subsidiary; and the Trustee shall, in any such
case, require such further evidence or make such further investigation as may be
requested by the holders of a majority in principal amount of the Securities
then outstanding, PROVIDED THAT, if payment to the Trustee of the costs,
expenses and liabilities likely to be incurred by it in making such
investigation is not reasonably assured to the Trustee by the security afforded
to it by the terms of this Indenture, the Trustee before making such
investigation may require reasonable indemnity against such costs, expenses and
liabilities. Any further evidence which may be requested by the Trustee pursuant
to any of the provisions of this paragraph shall be furnished by the Company at
its own expense; and any cost, expenses and liabilities incurred by the Trustee
pursuant to any of the provisions of this paragraph shall be paid by the
Company, or, if paid by the Trustee, shall be repaid by the Company, upon
demand, with interest at the highest rate borne by the Securities, and, until
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such repayment, shall be secured by a lien on any moneys held by the Trustee
hereunder prior to any rights therein of the holders of Securities.
SECTION 14.04. CANCELLATION OF SECURITIES. All Securities paid, redeemed,
exchanged, surrendered for registration of transfer or retired pursuant to the
sinking fund or otherwise shall, if surrendered to the Company or to any paying
agent, be delivered to the Trustee for cancellation and shall be cancelled by it
or, if surrendered to the Trustee, shall be cancelled by it, and, except as
otherwise provided in Sections 2.04, 2.05, 2.07, 4.02, 4.07 and 13.05, no
Securities shall be issued under the Indenture in lieu thereof The Trustee shall
make appropriate notations in its records in respect of all such Securities and
shall destroy such Securities and deliver a certificate of such destruction to
the Company. If the Company shall 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
surrendered to the Trustee for cancellation.
SECTION 14.05. PROVISIONS REQUIRED BY TRUST INDENTURE ACT OF 1939 TO
CONTROL. If any provision of this Indenture limits, qualifies or conflicts with
any duties under any required provision of the Trust Indenture Act imposed
hereon by Section 318(c) thereof, such required provision shall control.
SECTION 14.06. ACTION OF AUTHORIZED COMMITTEE DEEMED TO BE ACTION OF BOARD
OF DIRECTORS. Whenever action is required by this Indenture by the Board of
Directors of the Company and there is at the time constituted a committee of the
Board of Directors duly authorized to take such action, such action by said
committee shall be deemed to be the action of the Board of Directors and shall
be sufficient for all purposes of this Indenture where action by the Board of
Directors is specified.
SECTION 14.07. NOTICES. Any notice or demand authorized by this Indenture
to be given to the Company shall be sufficiently given for all purposes, if it
shall be given or made in writing, by hand, telecopier (with confirmation of
receipt) or certified or registered mail (confirmation of receipt requested) to
the Company addressed to it at P.O. Box 2209, 1850 N. Central Avenue, Phoenix,
Arizona 85002-2209 (telephone: (602) 207-4900; telecopier: (602) 207-5543) to
the attention of its General Counsel or at such other address as may have been
furnished in writing to the Trustee by the Company. Any notice, direction,
request or demand to or upon the Trustee shall be sufficiently given, for all
purposes, if it shall be given or made in writing, by hand, telecopier (with
confirmation of receipt) or certified or registered mail (confirmation of
receipt requested) to Norwest Bank Minnesota, National Association, Sixth Street
and Marquette Avenue, Minneapolis, MN 55479-0069 (telephone: (612) 667-2344;
telecopier: (612) 667-9825) to the attention of its Corporate Trust Office, or
at such other address as may have been furnished in writing to the Company by
the Trustee. Any notice required or permitted to be given to Securityholders
shall be sufficiently given if given by first class mail, postage prepaid, to
such holders, at their addresses as the same shall appear on the Security
Register. A failure to give notice with respect to any particular holder or any
defect therein shall not affect the sufficiency of notice given to any other
holder. Notice may be waived in writing by the Person entitled to receive such
notice either before or after such event and such waiver shall be the equivalent
of receipt of such notice.
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SECTION 14.08. ACT OF HOLDERS.
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by or pursuant to this Indenture to be given or taken
by holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such holders in person or by an agent duly
appointed in writing. Except as herein otherwise expressly provided, such action
shall become effective when such instrument or instruments or record or both are
delivered to the Trustee and, where it is hereby expressly required, to the
Company. Such instrument or instruments and any such record (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as the
"Act" of the holders signing such instrument or instruments. Proof of execution
of any such instrument or of a writing appointing any such agent, or of the
holding by any Person of a Security, shall be sufficient for any purpose of this
Indenture and (subject to Section 315 of the Trust Indenture Act) conclusive in
favor of the Trustee and the Company and any agent of the Trustee or the
Company, if made in the manner provided in this Section.
Without limiting the generality of this Section, unless otherwise provided
in or pursuant to this Indenture, a holder, including a Depositary that is a
holder of a global Security, may make, give or take, by a proxy, or proxies,
duly appointed in writing, any request, demand, authorization, direction,
notice, consent, waiver or other action provided in or pursuant to this
Indenture to be made, given or taken by holders, and a Depositary that is a
holder of a global Security may provide for the beneficial owners of interests
in any such global Security to direct such Depositary in taking such action
through such Depositary's standing instructions and customary practices. The
Depositary shall report only one result of its solicitation of proxies to the
Trustee.
(b) The fact and date of the execution by any Person of any such instrument
or writing may be proved in any reasonable manner which the Trustee deems
sufficient and in accordance with such reasonable rules as the Trustee may
determine; and the Trustee may in any instance require further proof with
respect to any of the matters referred to in this Section.
(c) The ownership, principal amount and serial numbers of Securities held
by any Person, and the date of the commencement and the date of the termination
of holding the same, shall be proved by the Security Register.
(d) If the Company shall solicit from the holders of any Securities any
request, demand, authorization, direction, notice, consent, waiver or other Act,
the Company shall, by Board Resolution, fix in advance a record date for the
determination of holders of Securities entitled to give such request, demand,
authorization, direction, notice, consent, waiver or other Act. Such request,
demand, authorization, direction, notice, consent, waiver or other Act may be
given before or after such record date, but only the holders of Securities of
record at the close of business on such record date shall be deemed to be
holders for the purpose of determining whether holders of the requisite
proportion of outstanding Securities have authorized or agreed or consented to
such request, demand, authorization, direction, notice, consent, waiver or other
Act, and for that purpose the outstanding Securities shall be computed as of
such record date; provided that no such authorization, agreement or consent by
52
<PAGE>
the holders of Securities 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.
(e) Any request, demand, authorization, direction, notice, consent, waiver
or other action by the holder of any Security shall bind every future holder of
the same Security and the holder of every Security issued upon the registration
of transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done or suffered to be done by the Trustee, any Security Registrar or
the Company in reliance thereon, whether or not notation of such action is made
upon such Security.
SECTION 14.09. PAYMENTS DUE ON NON-BUSINESS DAYS. In any case where the
date of maturity of interest on or principal of the Securities or the date fixed
for redemption of any Securities shall not be a business day, then payment of
interest, 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 date of maturity
and no interest shall accrue for the period after such date.
SECTION 14.10. EXECUTION IN COUNTERPARTS. This Indenture may be executed in
any number of counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but one and the
same instrument.
SECTION 14.11. INDENTURE DEEMED A NEW YORK CONTRACT. This Indenture and
each Security shall be deemed to be a contract made under the law of the State
of New York, and for all purposes shall be construed in accordance with the law
of said State.
53
<PAGE>
WITNESS WHEREOF, FINOVA CAPITAL CORPORATION has caused this Indenture to be
executed in its corporate name by one of its officers thereunto duly authorized
and to be attested by its Secretary or one of its Assistant Secretaries, and
Norwest Bank Minnesota, National Association, has caused this Indenture to be
executed in its corporate name by one of its authorized officers thereunto duly
authorized, all as of May 15, 1999.
FINOVA CAPITAL CORPORATION
By: /s/ Meilee Smythe
-----------------------------
Attest:
/s/ Richard Lieberman
- -------------------------------
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION
By: /s/ Jane Y. Schweigert
-----------------------------
Corporate Trust Officer
Attest:
/s/ Raymond B. Haberstock
- --------------------------------
54
================================================================================
FINOVA CAPITAL CORPORATION
AND
FMB BANK
TRUSTEE
---------------------------------------
Indenture
Dated as of May 15, 1999
---------------------------------------
Providing for the Issuance of
Debt Securities
================================================================================
<PAGE>
THIS CROSS REFERENCE SHEET, SHOWING THE LOCATION IN THE INDENTURE OF THE
PROVISIONS INSERTED PURSUANT TO SECTION 310-318(A), INCLUSIVE, OF THE TRUST
INDENTURE ACT OF 1939, IS NOT TO BE CONSIDERED A PART OF THE INDENTURE.
TRUST INDENTURE ACT CROSS REFERENCE SHEET
Sections of Trust Sections of
Indenture Act Indenture
- ----------------- -----------
310(a)(1).................................................... 10.06
310(a)(2).................................................... 10.06
310(a)(3).................................................... Not applicable
310(a)(4).................................................... Not applicable
310(b)....................................................... 10.07
311.......................................................... 10.03
312.......................................................... 9.02
313.......................................................... 9.03
314(a)....................................................... 9.04
314(b)....................................................... Not applicable
314(c)....................................................... 14.03
314(d)....................................................... Not applicable
314(e)....................................................... 14.03
315(a)....................................................... 10.01
315(b)....................................................... 10.11
315(c)....................................................... 10.01
315(d)....................................................... 10.01
315(e)....................................................... 6.08
316(a)....................................................... 6.06 and 7.03
316(b)....................................................... 6.07
317(a)....................................................... 6.03 and 6.04
317(b)....................................................... 5.03
318(a)....................................................... 14.05
<PAGE>
TABLE OF CONTENTS*
Page
----
PARTIES.................................................................. 1
RECITALS................................................................. 1
TABLE OF CONTENTS
Page
----
ARTICLE ONE
DEFINITIONS
SECTION 1.01. Terms. .................................................... 1
SECTION 1.02. Definitions................................................ 2
ARTICLE TWO
FORM, EXECUTION, DELIVERY, TRANSFER AND EXCHANGE OF SECURITIES
SECTION 2.01. Forms Generally; Record Dates; Place of Payment,
Denominations and Numbering of Securities ............... 7
SECTION 2.02. Terms of Series............................................ 8
SECTION 2.03. Certificate of Authentication Necessary to Make
Securities Valid ........................................ 10
SECTION 2.04. Form of Certificate of Authentication...................... 10
SECTION 2.05. Registration, Transfer and Exchange of Securities.......... 11
SECTION 2.06. Replacing Securities Mutilated, Destroyed, Lost or Stolen.. 14
SECTION 2.07. Rights to Interest......................................... 14
SECTION 2.08. Temporary Securities....................................... 14
ARTICLE THREE
ISSUE OF SECURITIES
SECTION 3.01. Authentication, Delivery and Dating........................ 15
ARTICLE FOUR
REDEMPTION OF SECURITIES; SINKING FUND
SECTION 4.01. Applicability of Right of Redemption....................... 17
SECTION 4.02. Notice of Redemption....................................... 17
- ----------
* The Table of Contents is not part of the Indenture.
i
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SECTION 4.03. Securities of Any Series to be Canceled and
Discharged on Specific Conditions ....................... 18
SECTION 4.04. Applicability of Sinking Fund.............................. 18
SECTION 4.05. Mandatory Sinking Fund Obligation.......................... 19
SECTION 4.06. Optional Redemption at Sinking Fund Redemption Price....... 19
SECTION 4.07. Application of Sinking Fund Payments....................... 19
ARTICLE FIVE
PARTICULAR COVENANTS OF THE COMPANY
SECTION 5.01. To Pay Principal, Premium, if any, and Interest............ 20
SECTION 5.02. To Maintain Office or Agency in New York................... 20
SECTION 5.03. The Company, or Paying Agent, to Hold in Trust Moneys
for Payment of Principal, Premium, if any, and Interest.. 21
SECTION 5.04. Restrictions Upon Liens Upon Property of the Company
and Restricted Subsidiaries ............................. 22
SECTION 5.05. Maintenance of Corporate Existence......................... 24
SECTION 5.06. Restrictions on Consolidation, Merger, Sale, Etc........... 24
SECTION 5.07. Annual Statement Concerning Compliance with Covenants...... 25
SECTION 5.08. Compliance with Covenants and Conditions May Be
Waived by Holders of Securities ......................... 25
ARTICLE SIX
REMEDIES OF TRUSTEE AND SECURITYHOLDERS
SECTION 6.01. Events of Default.......................................... 25
SECTION 6.02. Acceleration of Maturity of Principal on Default........... 27
SECTION 6.03. The Company, Failing for 30 Days to Pay Any Installment
of Interest or Sinking Fund Payment or Failing to Pay
Principal When Due, Will Pay to Trustee at its Request
Whole Amount Due........................................ 28
SECTION 6.04. Trustee Appointed Attorney-in-Fact for Securityholders
to File Claims .......................................... 28
SECTION 6.05. Application of Moneys Collected by Trustee................. 29
SECTION 6.06. Securityholders May Direct Proceedings and Waive Defaults.. 30
SECTION 6.07. Limitations on Rights of Securityholders to
Institute Proceedings ................................... 30
SECTION 6.08. Assessment of Costs and Attorneys' Fees in Legal
Proceedings ............................................. 31
SECTION 6.09. Remedies Cumulative........................................ 31
ARTICLE SEVEN
CONCERNING THE SECURITYHOLDERS
SECTION 7.01. Evidence of Action by Securityholders...................... 32
SECTION 7.02. Proof of Execution of Instruments and of Holding
of Securities ........................................... 32
SECTION 7.03. Securities Owned by the Company or Other Obligor
on the Securities to be Disregarded in Certain Cases..... 32
SECTION 7.04. Revocation by Securityholders of Consents to Action........ 33
ii
<PAGE>
ARTICLE EIGHT
SECURITYHOLDERS' MEETINGS
SECTION 8.01. Purposes of Meetings....................................... 33
SECTION 8.02. Call of Meetings by Trustee................................ 33
SECTION 8.03. Call of Meetings by Company or Securityholders............. 34
SECTION 8.04. Qualifications for Voting.................................. 34
SECTION 8.05. Regulation of Meetings..................................... 34
SECTION 8.06. Voting .................................................... 35
SECTION 8.07. No Delay of Rights by Meeting.............................. 35
iii
<PAGE>
ARTICLE NINE
REPORTS BY THE COMPANY AND THE TRUSTEE AND SECURITYHOLDERS' LISTS
SECTION 9.01. Company to Furnish Trustee Names and Address of Holders.... 35
SECTION 9.02. Preservation of Information; Communications to Holders..... 36
SECTION 9.03. Reports by Trustee......................................... 36
SECTION 9.04. Reports by Company......................................... 36
ARTICLE TEN
CONCERNING THE TRUSTEE
SECTION 10.01. Certain Rights of Trustee................................. 37
SECTION 10.02. Not Responsible for Recitals or Issuance of Securities.... 38
SECTION 10.03. May Hold Securities....................................... 38
SECTION 10.04. Money Held in Trust....................................... 38
SECTION 10.05. Compensation and Reimbursement............................ 39
SECTION 10.06. Corporate Trustee Required; Eligibility................... 39
SECTION 10.07. Resignation and Removal; Appointment of Successor......... 39
SECTION 10.08. Acceptance of Appointment by Successor.................... 41
SECTION 10.09. Merger, Conversion, Consolidation or Succession
to Business ............................................ 42
SECTION 10.10. Appointment of Authenticating Agent....................... 42
SECTION 10.11. Notice of Defaults........................................ 43
ARTICLE ELEVEN
DEFEASANCE
SECTION 11.01. Discharge of Indenture Upon Payment of Securities......... 44
SECTION 11.02. Discharge of Securities of Any Series Upon
Deposit of Moneys ...................................... 44
SECTION 11.03. Interest on Moneys Deposited.............................. 44
iv
<PAGE>
ARTICLE TWELVE
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS, DIRECTORS AND EMPLOYEES
SECTION 12.01. Liability Solely Corporate................................ 45
ARTICLE THIRTEEN
SUPPLEMENTAL INDENTURES
SECTION 13.01. Without Consent of Securityholders, the Company and
Trustee May Enter Into Supplemental Indentures for
Specified Purposes...................................... 46
SECTION 13.02. Modification of Indenture by Supplemental Indenture
With Consent of Securityholders ........................ 47
SECTION 13.03. Upon Request of the Company, Trustee to Join in
Execution of Supplemental Indenture .................... 48
SECTION 13.04. Effect of Supplemental Indenture.......................... 48
SECTION 13.05. Matters Provided for in Supplemental Indenture May Be
Noted on Securities, or New Securities Appropriately
Modified May Be Issued in Exchange for Outstanding
Securities.............................................. 48
SECTION 13.06. Supplemental Indentures to Conform to Trust Indenture
Act of 1939 ............................................ 49
ARTICLE FOURTEEN
MISCELLANEOUS PROVISIONS
SECTION 14.01. Consolidation, Merger, Sale or Lease...................... 49
SECTION 14.02. Rights Under Indenture Confined to Parties and
Holders of Securities .................................. 50
SECTION 14.03. Evidence of Compliance.................................... 50
SECTION 14.04. Cancellation of Securities................................ 51
SECTION 14.05. Provisions Required by Trust Indenture Act of 1939
to Control ............................................. 51
SECTION 14.06. Action of Authorized Committee Deemed to be Action
of Board of Directors 51
SECTION 14.07. Notices. ................................................. 51
SECTION 14.08. Act of Holders............................................ 52
SECTION 14.09. Payments Due on Non-Business Days......................... 53
SECTION 14.10. Execution in Counterparts................................. 53
SECTION 14.11. Indenture Deemed a New York Contract...................... 53
v
<PAGE>
INDENTURE, dated as of May 15 1999, between FINOVA CAPITAL CORPORATION, a
corporation organized and existing under the laws of the State of Delaware
(hereinafter called the "Company"), party of the first part, and FMB BANK, a
Maryland state-chartered commercial bank, as trustee (hereinafter called the
"Trustee"), party of the second part.
RECITALS
The Company is authorized and empowered to borrow money for its corporate
purposes and to issue its bonds, debentures, notes and other obligations for
money so borrowed.
The Company has duly authorized the issue, in one or more series as in this
Indenture provided, from time to time of its debt securities (hereinafter called
the "Securities") and, to provide the general terms and conditions upon which
the Securities are to be authenticated, issued and delivered, the Company has
duly authorized the execution and delivery of this Indenture.
The Trustee has power to enter into this Indenture and to accept and
execute the trusts herein created.
The Company represents that all acts and things necessary to make the
Securities, when executed by the Company and authenticated and delivered by the
Trustee as in this Indenture provided and issued, the valid, binding and legal
obligations of the Company, will, at the time of such execution, authentication
and delivery, have been done and performed; that all acts and things necessary
to constitute these presents a valid indenture and agreement according to its
terms have been done and performed; that the execution of this Indenture has in
all respects been duly authorized and the issue hereunder of the Securities
will, at the time of the issue thereof, have in all respects been duly
authorized; and that the Company, in the exercise of each and every legal right
and power in it vested, executes this Indenture and proposes to make, execute,
issue and deliver the Securities.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That, in consideration of the premises and of the acceptance and purchase
of the Securities by the holders thereof, the Company covenants and agrees with
the Trustee, for the equal benefit of all the holders from time to time of the
Securities, without preference, priority or distinction of any thereof over any
other thereof by reason of priority in time of issuance or negotiation, or
otherwise, as follows:
ARTICLE ONE
DEFINITIONS
SECTION 1.01. TERMS. Unless otherwise defined in this Indenture or the
context otherwise requires, all terms used herein shall have the meanings
assigned to them in the Trust Indenture Act of 1939.
1
<PAGE>
SECTION 1.02. DEFINITIONS. Unless the context otherwise requires, the terms
defined in this Section 1.02 shall for all purposes of this Indenture have the
meanings hereinafter set forth, the following definitions to be equally
applicable to both the singular and the plural forms of any of the terms herein
defined:
ACT:
The term "Act," when used with respect to any holders, has the meaning
specified in Section 14.08.
AUTHENTICATING AGENT:
The term "Authenticating Agent" means the Trustee and/or the authenticating
agent, if any, appointed by the Trustee and acting pursuant to Section 10.10.
BOARD RESOLUTION:
The term "Board Resolution" means a copy of a resolution or resolutions
certified by the Secretary or an Assistant Secretary of the Company to have been
duly adopted by the Board of Directors or any committee of the Board of
Directors (or committee of officers or other representatives of the Company, to
the extent that any such committee or committees have been authorized by the
Board of Directors to establish or approve the matters contemplated by Section
2.02 or any other provision hereof) and to be in full force and effect on the
date of such certification, and delivered to the Trustee.
BUSINESS DAY:
The term "Business day" shall mean a day which in The City of New York is
not a day on which banking institutions are authorized or obligated by law or
executive order to close.
COMMISSION:
The term "Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934 or,
if at any time after the execution of this Indenture such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
COMPANY:
The term "Company" shall mean FINOVA Capital Corporation and, subject to
the provisions of Section 14.01, shall also include its successors and assigns.
CONSOLIDATED NET TANGIBLE ASSETS:
The term "Consolidated Net Tangible Assets" means the total of all assets
reflected on a consolidated balance sheet of the Company and its consolidated
Subsidiaries, prepared in accordance with generally accepted accounting
principles, at their net book values (after deducting related depreciation,
depletion, amortization and all other valuation reserves which, in accordance
2
<PAGE>
with such principles, should be set aside in connection with the business
conducted), but excluding goodwill, unamortized debt discount and all other like
intangible assets, all as determined in accordance with such principles, less
the aggregate of the current liabilities of the Company and its consolidated
Subsidiaries reflected on such balance sheet, all as determined in accordance
with such principles. For purposes of this definition, "current liabilities"
include all indebtedness for money borrowed, incurred, issued, assumed or
guaranteed by the Company and its consolidated Subsidiaries, and other payables
and accruals, in each case payable on demand or due within one year of the date
of determination of Consolidated Net Tangible Assets, but shall exclude any
portion of long-term debt maturing within one year of the date of such
determination, all as reflected on such consolidated balance sheet of the
Company and its consolidated Subsidiaries, prepared in accordance with generally
accepted accounting principles.
DEPOSITARY:
With respect to the Securities of any series issuable or issued in whole or
in part in global form, the Person designated as Depositary by the Company
pursuant to Section 2.02 until a successor Depositary shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Depositary" shall mean or include each Person who is then a Depositary
hereunder, and if at any time there is more than one such Person, "Depositary"
as used with respect to the Securities of any such series shall mean the
"Depositary" with respect to the Securities of that series.
EVENT OF DEFAULT:
The term "event of default" shall have the meaning specified in Section
6.01.
INDENTURE:
The term "Indenture" or "this Indenture" shall mean this instrument and all
indentures supplemental hereto.
INTEREST PAYMENT DATE:
The term "Interest Payment Date" when used with respect to any Security
shall mean the Stated Maturity of an installment of interest on such Security.
LIEN:
The term "Lien" means any lien, charge, claim, security interest, pledge,
hypothecation, right of another under any conditional sale or other title
retention agreement, or any other encumbrance affecting title to property.
Without limiting the generality of the foregoing, the sale of property used or
useful in the business of the seller with the intention of retaining the use
thereof under a lease, or any other comparable arrangement commonly referred to
as a "sale and leaseback," shall be deemed to create a Lien on such property.
3
<PAGE>
MANDATORY SINKING FUND PAYMENT:
The term "Mandatory Sinking Fund Payment" shall have the meaning specified
in Section 4.04.
MATURITY:
The term "Maturity," with respect to any Security, shall mean the date on
which the principal of such Security shall become due and payable as therein and
herein provided, whether by declaration, call for redemption or otherwise.
OFFICERS' CERTIFICATE:
The term "Officers' Certificate," when used with respect to the Company,
shall mean a certificate signed by the Chairman of the Board of Directors, the
President or any Vice President and by the Treasurer, any Assistant Treasurer,
the Controller, any Assistant Controller, the Secretary or any Assistant
Secretary of the Company.
OPINION OF COUNSEL:
The term "Opinion of Counsel" shall mean an opinion in writing signed by
legal counsel, who may be counsel for the Company.
OPTIONAL SINKING FUND PAYMENT:
The term "Optional Sinking Fund Payment" shall have the meaning specified
in Section 4.04.
OUTSTANDING:
The term "outstanding," when used as of any particular time with reference
to Securities, shall mean, as of the date of determination and subject to
Section 7.03, all Securities theretofore authenticated and delivered by the
Trustee under this Indenture, except
(a) Securities or portions thereof for which (i) funds, or as provided
in Section 11.02 hereof, direct obligations of the United States of
America, sufficient to pay the principal thereof, premium, if any, thereon
and all unpaid interest thereon to Maturity or to the date fixed for the
redemption thereof shall have been deposited in trust for such purpose as
provided herein 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), and (ii) in
case of redemption, notice of redemption thereof shall have been duly given
or provision satisfactory to the Trustee for the giving of such notice
shall have been made;
(b) Securities which shall have been cancelled or surrendered to the
Trustee for cancellation; and
4
<PAGE>
(c) Securities in lieu of or in substitution for which other
Securities shall have been authenticated and delivered pursuant to Section
2.05 or 2.06 and Securities paid pursuant to Section 2.06;
PROVIDED, HOWEVER, that in determining whether the holders of the requisite
principal amount of outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Securities owned
by the Company or any other obligor upon the Securities or any affiliate of the
Company or of such other obligor shall be disregarded and deemed not to be
outstanding, except that, in determining whether the Trustee shall be protected
in relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Securities which the Trustee knows to be so owned shall
be so disregarded. Securities so owned which have been pledged in good faith may
be regarded as outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Securities and that
the pledgee is not the Company or any other obligor upon the Securities or any
affiliate of the Company or of such other obligor.
PAYING AGENT:
The term "paying agent" means any Person authorized by the Company to pay
the principal of, or any premium or interest on, or any Additional Amounts with
respect to, any Security or any Coupon on behalf of the Company.
PERSON:
The term "Person" shall mean an individual, a corporation, a partnership, a
joint venture, an association, a joint stock company, a trust, an unincorporated
organization or a government or an agency or political subdivision thereof.
PRINCIPAL OFFICE OF THE TRUSTEE:
The term "Principal Office of the Trustee," or other similar term, shall
mean the principal corporate trust office of the Trustee at which its principal
trust business is administered. As of the date hereof, the Principal Office of
the Trustee is located at 25 South Charles Street, 16th Floor, Baltimore, MD
21201 (telephone: (410) 244-4238 telecopier: (410) 244-4236).
RECORD DATE:
The term "Record Date" shall mean, with respect to any interest payable on
any Security on any Interest Payment Date, the close of business on the date
specified in such Security or, in the case of defaulted interest, the close of
business on any subsequent record date established as provided in Section 2.01
(in each case whether or not such day is a business day).
REDEMPTION DATE:
The term "Redemption Date" when used with respect to any Security to be
redeemed, in whole or in part, shall mean the date fixed for such redemption by
or pursuant to this Indenture and the terms of such Security.
5
<PAGE>
REDEMPTION PRICE:
The term "Redemption Price" when used with respect to any Security to be
redeemed shall mean the price (exclusive of accrued interest) at which it is to
be redeemed pursuant to this Indenture and the terms of such Security.
RESPONSIBLE OFFICERS:
"Responsible Officers" of the Trustee hereunder shall mean and include the
chairman and any vice chairman of the board of directors, the president, the
chairman and any vice chairman of the executive committee of the board of
directors, or any officer in the corporate trust department of the Trustee
customarily performing functions similar to those performed by the persons who
at the time shall be such officers, respectively, or to whom any corporate trust
matter is referred because of his knowledge of, and familiarity with, a
particular subject.
RESTRICTED SUBSIDIARY:
The term "Restricted Subsidiary" means any Subsidiary which is designated
as such by Board Resolution and at least a majority of the shares of Voting
Stock of which shall at the time be owned, directly, by the Company or by one or
more Restricted Subsidiaries or by the Company and one or more Restricted
Subsidiaries.
SECURITY:
The term "Security" shall mean any note or notes, bond or bonds, debenture
or debentures, or any other evidences of indebtedness, as the case may be,
authenticated and delivered under this Indenture; PROVIDED, HOWEVER, that, if at
any time there is more than one Person acting as Trustee under this Indenture,
"Securities," with respect to any such Person, shall mean Securities
authenticated and delivered under this Indenture, exclusive, however, of
Securities of any series as to which such Person is not Trustee.
SECURITY CO-REGISTRAR:
The term "Security Co-Registrar" has the meaning specified in Section 2.05.
SECURITY REGISTER; SECURITY REGISTRAR:
The terms "Security Register" and "Security Registrar" have the respective
meanings specified in Section 2.05.
SECURITYHOLDER; HOLDER OF SECURITIES; HOLDER; REGISTERED HOLDER:
The term "Securityholder" or "holder of Securities" or "holder" or
"registered holder," with respect to a Security, shall mean the Person in whose
name such Security or Securities shall be registered in the register kept for
that purpose hereunder.
6
<PAGE>
STATED MATURITY:
The term "Stated Maturity" when used with respect to any Security or any
installment of interest thereon shall mean the date specified in such Security
as the fixed date on which the principal (or any portion thereof) of or premium,
if any, on such Security or such installment of interest is due and payable.
SUBSIDIARY:
The term "Subsidiary" shall mean any corporation at least a majority of the
Voting Stock of which shall at the time be owned, directly or indirectly, by the
Company, or one or more Subsidiaries, or by the Company and one or more
Subsidiaries.
TRUST INDENTURE ACT OF 1939 OR TRUST INDENTURE ACT:
The term "Trust Indenture Act of 1939" or "Trust Indenture Act" shall mean
such Act as amended from time to time except as provided in Section 13.06 or
otherwise required by law.
TRUSTEE:
The term "Trustee" shall mean the trustee hereunder for the time being,
whether original or successor, and if at any time there is more than one such
trustee, "Trustee" as used with respect to the Securities of any series shall
mean the trustee with respect to Securities of that series.
UNRESTRICTED SUBSIDIARY:
The term "Unrestricted Subsidiary" shall mean any Subsidiary other than a
Restricted Subsidiary.
VOTING STOCK:
The term "Voting Stock" means stock of any class or classes (however
designated) having ordinary voting power for the election of a majority of the
members of the board of directors (or any governing body) of such corporation,
other than stock having such power only by reason of the happening of a
contingency.
Certain other terms, relating principally to provisions included in this
Indenture in compliance with the Trust Indenture Act of 1939, are defined in
Article Ten.
ARTICLE TWO
FORM, EXECUTION, DELIVERY, TRANSFER AND EXCHANGE OF SECURITIES
SECTION 2.01. FORMS GENERALLY; RECORD DATES; PLACE OF PAYMENT, DENOMINATIONS AND
NUMBERING OF SECURITIES. The Securities of each series shall be issuable in
registered form and shall be in substantially such form as shall be established
by or pursuant to a Board Resolution or in one or more indentures supplemental
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hereto, in each case with such appropriate insertions, omissions, substitutions
and other variations as are required or permitted by this Indenture, and may
have such letters, numbers or other marks of identification or designation and
such legends or endorsements printed, lithographed or engraved thereon as the
officers of the Company executing the same may approve (execution thereof to be
conclusive evidence of such approval) 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 the Securities may be listed, or to conform to
usage. The Securities shall be issued, except as otherwise provided with respect
to any series of Securities pursuant to Section 2.02, in the denomination of
$1,000 and any larger denomination which is an integral multiple of $1,000
approved by the Company, such approval to be evidenced by the execution thereof.
If Securities of a series are issuable in whole or in part in global
form, any such Security may provide that it shall represent the aggregate amount
of outstanding Securities from time to time endorsed thereon and may also
provide that the aggregate amount of outstanding Securities represented thereby
may from time to time be reduced to reflect exchanges or increased to reflect
the issuance of additional Securities. Any endorsement of a Security in global
form to reflect the amount, or any increase or decrease in the amount, of
outstanding Securities represented thereby shall be made in such manner and by
such Person or Persons, as shall be specified therein or in the Company order of
authentication delivered to the Trustee pursuant to Section 2.04.
The Person in whose name any Security is registered at the close of
business on any Record Date with respect to any Interest Payment Date shall be
entitled to receive the interest payable on such Interest Payment Date
notwithstanding the cancellation of such Security upon any transfer or exchange
thereof subsequent to such Record Date and prior to such Interest Payment Date;
PROVIDED, HOWEVER, that, if and to the extent the Company shall default in the
payment of the interest due on such Interest Payment Date, the defaulted
interest shall be paid to the Persons in whose names the outstanding Securities
are registered on a subsequent record date, such record date to be not less than
5 days prior to the date of payment of such defaulted interest, established by
notice given by mail by or on behalf of the Company to the holders of Securities
not less than 15 days preceding such subsequent record date.
The principal of and interest and premium, if any, on the Securities shall
be payable at each office or agency of the Company designated pursuant to
Section 5.02 for such purpose; provided, however, that interest may at the
option of the Company be paid by check mailed to the address of the Person
entitled thereto as such address shall appear in the Security Register
(including the records of any Security Co-Registrar). Such payments will be made
in such coin or currency of the United States of America as at the time of
payment shall be legal tender for the payment of public and private debts.
SECTION 2.02. TERMS OF SERIES. The aggregate principal amount of Securities
which may be authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established by or pursuant to a Board Resolution, and set forth in an Officers'
Certificate, or established in one or more indentures supplemental hereto, prior
to the issuance of Securities of any series:
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(a) the title of the Securities of the series (which shall distinguish
the Securities of the series from the Securities of all other series,
except to the extent that additional Securities of an existing series are
being issued);
(b) any limit upon the aggregate principal amount of the Securities of
the series which may be outstanding under this Indenture (except as
otherwise provided in Section 2.06, 2.08, 4.02 or 13.05);
(c) the date or dates on which the principal of the Securities of the
series is payable;
(d) the rate or rates at which the Securities of the series shall bear
interest, if any, or the method by which such rate or rates shall be
determined, the date or dates from which such interest shall accrue, or the
method by which such date or dates shall be determined, the interest
payment dates on which such interest shall be payable and the record dates
for the determination of holders to whom interest is payable;
(e) the place or places where the principal of, premium, if any, and
interest on Securities of the series shall be payable;
(f) the price or prices at which, the period or periods within 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, if the Company
is to have that option;
(g) the obligation, if any, of the Company to redeem, purchase or
repay Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a holder thereof and the price or prices at
which the period or periods within which and the terms and conditions upon
which Securities of the series shall be redeemed, purchased or repaid, in
whole or in part, pursuant to such obligation;
(h) if other than denominations of $1,000 or any integral multiple
thereof, the denominations in which Securities of the series shall be
issuable;
(i) if other than the principal amount thereof, the portion of the
principal amount of the Securities of the series which shall be payable
upon declaration of acceleration of the Maturity thereof pursuant to
Section 6.02;
(j) the issuance of the Securities of such series in whole or in part
in global form and, if so, the identity of the Depositary for such
Securities in global form, and the terms and conditions, if any, upon which
interests in such Securities in global form may be exchanged, in whole or
in part, for the individual Securities represented thereby;
(k) any deletions from, modifications of or additions to the events of
default or covenants of the Company with respect to any of such Securities,
whether or not such events of default or covenants are consistent with the
events of default or covenants set forth herein;
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(l) the terms and conditions, if any, upon which the payment of
Securities of such series shall be subordinated to other indebtedness of
the Company (including, without limitation, the indebtedness which ranks
senior to such Securities; restrictions on payments to holders of such
Securities while a default with respect to such senior indebtedness is
continuing; restrictions, if any, on payments to the holders of such
securities following an event of default; and any requirements for holders
of such Securities to remit certain payments to the holders of such senior
indebtedness);
(m) if there is more than one Trustee, the identity of the Trustee
and, if not the Trustee, the identity of each Security Registrar, paying
agent or Authenticating Agent with respect to such Securities; and
(n) any other terms of the Securities of the series (which terms shall
not be inconsistent with the provisions of this Indenture).
All Securities of any one series shall be substantially identical except as
to denomination and except as may otherwise be provided by or pursuant to such
Board Resolution, and set forth in such Officers' Certificate, or in any such
indenture supplemental hereto. If any of the terms of a series of Securities are
established by action taken pursuant to a Board Resolution, a copy of such Board
Resolution shall be delivered to the Trustee at or prior to the delivery of the
Officers' Certificate setting forth the terms of such series. All Securities of
any one series need not be issued at the same time and, unless otherwise so
provided by the Company, a series may be reopened for issuances of additional
Securities of such series or to establish additional terms of such series of
Securities.
SECTION 2.03. CERTIFICATE OF AUTHENTICATION NECESSARY TO MAKE SECURITIES
VALID. The Securities shall be signed in the name and on behalf of the Company
by the manual or facsimile signature of its Chairman of the Board of Directors,
its President or one of its Vice Presidents and by its Secretary or an Assistant
Secretary. The Securities shall then be delivered to the Trustee or the
Authenticating Agent for authentication by it, and thereupon, as provided
herein, the Trustee or the Authenticating Agent shall authenticate and deliver
such Securities. In case any officer of the Company who shall have signed any of
the Securities shall cease to be such officer of the Company before the
Securities so signed shall have been actually authenticated and delivered by the
Trustee or the Authenticating Agent, such Securities may nevertheless be issued,
authenticated and delivered as though the person who signed such Securities had
not ceased to be such officer of the Company; and also any of the Securities may
be signed on behalf of the Company by any person who at the time of the
execution of such Securities shall be the proper officer of the Company, even
though at the date of the execution of this Indenture such person may not have
been such officer of the Company.
SECTION 2.04. FORM OF CERTIFICATE OF AUTHENTICATION. Only such of the
Securities as shall bear thereon a certificate substantially in the form of the
Trustee's certificate of authentication hereinafter recited, executed by the
Trustee or the Authenticating Agent, shall be valid or become obligatory for any
purpose or entitle the holder thereof to any right or benefit under this
Indenture, and the certificate of authentication by the Trustee or the
Authenticating Agent upon any such Security executed on behalf of the Company as
aforesaid shall be conclusive evidence, and the only evidence, that the Security
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so authenticated has been duly authenticated and delivered hereunder and that
the holder thereof is entitled to the benefits of this Indenture.
The Trustee's certificate of authentication on all Securities shall be in
substantially the following form:
This is one of the Securities issued under the Indenture described herein.
FMB BANK
as Trustee
By:
--------------------------
Authorized Signatory
or (if an Authenticating Agent is appointed pursuant to Section 10.10)
By: (Name of Agent)
as Authenticating Agent
By: --------------------------
Authorized Signatory
SECTION 2.05. REGISTRATION, TRANSFER AND EXCHANGE OF SECURITIES. The
Company shall cause to be kept a register (herein sometimes referred to as the
"Security Register") in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of Securities and of
transfers of Securities. Unless and until otherwise determined by the Company,
by Board Resolution, the Security Register initially shall be kept at the
Principal Office of the Trustee. The Trustee is hereby appointed "Security
Registrar" for the purpose of registering Securities and transfers of Securities
as herein provided. The Company may appoint one or more "Security Co-Registrars"
for such purpose. The Security Registrar and any Security Co-Registrars are
herein sometimes referred to, and are appointed as, the "Security Registrar."
Upon surrender for registration of transfer of any Security of any series
at any office or agency of the Company designated pursuant to Section 5.02 for
such purpose or at the office of any Security Co-Registrar, the Company shall
execute and the Trustee or the Authenticating Agent shall authenticate and
deliver a Security or Securities of such series for a like aggregate principal
amount, in such authorized denomination or denominations and registered in such
name or names as may be requested. The transfer of any security shall not be
valid as against the Company or the Trustee unless registered at such offices or
agency by the registered holder, or by his attorney duly authorized in writing.
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Securities of any series in their several authorized denominations are
exchangeable for a Security or Securities of such series in authorized
denominations and of a like aggregate principal amount. Securities to be
exchanged as aforesaid shall be surrendered for that purpose by the registered
holder thereof at such offices or agency, and the Company shall execute and the
Trustee or the Authenticating Agent shall authenticate and deliver in exchange
therefor the Security or Securities in such authorized denomination or
denominations as the Securityholder making the exchange shall have requested and
shall be entitled to receive. The Company shall not be required to make any
exchange or effect registration of transfer of (i) any Security which shall have
been designated for redemption in whole or in part except, in the case of any
Security to be redeemed in part, the portion thereof not so to be redeemed, or
(ii) any Security for a period of 15 days next preceding any selection of
Securities for redemption.
Notwithstanding any other provision of this Section, unless and until it is
exchanged in whole or in part for the individual Securities represented thereby,
in definitive form, a Security in global form representing all or a portion of
the Securities of a series may not be transferred except as a whole by the
Depositary for such series to a nominee of such Depositary or by a nominee of
such Depositary to such Depositary or another nominee of such Depositary or by
such Depositary or any such nominee to a successor Depositary for such series or
a nominee of such successor Depositary.
All Securities presented or surrendered for registration of transfer,
exchange or payment shall (if so required by the Company or the Trustee or any
Security Registrar or Security Co-Registrar or any Authenticating Agent) be duly
endorsed by, or accompanied by a written instrument or instruments of transfer
(in form satisfactory to the Company and the Security Registrar or any Security
Co-Registrar) duly executed by, the registered holder or by his attorney duly
authorized in writing.
If at any time the Depositary for the Securities of a series represented by
one or more Securities in global form notifies the Company that it is unwilling
or unable to continue as Depositary for the Securities of such series or if at
any time the Depositary for the Securities of such series shall no longer be
eligible under Section 2.01, the Company shall appoint a successor Depositary
with respect to the Securities of such series. If a successor Depositary for the
Securities of such series is not appointed by the Company within 90 days after
the Company receives such notice or becomes aware of such ineligibility, the
Company's election pursuant to Section 2.02 that such Securities be represented
by one or more Securities in global form shall no longer be effective with
respect to the Securities of such series and the Company will execute, and the
Trustee, upon receipt of a Company order for the authentication and delivery of
definitive Securities of such series, will authenticate and deliver, Securities
of such series in definitive form, in authorized denominations, in an aggregate
principal amount and like terms and tenor equal to the principal amount of the
Security or Securities in global form representing such series in exchange for
such Security or Securities in global form.
The Company may at any time and in its sole discretion determine that
individual Securities of any series issued in global form shall no longer be
represented by such Security or Securities in global form. In such event the
Company will execute, and the Trustee, upon receipt of a Company order for the
authentication and delivery of definitive Securities of such series and of the
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same terms and tenor, will authenticate and deliver Securities of such series in
definitive form, in authorized denominations, and in aggregate principal amount
equal to the principal amount of the Security or Securities in global form
representing such series in exchange for such Security or Securities in global
form.
If specified by the Company pursuant to Section 2.02 with respect to a
series of Securities issued in global form, the Depositary for such series of
Securities may surrender a Security in global form for such series of Securities
in exchange in whole or in part for Securities of such series in definitive form
and of like terms and tenor on such terms as are acceptable to the Company and
such Depositary. Thereupon, the Company shall execute, and the Trustee upon
receipt of a Company order for the authentication and delivery of definitive
Securities of such series, shall authenticate and deliver, without service
charge to the holders:
(a) to each Person specified by such Depositary a new definitive
Security or Securities of the same series and of the same tenor, in
authorized denominations, in aggregate principal amount equal to and in
exchange for such Person's beneficial interest in the Security in global
form; and
(b) to such Depositary a new Security in global form in a denomination
equal to the difference, if any, between the principal amount of the
surrendered Security in global form and the aggregate principal amount of
the definitive Securities delivered to holders pursuant to clause (a)
above.
Upon the exchange of a Security in global form for Securities in definitive
form, such Security in global form shall be cancelled by the Trustee or an agent
of the Company or the Trustee. Securities issued in definitive form in exchange
for a Security in global form pursuant to this Section 2.05 shall be registered
in such names and in such authorized denominations as the Depositary for such
Security in global form, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee or an agent of the Company
or the Trustee in writing. The Trustee or such agent shall deliver such
Securities to or as directed by the Persons in whose names such Securities are
so registered or to the Depositary.
Whenever any securities are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the Securities which
the holder making the exchange is entitled to receive.
No service charge shall be made for any registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
applicable tax or other governmental charge payable in connection therewith.
The Company and the Trustee, and the agents of either, may deem and treat
the Person in whose name any Security is registered as the absolute owner of
such Security (whether or not such Security shall be overdue and notwithstanding
any notation of ownership or other writing thereon) for all purposes whatsoever
(subject to the provisions set forth herein relating to Record Dates and record
dates for the payment of any defaulted interest), and the Company and the
Trustee, and the agents of either, shall not be affected by any notice to the
contrary.
None of the Company, the Trustee, any Authenticating Agent, any paying
agent or the Security Registrar will have any responsibility or liability for
any aspect of the records relating to or payments made on account of beneficial
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ownership interests of a Security in global form or for maintaining, supervising
or reviewing any records relating to such beneficial ownership interest and each
of them may act or refrain from acting without liability on any information
relating to such records provided by the Depositary.
SECTION 2.06. REPLACING SECURITIES MUTILATED, DESTROYED, LOST OR STOLEN. In
case any temporary or definitive Security of a particular series shall become
mutilated or be destroyed, lost or stolen, then upon the conditions hereinafter
set forth the Company in its discretion may execute, and thereupon the Trustee
or the Authenticating Agent shall authenticate and deliver, a new Security of
the same series of like tenor and principal amount and bearing a different
number, in exchange and substitution for and upon cancellation of the mutilated
Security or in lieu of and substitution for the Security so destroyed, lost or
stolen; provided, however, that if any such mutilated, destroyed, lost or stolen
Security shall have become payable upon the maturity thereof, the Company may,
instead of issuing a substitute Security, pay such Security without requiring
the surrender thereof. The applicant for any substitute Security or for payment
of any such mutilated, destroyed, lost or stolen Security shall furnish to the
Company and to the Trustee evidence satisfactory to them, in their discretion,
of the ownership of and the destruction, loss or theft of such Security and
shall furnish to the Company and to the Trustee indemnity satisfactory to them,
in their discretion, and, if required, shall reimburse the Company and the
Trustee for all expenses (including counsel fees and any tax or other
governmental charge that may be imposed in relation thereto) in connection with
the preparation, issue and authentication of such substitute Security or the
payment of such mutilated, destroyed, lost or stolen Security, and shall comply
with such other reasonable regulations as the Company and the Trustee, or either
of them, may prescribe. Any such new Security delivered pursuant to this Section
2.06 shall constitute an additional contractual obligation on the part of the
Company, whether or not the allegedly destroyed, lost or stolen Security shall
be at any time enforceable by anyone, and shall be equally and proportionately
entitled to the benefit of this Indenture with all other Securities of the same
series issued hereunder. All Securities shall be held and owned upon the express
condition that, to the extent permitted by law, the foregoing provisions are
exclusive with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Securities and shall preclude any and all other rights or
remedies.
SECTION 2.07. RIGHTS TO INTEREST. Subject to the provisions set forth
herein relating to Record Dates and record dates for the payment of any
defaulted interest, each Security delivered pursuant to any provision of this
Indenture in exchange or substitution for, or upon registration of transfer of,
any other Security shall carry all the rights to interest accrued and unpaid,
and to accrue, which were carried by such other Security.
SECTION 2.08. TEMPORARY SECURITIES. Pending the preparation of definitive
Securities of any series the Company may execute and the Trustee or the
Authenticating Agent shall authenticate and deliver temporary Securities of such
series (printed or lithographed). Temporary Securities shall be issuable in any
authorized denomination, and substantially in the form of the definitive
Securities but with such omissions, insertions and variations as may be
appropriate for temporary Securities, all as may be determined by the Company.
In the case of Securities of any series, such temporary Securities may be in
global form, representing all of the outstanding Securities of such series and
tenor. Every such temporary Security of a particular series shall be
authenticated by the Trustee or the Authenticating Agent upon the same
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conditions and in substantially the same manner, and with the same effect, as
the definitive Securities of such series. Without unreasonable delay, and except
in the case of temporary Securities in global form which shall be exchanged in
accordance with the provisions thereof, the Company will execute and deliver to
the Trustee definitive Securities of such series and thereupon any or all
temporary Securities of such series may be surrendered in exchange for
definitive Securities of the same series, at the principal corporate trust
office of the Trustee or any office or agency of the Company designated pursuant
to Section 5.02 for such purpose or at the office of any Security Co-Registrar,
and the Trustee or the Authenticating Agent shall authenticate and deliver in
exchange for such temporary Securities an equal aggregate principal amount of
definitive Securities of the same series. Such exchange shall be made by the
Company at its own expense and without any charge therefor except that the
Company may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto. Until so exchanged,
the temporary Securities of a particular series shall in all respects be
entitled to the same benefits under this Indenture as definitive Securities of
the same series authenticated and delivered hereunder.
ARTICLE THREE
ISSUE OF SECURITIES
SECTION 3.01. AUTHENTICATION, DELIVERY AND DATING. 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 or the
Authenticating Agent for authentication. The Trustee or the Authenticating Agent
shall thereupon authenticate and deliver such Securities to or upon the written
order of the Company, signed by its Chairman of the Board of Directors, its
President or a Vice President, without any further action by the Company. 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 315 of the Trust Indenture Act)
shall be fully protected in relying upon:
(a) a Board Resolution relating thereto and, if applicable, an
appropriate record of any action taken pursuant to such resolution,
certified by the Secretary or an Assistant Secretary of the Company;
(b) an executed supplemental indenture, if any;
(c) an Officers' Certificate; and
(d) an Opinion of Counsel prepared in accordance with Section 14.03,
which shall state
(1) that the form and terms of such Securities have been
established by or pursuant to one or more Board Resolutions, by a
supplemental indenture as permitted by Section 13.01(g), or by both
such resolution or resolutions and such supplemental indenture, in
conformity with the provisions of this Indenture;
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(2) that the supplemental indenture, if any, when executed and
delivered by the Company and the Trustee, will constitute a valid and
legally binding obligation of the Company;
(3) that such Securities, when authenticated and delivered by the
Trustee or the Authenticating Agent and issued by the Company in the
manner and subject to any conditions specified in such Opinion of
Counsel, will constitute valid and legally binding obligations of the
Company, enforceable in accordance with their terms, and will be
entitled to the benefits of this Indenture;
(4) that the Company has the corporate power to issue such
Securities, and has duly taken all necessary corporate action with
respect to such issuance;
(5) that the issuance of such Securities will not contravene the
charter or by-laws of the Company or result in any violation of any of
the terms or provisions of any law or regulation or of any indenture,
mortgage or other agreement by which the Company is bound and under
which long-term debt of the Company as reflected in its latest
financial statements on file with the Securities and Exchange
Commission is outstanding; and
(6) that all requirements of this Indenture applicable to the
Company in respect of the execution and delivery by the Company of
such Securities and of such supplemental indenture, if any, have been
complied with and that, assuming (a) all requisite corporate
authorization on the part of the Trustee, (b) continued compliance by
the Trustee with the terms of the Indenture specifically applicable to
the Trustee, and (c) due authentication and delivery of such
Securities by the Trustee or the Authenticating Agent, the execution
and delivery of such supplemental indenture, if any, will not violate
the terms of this Indenture, and that, other than compliance with
federal and state securities laws, no authorization, approval or
consent by any regulatory or statutory or other public authority is
required in connection with the execution and delivery of such
supplemental indenture or for the creation, issuance, authentication
and delivery of the Securities pursuant to this Indenture.
If the Company shall establish pursuant to Section 2.02 that Securities of
a series may be issued in whole or in part in global form, then the Company
shall execute and the Trustee shall, in accordance with this Section and the
Company order of authentication with respect to such series, authenticate and
deliver one or more Securities in global form that (i) shall represent and shall
be denominated in an aggregate amount equal to the aggregate principal amount of
the outstanding Securities of such series and tenor to be represented by one or
more Securities in global form, (ii) shall be registered, in the name of the
Depositary for such Security or Securities in global form or the nominee of such
Depositary, (iii) shall be delivered to such Depositary or pursuant to such
Depositary's instruction, and (iv) shall bear a legend substantially to the
following effect: "Unless this certificate is presented by an authorized
representative of The Depository Trust Company, a New York corporation ("DTC")
to Issuer or its agent for transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
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Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein." Each Depositary designated pursuant
to Section 2.02 for a Security in global form must, at the time of its
designation and at all times while it serves as Depositary, be a clearing agency
registered under the Securities Exchange Act of 1934 and any other applicable
statute or regulation.
The Trustee shall have the right to decline to authenticate and deliver any
Securities under this Section 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 which is not reasonably
acceptable to the Trustee.
Each Security shall be dated the date of its authentication.
ARTICLE FOUR
REDEMPTION OF SECURITIES; SINKING FUND
SECTION 4.01. APPLICABILITY OF RIGHT OF REDEMPTION. Redemption of
Securities (other than pursuant to a sinking fund or analogous provision)
permitted by the terms of any series of Securities shall be made in accordance
with such terms and Sections 4.02 and 4.03; provided, however, that if any such
terms of a series of Securities shall conflict with any provision of this
Article, the terms of such series shall govern.
SECTION 4.02. NOTICE OF REDEMPTION. The election of the Company to redeem
any Securities of any series shall be evidenced by or pursuant to a Board
Resolution. If the Company shall elect to redeem the Securities of any series in
whole or in part as aforesaid, it shall fix a date for redemption and give
notice of its election so to redeem by mailing or causing to be mailed written
notice, postage prepaid, at least 30 days prior to the redemption date, to all
holders of Securities to be redeemed as a whole or in part, addressed to them at
their respective addresses as the same shall then appear on the Security
Register of the Company. Any notice which shall be mailed in the manner herein
provided shall be conclusively presumed to have been duly given, whether or not
the holder shall receive such notice. Failure to mail such notice, or any defect
in the notice mailed, to the holder of any Security designated for redemption as
a whole or in part shall not affect the validity of the proceedings for the
redemption of any other Security.
Each notice of redemption shall identify the Securities to the redeemed
(including CUSIP number) and shall state such election on the part of the
Company, the Redemption Date and place of payment of the Securities to be
redeemed and the Redemption Price and that the Securities designated in such
notice for redemption are required to be presented on or after such Redemption
Date and at such place for payment and that interest to the Redemption Date on
the Securities and portions of Securities called for redemption will be paid as
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specified in said notice and shall cease to accrue thereon on such date. If less
than all the outstanding Securities of a series are to be redeemed, the notice
shall also designate the Securities or portions of Securities that are to be
redeemed. If any Security is to be redeemed in part only, the notice shall also
state that upon presentation of such Security on or after the redemption date at
said place, such Security will be canceled and a new Security or Securities of
the same series, in an aggregate principal amount equal to the unredeemed
portion of such Security will be issued and delivered without charge to the
holder.
Notice having been so given, the Securities and portions of Securities to
be redeemed shall on the Redemption Date specified in such notice become due and
payable at the applicable Redemption Price, together with interest accrued
thereon to the Redemption Date, and from and after the Redemption Date so
specified (unless the Company shall default in the payment of the Redemption
Price of such Securities or any such accrued interest) interest on such
Securities and portions of Securities shall cease to accrue, and upon
presentation of such Securities at said place of payment and redemption in
accordance with said notice, such Securities and portions of Securities shall be
paid by the Company at the applicable Redemption Price, together with interest
accrued to the Redemption Date (except that, if the Redemption Date shall be an
Interest Payment Date, the interest payable on such date shall be paid to the
registered holders of such Securities at the close of business on the applicable
Record Date, subject to the provisions of Section 2.01).
If the Company shall at any time elect to redeem less than all the
Securities of a series then outstanding, it shall at least 45 days prior to the
Redemption Date (unless a shorter notice shall be satisfactory to the Trustee)
notify the Trustee of the principal amount of Securities to be redeemed, and
thereupon the Trustee shall select, in such manner as the Trustee shall deem
appropriate and fair, the Securities (or portions thereof) of such series to be
redeemed. No Security of a denomination of $1,000 shall be redeemed in part and
Securities may be redeemed in part only in integral multiples of $1,000. The
Trustee shall promptly notify the Company in writing of the Securities and
portions of Securities so selected.
SECTION 4.03. SECURITIES OF ANY SERIES TO BE CANCELED AND DISCHARGED ON
SPECIFIC CONDITIONS. If Securities of any Series at the time outstanding are to
be redeemed under circumstances to which Section 11.02 is applicable, the
Company shall deliver to the Trustee (1) proof satisfactory to the Trustee that
notice of redemption thereof on a specified redemption date has been given as
hereinbefore provided, or (2) proof satisfactory to the Trustee that
arrangements have been made insuring to the satisfaction of the Trustee that
such notice will be so given, or (3) a written instrument in form and substance
satisfactory to the Trustee executed by the Company, and expressed to be
irrevocable, authorizing the Trustee to give such notice for and on behalf of
the Company.
SECTION 4.04. APPLICABILITY OF SINKING FUND. Redemption of Securities
permitted or required pursuant to a sinking fund for the retirement of
Securities of a series by the terms of such series of Securities shall be made
in accordance with such terms of such series of Securities and this Article;
PROVIDED, HOWEVER, that if any such terms of a series of Securities shall
conflict with any provision of this Article, the terms of such series shall
govern.
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
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Fund Payment." If provided for by the terms of Securities of any series, the
cash amount of any Mandatory Sinking Fund Payment may be subject to reduction as
provided in Section 4.05.
SECTION 4.05. MANDATORY SINKING FUND OBLIGATION. The Company may, at its
option, satisfy any Mandatory Sinking Fund Payment obligation, in whole or in
part, with respect to a particular series of Securities by (1) delivering to the
Trustee outstanding Securities of such series in transferable form theretofore
purchased or otherwise acquired by the Company or redeemed at the election of
the Company pursuant to Section 4.01 or (2) receiving credit for Securities of
such series (not previously so credited) acquired by the Company and theretofore
delivered to the Trustee. The Trustee shall credit such Mandatory Sinking Fund
Payment obligation with an amount equal to the redemption price specified in
such Securities for redemption through operation of the sinking fund and the
amount of such Mandatory Sinking Fund Payment shall be reduced accordingly. If
the Company shall elect so to satisfy any Mandatory Sinking Fund Payment
obligation, it shall deliver to the Trustee not less than 45 days prior to the
relevant sinking fund payment date a written notice signed on behalf of the
Company by its Chairman of the Board of Directors, its President, one of its
Vice Presidents, its Treasurer or one of its Assistant Treasurers, which shall
designate the Securities (and portions thereof, if any) to be so delivered or
credited and which shall be accompanied by such Securities (to the extent not
theretofore delivered) in transferable form. In case of the failure of the
Company, at or before the time so required, to give such notice and deliver such
Securities, the Mandatory Sinking Fund Payment obligation shall be paid entirely
in funds.
SECTION 4.06. OPTIONAL REDEMPTION AT SINKING FUND REDEMPTION PRICE. In
addition to the sinking fund requirements of Section 4.05, to the extent, if
any, provided for by the terms of a particular series of Securities, the Company
may, at its option, make an Optional Sinking Fund Payment with respect to such
Securities. Unless otherwise provided by such terms, (a) to the extent that the
right of the Company to make such Optional Sinking Fund Payment shall not be
exercised in any year, it shall not be cumulative or carried forward to any
subsequent year, and (b) such optional payment shall operate to reduce the
amount of any Mandatory Sinking Fund Payment obligation as to Securities of the
same series. If the Company intends to exercise its right to make such optional
payment in any year it shall deliver to the Trustee not less than 45 days prior
to the relevant sinking fund payment date a certificate signed by its Chairman
of the Board of Directors, its President, one of its Vice Presidents, its
Treasurer or one of its Assistant Treasurers stating that the Company will
exercise such optional right, and specifying the amount which the Company will
pay on or before the next succeeding sinking fund payment date. Such certificate
shall also state that no event of default has occurred and is continuing.
SECTION 4.07. APPLICATION OF SINKING FUND PAYMENTS. If the sinking fund
payment or payments made in funds pursuant to either Section 4.05 or 4.06 with
respect to a particular series of Securities plus any unused balance of any
preceding sinking fund payments made in funds with respect to such series shall
exceed $50,000 (or a lesser sum if the Company shall so request), it shall be
applied by the Trustee on the sinking fund payment date next following the date
of such payment, unless the date of such payment shall be a sinking fund payment
date, in which case such payment shall be applied on such sinking fund payment
date, to the redemption of Securities of such series at the redemption price
specified pursuant to Section 4.04. The Trustee shall select in the manner
provided in Section 4.02, for redemption on such sinking fund payment date, a
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sufficient principal amount of Securities of such sinking fund payment date, a
sufficient principal amount of Securities of such series to absorb said funds,
as nearly as may be, and shall, at the expense and in the name of the Company,
thereupon cause notice of redemption of the Securities to be given in
substantially the manner provided in Section 4.02 for the redemption of
Securities in part at the option of the Company, except that the notice of
redemption shall also state that the Securities are being redeemed for the
sinking fund. Any sinking fund moneys not so applied by the Trustee to the
redemption of Securities of such series shall be added to the next sinking fund
payment received in funds by the Trustee and, together with such payment, shall
be applied in accordance with the provisions of this Section 4.07. Any and all
sinking fund moneys held by the Trustee on the last sinking fund payment date
with respect to Securities of such series, and not held for the payment or
redemption of particular Securities of such series, shall be applied by the
Trustee to the payment of the principal of the Securities of such series at
maturity.
On or prior to each sinking fund payment date, the Company shall pay to the
Trustee a sum equal to all interest accrued to the date fixed for redemption on
Securities to be redeemed on such sinking fund payment date pursuant to this
Section 4.07.
The Trustee shall not redeem any Securities of a series with sinking fund
moneys or mail any notice of redemption of Securities of such series by
operation of the sinking fund during the continuance of a default in payment of
interest on any Securities of such series or of any event of default (other than
an event of default occurring as a consequence of this paragraph) of which the
Trustee has actual knowledge, except that if the notice of redemption of any
Securities of such series shall theretofore have been mailed in accordance with
the provisions hereof, the Trustee shall redeem such Securities if funds
sufficient for that purpose shall be deposited with the Trustee in accordance
with the terms of this Article Four. Except as aforesaid, any moneys in the
sinking fund at the time any such default or event of default shall occur and
any moneys thereafter paid into the sinking fund shall, during the continuance
of such default or event of default, be held as security for the payment of all
the Securities of such series; provided, however, that in case such default or
event of default shall have been cured or waived as provided herein, such moneys
shall thereafter be applied on the next sinking fund payment date on which such
moneys are required to be applied pursuant to the provisions of this Section
4.07.
ARTICLE FIVE
PARTICULAR COVENANTS OF THE COMPANY
The Company hereby covenants and agrees as follows:
SECTION 5.01. TO PAY PRINCIPAL, PREMIUM, IF ANY, AND INTEREST. The Company
will duly and punctually pay the principal of and premium, if any, on each of
the Securities, and the interest which shall have accrued thereon, at the date
and place and in the manner provided in the Securities and in this Indenture.
SECTION 5.02. TO MAINTAIN OFFICE OR AGENCY IN NEW YORK. The Company will
maintain in the city in the United States in which the Company has its principal
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business office and, if (a) 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 the Securities may be listed or (b) Securities of any series
are issued in definitive form, in The City of New York, and may maintain
elsewhere, an office or agency where Securities may be presented or surrendered
for payment, where Securities may be surrendered for transfer or exchange and
where notices and demands to or upon the Company in respect of the Securities
and this Indenture may be served. The Company will give prompt written notice to
the Trustee of the location, and any change in the location, of any such office
or agency. If at any time the Company shall fail to maintain such required
office or agency, or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at the
Principal Office of the Trustee. The Company hereby initially appoints the
Trustee as its agent to receive all such presentations, surrenders, notices and
demands.
The Company may also from time to time designate one or more other offices
or agencies where the Securities may be presented or surrendered for any or all
of such purposes and may from time to time rescind such designations; PROVIDED,
HOWEVER, that no such designation shall in any manner result in the creation of
a Security Register or Security Co-Registrar in addition to the Security
Register required to be kept pursuant to Section 2.05 and any Security
Co-Registrar appointed pursuant to Section 2.05. The Company will give prompt
written notice to the Trustee of any such designation and any change in the
location of any such other office or agency.
SECTION 5.03. THE COMPANY, OR PAYING AGENT, TO HOLD IN TRUST MONEYS FOR
PAYMENT OF PRINCIPAL, PREMIUM, IF ANY, AND INTEREST. If the Company shall at any
time act as its own paying agent with respect to any series of Securities, then,
on or before the date on which the principal of and premium, if any, or interest
on any of the Securities of that series by their terms or as a result of the
calling thereof for redemption shall become payable, the Company will set apart
and segregate and hold in trust for the benefit of the holders of such
Securities a sum sufficient to pay such principal and premium, if any, or
interest which shall have so become payable and will notify the Trustee of its
failure to act in that regard and of any failure by the Company or any other
obligor upon the Securities of that series to make any such payment. If the
Company shall appoint, and at the time have, a paying agent for the payment of
the principal of and premium, if any, or interest on any series of Securities,
then, on or before the date on which the principal of and premium, if any, or
interest on any of the Securities of that series shall become payable as
aforesaid, whether by their terms or as a result of the calling thereof for
redemption, the Company will pay to such paying agent a sum sufficient to pay
such principal and premium, if any, or interest, to be held in trust for the
benefit of the holders of such Securities. If such paying agent shall be other
than the Trustee, the Company will cause such paying agent to execute and
deliver to the Trustee an instrument in which such paying agent shall agree with
the Trustee, subject to the provisions of this Section 5.03 and of Section
11.03, (1) that such paying agent shall hold all sums held by such paying agent
for the payment of the principal of and premium, if any, or interest on the
Securities of that series in trust for the benefit of the holders of such
Securities; (2) that such paying agent shall give to the Trustee notice of any
default by the Company or any other obligor upon the Securities of that series
in the making of any payment of the principal of and premium, if any, or
interest on the Securities of that series when the same shall have become due
and payable; and (3) that such paying agent shall, at any time during the
continuance of any such default, upon the written request of the Trustee,
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deliver to the Trustee all sums so held in trust by it. The Company hereby
appoints FMB BANK to act as its paying agent hereunder.
Anything in this Section 5.03 to the contrary notwithstanding, the Company
may at any time, for the purpose of obtaining a release or satisfaction of this
Indenture or for any other reason, pay or cause to be paid to the Trustee all
sums held in trust by it or by any paying agent other than the Trustee as
required by this Section 5.03, such sums to be held by the Trustee upon the same
trusts as those upon which such sums were held by the Company or such paying
agent.
Any money deposited with the Trustee or any paying agent, or then held by
the Company, in trust for the payment of the principal of, premium, if any, or
interest on any Security and remaining unclaimed for three years after such
principal, premium, if any, or interest has become due and payable shall be paid
to the Company on Company request, or (if then held by the Company) shall be
discharged from such trust; and the holder of such Security shall thereafter, as
an unsecured general creditor, look only to the Company for payment thereof, and
all liability of the Trustee or such paying agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; PROVIDED, HOWEVER, that the Trustee or such paying agent, before being
required to make any such repayment, may at the expense of the Company cause to
be published once, in a newspaper published in the English language, customarily
published on each Business Day and of general circulation in the Borough of
Manhattan, The City of New York, notice that such money remains unclaimed and
that, after a date specified therein, which shall not be less than 30 days from
the date of such publication, any unclaimed balance of such money then remaining
will be repaid to the Company.
SECTION 5.04. RESTRICTIONS UPON LIENS UPON PROPERTY OF THE COMPANY AND
RESTRICTED SUBSIDIARIES. The Company will not at any time directly or
indirectly, and will not permit any Restricted Subsidiary to, create, assume,
incur or suffer to be created, assumed or incurred or to exist any Lien upon any
of the properties of any character of the Company or any Restricted Subsidiary
without making effective provision whereby the Securities then outstanding shall
be secured equally and ratably with (or prior to) any other obligation or
indebtedness so secured, so long as such other obligation or indebtedness
remains secured; EXCEPT, HOWEVER, that, notwithstanding the foregoing, the
Company or any Restricted Subsidiary, without so securing the Securities, may
(1) lease property to others in the ordinary course of the
business of the Company or any Restricted Subsidiary or lease or
sublease any property if the property subject thereto is not needed by
the Company or any Restricted Subsidiary in the operation of its
business;
(2) create, assume and incur such Liens or permit such Liens to
be created, assumed, incurred or to exist provided, in each case, the
Lien secures indebtedness for borrowed money, including purchase money
indebtedness, which is incurred to finance the acquisition of the
property subject to such Lien and in respect of which the creditor has
no recourse against the Company or any Restricted Subsidiary except
recourse to such property or to the proceeds of any sale or lease of
such property or both;
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(3) make any deposit with or give any form of security to any
governmental agency or other body created or approved by law or
governmental regulation in order to enable the Company or such
Restricted Subsidiary to maintain self-insurance, or to participate in
any fund in connection with workmen's compensation, unemployment
insurance, old-age pensions, or other social security, or to share in
any privileges or other benefits available to corporations
participating in any such arrangement, or for any other purpose at any
time required by law or regulation promulgated by any governmental
agency or office as a condition to the transaction of any business or
the exercise of any privilege or license, or deposit assets of the
Company or such Restricted Subsidiary with any surety company or clerk
of any court, or in escrow, as collateral in connection with, or in
lieu of, any bond on appeal by the Company or such Restricted
Subsidiary from any judgment or decree against it, or in connection
with any other proceedings in actions at law or suits in equity by or
against the Company or such Restricted Subsidiary;
(4) incur or suffer to be incurred or to exist upon any of its
property or assets (a) Liens for taxes, assessments or other
governmental charges or levies which are not yet due or are payable
without penalty or of which the amount, applicability or validity is
being contested by the Company or such Restricted Subsidiary in good
faith by appropriate proceedings and the Company or such Restricted
Subsidiary shall have set aside on its books reserves which it deems
to be adequate with respect thereto (segregated to the extent required
by generally accepted accounting principles), PROVIDED that
foreclosure, distraint, sale or similar proceedings have not been
commenced, (b) the Liens of any judgment, if such judgment shall not
have remained undischarged, or unstayed on appeal or otherwise, for
more than six months, (c) undetermined Liens or charges incident to
construction, (d) materialmen's, mechanics', workmen's, repairmen's or
other like Liens arising in the ordinary course of business in respect
of obligations which are not overdue or which are being contested by
the Company or such Restricted Subsidiary in good faith by appropriate
proceedings, or deposits to obtain the release of such Liens, or (e)
any encumbrances consisting of zoning restrictions, licenses,
easements and restrictions on the use of real property and minor
defects and irregularities in the title thereto, which do not
materially impair the use of such property by the Company or such
Restricted Subsidiary in the operation of its business or the value of
such property for the purpose of such business;
(5) create other Liens incidental to the conduct of its business
or the ownership of its property and assets which were not incurred in
connection with the borrowing of money or the obtaining of advances or
credit, and which do not in the aggregate materially detract from the
value of its property or assets or materially impair the use thereof
in the operation of its business;
(6) create or suffer to be created or to exist in favor of any
lender of moneys or holder of commercial paper of the Company or a
Restricted Subsidiary in the ordinary course of business a banker's
lien or right of offset in the holder of such indebtedness or moneys
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of the Company or a Restricted Subsidiary deposited with such lender
or holder in the ordinary course of business;
(7) create or suffer to be created or to exist with respect to
any of its property leasehold or purchase rights, exercisable for a
fair consideration, in favor of any Person which arise in transactions
entered into in the ordinary course of business;
(8) assume any Lien or permit any Lien to be assumed or exist if
any such Lien is on property or shares of stock of a corporation at
the time the corporation becomes a Restricted Subsidiary or merges
into or consolidates with the Company or a Restricted Subsidiary;
provided, however, that any such Lien may not be assumed or permitted
to exist if such Lien is incurred in anticipation of such corporation
becoming a Restricted Subsidiary or in anticipation of such merger or
consolidation;
(9) assume any Lien or permit any Lien to be assumed or exist if
any such Lien is on property at the time the Company or a Restricted
Subsidiary acquires the property; provided, however, that any such
Lien may not extend to any other property owned by the Company or a
Restricted Subsidiary at the time such Lien is assumed;
(10) assume, create or suffer to be created or to exist, such
Liens in an amount not to exceed in the aggregate $25,000,000 at any
one time outstanding, excluding Liens covered by other provisions of
clauses (1) through (9) above; and
(11) create or suffer to be created or to exist in favor of any
lender of moneys, any Lien that secures indebtedness of the Company or
a Restricted Subsidiary; provided that the sum of the following does
not exceed 10% of Consolidated Net Tangible Assets: (a) such
indebtedness; PLUS (b) other indebtedness of the Company and its
Restricted Subsidiaries secured by Liens on property of the Company
and its Restricted Subsidiaries, EXCLUDING indebtedness secured by a
Lien existing as of December 31, 1991 and EXCLUDING indebtedness
secured by a Lien permitted by one of clauses (1) through (10) above.
SECTION 5.05. MAINTENANCE OF CORPORATE EXISTENCE. Subject to Section 5.06,
the Company will do or cause to be done all things necessary to preserve and
keep in full force and effect its corporate existence and that of each
Subsidiary and the rights and franchises of the Company and its Subsidiaries;
provided, however, that the Company shall not be required to preserve the
corporate existence of any Subsidiary or any such right or franchise if pursuant
to a Board Resolution, the Company shall determine that the preservation thereof
is no longer desirable in the conduct of the business of the Company and the
other Subsidiaries taken as a whole and that the loss thereof is not on balance
materially disadvantageous to the holders.
SECTION 5.06. RESTRICTIONS ON CONSOLIDATION, MERGER, SALE, ETC. The Company
will not consolidate with any other corporation or accept a merger of any other
corporation into the Company or permit the Company to be merged into any other
corporation, or sell or lease all or substantially all its assets to another
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corporation, or purchase all or substantially all the assets of another
corporation, unless (i) either the Company shall be the continuing corporation,
or the successor, transferee or lessee corporation (if other than the Company)
shall be organized under the laws of the United States or any state thereof or
the District of Columbia and shall expressly assume, by indenture supplemental
hereto, executed and delivered by such corporation prior to or simultaneously
with such consolidation, merger, sale or lease, the due and punctual payment of
the principal of and interest and premium, if any, on all the Securities,
according to their tenor, and the due and punctual performance and observance of
all the covenants and conditions of this Indenture to be performed or observed
by the Company, and (ii) immediately after such consolidation, merger, sale,
lease or purchase the Company or the successor, transferee or lessee corporation
(if other than the Company) would not be in default in the performance of any
covenant or condition of this Indenture. A purchase by a Subsidiary of all or
substantially all of the assets of another corporation shall not be deemed to be
a purchase of such assets by the Company.
SECTION 5.07. ANNUAL STATEMENT CONCERNING COMPLIANCE WITH COVENANTS. The
Company will deliver to the Trustee, within 120 days after the end of each
fiscal year, a written statement signed by the principal executive officer, the
principal financial officer or the principal accounting officer of the Company,
stating that
(a) a review of the activities of the Company during such year with
regard to its compliance with this Indenture has been made under his
supervision, and
(b) to the best of his knowledge, based on such review, the Company
has fulfilled all its obligations under this Indenture throughout such
year, or, if there has been a default in the fulfillment of any such
obligation, specifying each such default known to him and the nature and
status thereof.
SECTION 1.01. COMPLIANCE WITH COVENANTS AND CONDITIONS MAY BE WAIVED BY
HOLDERS OF SECURITIES. Anything in this Indenture to the contrary
notwithstanding, the Company or any Restricted Subsidiary may fail or omit in
any particular instance to comply with a covenant or condition set forth in
Section 5.04 or 5.06 with respect to any series of Securities if the Company
shall have obtained and filed with the Trustee, prior to the time of such
failure or omission, evidence (as provided in Article Seven) of the consent of
the holders of at least 66K% in aggregate principal amount of the Securities of
such series at the time outstanding, either waiving such compliance in such
instance or generally waiving compliance with such covenant or condition, but no
such waiver shall extend to or affect any obligation not waived by the terms of
such waiver or impair any right consequent thereon.
ARTICLE SIX
REMEDIES OF TRUSTEE AND SECURITYHOLDERS
SECTION 6.01. EVENTS OF DEFAULT. Except where otherwise indicated by the
context or where the term is otherwise defined for a specific purpose, the term
"event of default" as used in this Indenture with respect to Securities of any
series shall mean one of the following described events unless it is either
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inapplicable to a particular series or it is specifically deleted or modified in
the supplemental indenture, if any, under which such series of Securities is
issued:
(a) the failure of the Company to pay any installment of interest on
any Security of such series, when and as the same shall become payable,
which failure shall have continued unremedied for a period of 30 days;
(b) the failure of the Company to pay the principal of (and premium,
if any, on) any Security of such series, when and as the same shall become
payable, whether at maturity as therein expressed, by call for redemption
(otherwise than pursuant to a sinking fund), by declaration as authorized
by this Indenture or otherwise;
(c) the failure of the Company to pay a sinking fund installment, if
any, when and as the same shall become payable by the terms of a Security
of such series, which failure shall have continued unremedied for a period
of 30 days;
(d) the failure of the Company, subject to the provisions of Section
5.08, to observe and perform any other of the covenants or agreements on
the part of the Company contained in this Indenture (other than a covenant
or agreement which has been expressly included in this Indenture solely for
the benefit of a series of Securities other than that series), which
failure shall not have been remedied to the satisfaction of the Trustee, or
without provision deemed by the Trustee to be adequate for the remedying
thereof having been made, for a period of 90 days after written notice
shall have been given to the Company by the Trustee or shall have been
given to the Company and the Trustee by holders of 25% or more in aggregate
principal amount of the Securities of such series then outstanding,
specifying such failure and requiring the Company to remedy the same;
(e) an event of default, as defined in any mortgage, indenture or
instrument, including this Indenture, under which there may be issued, or
by which there may be secured or evidenced, any indebtedness for money
borrowed of the Company, whether such indebtedness now exists or shall
hereafter be created, shall happen and shall result in such indebtedness in
an amount in excess of $15,000,000 becoming or being declared due and
payable prior to the date on which it would otherwise become due and
payable, and such acceleration shall not have been rescinded or annulled,
or such indebtedness shall not have been discharged, within a period of 10
days after there has been given, by registered or certified mail, to the
Company by the Trustee or to the Company and the Trustee by the holders of
at least 10% in principal amount of the outstanding Securities of such
series a written notice specifying such event of default and requiring the
Company to cause such acceleration to be rescinded or annulled or to cause
such indebtedness to be discharged;
(f) the entry by a court having jurisdiction in the premises of a
decree or order for relief in respect of the Company in an involuntary case
under the Federal bankruptcy laws, as now or hereafter constituted, or any
other applicable Federal or State bankruptcy, insolvency or other similar
law now or hereafter in effect, or appointing a receiver, liquidator,
assignee, custodian, trustee or sequestrator (or similar official) of the
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Company or for substantially all of its property, or ordering the
winding-up or liquidation of its affairs, which decree or order shall have
remained unstayed and in effect for a period of 90 consecutive days;
(g) the commencement by the Company of a voluntary case under the
Federal bankruptcy laws, as now or hereafter constituted, or any other
applicable Federal or State bankruptcy, insolvency or other similar law now
or hereafter in effect, or the consent by the Company to the entry of an
order for relief in an involuntary case under any such law, or the consent
by the Company to the appointment of or taking possession by a receiver,
liquidator, assignee, trustee, custodian or sequestrator (or similar
official) of the Company or for substantially all of its property, or the
making by it of an assignment for the benefit of its creditors; or
(h) the occurrence of any other event of default with respect to
Securities of such series as provided in an Officers' Certificate delivered
pursuant to Section 2.02 or a supplemental indenture applicable to such
series of Securities pursuant to Section 13.01(b).
SECTION 6.02. ACCELERATION OF MATURITY OF PRINCIPAL ON DEFAULT. If any one
or more of the above-described events of default shall happen with respect to
Securities of any series at the time outstanding, then, and in each and every
such case, during the continuance of any such event of default, the Trustee or
the holders of 25% or more in principal amount of the Securities of such series
then outstanding may, and upon the written request of the holders of a majority
in principal amount of such Securities then outstanding the Trustee shall,
declare the principal of all the Securities of such series then outstanding, if
not then due and payable, to be due and payable, and upon any such declaration
the same shall become and be immediately due and payable, anything in this
Indenture or in the Securities of such series contained to the contrary
notwithstanding. This provision, however, is subject to the condition that, if
at any time after the principal of all the Securities of such series shall have
been so declared to be due and payable, all arrears of interest if any, upon all
the Securities of such series (with interest, to the extent that interest
thereon shall be legally enforceable, on any overdue installment of interest at
the rate borne by the Securities of such series) and the reasonable charges and
expenses of the Trustee, its agents and attorneys, and all other sums payable
under this Indenture (except the principal of the Securities of such series
which would not be due and payable were it not for such declaration), shall be
paid by the Company, and every other default and event of default under this
Indenture shall have been made good to the reasonable satisfaction of the
Trustee or of the holders of a majority in principal amount of the Securities of
such series then outstanding, or provision deemed by the Trustee or by such
holders to be adequate therefor shall have been made, then and in every such
case the holders of a majority in principal amount of the Securities of such
series then outstanding may, on behalf of the holders of all the Securities of
such series, waive the event of default by reason of which the principal of the
Securities of such series shall have been so declared to be due and payable and
may rescind and annul such declaration and its consequences; but no such waiver,
rescission or annulment shall extend to or affect any subsequent default or
event of default or impair any right consequent thereon. Any declaration by the
Trustee pursuant to this Section 6.02 shall be by written notice to the Company,
and any declaration or waiver by the holders of Securities of any series
pursuant to this Section 6.02 shall be by written notice to the Company and the
Trustee.
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The Company and the Trustee may, to the extent provided in Section 13.01,
enter into one or more indentures supplemental hereto with respect to any series
of the Securities which may provide for additional or different events of
default with respect to such series of Securities.
SECTION 6.03. THE COMPANY, FAILING FOR 30 DAYS TO PAY ANY INSTALLMENT OF
INTEREST OR SINKING FUND PAYMENT OR FAILING TO PAY PRINCIPAL WHEN DUE, WILL PAY
TO TRUSTEE AT ITS REQUEST WHOLE AMOUNT DUE. If the Company shall fail for a
period of 30 days to pay any installment of interest on the Securities of any
series or shall fail to pay the principal of and premium, if any, on any of the
Securities of such series when and as the same shall become due and payable,
whether at maturity, or by call for redemption (otherwise than pursuant to the
sinking fund), by declaration as authorized by this Indenture, or otherwise, or
shall fail for a period of 30 days to make any sinking fund payment as to a
series of Securities, then, upon demand by the Trustee, the Company will pay to
the Trustee for the benefit of the holders of Securities of such series then
outstanding the whole amount which then shall have become due and payable on all
the Securities of such series, with interest on the overdue principal and
premium, if any, and (so far as the same may be legally enforceable) on the
overdue installments of interest at the rate borne by the Securities of such
series, and reasonable compensation to the Trustee, its agents and attorneys,
and any other reasonable expenses and liabilities incurred by the Trustee under
this Indenture without negligence or bad faith.
In case the Company shall fail forthwith to pay such amounts upon such
demand, the Trustee, in its own name and as trustee of an express trust, shall
be entitled and empowered to institute any action or proceeding 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 any other obligor upon the
Securities of such series, and collect the moneys adjudged or decreed to be
payable out of the property of the Company or any other obligor upon the
Securities of such series, and collect the moneys adjudged or decreed to be
payable out of the property of the Company or any other obligor upon the
Securities of such securities, wherever situated, in the manner provided by law.
Every recovery of judgment in any such action or other proceeding, subject to
the payment of the expenses, disbursements and compensation of the Trustee, its
agents and attorneys, shall be for the ratable benefit of the holders of such
series of Securities which shall be the subject of such action or proceeding.
All rights of action upon or under any of the Securities or this Indenture may
be enforced by the Trustee without the possession of any of the Securities and
without the production of any thereof at any trial or any proceeding relative
thereto.
SECTION 6.04. TRUSTEE APPOINTED ATTORNEY-IN-FACT FOR SECURITYHOLDERS TO
FILE CLAIMS. The Trustee is hereby appointed, and each and every holder of the
Securities, by receiving and holding the same, shall be conclusively deemed to
have appointed the Trustee, the true and lawful attorney-in-fact of such holder,
with authority to make or file (whether or not the Company shall be in default
in respect of the payment of the principal of, or interest on, any of the
Securities), in its own name and as trustee of an express trust or otherwise as
it shall deem advisable, in any receivership, insolvency, liquidation,
bankruptcy, reorganization or other judicial proceeding relative to the Company
or any other obligor upon the Securities or to their respective creditors or
property, any and all claims, proofs of claim, proofs of debt, petitions,
consents, other papers and documents and amendments of any thereof, as may be
necessary or advisable in order to have the claims of the Trustee and of the
holders of the Securities allowed in any such proceeding and to collect and
receive any moneys or other property payable or deliverable on any such claim,
and to execute and deliver any and all other papers and documents and to do and
perform any and all other acts and things, as it may deem necessary or advisable
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in order to enforce in any such proceeding any of the claims of the Trustee and
of any of such holders in respect of any of the Securities; and any receiver,
assignee, trustee, custodian or debtor in any such proceeding is hereby
authorized, and each and every holder of the Securities, by receiving and
holding the same, shall be conclusively deemed to have authorized any such
receiver, assignee, trustee, custodian or debtor, to make any such payment or
delivery only to or on the order of the Trustee, and to pay to the Trustee any
amount due if for compensation and expenses, including counsel fees, incurred by
it to the date of such payment or delivery; PROVIDED, HOWEVER, that nothing
herein contained shall be deemed to authorize or empower the Trustee to consent
to or accept or adopt, on behalf of any holder of Securities, any plan of
reorganization or readjustment of the Company affecting the Securities or the
rights of any holder thereof, or to authorize or empower the Trustee to vote in
respect of the claim of any holder of any Securities in any such proceeding.
SECTION 6.05. APPLICATION OF MONEYS COLLECTED BY TRUSTEE. Any moneys
collected by the Trustee with respect to a series of Securities under this
Article Six shall be applied in the order following, at the date or dates fixed
by the Trustee for the distribution of such moneys, upon presentation of the
several Securities, and stamping thereon the payment, if only partially paid,
and upon surrender thereof if fully paid:
First: To the payment of all costs and expenses in
connection with the collection of such moneys and all amounts due
to the Trustee under Section 10.05.
Second: In case the principal of the outstanding Securities
of such series shall not have become due and be unpaid, to the
payment of interest on the Securities of such series, in the
order of the maturity of the installments of such interest, with
interest (to the extent that such interest has been collected by
the Trustee) upon the overdue installments of interest at the
rate borne by such Securities, such payments to be made ratably
to the Persons entitled thereto.
Third: In case the principal of the outstanding Securities
of such series shall have become due, by declaration or
otherwise, to the payment of the whole amount then owing and
unpaid upon the Securities of such series for principal and
premium, if any, and interest, with interest on the overdue
principal and premium, if any, and (to the extent that such
interest has been collected by the Trustee) upon overdue
installments of interest at the rate borne by the Securities of
such series, and in case such moneys shall be insufficient to pay
in full the whole amounts so due and unpaid upon the Securities
of such series, then to the payment of such principal and
premium, if any, and interest without preference or priority of
principal and premium, if any, over interest, or of interest over
principal and premium, if any, or of any installment of interest
over any other installment of interest, or of any Security of
such series over any other Security of such series, ratably to
the aggregate of such principal and premium, if any, and accrued
and unpaid interest.
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Any surplus then remaining shall be paid to the Company or to such other
Persons as shall be entitled to receive it.
SECTION 6.06. SECURITYHOLDERS MAY DIRECT PROCEEDINGS AND WAIVE DEFAULTS.
The holders of a majority in principal amount of the Securities of any series at
the time outstanding may direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee hereunder, or of exercising
any trust or power hereby conferred upon the Trustee with respect to the
Securities of such series, PROVIDED, HOWEVER, that, subject to the provisions of
Section 10.02, the Trustee shall have the right to decline to follow any such
direction if the Trustee being advised by counsel determines that the action so
directed may not lawfully be taken. Prior to any declaration accelerating the
maturity of the Securities of any series, the holders of a majority in aggregate
principal amount of such series of Securities at the time outstanding may on
behalf of the holders of all of the Securities of such series waive any past
default or event of default hereunder and its consequences except a default in
the payment of interest or any premium on or the principal of the Securities of
such series. Upon any such waiver 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 event of default or impair any right consequent
thereon. Whenever any default or event of default hereunder shall have been
waived as permitted by this Section 6.06, said default or event of default shall
for all purposes of the Securities of such series and this Indenture be deemed
to have been cured and to be not continuing.
SECTION 6.07. LIMITATIONS ON RIGHTS OF SECURITYHOLDERS TO INSTITUTE
PROCEEDINGS. No holder of any Security of any series shall have any right to
institute any action, suit or proceeding at law or in equity for the execution
of any trust hereunder or for the appointment of a receiver or for any other
remedy hereunder, in each case with respect to an event of default with respect
to such series of Securities, unless such holder previously shall have given to
the Trustee written notice of the happening of one or more of the events of
default herein specified with respect to such series of Securities, and unless
also the holders of 25% in principal amount of the Securities of such series
then outstanding shall have requested the Trustee in writing to take action in
respect of the matter complained of, and unless also there shall been offered to
the Trustee security and indemnity satisfactory to it against the costs,
expenses and liabilities to be incurred therein or thereby, and the Trustee, for
60 days after receipt of such notification, request and offer of indemnity,
shall have neglected or refused to institute any such action, suit or
proceeding; and such notification, request and offer of indemnity are hereby
declared in every such case to be conditions precedent to any such action, suit
or proceeding by any holder of any Security of such series; it being understood
and intended that no one or more of the holders of Securities of such series
shall have any right in any manner whatsoever by his or their action to enforce
any right hereunder, except in the manner herein provided, and that every
action, suit or proceeding at law or in equity shall be instituted, had and
maintained in the manner herein provided and for the equal benefit of all
holders of the outstanding Securities of such series; PROVIDED, HOWEVER, that
nothing in this Indenture or in the Securities of such series contained shall
affect or impair the obligation of the Company, which is absolute and
unconditional, to pay the principal of, premium, if any, and interest on the
Securities of such series to the respective holders of such Securities at the
respective due dates in such Securities stated, or affect or impair the right,
which is also absolute and unconditional, of such holders to institute suit to
enforce the payment thereof; PROVIDED, FURTHER, that in the event property or
assets are conveyed, transferred, assigned, mortgaged or pledged to the Trustee
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as security for one or more series of Securities, no holder of Securities shall
be entitled to take any action or institute any suit to enforce the payment of
his Securities, whether for principal, interest or premium, if any, to the
extent that the taking of such action or the institution or prosecution of any
such suit or the entry of judgment therein would under applicable law result in
a surrender, impairment, waiver or loss of the lien of this Indenture, if any,
upon the trust estate so created by such conveyance, transfer, assignment,
mortgage or pledge, or any part thereof, as security for Securities held by any
other holder.
SECTION 6.08. ASSESSMENT OF COSTS AND ATTORNEYS' FEES IN LEGAL PROCEEDINGS.
All parties to this Indenture and the holders of the Securities agree that the
court may in its discretion require, in any action, suit or proceeding for the
enforcement of any right or remedy under this Indenture, or in any action, suit
or proceeding against the Trustee for any action taken or omitted by it as
Trustee, the filing by any party litigant in such action, suit or proceeding of
an undertaking to pay the costs of such action, suit or proceeding, and that
such court may in its discretion assess reasonable costs, including reasonably
attorney's fees, against any party litigant in such action, suit or proceeding,
having due regard to the merits and good faith of the claims or defenses made by
such party litigant; PROVIDED, HOWEVER, that the provisions of this Section 6.08
shall not apply to any action, suit or proceeding instituted by the Trustee, to
any action, suit or proceeding instituted by any one or more holders of
Securities holding in the aggregate more than 10% in principal amount of the
Securities of any series outstanding, or to any action, suit or proceeding
instituted by any holder of Securities of any series for the enforcement of the
payment of the principal of or premium, if any, or the interest on, any of the
Securities of such series, on or after the respective due dates expressed in
such Securities.
SECTION 6.09. REMEDIES CUMULATIVE. No remedy herein conferred upon or
reserved to the Trustee or to the holders of Securities of any series is
intended to be exclusive of any other remedy or remedies, and each and every
remedy shall be cumulative and shall be in addition to every other remedy given
hereunder or now or hereafter existing at law or in equity or by statute. No
delay or omission of the Trustee or of any holder of the Securities of any
series to exercise any right or power accruing upon any default or event of
default shall impair any such right or power or shall be construed to be a
waiver of any such default or event of default or an acquiescence therein, and
every power and remedy given by this Article Six to the Trustee and to the
holders of Securities of any series, respectively, may be exercised from time to
time and as often as may be deemed expedient by the Trustee or by the holders of
Securities of such series, as the case may be. In case the Trustee or any holder
of Securities of any series shall have proceeded to enforce any right under this
Indenture and the proceedings for the enforcement thereof shall have been
discontinued or abandoned because of waiver or for any other reason or shall
have been adjudicated adversely to the Trustee or to such holder of Securities,
then and in every such case the Company, the Trustee and the holders of the
Securities of such series shall severally and respectively be restored to their
former positions and rights hereunder and thereafter all rights, remedies and
powers of the Trustee and the holders of the Securities of such series shall
continue as though no such proceedings had been taken, except as to any matters
so waived or adjudicated.
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ARTICLE SEVEN
CONCERNING THE SECURITYHOLDERS
SECTION 7.01. EVIDENCE OF ACTION BY SECURITYHOLDERS. Whenever in this
Indenture it is provided that the holders of a specified percentage or a
majority in aggregate principal amount of the Securities or of any series of
Securities 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
specified percentage or majority have joined therein may be evidenced (a) by any
instrument or any number of instruments of similar tenor executed by
Securityholders in person or by agent or proxy appointed in writing, or (b) by
the record of the holders of Securities voting in favor thereof at any meeting
of Securityholders duly called and held in accordance with the provisions of
Article Eight, or (c) by a combination of such instrument or instruments and any
such record of such a meeting of Securityholders.
SECTION 7.02. PROOF OF EXECUTION OF INSTRUMENTS AND OF HOLDING OF
SECURITIES. Proof of the execution of any instrument by a Securityholder 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:
The fact and date of the execution by any person of any such instrument may
be proved (a) by the certificate of any notary public or other officer in any
jurisdiction who, by the laws thereof, has power to take acknowledgements or
proof of deeds to be recorded within such jurisdiction, that the person who
signed such instrument did acknowledge before such notary public or other
officer the execution thereof, or (b) by the affidavit of a witness of such
execution sworn to before any such notary or other officer. Where such execution
is by a person acting in other than his individual capacity, such certificate or
affidavit shall also constitute sufficient proof of his authority.
The ownership of Securities shall be proved by the Security Register of
such Securities or by a certificate of the Security Registrar thereof.
The Trustee may accept such other proof or may require such additional
proof of any matter referred to in this Section 7.02 as it shall deem
appropriate or necessary.
SECTION 7.03. SECURITIES OWNED BY THE COMPANY OR OTHER OBLIGOR ON THE
SECURITIES TO BE DISREGARDED IN CERTAIN CASES. In determining whether the
holders of the requisite principal amount of the Securities have concurred in
any direction, request, waiver or consent under this Indenture, Securities which
are owned by the Company or by any other obligor on the Securities or by any
Person directly or indirectly controlling, or controlled by, or under direct or
indirect common control with, the Company or any such other obligor shall be
disregarded, except that for the purpose of determining whether the Trustee
shall be protected in relying on any such direction, request, waiver or consent,
only Securities which the Trustee knows are so owned shall be disregarded.
Securities so owned which have been pledged in good faith may be regarded as
outstanding for the purposes of this Section 7.03 if the pledgee shall establish
to the satisfaction of the Trustee the pledgee's right to vote such Securities
and that the pledgee is not a Person directly or indirectly controlling, or
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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 7.04. REVOCATION BY SECURITYHOLDERS OF CONSENTS TO ACTION. At any
time prior to (but not after) the evidencing to the Trustee, as provided in
Section 7.01, of the taking of any action by the holders of the percentage in
aggregate principal amount of the Securities or of any series of Securities
specified in this Indenture in connection with such action, any holder of a
Security which 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 at its principal office and upon proof of holding as provided
in Section 7.02, 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, irrespective of whether or not any notation in regard thereto
is made upon such Security or any Security issued in exchange or substitution
therefor.
ARTICLE EIGHT
SECURITYHOLDERS' MEETINGS
SECTION 8.01. PURPOSES OF MEETINGS. A meeting of Securityholders may be
called at any time and from time to time pursuant to the provisions of this
Article Eight for any of the following purposes:
(a) to give any notice to the Company or to the Trustee, or to give
any directions to the Trustee, or to consent to the waiving of any default
hereunder and its consequences, or to take any other action authorized to
be taken by Securityholders pursuant to any of the provisions of Article
Six;
(b) to remove the Trustee and nominate a successor trustee pursuant to
the provisions of Article Ten;
(c) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to the provisions of Section 13.02; or
(d) to take any other action authorized to be taken by or on behalf of
the holders of any specified aggregate principal amount of the Securities
of any one or more or all series, as the case may be, under any other
provision of this Indenture or under applicable law.
SECTION 8.02. CALL OF MEETINGS BY TRUSTEE. The Trustee may at any time call
a meeting of Securityholders of all series that may be affected by the action
proposed to be taken, to take any action specified in Section 8.01, to be held
at such time and at such place as the Trustee shall determine. Notice of every
meeting of the Securityholders of a series, setting forth the time and the place
of such meeting and in general terms the action proposed to be taken at such
meeting, shall be mailed to holders of Securities of such series at their
addresses as they shall appear on the Security Register (including the records
of any Security Co-Registrar). Such notice shall be mailed not less than 20 nor
more than 90 days prior to the date fixed for the meeting.
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SECTION 8.03. CALL OF MEETINGS BY COMPANY OR SECURITYHOLDERS. In case at
any time the Company, pursuant to a resolution of its Board of Directors, or the
holders of at least 10% in aggregate principal amount of the Securities of a
series then outstanding that may be affected by the action proposed to be taken,
shall have requested the Trustee to call a meeting of Securityholders of such
series, by written request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Trustee shall not have mailed the
notice of such meeting within 20 days after receipt of such request, then the
Company or such Securityholders may determine the time and the place for such
meeting and may call such meeting to take any action authorized in Section 8.01,
by mailing notice thereof as provided in Section 8.02.
SECTION 8.04. QUALIFICATIONS FOR VOTING. To be entitled to vote at any
meeting of Securityholders a Person shall (a) be a holder of one or more
Securities of a series affected by the action proposed to be taken at the
meeting or (b) be a person appointed by an instrument in writing as proxy by a
holder of one or more such Securities. The only persons who shall be entitled to
be present or to speak at any meeting of Securityholders shall be the persons
entitled to vote at such meeting and their counsel and any representatives of
the Trustee and its counsel and any representatives of the Company and its
counsel.
SECTION 8.05. REGULATION OF MEETINGS. Notwithstanding any other provisions
of this Indenture, the Trustee may make such reasonable regulations as it may
deem advisable for any meeting of Securityholders, in regard to proof of the
holding of Securities and of the appointment of proxies, and in regard to the
appointment and duties of inspectors of votes, the submission and examination of
proxies, certificates and other evidence of the right to vote, and such other
matters concerning the conduct of the meeting as it shall think fit.
The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Securityholders as provided in Section 8.03, in which case the
Company or the Securityholders calling the meeting, as the case may be, shall in
like manner appoint a temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by majority vote of the meeting.
Subject to the provisions of Section 7.03, at any meeting of
Securityholders of a series each Securityholder of such series or such
Securityholder's proxy shall be entitled to one vote for each $1,000 principal
amount of Securities of such series outstanding held or represented by him;
PROVIDED, HOWEVER, that no vote shall be cast or counted at any meeting in
respect of any Security challenged as not outstanding and ruled by the chairman
of the meeting to be not outstanding. The chairman of the meeting shall have no
right to vote other than by virtue of Securities of such series held by him or
instruments in writing as aforesaid duly designating him as the person to vote
on behalf of other Securityholders of such series. At any meeting of the
Securityholders duly called pursuant to the provisions of Section 8.02 or 8.03
the presence of persons holding or representing Securities in an aggregate
principal amount sufficient to take action upon the business for the transaction
of which such meeting was called shall be necessary to constitute a quorum, and
any such meeting may be adjourned from time to time by a majority of those
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present, whether or not constituting a quorum, and the meeting may be held as so
adjourned without further notice.
SECTION 8.06. VOTING. The vote upon any resolution submitted to any meeting
of Securityholders of a series shall be by written ballots on which shall be
subscribed the signatures of the holders of Securities of such series or of
their representatives by proxy and the principal amounts of the Securities of
such series held or represented by them. The permanent chairman of the meeting
shall appoint two inspectors of votes who shall count all votes cast at the
meeting for or against any resolution and who shall make and file with the
secretary of the meeting their verified written reports in duplicate of all
votes cast at the meeting. A record in duplicate of the proceedings of each
meeting of Securityholders shall be prepared by the secretary of the meeting and
there shall be attached to said record the original reports of the inspectors of
votes on any vote by ballot taken thereat and affidavits by one or more persons
having knowledge of the facts setting forth a copy of the notice of the meeting
and showing that said notice was mailed as provided in Section 8.02. The record
shall show the principal amounts of the Securities voting in favor of or against
any resolution. The record shall be signed and verified by the affidavits of the
permanent chairman and secretary of the meeting and one of the duplicates shall
be delivered to the Company and the other to the Trustee to be preserved by the
Trustee.
Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
SECTION 8.07. NO DELAY OF RIGHTS BY MEETING. Nothing contained in this
Article Eight shall be deemed or construed to authorize or permit, by reason of
any call of a meeting of Securityholders of any series or any rights expressly
or impliedly conferred hereunder to make such call, any hindrance or delay in
the exercise of any right or rights conferred upon or reserved to the Trustee or
to the Securityholders of such series under any of the provisions of this
Indenture or of the Securities of such series.
ARTICLE NINE
REPORTS BY THE COMPANY AND THE TRUSTEE
AND SECURITYHOLDERS' LISTS
SECTION 9.01. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESS OF HOLDERS. In
accordance with Section 312(a) of the Trust Indenture Act, the Company shall
furnish or cause to be furnished to the Trustee:
(a) semi-annually with respect to Securities of each series on January
15 and July 15 of each year or upon such other dates as are set forth in or
pursuant to the Board Resolution or indenture supplemental hereto
authorizing such series, a list, in each case, in such form as the Trustee
may reasonably require, of the names and addresses of holders as of the
applicable date; and
(b) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the
time such list is furnished;
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provided, however, that so long as the Trustee is the Security Registrar no such
list shall be required to be furnished.
SECTION 9.02. PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS. The
Trustee shall comply with the obligations imposed upon it pursuant to Section
312 of the Trust Indenture Act.
Every holder of Securities, by receiving and holding the same, agrees with
the Company and the Trustee that neither the Company, the Trustee, any paying
agent or any Security Registrar shall be held accountable by reason of the
disclosure of any such information as to the names and addresses of the holders
of Securities in accordance with Section 312 of the Trust Indenture Act,
regardless of the source from which such information was derived, and that the
Trustee shall not be held accountable by reason of mailing any material pursuant
to a request made under Section 312(b) of the Trust Indenture Act.
SECTION 9.03. REPORTS BY TRUSTEE.
(a) Within 60 days after May 15 of each year commencing with the first
May 15 following the first issuance of Securities, if required by Section
313(a) of the Trust Indenture Act, the Trustee shall transmit, pursuant to
Section 313(c) of the Trust Indenture Act, a brief report dated as of such
May 15 with respect to any of the events specified in said Section 313(a)
which may have occurred since the later of the immediately preceding May 15
and the date of this Indenture.
(b) The Trustee shall transmit the reports required by Section 313(b)
of the Trust Indenture Act and Section 10.11 hereof at the times specified
therein.
(c) Reports pursuant to this Section shall be transmitted in the
manner and to the Persons required by Sections 313(c) and 313(d) of the
Trust Indenture Act.
SECTION 9.04. REPORTS BY COMPANY. The Company, pursuant to Section 314(a)
of the Trust Indenture Act, shall:
(a) 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) which the Company may be required to file
with the Commission pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934; or, if the Company is not required to file
information, documents or reports pursuant to either of said Sections, then
it shall file with the Trustee and the Commission, in accordance with rules
and regulations prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents and reports which may be
required pursuant to Section 13 of the Securities Exchange Act of 1934 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;
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(b) file with the Trustee and the Commission, in accordance with rules
and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by
the Company with the conditions and covenants of this Indenture as may be
required from time to time by such rules and regulations; and
(c) transmit to the holders within 30 days after the filing thereof
with the Trustee, in the manner and to the extent provided in Section
313(c) of the Trust Indenture Act, such summaries of any information,
documents and reports required to be filed by the Company pursuant to
paragraphs (1) and (2) of this Section as may be required by rules and
regulations prescribed from time to time by the Commission.
ARTICLE TEN
CONCERNING THE TRUSTEE
SECTION 10.01. CERTAIN RIGHTS OF TRUSTEE. Subject to Sections 315(a)
through 315(d) of the Trust Indenture Act:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, coupon or other paper or document reasonably
believed by it to be genuine and to have been signed or presented by the
proper party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by an Officers' Certificate and any resolution of
the Board of Directors or any committee thereof (or committee of officers
or other representatives of the Company, to the extent any such committee
or committees have been so authorized by the Board of Directors) may be
sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other
evidence shall be herein specifically prescribed) may, in the absence of
bad faith on its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the advice of such
counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by or pursuant to this Indenture at the
request or direction of any of the holders of Securities of any series
pursuant to this Indenture, unless such holders shall have offered to the
Trustee reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such request
or direction;
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(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, coupon or other paper or document, but the Trustee, in its
discretion, may make such further inquiry or investigation into such facts
or matters as it may see fit, and, if the Trustee shall determine to make
such further inquiry or investigation, it shall be entitled to examine,
during business hours and upon reasonable notice, the books, records and
premises of the Company, personally or by agent or attorney; 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 10.02. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES. The
recitals contained herein and in the Securities, except those referring or
relating to the Trustee or any of its agents, and except for the Trustee's
certificate of authentication, shall be taken as the statements of the Company
and neither the Trustee nor any Authenticating Agent assumes any responsibility
for their correctness. The Trustee makes no representations as to the validity
or sufficiency of this Indenture or of the Securities, except that the Trustee
represents that it is duly authorized to execute and deliver this Indenture,
authenticate the Securities and perform its obligations hereunder and that the
statements made by it in a Statement of Eligibility on Form T-1 supplied to the
Company are and will be true and accurate, subject to the qualifications set
forth therein. Neither the Trustee nor any Authenticating Agent shall be
accountable for the use or application by the Company of the Securities or the
proceeds thereof.
SECTION 10.03. MAY HOLD SECURITIES. The Trustee, any Authenticating Agent,
any Security Registrar or any other Person that may be an agent of the Trustee
or the Company, in its individual or any other capacity, may become the owner or
pledgee of Securities and, subject to Sections 310(b) and 311 of the Trust
Indenture Act, may otherwise deal with the Company with the same rights it would
have if it were not Trustee, Authenticating Agent, Security Registrar or such
other Person.
SECTION 10.04. MONEY HELD IN TRUST. Money held by the Trustee in trust
hereunder need not be segregated from other funds except to the extent required
by law and, subject to Section 11.02 hereof, may be invested in direct
obligations of the United States of America in such amounts and with such
maturities that will ensure that the principal of such obligations, together
with the income thereon (without consideration of any reinvestment thereof),
will be sufficient to pay all sums due for principal of, premium, if any, and
interest on the Securities, as they become due from time to time. The Trustee
shall be under no liability for interest on any money received by it or for
losses on any investments made by it pursuant to this Section 10.04 except as
otherwise agreed with the Company.
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SECTION 10.05. COMPENSATION AND REIMBURSEMENT. The Company agrees:
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by the Trustee hereunder (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(2) to reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Trustee
in accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or advance
as may be attributable to the Trustee's negligence or bad faith; and
(3) to indemnify the Trustee and its agents for, and to hold them
harmless against, any loss, liability or expense incurred without
negligence or bad faith on their part (excluding, for so long as no
event of default hereunder has occurred and is continuing, any
settlement that has not been approved by the Company in writing prior
to any such settlement) arising out of or in connection with the
acceptance or administration of the trust or trusts hereunder,
including the costs and expenses of defending themselves against any
claim or liability in connection with the exercise or performance of
any of their powers or duties hereunder, except to the extent that any
such loss, liability or expense was due to the Trustee's negligence or
bad faith.
The obligations of the Company under this Section to compensate and
indemnify the Trustee and each predecessor Trustee for expenses, disbursements
and advances shall constitute additional indebtedness hereunder and shall
survive the satisfaction and discharge of this Indenture.
SECTION 10.06. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY. There shall at all
times be a Trustee hereunder that is a corporation permitted by the Trust
Indenture Act to act as trustee under an indenture qualified under the Trust
Indenture Act and that has a combined capital and surplus (computed in
accordance with Section 310(a)(2) of the Trust Indenture Act) of at least
$25,000,000. If at any time the Trustee shall cease to be eligible in accordance
with the provisions of this Section, it shall resign immediately in the manner
and with the effect hereinafter specified in this Article.
SECTION 10.07. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee pursuant to Section
10.08.
(b) The Trustee may resign at any time with respect to the Securities
of one or more series by giving written notice thereof to the Company. If
the instrument of acceptance by a successor Trustee required by Section
10.08 shall not have been delivered to the Trustee within 30 days after the
giving of such notice of resignation, the resigning Trustee may petition
any court of competent jurisdiction for the appointment of a successor
Trustee with respect to such series.
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(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the holders of a majority in principal
amount of the outstanding Securities of such series, delivered to the
Trustee and the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with the obligations imposed
upon it under Section 310(b) of the Trust Indenture Act with respect
to Securities of any series after written request therefor by the
Company or any holder of a Security of such series who has been a bona
fide holder of a Security of such series for at least six months; or
(2) the Trustee shall cease to be eligible under Section 10.06
and shall fail to resign after written request therefor by the Company
or any such holder; or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of
its property shall be appointed or any public officer shall take
charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation;
then, in any such case, (i) the Company, by or pursuant to a Board Resolution,
may remove the Trustee with respect to all Securities or the Securities of such
series, or (ii) subject to Section 315(e) of the Trust Indenture Act, any holder
of a Security who has been a bona fide holder of a Security of such series for
at least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Trustee with
respect to all Securities of such series and the appointment of a successor
Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause,
with respect to the Securities of one or more series which shall occur only
with the express prior written consent of the Company, the Company, by or
pursuant to a Board Resolution, shall promptly appoint a successor Trustee
or Trustees with respect to the Securities of that or those series (it
being understood that any such successor Trustee may be appointed with
respect to the Securities of one or more or all of such series and that at
any time there shall be only one Trustee with respect to the Securities of
any particular series) and shall comply with the applicable requirements of
Section 10.08. If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor Trustee with
respect to the Securities of any series shall be appointed by Act of the
holders of a majority in principal amount of the outstanding Securities of
such series delivered to the Company and the retiring Trustee, the
successor Trustee so appointed shall, forthwith upon its acceptance of such
appointment in accordance with the applicable requirements of Section
10.08, become the successor Trustee with respect to the Securities of such
series and to that extent supersede the successor Trustee appointed by the
Company. If no successor Trustee with respect to the Securities of any
series shall have been so appointed by the Company or the holders of
Securities and accepted appointment in the manner required by Section
10.08, any holder of a Security who has been a bona fide holder of a
Security of such series for at least six months may, on behalf of himself
and all others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
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(f) The Company shall give notice of each resignation and each removal
of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of any
series by mailing written notice of such event by first-class mail, postage
prepaid, to the holders of Securities of such series as their names and
addresses appear in the Security Register. Each notice shall include the
name of the successor Trustee with respect to the Securities of such series
and the address of its Corporate Trust Office.
SECTION 10.08. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) Upon the appointment hereunder of any successor Trustee with respect to
all Securities, such successor Trustee so appointed shall execute, acknowledge
and deliver to the Company and 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 hereunder of the retiring Trustee; but, on the request of the Company or
such successor Trustee, such retiring Trustee, upon payment of its charges,
shall execute and deliver an instrument transferring to such successor Trustee
all the rights, powers and trusts of the retiring Trustee and, subject to
Section 5.03, shall duly assign, transfer and deliver to such successor Trustee
all property and money held by such retiring Trustee hereunder, subject
nevertheless to its claim, if any, provided for in Section 10.05.
(b) Upon the appointment hereunder of any successor Trustee with respect to
the Securities of one or more (but not all) series, the Company, the retiring
Trustee and such successor Trustee shall execute and deliver 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, such successor Trustee all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates, (2) if the retiring Trustee is not retiring with respect to all
Securities, 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
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 notice given to, or received by, or 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 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 with respect to the Securities of that or those series to which
the appointment of such successor Trustee relates other than as hereinafter
expressly set forth, 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 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 such successor Trustee, such retiring Trustee, upon
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payment of its charges with respect to the Securities of that or those series to
which the appointment of such successor relates and subject to Section 5.03
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 Person appointed hereunder as a 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 Person shall accept its appointment hereunder as a successor Trustee
unless at the time of such acceptance such successor Person shall be qualified
and eligible under this Article.
SECTION 10.09. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.
Any corporation into which the Trustee may be merged or converted or with which
it may be consolidated, or any corporation resulting from any merger, conversion
or consolidation to which the Trustee shall be a party, or any corporation
succeeding to all or substantially all of the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder, without the execution
or filing of any paper or any further act on the part of any of the parties
hereto. In case any Securities shall have been authenticated but not delivered
by the Trustee then in office, any successor by merger, conversion or
consolidation to such authenticating Trustee may adopt such authentication and
deliver the Securities so authenticated with the same effect as if such
successor Trustee had itself authenticated such Securities.
SECTION 10.10. APPOINTMENT OF AUTHENTICATING AGENT. The Trustee may appoint
one or more Authenticating Agents acceptable to the Company with respect to one
or more series of Securities which shall be authorized to act on behalf of the
Trustee to authenticate Securities of that or those series issued upon original
issue, exchange, registration of transfer, partial redemption or pursuant to
Section 2.06, 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. Wherever reference is made in this
Indenture to the authentication and delivery of Securities by the Trustee or the
Trustee's certificate of authentication, such reference shall be deemed to
include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Company and, except as
provided in or pursuant to this Indenture, shall at all times be a corporation
that would be permitted by the Trust Indenture Act to act as trustee under an
indenture qualified under the Trust Indenture Act, is authorized under
applicable law and by its charter to act as an Authenticating Agent and has a
combined capital and surplus (computed in accordance with Section 310(a)(2) of
the Trust Indenture Act) of at least $5,000,000. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect specified in this Section.
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Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any Corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall be the successor of
such Authenticating Agent hereunder, provided such Corporation shall be
otherwise eligible under this Section, without the execution or filing of any
paper or any further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and the Company. The Trustee may at any time terminate
the agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall (i) mail written notice
of such appointment by first-class mail, postage prepaid, to all holders of
Securities of the series with respect to which such Authenticating Agent shall
serve, as their names and addresses appear in the Security Register. Any
successor Authenticating Agent, upon acceptance of its appointment hereunder,
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The provisions of Sections 2.05, 10.02 and 10.03 shall be applicable to
each Authenticating Agent.
If all of the Securities of any series may not be originally issued at one
time, and if the Trustee does not have an office capable of authenticating
Securities upon original issuance located in a Place of Payment where the
Company wishes to have Securities of such series authenticated upon original
issuance, the Trustee, if so requested in writing (which writing need not be
accompanied by or contained in an Officers' Certificate by the Company), shall
appoint in accordance with this Section an Authenticating Agent having an office
in a Place of Payment designated by the Company with respect to such series of
Securities.
The Trustee hereby appoints FMB Bank, to act as Authenticating Agent
hereunder.
SECTION 10.11. NOTICE OF DEFAULTS. The Trustee shall, within ninety days
after the occurrence of a default with respect to the Securities of any series,
mail to all holders of Securities of that series entitled to receive reports
pursuant to Section 9.03, notice of all defaults with respect to that series
known to the Trustee, unless such defaults shall have been cured before the
giving of such notice; provided, however, that, except in the case of default in
the payment of the principal of, premium, if any, or interest on any of the
Securities of such series or in the making of any sinking fund payment with
respect to such series, the Trustee shall be protected in withholding such
notice if and so long as the board of directors or trustees, the executive
committee, or a trust committee of directors or trustees or Responsible Officers
of the Trustee in good faith determines that the withholding of such notice is
in the interests of the holders of Securities of such series. For the purpose of
this Section, the term "default" means any event which is, or after notice or
lapse of time or both would become, an event of default hereunder.
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ARTICLE ELEVEN
DEFEASANCE
SECTION 11.01. DISCHARGE OF INDENTURE UPON PAYMENT OF SECURITIES. If and
when the principal of, and the premium, if any, and the interest on, all the
Securities outstanding hereunder and all other sums due hereunder shall have
been well and truly paid at the times and in the manner therein and herein
expressed, this Indenture shall cease and determine, and, at the written request
of the Company, accompanied by the Officers' Certificate and Opinion of Counsel
required by Section 14.03, and upon proof being given to the reasonable
satisfaction of the Trustee that all the Securities have been paid or satisfied
and upon payment of the costs, charges and expenses incurred or to be incurred
by the Trustee in relation thereto or in carrying out the provisions of this
Indenture, the Trustee shall cancel this Indenture and execute and deliver to
the company such instruments as shall be requisite to evidence the satisfaction
hereof.
SECTION 11.02. DISCHARGE OF SECURITIES OF ANY SERIES UPON DEPOSIT OF
MONEYS. If, at any time after the date hereof, the Company shall deposit with
the Trustee, in trust for the benefit of the holders thereof, (i) funds
sufficient to pay, or (ii) such amount of direct obligations of the United
States of America as will or will together with the income thereon without
consideration of any reinvestment thereof be sufficient to pay, all sums due for
principal of, premium, if any, and interest on the Securities of a particular
series, as they shall become due from time to time, and shall pay all costs,
charges and expenses incurred or to be incurred by the Trustee in relation
thereto or in carrying out the provisions of this Indenture in relation thereto,
this Indenture shall cease to be of further effect with respect to Securities of
such series (except as to (i) rights of registration of transfer, substitution
and exchange of Securities of such series, (ii) rights of holders to receive
payments of principal of, premium, if any, and interest on the Securities of
such series as they shall become due from time to time and other rights, duties
and obligations of Securityholders as beneficiaries hereof with respect to the
amounts so deposited with the Trustee, and (iii) the rights, obligations and
immunities of the Trustee hereunder (for which purposes the Securities of such
series shall be deemed outstanding)), and the Trustee, on the written request of
the Company, accompanied by the Officers' Certificate and Opinion of Counsel
required by Section 14.03, and an Opinion of Counsel to the effect that holders
of the Securities of such series will not recognize income, gain or loss for
Federal income tax purposes as a result of the Company's action under this
Section 11.02 and will be subject to Federal income tax in the same amount, in
the same manner and at the same times as would have been the case if such action
had not been taken, shall execute and deliver to the Company such instruments as
shall be requisite to evidence the satisfaction thereof with respect to
Securities of such series. The Trustee shall apply the moneys so deposited
solely to the payment to the holders of the Securities of such series of all
sums due thereon for principal, premium, if any, and interest, and the Trustee
shall have no claim for itself, for fees, expenses or otherwise, to such moneys
so deposited.
SECTION 11.03. INTEREST ON MONEYS DEPOSITED. Neither the Trustee nor any
other paying agent shall be required to pay interest on any moneys deposited
pursuant to the provisions of this Indenture, except such as it shall agree with
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the Company to pay thereon. Any moneys so deposited for the payment of the
principal of, premium, if any, of interest on the Securities of any series and
remaining unclaimed for three years after the date of the maturity of the
Securities of such series or the date fixed for the redemption of all the
Securities of such series at the time outstanding, as the case may be, shall be
repaid by the Trustee or such other paying agent to the Company upon its written
request and thereafter, anything in this Indenture to the contrary
notwithstanding, any rights of the holders of Securities of such series in
respect of which such moneys shall have been deposited shall be enforceable only
against the Company, and all liability of the Trustee or such other paying agent
with respect to such moneys shall thereafter cease.
Subject to the provisions of the foregoing paragraph, any moneys which at
any time shall be deposited by the Company or on its behalf with the Trustee or
any other paying agent for the purpose of paying the principal of, premium, if
any, and interest on any of the Securities shall be and are hereby assigned,
transferred and set over to the Trustee or such other paying agent in trust for
the respective holders of the Securities for the purpose for which such moneys
shall have been deposited; but such moneys need not be segregated from other
funds except to the extent required by law.
ARTICLE TWELVE
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS, DIRECTORS AND EMPLOYEES
SECTION 12.01. LIABILITY SOLELY CORPORATE. No recourse shall be had for the
paying of the principal of, or the premium, if any, or interest on, any Security
or for any claim based thereon or otherwise in respect thereof or of the
indebtedness represented thereby, or upon any obligation, covenant or agreement
of this Indenture, against any incorporator, stockholder, officer, director or
employee, as such, past, present or future, of the Company or of any successor
corporation, either directly or through the Company or any successor
corporation, whether by virtue of any constitutional provision, statute or rule
of law, or by the enforcement of any assessment or penalty or otherwise; it
being expressly agreed and understood that this Indenture and the Securities are
solely corporate obligations, and that no personal liability whatsoever shall
attach to, or be incurred by, any incorporator, stockholder, officer, director
or employee, as such, past, present or future, of the Company or of any
successor corporation, either directly or through the Company or any successor
corporation, because of the incurring of the indebtedness hereby authorized or
under or by reason of any of the obligations, covenants, promises or agreements
contained in this Indenture or in any of the Securities or to be implied
herefrom or therefrom, and that all liability, if any, of that character against
every such incorporator, stockholder, officer, director and employee is, by the
acceptance of the Securities and as a condition of, and as part of the
consideration for, the execution of this Indenture and the issue of the
Securities expressly waived and released.
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ARTICLE THIRTEEN
SUPPLEMENTAL INDENTURES
SECTION 13.01. WITHOUT CONSENT OF SECURITYHOLDERS, THE COMPANY AND TRUSTEE
MAY ENTER INTO SUPPLEMENTAL INDENTURES FOR SPECIFIED PURPOSES. The Company (when
authorized by resolution of its Board of Directors) and the Trustee, at any time
and from time to time, may enter into one or more indentures supplemental
hereto, in form satisfactory to the Trustee, for any one or more of the
following purposes:
(a) to add to the covenants and agreements of the Company, to be
observed thereafter and during the period, if any, in such supplemental
indenture or indentures expressed, to surrender any right or power
hereunder conferred upon the Company, and to add events of default, in each
case for the protection or benefit of the holders of all or any series of
the Securities (and if such covenants, agreements, surrender of rights or
powers and events of default are to be for the benefit of fewer than all
series of Securities, stating that such covenants, agreements, surrender of
rights or powers and events of default are expressly being included for the
benefit of such series as shall be identified therein);
(b) to change or eliminate any provisions of the Indenture with
respect to all or any series of the Securities not then outstanding (and,
if such change is applicable to fewer than all such series of the
Securities, specifying the series to which such change is applicable), and
to specify the rights and remedies of the Trustee and the holders of such
Securities in connection therewith;
(c) to evidence the succession of another corporation to the Company,
the Trustee, or successive successions, and the assumption by a successor,
transferee or lessee corporation of the covenants and obligations of the
Company or Trustee, as the case may be, contained in the Securities of one
or more series or in this Indenture;
(d) to cure any ambiguity or to correct or supplement any provision
contained herein or in any indenture supplemental hereto which may be
defective or inconsistent with any other provision contained herein or in
any supplemental indenture, or to make any other provision in regard to
matters or questions arising under this Indenture which the Board of
Directors of the Company may deem necessary or desirable and which shall
not adversely affect the interests of the holders of the Securities;
(e) to convey, transfer, assign, mortgage or pledge to the Trustee as
security for the Securities any property or assets which the Company may be
required to convey, transfer, assign, mortgage or pledge in accordance with
the provisions of Section 5.04;
(f) to prohibit the authentication and delivery of additional series
of Securities;
(g) to add to or change any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the issuance of
Securities in bearer form, registrable or not registrable as to principal
and with or without interest coupons;
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(h) to establish the form and terms of the Securities of any series as
permitted in Sections 2.01 and 2.02, or to authorize the issuance of
additional Securities of a series previously authorized or to add to the
conditions, limitations or restrictions on the authorized amount, terms or
purposes of issue, authentication or delivery of the Securities of any
series, as herein set forth, or other conditions, limitations or
restrictions thereafter to be observed; and
(i) to modify, alter, amend or supplement this Indenture in any other
respect which is not materially adverse to the holders, so long as such
change does not require the consent of the holders pursuant to any other
provision of this Indenture and is not inconsistent with any other
provisions of this Indenture and which, in the judgment of the Trustee, is
not to the prejudice of the Trustee and maintains adequate protection to
the Trustee when the same becomes operative.
Subject to the provisions of Section 13.03, the Trustee is authorized to
join with the Company in the execution of any such supplemental indenture, to
make the further agreements and stipulations which may be therein contained and
to accept the conveyance, transfer, assignment, mortgage or pledge of any
property or assets thereunder.
Any supplemental indenture authorized by the provisions of this Section
13.01 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 13.02.
SECTION 13.02. MODIFICATION OF INDENTURE BY SUPPLEMENTAL INDENTURE WITH
CONSENT OF SECURITYHOLDERS. With the consent (evidenced as provided in Article
Seven) of the holders of not less than 66K% in aggregate principal amount of the
Securities at the time outstanding which are affected by such indenture
supplemental hereto, the Company, when authorized by a resolution of its Board
of Directors, and the Trustee may from time to time and at any time enter into
an indenture or indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture or of modifying in any manner the rights of the holders of the
Securities of any series to be affected; provided, however, that no such
supplemental indenture shall (i) extend the fixed maturity of any Securities, or
reduce the rate or extend the time of payment of interest thereon, or reduce the
amount of the principal thereof, or reduce any premium payable upon the
redemption thereof, or make the principal thereof or interest or premium thereon
payable in any coin or currency other than that provided in the Securities, or
impair the right to institute suit for the enforcement of any such payment on or
after the maturity thereof as provided in Section 6.07, without the consent of
the holder of each Security so affected, or (ii) reduce the aforesaid percentage
of Securities of any series, the holders of which are required to consent to any
such supplemental indenture, without the consent of the holders of all the
Securities then outstanding, or (iii) modify, without the written consent of the
Trustee, the rights, duties or immunities of the Trustee.
A supplemental indenture which changes or eliminates any provision of this
Indenture which has expressly been included solely for the benefit of one or
more particular series of Securities, or which modifies the rights of the
holders of Securities of such series with respect to such provision, shall be
deemed not to affect the rights under this Indenture of the holders of
Securities of any other series.
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It shall not be necessary for the consent of the Securityholders under this
Section 13.02 to approve the particular form of any proposed supplemental
Indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of this Section 13.02, the
Company shall mail a notice, setting forth in general terms the substance of
such supplemental indenture, to the holders of Securities affected by such
supplemental indenture at their addresses as the same shall then appear in the
register of the Company. Any failure of the Company to mail such notice, or any
defect therein, shall not, however, in any way impair or affect the validity of
any such supplemental indenture.
SECTION 13.03. UPON REQUEST OF THE COMPANY, TRUSTEE TO JOIN IN EXECUTION OF
SUPPLEMENTAL INDENTURE. Upon the request of the Company, accompanied by the
Officers' Certificate and Opinion of Counsel required by Section 14.03 and by
(a) a supplemental indenture duly executed on behalf of the Company,
(b) a copy of a resolution of the Board of Directors of the Company,
certified by the Secretary or an Assistant Secretary of the Company,
authorizing the execution of said supplemental indenture,
(c) an Opinion of Counsel, stating that said supplemental indenture
complies with, and that the execution thereof is authorized or permitted
by, the provisions of this Indenture, and
(d) if said supplemental indenture shall be executed pursuant to
Section 13.02, evidence (as provided in Article Seven) of the consent
thereto of the Securityholders required to consent thereto as in Section
13.02 provided,
the Trustee shall join with the Company in the execution of said supplemental
indenture unless said 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 said
supplemental indenture.
SECTION 13.04. EFFECT OF SUPPLEMENTAL INDENTURE. Upon the execution of any
supplemental indenture pursuant to the provisions of this Article Thirteen, this
Indenture shall be and be deemed to be modified and amended in accordance
therewith and, except as herein otherwise expressly provided, the respective
rights, limitations of rights, obligations, duties and immunities under this
Indenture of the Trustee, the Company and the holders of all of the Securities
or of the Securities of any series affected, as the case may be, 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 13.05. MATTERS PROVIDED FOR IN SUPPLEMENTAL INDENTURE MAY BE NOTED
ON SECURITIES, OR NEW SECURITIES APPROPRIATELY MODIFIED MAY BE ISSUED IN
EXCHANGE FOR OUTSTANDING SECURITIES. Securities authenticated and delivered
after the execution of any supplemental indenture pursuant to the provisions of
48
<PAGE>
this Article Thirteen may bear a notation in form approved by the Trustee as to
any matter provided for in such supplemental indenture. If the Company or the
Trustee shall so determine, new Securities so modified as to conform, in the
opinion of the Trustee and 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 then outstanding in equal aggregate principal
amounts, and such exchange shall be made without cost to the holders of the
Securities.
SECTION 13.06. SUPPLEMENTAL INDENTURES TO CONFORM TO TRUST INDENTURE ACT OF
1939. Every supplemental indenture executed pursuant to the provisions of this
Article Thirteen shall conform to the requirements of the Trust Indenture Act of
1939 as then in effect.
ARTICLE FOURTEEN
MISCELLANEOUS PROVISIONS
SECTION 14.01. CONSOLIDATION, MERGER, SALE OR LEASE. Subject to the
provisions of Section 5.06, nothing contained in this Indenture or in the
Securities shall be deemed to prevent the consolidation or merger of the Company
with or into any other corporation, or the merger into the Company of any other
corporation, or the sale or lease by the Company of its property and assets as,
or substantially as, an entirety, or otherwise.
Upon any consolidation or merger, or any sale other than for cash or lease
of all or substantially all of the assets of the Company in accordance with the
provisions of Section 5.06, the corporation formed by such consolidation or into
which the Company shall have been merged or to which such sale or lease shall
have been made shall succeed to and be substituted for the Company with the same
effect as if it had been named herein as a party hereto, and thereafter from
time to time such corporation may exercise each and every right and power of the
Company under this Indenture, in the name of the Company or in its own name; and
any act or proceeding by any provision of this Indenture required or permitted
to be done by the Board of Directors or any officer of the Company may be done
with like force and effect by the like board or officer of any corporation that
shall at the time be the successor of the Company hereunder. In the event of any
such sale or conveyance, but not any such lease, the Company (or any successor
corporation which shall theretofore have become such in the manner described in
Section 5.06) shall be discharged from all obligations and covenants under this
Indenture and the Securities and may thereupon be dissolved and liquidated.
Anything in this Section 14.01 to the contrary notwithstanding, no such
consolidation or merger shall be entered into, and no such conveyance or
transfer shall be made, by the Company with or to another corporation or Person
which has outstanding any obligations secured by a Lien if as a result thereof,
any of the properties of any character owned by the Company immediately prior
thereto would be subject to such Lien, unless simultaneously therewith or prior
thereto effective provision shall be made to secure all of the Securities
equally and ratably with (or prior to) such other secured obligations.
49
<PAGE>
SECTION 14.02. RIGHTS UNDER INDENTURE CONFINED TO PARTIES AND HOLDERS OF
SECURITIES. Nothing in this Indenture expressed and nothing that may be implied
from any of the provisions hereof is intended, or shall be construed, to confer
upon, or to give to, any Person other than the parties hereto and their
successors and the holders of the Securities any right, remedy or claim under or
by reason of this Indenture or any covenant, condition, stipulation, promise or
agreement hereof, and all covenants, conditions, stipulations, promises and
agreements in this Indenture contained shall be for the sole and exclusive
benefit of the parties hereto and their successors and of the holders of the
Securities.
SECTION 14.03. EVIDENCE OF COMPLIANCE. As evidence of compliance with the
conditions precedent provided for in this Indenture (including any covenants
compliance with which constitutes a condition precedent) which relate to the
authentication and delivery of the Securities, to the satisfaction and discharge
of this Indenture or to any other action to be taken by the Trustee at the
request or upon the application of the Company, the Company will furnish to the
Trustee an Officers' Certificate, stating that such conditions precedent have
been complied with and an Opinion of Counsel stating that in the opinion of such
Counsel such conditions precedent have been complied with. Such Opinion of
counsel may be in the form and contain such assumptions, qualifications and
limitations as customarily appear in legal opinions issued in the jurisdiction
in which any such opinion of counsel is rendered.
Each certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture shall include (1) a statement that the
person making such certificate or opinion has read such condition or covenant;
(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, such examination or investigation as is necessary to enable the
expression of an informed opinion as to whether or not such condition or
covenant has been complied with has been made; and (4) a statement as to whether
or not, in the opinion of such person, such condition or covenant has been
complied with.
Notwithstanding any provision of this Indenture authorizing the Trustee
conclusively to rely upon any certificates or opinions, the Trustee, before
granting any application by the Company or taking or refraining from taking any
other action in reliance thereon, may require any further evidence or make any
further investigation as to the facts or matters stated therein which it may, in
good faith, deem reasonable in the circumstances, and in connection therewith
the Trustee may examine or cause to be examined the pertinent books, records and
premises of the Company or of any Subsidiary; and the Trustee shall, in any such
case, require such further evidence or make such further investigation as may be
requested by the holders of a majority in principal amount of the Securities
then outstanding, PROVIDED THAT, if payment to the Trustee of the costs,
expenses and liabilities likely to be incurred by it in making such
investigation is not reasonably assured to the Trustee by the security afforded
to it by the terms of this Indenture, the Trustee before making such
investigation may require reasonable indemnity against such costs, expenses and
liabilities. Any further evidence which may be requested by the Trustee pursuant
to any of the provisions of this paragraph shall be furnished by the Company at
its own expense; and any cost, expenses and liabilities incurred by the Trustee
pursuant to any of the provisions of this paragraph shall be paid by the
Company, or, if paid by the Trustee, shall be repaid by the Company, upon
demand, with interest at the highest rate borne by the Securities, and, until
50
<PAGE>
such repayment, shall be secured by a lien on any moneys held by the Trustee
hereunder prior to any rights therein of the holders of Securities.
SECTION 14.04. CANCELLATION OF SECURITIES. All Securities paid, redeemed,
exchanged, surrendered for registration of transfer or retired pursuant to the
sinking fund or otherwise shall, if surrendered to the Company or to any paying
agent, be delivered to the Trustee for cancellation and shall be cancelled by it
or, if surrendered to the Trustee, shall be cancelled by it, and, except as
otherwise provided in Sections 2.04, 2.05, 2.07, 4.02, 4.07 and 13.05, no
Securities shall be issued under the Indenture in lieu thereof The Trustee shall
make appropriate notations in its records in respect of all such Securities and
shall destroy such Securities and deliver a certificate of such destruction to
the Company. If the Company shall 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
surrendered to the Trustee for cancellation.
SECTION 14.05. PROVISIONS REQUIRED BY TRUST INDENTURE ACT OF 1939 TO
CONTROL. If any provision of this Indenture limits, qualifies or conflicts with
any duties under any required provision of the Trust Indenture Act imposed
hereon by Section 318(c) thereof, such required provision shall control.
SECTION 14.06. ACTION OF AUTHORIZED COMMITTEE DEEMED TO BE ACTION OF BOARD
OF DIRECTORS. Whenever action is required by this Indenture by the Board of
Directors of the Company and there is at the time constituted a committee of the
Board of Directors duly authorized to take such action, such action by said
committee shall be deemed to be the action of the Board of Directors and shall
be sufficient for all purposes of this Indenture where action by the Board of
Directors is specified.
SECTION 14.07. NOTICES. Any notice or demand authorized by this Indenture
to be given to the Company shall be sufficiently given for all purposes, if it
shall be given or made in writing, by hand, telecopier (with confirmation of
receipt) or certified or registered mail (confirmation of receipt requested) to
the Company addressed to it at P.O. Box 2209, 1850 N. Central Avenue, Phoenix,
Arizona 85002-2209 (telephone: (602) 207-4900; telecopier: (602) 207-5543) to
the attention of its General Counsel or at such other address as may have been
furnished in writing to the Trustee by the Company. Any notice, direction,
request or demand to or upon the Trustee shall be sufficiently given, for all
purposes, if it shall be given or made in writing, by hand, telecopier (with
confirmation of receipt) or certified or registered mail (confirmation of
receipt requested) to FMB Bank, 25 South Charles Street, 16th Floor, Baltimore,
MD 21201 (telephone: (410) 244-4238; telecopier: (410) 244-4236) to the
attention of its Corporate Trust Office, or at such other address as may have
been furnished in writing to the Company by the Trustee. Any notice required or
permitted to be given to Securityholders shall be sufficiently given if given by
first class mail, postage prepaid, to such holders, at their addresses as the
same shall appear on the Security Register. A failure to give notice with
respect to any particular holder or any defect therein shall not affect the
sufficiency of notice given to any other holder. Notice may be waived in writing
by the Person entitled to receive such notice either before or after such event
and such waiver shall be the equivalent of receipt of such notice.
51
<PAGE>
SECTION 14.08. ACT OF HOLDERS.
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by or pursuant to this Indenture to be given or taken
by holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such holders in person or by an agent duly
appointed in writing. Except as herein otherwise expressly provided, such action
shall become effective when such instrument or instruments or record or both are
delivered to the Trustee and, where it is hereby expressly required, to the
Company. Such instrument or instruments and any such record (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as the
"Act" of the holders signing such instrument or instruments. Proof of execution
of any such instrument or of a writing appointing any such agent, or of the
holding by any Person of a Security, shall be sufficient for any purpose of this
Indenture and (subject to Section 315 of the Trust Indenture Act) conclusive in
favor of the Trustee and the Company and any agent of the Trustee or the
Company, if made in the manner provided in this Section.
Without limiting the generality of this Section, unless otherwise provided
in or pursuant to this Indenture, a holder, including a Depositary that is a
holder of a global Security, may make, give or take, by a proxy, or proxies,
duly appointed in writing, any request, demand, authorization, direction,
notice, consent, waiver or other action provided in or pursuant to this
Indenture to be made, given or taken by holders, and a Depositary that is a
holder of a global Security may provide for the beneficial owners of interests
in any such global Security to direct such Depositary in taking such action
through such Depositary's standing instructions and customary practices. The
Depositary shall report only one result of its solicitation of proxies to the
Trustee.
(b) The fact and date of the execution by any Person of any such instrument
or writing may be proved in any reasonable manner which the Trustee deems
sufficient and in accordance with such reasonable rules as the Trustee may
determine; and the Trustee may in any instance require further proof with
respect to any of the matters referred to in this Section.
(c) The ownership, principal amount and serial numbers of Securities held
by any Person, and the date of the commencement and the date of the termination
of holding the same, shall be proved by the Security Register.
(d) If the Company shall solicit from the holders of any Securities any
request, demand, authorization, direction, notice, consent, waiver or other Act,
the Company shall, by Board Resolution, fix in advance a record date for the
determination of holders of Securities entitled to give such request, demand,
authorization, direction, notice, consent, waiver or other Act. Such request,
demand, authorization, direction, notice, consent, waiver or other Act may be
given before or after such record date, but only the holders of Securities of
record at the close of business on such record date shall be deemed to be
holders for the purpose of determining whether holders of the requisite
proportion of outstanding Securities have authorized or agreed or consented to
such request, demand, authorization, direction, notice, consent, waiver or other
Act, and for that purpose the outstanding Securities shall be computed as of
such record date; provided that no such authorization, agreement or consent by
52
<PAGE>
the holders of Securities 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.
(e) Any request, demand, authorization, direction, notice, consent, waiver
or other action by the holder of any Security shall bind every future holder of
the same Security and the holder of every Security issued upon the registration
of transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done or suffered to be done by the Trustee, any Security Registrar or
the Company in reliance thereon, whether or not notation of such action is made
upon such Security.
SECTION 14.09. PAYMENTS DUE ON NON-BUSINESS DAYS. In any case where the
date of maturity of interest on or principal of the Securities or the date fixed
for redemption of any Securities shall not be a business day, then payment of
interest, 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 date of maturity
and no interest shall accrue for the period after such date.
SECTION 14.10. EXECUTION IN COUNTERPARTS. This Indenture may be executed in
any number of counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but one and the
same instrument.
SECTION 14.11. INDENTURE DEEMED A NEW YORK CONTRACT. This Indenture and
each Security shall be deemed to be a contract made under the law of the State
of New York, and for all purposes shall be construed in accordance with the law
of said State.
53
<PAGE>
WITNESS WHEREOF, FINOVA CAPITAL CORPORATION has caused this Indenture to be
executed in its corporate name by one of its officers thereunto duly authorized
and to be attested by its Secretary or one of its Assistant Secretaries, and FMB
Bank, has caused this Indenture to be executed in its corporate name by one of
its authorized officers thereunto duly authorized, all as of May 15, 1999.
FINOVA CAPITAL CORPORATION
By: /s/ Meilee Smythe
-----------------------------
Attest:
/s/ Richard Lieberman
- -------------------------------
FMB BANK, as Trustee
By: /s/ Robert D. Brown
-----------------------------
Robert D. Brown
Vice President
Attest:
/s/ Lisa M. Pedzich
- --------------------------------
Lisa M. Pedzich
Corporate Trust Officer
54
EXHIBIT 12.1
THE FINOVA GROUP INC.
COMPUTATION OF RATIO OF INCOME TO COMBINED FIXED CHARGES
AND PREFERRED STOCK DIVIDENDS
As Restated
(Dollars in Thousands)
<TABLE>
<CAPTION>
Three Months
Ended March 31, Year Ended December 31,
-------------------- --------------------------------------------------
1998
1999 restated 1998 1997 1996 1995 1994
---- -------- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C>
Income from continuing operations
before income taxes $ 82,772 $ 66,686 $266,297 $224,191 $188,288 $153,883 $125,706
Add fixed charges:
Interest expense 131,183 110,280 478,177 414,650 365,603 337,188 210,256
One-third of rent expense 1,111 926 3,854 2,789 2,368 2,084 2,053
-------- -------- -------- -------- -------- -------- --------
Total fixed charges 132,294 111,206 482,031 417,439 367,971 339,272 212,309
-------- -------- -------- -------- -------- -------- --------
Income as adjusted $215,066 $177,892 $748,328 $641,630 $556,259 $493,155 $338,015
-------- -------- -------- -------- -------- -------- --------
Ratio of income to fixed charges 1.63 1.60 1.55 1.54 1.51 1.45 1.59
======== ======== ======== ======== ======== ======== ========
Preferred stock dividends on a
pre-tax basis $ 1,581 $ 1,581 $ 6,325 $ 6,676 $ $ $
Total combined fixed charges and
preferred stock dividends $133,875 $112,787 $488,356 $424,115 $367,971 $339,272 $212,309
-------- -------- -------- -------- -------- -------- --------
Ratio of income to combined fixed
charges and preferred stock
dividends 1.61 1.58 1.53 1.51 1.51 1.45 1.59
======== ======== ======== ======== ======== ======== ========
</TABLE>
EXHIBIT 12.2
FINOVA CAPITAL CORPORATION
COMPUTATION OF RATIO OF INCOME TO FIXED CHARGES
(Dollars in Thousands)
<TABLE>
<CAPTION>
Three Months
Ended March 31, Year Ended December 31,
------------------ ------------------------------------------------
1998
1999 restated 1998 1997 1996 1995 1994
---- -------- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C>
Income from continuing operations
before income taxes $ 82,772 $ 66,686 $266,297 $224,191 $188,288 $153,883 $125,706
Add fixed charges:
Interest expense 131,183 110,280 478,177 414,650 365,603 337,188 210,256
One-third of rent expense 1,111 926 3,854 2,789 2,368 2,084 2,053
-------- -------- -------- -------- -------- -------- --------
Total fixed charges 132,294 111,206 482,031 417,439 367,971 339,272 212,309
-------- -------- -------- -------- -------- -------- --------
Income as adjusted $215,066 $177,892 $748,328 $641,630 $556,259 $493,155 $338,015
-------- -------- -------- -------- -------- -------- --------
Ratio of income to fixed charges 1.63 1.60 1.55 1.54 1.51 1.45 1.59
======== ======== ======== ======== ======== ======== ========
</TABLE>
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement
of The FINOVA Group Inc. and FINOVA Capital Corporation on Form S-3/A of our
reports dated February 10, 1999, April 23, 1999 as to Note T for The FINOVA
Group Inc. and Note R for FINOVA Capital Corporation (each of which expresses an
unqualified opinion and includes an explanatory paragraph relating to the
restatement described in those Notes) appearing in the Annual Reports on Form
10-K/A of The FINOVA Group Inc. and FINOVA Capital Corporation for the year
ended December 31, 1998, and to the reference to us under the heading "Experts"
in the Prospectus, which is part of this Registration Statement.
/s/ Deloitte & Touche LLP
Deloitte & Touche LLP
Phoenix, Arizona
May 26, 1999
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
----------
[X] CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2)
THE FIRST NATIONAL BANK OF CHICAGO
(Exact name of trustee as specified in its charter)
A NATIONAL BANKING ASSOCIATION 36-0899825
(I.R.S. employer
identification number)
ONE FIRST NATIONAL PLAZA, CHICAGO, ILLINOIS 60670-0126
(Address of principal executive offices) (Zip Code)
THE FIRST NATIONAL BANK OF CHICAGO
ONE FIRST NATIONAL PLAZA, SUITE 0286
CHICAGO, ILLINOIS 60670-0286
ATTN: LYNN A. GOLDSTEIN, LAW DEPARTMENT (312) 732-6919
(Name, address and telephone number of agent for service)
----------
FINOVA CAPITAL CORPORATION
(Exact name of obligor as specified in its charter)
DELAWARE 94-1278569
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification number)
1850 NORTH CENTRAL AVENUE
P. O. BOX 2209
PHOENIX, ARIZONA 85002-2209
(Address of principal executive offices) (Zip Code)
DEBT SECURITIES
(Title of Indenture Securities)
<PAGE>
Item 1. GENERAL INFORMATION. Furnish the following
information as to the trustee:
(a) Name and address of each examining or
supervising authority to which it is subject.
Comptroller of Currency, Washington, D.C.; Federal Deposit
Insurance Corporation, Washington, D.C.; The Board of
Governors of the Federal Reserve System, Washington D.C..
(b) Whether it is authorized to exercise
corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
Item 2. AFFILIATIONS WITH THE OBLIGOR. If the obligor
is an affiliate of the trustee, describe each
such affiliation.
No such affiliation exists with the trustee.
Item 16. LIST OF EXHIBITS. List below all exhibits filed as a part
of this Statement of Eligibility.
1. A copy of the articles of association of the
trustee now in effect.*
2. A copy of the certificates of authority of the trustee to
commence business.*
3. A copy of the authorization of the trustee to exercise
corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by Section 321(b) of
the Act.
<PAGE>
7. A copy of the latest report of condition of the trustee
published pursuant to law or the requirements of its
supervising or examining authority.
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, The First National Bank of Chicago, a national
banking association organized and existing under the laws of the United
States of America, has duly caused this Statement of Eligibility to be
signed on its behalf by the undersigned, thereunto duly authorized, all
in the City of Chicago and State of Illinois, on the 26th day of May,
1999.
The First National Bank of Chicago,
Trustee
By /s/ Sandra L. Caruba
--------------------------------
Sandra L. Caruba
Vice President
* Exhibit 1, 2, 3 and 4 are herein incorporated by reference to Exhibits
bearing identical numbers in Item 16 of the Form T-1 of The First National
Bank of Chicago, filed as Exhibit 25 to the Registration Statement on Form
S-3 of U S WEST Capital Funding, Inc., filed with the Securities and Exchange
Commission on May 6, 1998 (Registration No. 333-51907-01).
<PAGE>
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
May 26, 1999
Securities and Exchange Commission
Washington, D.C. 20549
Ladies and Gentlemen:
In connection with the qualification of the Indenture by and between Finova
Capital Corporation and The First National Bank of Chicago, as Trustee, the
undersigned, in accordance with Section 321(b) of the Trust Indenture Act of
1939, as amended, hereby consents that the reports of examinations of the
undersigned, made by Federal or State authorities authorized to make such
examinations, may be furnished by such authorities to the Securities and
Exchange Commission upon its request therefor.
Very truly yours,
The First National Bank of Chicago
By: /s/ Sandra L. Caruba
------------------------------
Sandra L. Caruba
Vice President
<PAGE>
EXHIBIT 7
<TABLE>
<CAPTION>
<S> <C>
Legal Title of Bank: The First National Bank of Chicago Call Date: 12/31/98 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-1
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
</TABLE>
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL
AND STATE-CHARTERED SAVINGS BANKS FOR DECEMBER 31, 1998
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding of the last business day of the
quarter.
SCHEDULE RC--BALANCE SHEET
<TABLE>
<CAPTION>
Dollar Amounts in thousands C400
RCFD BIL MIL THOU ----
---- ------------
<S> <C> <C> <C>
ASSETS
1. Cash and balances due from depository institutions (from Schedule RC-A): RCFD
----
a. Noninterest-bearing balances and currency and coin(1) ................. 0081 5,585,982 1.a
b. Interest-bearing balances(2)........................................... 0071 4,623,842 1.b
2. Securities
a. Held-to-maturity securities(from Schedule RC-B, column A) ............. 1754 0 2.a
b. Available-for-sale securities (from Schedule RC-B, column D)........... 1773 11,181,405 2.b
3. Federal funds sold and securities purchased under agreements to resell .... 1350 9,853,544 3.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from Schedule RCFD
----
RC-C).................................................................. 2122 31,155,998 4.a
b. LESS: Allowance for loan and lease losses ............................. 3123 411,963 4.b
c. LESS: Allocated transfer risk reserve ................................. 3128 3,884 4.c
d. Loans and leases, net of unearned income, allowance, and RCFD
----
reserve (item 4.a minus 4.b and 4.c) .................................. 2125 30,740,151 4.d
5. Trading assets (from Schedule RD-D) ...................................... 3545 7,635,778 5.
6. Premises and fixed assets (including capitalized leases) ................. 2145 739,925 6.
7. Other real estate owned (from Schedule RC-M) ............................. 2150 4,827 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M)............................................ 2130 202,359 8.
9. Customers' liability to this bank on acceptances outstanding ............. 2155 269,516 9.
10. Intangible assets (from Schedule RC-M) ................................... 2143 291,665 10.
11. Other assets (from Schedule RC-F) ........................................ 2160 3,071,912 11.
12. Total assets (sum of items 1 through 11) ................................. 2170 74,200,906 12.
</TABLE>
- ----------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
<PAGE>
<TABLE>
<CAPTION>
<S> <C>
Legal Title of Bank: The First National Bank of Chicago Call Date: 12/31/98 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-2
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
SCHEDULE RC-CONTINUED
DOLLAR AMOUNTS IN
THOUSANDS
LIABILITIES -----------------
13. Deposits:
a. In domestic offices (sum of totals of columns A and C RCON
----
from Schedule RC-E, part 1) ........................................... 2200 22,524,140 13.a
(1) Noninterest-bearing(1)............................................. 6631 10,141,937 13.a1
(2) Interest-bearing................................................... 6636 12,382,203 13.a2
b. In foreign offices, Edge and Agreement subsidiaries, and RCFN
----
IBFs (from Schedule RC-E, part II)..................................... 2200 19,691,237 13.b
(1) Noninterest bearing................................................ 6631 408,126 13.b1
(2) Interest-bearing................................................... 6636 19,283,111 13.b2
14. Federal funds purchased and securities sold under agreements
to repurchase: ........................................................... RCFD 2800 9,113,686 14
15. a. Demand notes issued to the U.S. Treasury .............................. RCON 2840 120,599 15.a
b. Trading Liabilities(from Sechedule RC-D) ................................. RCFD 3548 6,797,927 15.b
16. Other borrowed money: RCFD
----
a. With original maturity of one year or less ............................ 2332 5,385,355 16.a
b. With original maturity of more than one year ......................... A547 327,126 16.b
c. With original maturity of more than three years ....................... A548 316,411 16.c
17. Not applicable
18. Bank's liability on acceptance executed and outstanding .................. 2920 269,516 18.
19. Subordinated notes and debentures ........................................ 3200 2,400,000 19.
20. Other liabilities (from Schedule RC-G) ................................... 2930 2,137,443 20.
21. Total liabilities (sum of items 13 through 20) ........................... 2948 69,083,440 21.
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus ............................ 3838 0 23.
24. Common stock ............................................................. 3230 200,858 24.
25. Surplus (exclude all surplus related to preferred stock) ................. 3839 3,201,435 25.
26. a. Undivided profits and capital reserves ................................ 3632 1,695,446 26.a
b. Net unrealized holding gains (losses) on available-for-sale
securities ............................................................ 8434 6,349 26.b
27. Cumulative foreign currency translation adjustments ...................... 3284 13,378 27.
28. Total equity capital (sum of items 23 through 27) ........................ 3210 5,117,466 28.
29. Total liabilities, limited-life preferred stock, and equity
capital (sum of items 21, 22, and 28) .................................... 3300 74,200,906 29.
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that best
describes the most comprehensive level of auditing work performed for the Number
bank by independent external auditors as of any date during 1996.............RCFD 6724....N/A..... M.1.
1 = Independent audit of the bank conducted in accordance 4 = Directors' examination of the bank performed by other
with generally accepted auditing standards by a certified external auditors (may be required by state chartering
public accounting firm which submits a report on the bank authority)
2 = Independent audit of the bank's parent holding company 5 = Review of the bank's financial statements by external
conducted in accordance with generally accepted auditing auditors
standards by a certified public accounting firm which 6 = Compilation of the bank's financial statements by external
submits a report on the consolidated holding company auditors
(but not on the bank separately) 7 = Other audit procedures (excluding tax preparation work)
3 = Directors' examination of the bank conducted in 8 = No external audit work
accordance with generally accepted auditing standards
by a certified public accounting firm (may be required
by state chartering authority)
</TABLE>
- ----------
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
----------
[X] CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A
TRUSTEE PURSUANT TO SECTION 305(b) (2)
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION
(Exact name of trustee as specified in its charter)
A U.S. NATIONAL BANKING ASSOCIATION 41-1592157
(Jurisdiction of incorporation or (I.R.S. Employer
organization if not a U.S. national Identification No.)
bank)
SIXTH STREET AND MARQUETTE AVENUE
MINNEAPOLIS, MINNESOTA 55479
(Address of principal executive offices) (Zip code)
STANLEY S. STROUP, GENERAL COUNSEL
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION
SIXTH STREET AND MARQUETTE AVENUE
MINNEAPOLIS, MINNESOTA 55479
(612) 667-1234
(Agent for Service)
----------
FINOVA CAPITAL CORPORATION
(Exact name of obligor as specified in its charter)
DELAWARE 86-0695381
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1850 N. CENTRAL AVENUE
PHOENIX, ARIZONA 85002
(Address of principal executive offices) (Zip code)
----------
DEBT SECURITIES
(Title of the indenture securities)
================================================================================
<PAGE>
Item 1. GENERAL INFORMATION. Furnish the following information as to the
trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
Comptroller of the Currency
Treasury Department
Washington, D.C.
Federal Deposit Insurance Corporation
Washington, D.C.
The Board of Governors of the Federal Reserve System
Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
Item 2. AFFILIATIONS WITH OBLIGOR. If the obligor is an affiliate of the
trustee, describe each such affiliation.
None with respect to the trustee.
No responses are included for Items 3-14 of this Form T-1 because the obligor is
not in default as provided under Item 13.
Item 15. FOREIGN TRUSTEE. Not applicable.
Item 16. LIST OF EXHIBITS. List below all exhibits filed as a part of this
Statement of Eligibility. Norwest Bank
incorporates by reference into this Form T-1 the
exhibits attached hereto.
Exhibit 1. a. A copy of the Articles of Association of the
trustee now in effect.*
Exhibit 2. a. A copy of the certificate of authority of the
trustee to commence business issued June 28, 1872,
by the Comptroller of the Currency to
The Northwestern National Bank of Minneapolis.*
b. A copy of the certificate of the Comptroller
of the Currency dated January 2, 1934,
approving the consolidation of The
Northwestern National Bank of Minneapolis
and The Minnesota Loan and Trust Company of
Minneapolis, with the surviving entity being
titled Northwestern National Bank and Trust
Company of Minneapolis.*
c. A copy of the certificate of the Acting
Comptroller of the Currency dated January
12, 1943, as to change of corporate title of
Northwestern National Bank and Trust Company
of Minneapolis to Northwestern National Bank
of Minneapolis.*
d. A copy of the letter dated May 12, 1983 from
the Regional Counsel, Comptroller of the
Currency, acknowledging receipt of notice of
name change effective May 1, 1983 from
Northwestern National Bank of Minneapolis to
Norwest Bank Minneapolis, National
Association.*
<PAGE>
e. A copy of the letter dated January 4, 1988
from the Administrator of National Banks for
the Comptroller of the Currency certifying
approval of consolidation and merger
effective January 1, 1988 of Norwest Bank
Minneapolis, National Association with
various other banks under the title of
"Norwest Bank Minnesota, National
Association."*
Exhibit 3. A copy of the authorization of the trustee to
exercise corporate trust powers issued January 2,
1934, by the Federal Reserve Board.*
Exhibit 4. Copy of By-laws of the trustee as now in effect.*
Exhibit 5. Not applicable.
Exhibit 6. The consent of the trustee required by Section 321(b)
of the Act.
Exhibit 7. A copy of the latest report of condition of the
trustee published pursuant to law or the requirements
of its supervising or examining authority.**
Exhibit 8. Not applicable.
Exhibit 9. Not applicable.
* Incorporated by reference to exhibit number 25 filed with registration
statement number 33-66026.
** Incorporated by reference to exhibit number 25 filed with registration
statement number 333-25233.
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the
trustee, Norwest Bank Minnesota, National Association, a national banking
association organized and existing under the laws of the United States of
America, has duly caused this statement of eligibility to be signed on its
behalf by the undersigned, thereunto duly authorized, all in the City of
Minneapolis and State of Minnesota on the 26th day of May, 1999.
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
/s/ Jane Y. Schweiger
-----------------------
Jane Y. Schweiger
Corporate Trust Officer
<PAGE>
EXHIBIT 6
May 26, 1999
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In accordance with Section 321(b) of the Trust Indenture Act of 1939, as
amended, the undersigned hereby consents that reports of examination of the
undersigned made by Federal, State, Territorial, or District authorities
authorized to make such examination may be furnished by such authorities to the
Securities and Exchange Commission upon its request therefor.
Very truly yours,
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
/s/ Jane Y. Schweiger
-----------------------
Jane Y. Schweiger
Corporate Trust Officer
Registration No. 333-
---------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST
INDENTURE ACT OF 1939 OF A CORPORATION
DESIGNATED TO ACT AS TRUSTEE
--------------------
FMB BANK
(Exact name of trustee as specified in its charter)
MARYLAND 52-0312840
(State or other jurisdiction (I.R.S. Employer
of incorporation or formation) Identification No.)
25 SOUTH CHARLES STREET
BALTIMORE, MARYLAND 21201
(Address of principal executive offices) (Zip code)
GREGORY K. THORESON, GENERAL COUNSEL
FMB BANK
25 SOUTH CHARLES STREET
BALTIMORE, MARYLAND 21201
(410) 244-3800
(Name, address and telephone number of agent for service of process)
FINOVA CAPITAL CORPORATION
(Exact name of obligor as specified in its charter)
DELAWARE 86-0695381
(State or other jurisdiction (I.R.S. Employer
of incorporation or formation) Identification No.)
P.O. BOX 2209
1850 N. CENTRAL AVENUE
PHOENIX, ARIZONA 85002-2209
(Address of principal executive offices) (Zip code)
DEBT SECURITIES
(Title of the indenture securities)
<PAGE>
ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
Federal Reserve Bank of Richmond, Richmond, Virginia 23261
Maryland Bank Commission, Baltimore, Maryland 21201
Federal Deposit Insurance Corporation,
Washington, D.C. 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
ITEM 16. LIST OF EXHIBITS.
List below all exhibits filed as a part of this statement of
eligibility.
EXHIBIT
- -------
1 A copy of the articles of association of the trustee as now in effect is
incorporated herein by reference to Exhibit 1 to Form T-1 (Exhibit 25 to the
Registration Statement on Form S-3, Registration No. 333-27305)
2 A copy of the certificate of authority of the trustee to commence business is
incorporated herein by reference to Exhibit T1-2 to Form T-1 (Exhibit 26 to
the Registration Statement on Form S-2, Registration No. 2-98697)
3 A copy of the authorization of the trustee to exercise corporate trust powers
is incorporated herein by reference to Exhibit T1-3 of Amendment No. 1 to
Form T-1 (Exhibit 26 to the Registration Statement on Form S-3, Registration
No. 33-18373)
4 A copy of the existing bylaws of the trustee is incorporated herein by
reference to Exhibit 4 to Form T-1 (Exhibit 25 to the Registration Statement
on Form S-3, Registration No. 333-27305)
5 Not applicable
6 The consent of the trustee required by Section 321(b) of the Act
7 A copy of the latest report of condition of the trustee published pursuant to
law or the requirements of its supervising or examining authority
8 Not applicable
9 Not applicable
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the
Trustee, FMB Bank, a corporation organized and existing under the laws of the
state of Maryland, has duly caused this statement of eligibility to be signed on
its behalf by the undersigned, thereunto duly authorized, all in the City of
Baltimore and State of Maryland, on May 26, 1999.
FMB Bank
By: /s/Robert D. Brown
--------------------------
Robert D. Brown
Vice President
<PAGE>
EXHIBIT 6
CONSENT OF TRUSTEE
Pursuant to the requirements of Section 321(b) of the Trust Indenture Act
of 1939, in connection with the issuance by FINOVA Capital Corporation, we
hereby consent that reports of examination by Federal, state, territorial or
district authorities may be furnished by such authorities to the Securities and
Exchange Commission upon request therefor.
FMB Bank
By: /s/Robert D. Brown
--------------------------
Robert D. Brown
Vice President
<PAGE>
EXHIBIT 7
Report of Condition Consolidating Domestic and Foreign Subsidiaries of FMB Bank,
Baltimore, Maryland, at the close of business on December 31, 1998 published in
response to call made by Comptroller of the Currency, under Title 12, United
States Code, Section 161, Charter No. 04822, Comptroller of the Currency,
Richmond District.
CONSOLIDATED REPORT OF CONDITION
(Dollars in Thousands)
ASSETS
Cash and balances due from depository institutions:
Noninterest-bearing balances
and currency and coin .............................. $ 1,199,940
Interest-bearing balances ............................ 6,943
Securities:
Held-to-maturity securities ................................. -0-
Available-for-sale securities ............................... 4,602,042
Federal funds sold and securities purchased
under agreements to resell .................................. 123,418
Loans and lease financing receivables:
Loans and leases, net of unearned income .................... 10,501,474
LESS: Allowance for loan and lease losses ................... 154,697
LESS: Allocated transfer risk reserve ....................... 1,400
Loans and leases, net of unearned income,
allowance, and reserve ............................... 10,345,377
Trading assets ................................................ 118,269
Premises and fixed assets (including
capitalized leases) ......................................... 188,979
Other real estate owned ....................................... 12,416
Investments in unconsolidated subsidiaries
and associated companies .................................... 58,643
Customers' liability to this bank
on acceptances outstanding .................................. 12,253
Intangible assets ............................................. 91,109
Other assets .................................................. 355,315
TOTAL ASSETS ......................................... 17,114,704
===========
<PAGE>
LIABILITIES
Deposits:
In domestic offices ........................................ $11,898,282
Noninterest-bearing ................................. 3,228,185
Interest-bearing .................................... 8,610,097
In foreign offices, Edge and Agreement
subsidiaries, and IBFs ................................... 517,687
Noninterest-bearing ................................. 0
Interest-bearing .................................... 517,687
Federal funds purchased and securities
sold under agreements to repurchase ........................ 2,223,081
Demand notes issued to the U.S. Treasury ..................... 56,020
Trading liabilities .......................................... 71,866
Other borrowed money:
With a remaining maturity of one year or less .............. -0-
With a remaining maturity of more than one year
through three years ...................................... 200,000
With a remaining maturity of more than three
years .................................................... 239
Bank's liability on acceptances
executed and outstanding ................................... 12,253
Subordinated notes and debentures ............................ 219,000
Other liabilities ............................................ 565,161
TOTAL LIABILITIES ................................... $15,763,589
===========
EQUITY CAPITAL
Perpetual preferred stock and related surplus ................ -0-
Common Stock ................................................. 18,448
Surplus ...................................................... 765,562
Undivided profits and capital reserves ....................... 543,808
Net unrealized holding gains (losses)
on available-for-sale securities ........................... 23,297
Cumulative foreign currency translation
adjustments ................................................ -0-
TOTAL EQUITY CAPITAL ................................ $ 1,351,115
TOTAL LIABILITIES AND EQUITY CAPITAL ................ $17,114,704
===========
